Fplp Jul Aug 2008
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FI;ORIDA PRISON LEGAL ers ~ectives VOLUME 14 ISSUE 4 ' ISSN# 1091-8094 -Florida Parole CommissionRacism, Cronyism and' Discrimination . Alleged by Former' Commission Chairman by Bob Posey n the last issue of FP~P it was reported that racial diversity, or rather, the lack th.ereof,. in the makeup of the three-member Florida Parole Commission (FPC) bad ,become an issue when in June ·Gov. Crist and his Cabinet' were faced. with picking, a replacement for Commissioner Fred Dunp~y, whose six-year term on the FPC was scheduled,to expire at the end of June. Out of mbre than SO applicants for the position, the Parole Q~fications ~mmittee, a committee appointed by.the C~blDet, submitted three people for consideration: Fred Dunphy. to retain the position; Tina Hayes, current FDOC Director of, Initiatives; and, term:limited State Representative Curtis Richardsop (0-Tallahassee). Both Hayes and Richardson are Black, while D!Jnphy and the other two current FPC commissioners. Monica David and .rena Pate, are White. . •For several years now the commission, w~ose core job IS (suppo~ to be) making parole decisions on Florida's dwindling, mostly Black, .parole-eligible prisoners and parolees; has been all White, That has created' criticism I PAMIUIISADVOCATBS PKISONBIlS [-.---- . . I I, j i I 'JYLY/AUG, 2 and calls 'for greater Ilcial diversity. Calls which have largely.fallen on deaf ears. according to some. Keeping it White Although a decision was scheduled to .be made .concerning the FPC opening on June lO,.the decision was delayed until. mid-August. And then the governor and Cabinet (who are all White), sitting as the Board of Executive Clemency, voted unanimously to give Dunphy a third six-year-term, in effect ~nsUring an all-White parole commission for the next several years. The Board of Executive Clemency consists of Gov. Charlie ··Chaing'ang" Crist, Attorney General Bill McCollum. Commissioner of Agriculture Charles Brunson,. and Chief Financial Officer Alex Sink. Alex Sink is a Democrat while the other three are Republicans. In addition to voting to retain Dunphy as a parole commissioner. the Board of Executive Clemency v.Dted 3~ to make .him Chairman of the commission. Sink was the lone disse~ter !,n. that vote. Earlier in' the process she wanted the board to reject all three of the finalists and send it back to the Quaiifications Committee for a new list,. but none of the other board members would second that motion. . Current Commissioner Monica David, who had been the Chairwoman, was reappointed to a second six-year term in 2006, she now becomes Secretary of the FPC. Vice Chairwoman Tena Pate was. appointed to the commission in 2003 by former Gov. Jeb Bush, to fill the vacancy created when former FPC C~airman Jimmie 11 ...- - - - . 'ON ~lDB US· District Cl Tenninates Osterback Injunction .4 FDOCPrison Guards Indicted ; : 6 ReadeI'S Respond...•.•.•.....••..•.•..•..•.••.•.•.............................•.....7 . . ' Post Conviction Comer....•..•.......•.•....•....................... ~ ..........•9 News· In Brief ~~ ~ · ~20 - ' Florida Prison Legal Perspectives "We were faced with selecting' an all-female commission or an all-White comnUssion," said Alex Sink The only Black male finalist, State Rep. Curtii Richardson, had withdrawn his n!UDe by the time 'of thf vote because be lacked the J8w enforcement background that Crist and the Cabinet Wanted for the $92,S74-a-year pOsition.- rJlatleft the decision d~wn to-a choice between DunphY or Tma Hayes of the FDOC. No eXplanation was given why the -name'of another, male applicant advanced as afmalist once Richardson dropped out. "The fact that· the people coming before the parole . board, the majority of the population appealing are African-American applicants theY should be judged. bya jury of their peers." said Alex Sink. A sentiment more idealistic thantealistic. The concept of "judgment by peers", has. no role in :the· parole p~ as practiced in Florida considering the contrasts ,between parole commissioners (privUeged Whites' earning almost S100.00o-a·year and' who' have' a vested interest in not paroling the dwindling. _number -of parole-eligible prisoner:s. ofwhicbonly a Iittle:over,S.OOO remain) and the parole-eligible population (who are, in the majority. prisonerS who have been in prison for decades now. who have little or nothing. who have, been branded as pariahs for past crimes. who are disenftanchised.. and who are dispropo~onately Black). ..' - wasn' I Issues Deeper.Than Divenlty ,Florida law mandates both gender and raCial diversity in, the makeup of the FPC: However. by allowing the Parole commi,ssion to remain all White. thecommeqts of Muslima Lewis. an attorney with the ACLU and ~irector '. of the Florida Right$ ,Restoration Coalition, appear to be on point. "CPO AI~xSink made an' effort. It fell on deaf ears. 'Itcshbws the issue of diversity is not apriority." said Lewis. "They had a sensitivity,to gender diversity and that is important too.' But racial diversity and' its importance in the criminal justice 'systeJn:and especially re-ently (to society) is, paramount. especially as it disproportionately impacts minoiities. You can find the right eandidates. There are plenty 'of talented. qualified people of ~can descent." Le~s commented on the Clemency Board's decision to retain· a White commiSSion, Florida State Conferences of NAACP Branches President Adora Obi Nwsze noted. "We' are very ,disappointed wi~ tfte Cabinet's decision. We would have hoped they would have seen fitto diversify this body." , Yet. whUe some only saw the issue as one of diversity. at least one person wi~ extensive, personal experien" and knowledge of the parole. commission feels thittlie real issues go much deeper. , '''The more devastating dilemma for tfJe gGvemor and Cabinet is not diverSity. but th~ ncism. cronyism and . discriminatory-practices that h,ave been allowed to exist on the commission, with the. knowledge of the ,governor's 2 , " Florida Prison Legal Penpectiws ' office, though not the governor himsel(" wrote a fOrnier parole commissioner'in an op-ed letter recently printed ,in ' the Tallahassee Democrat. Charles J. Scri"en continued to explain his uniquely infonned perspective in his letter. " ' "The - situation started during ,the Jeb 'Bush ad~inistration, dUring which the most recent appointment' was made to the commission~ There was ali' able black Department of Corrections administrator amoDg the finalists. Mr: Bush perSuaded the Cabinet, which included Mr. Crist,: who was then attorney general. to support his nominee, Teria Pate (who was .the ,state's top' victim adv0C4te 'at the time). Only fonnerInsurance Commissioner' Tom Gallagher' dissented, 'and the. commission:became all white again," $criven wrote. "I1l 1974~ th~n-Gov. Reubin Askew and the Legislature expanded' the Parole Commission. from five to. se,ven members, and act designed to make it possible for a black and a woman to be added to the commission at the time. It was a foregone conclusion that some equity was needed in gender and race. I was the first black appointed to the commi~ion, 'and Anabel P. Mitchell; a DOC prison superintendent, was the first woman:" '. " "I 'won't tJyto describeth~ lack. o~ equity or opportunities for women or blacks at 'that' time except there were no black hearing examiners or black executive' secretaries anywhere to be found in the agency. DUring _ my 12 years on the commission, some fairness in hi(ing 'practices was· accomplished, .especiallY' when I w.as chairman (1976-78), and with .the support, of the entire ·commission. The,presenee of equity in gender and ~ is still essential for' the appearance of faime~;becausethe balance is always tilted in favor of people who look like and think like you. Still, the issue around~e current appointment'is not diversity. but racism and cronyis?, !hat I believe has increased in recent years on the comnUSSlon, which lives and grows when left to itsel(" wrote Scriven, who then.continued. " , ,, "I have written Gov. Crist, copying Attorney G,eneral Bill McCollum and CFO Alex Sink, regarding what I believe has been an, unfair and biase4 practice of the commission in selecting, .those (re~~red commissioners) who are asked to serve on an interim' basis (when one of the current commissioners is not available), when needed. As a former commissioner and chainnan. for example, I am eligible, but have been called to servejusfonce sinCe 2003. while others have been in the rotation as many as 20 times (an apparent reference to Judith Wolson, most often asked 'to fill in for absent commissioners, a white . female)." '. , ' . ' . ..' "I have inquired but have never heard from either the commission or governor's office abOut this inequity, and when ,I asked for public infonnation regarding how col1Ullissioners are chosen to serve on an interim basis, and they've been paid, 1received a reply nine months later from the commission's general counsel that contained . none ofthepubUc records rd, requested. A later request to the inspector. general's office. confmned that the commission had provided' me With 'what infonnation was available.' I am astounded to know that the records of persons who worked for the state, and what they were paid, is unavailable," complained Scriven. .. . . Wrapping up his letter, ,Charles Scriven posited a question that no one seems to want to acknowledge, much less answer. . . . "Gov. Crist inherited a Parole Commission that ,in my view bas shown its inability to be fair with. a fonner member of itS own who happetis to bo black. This-raises the question of how ,it can be fair to the disproportionate number .of black (parol~ligible) inmates in Florida's prison system? No, the real issue regarding this appointment to the commissionis.not diversity, but racism and cronyism." • ." . ,, Help Supp~rt FPLAO , . If you haven't :made a donation to Florida Prisoner:s' Legal·· Aid' Org.. Inc., recently, please do so now. Membership fees and ads jn FPLP only cover the ~O'stofpublishirig'and mailing this valuable news jouinaI.In order for FPLAO to take on additional projects to improve cOnditio~ for Florida prisoners and their families additional donations are needed. Donations of money -or,' postage. stamps. in any amount, are greatly appreciated and helps FPL'AO continue' its mission of being' the most. effective and proven -ch6ck-and-balance on the Florida prison system. Thank You" for your support. what 3 '. .:~ > Florida Prison Legal'Perspectives .. 'The Researcher's Nightmare, .. Notwi~s~~ing the need for ,continuously up-dated Cltators. like Shepard's which ,provide annual; semiannual; quarterly; bi-monthly; monthly; mid-monthly. an~ advance sheet .updates. keeping the·, researchers information current to within two weeks. the FDOC has magine' being an attorneY or an education-trained decided in~ to install the CD-ROM version of , paralegal working under the supervision of a licensed W~stlaw's "Keycite" program. attorney. having, to wade your way through the hundreds Admi~dly. "Keycite"is ~ updated as the Shepard's if" 9f thousands of case decisions currently published in the and only If, you have access to the internet. However. the numerous reporters without being able to research a case's ve,rsion us ,prisoners will be provided 'will only be history. A nightmare right?' ,Yet" this is exactly what updated every three months o.n January 1". April I". July moc expects from itS.prisoners. ' Ill, an~ October 111. This i~ ifwe are lucky enough to have Recently. the FDOC posted proposed rule changes for the programmer up-date our individual priso~s in a timely Chapter 33. A simple review' of the proposed changes planner. Those of us who have;spent some time in FDOC makes'olear that since the FDOC installed the CD-ROM know that this iii highly unlikely. " version of WESTLAW. it believes there is no longer "a ,Even so. as of February 2008, you will 'probably have need 'for the Shepard's Citations, a critical legal research tool., . , ' . , noticed, th~ Shepard's Citations have not been updatedD?C has ~mplemented its' new pOlicy. Believe jt Or not, Previously, 33.S01.301(2Xl). F.A.C., required the thIS has caUsed some concern among DOC officials. ~'Florida and Federal Shepard's indexes." This was echoed In a recent inter-departmental memorandum, some in the Procedure Manuel. See: P.M. SOI.301(l)(b). DOC , offic:ials .have .recognized the problems with However, the 'department replaced "Shepard's Citations" Shepard's CitatOis. Could it bO, that these ' removing'the with "... case status of a court decision over time or to officials know that ifa,nyone of us is injured in identify related court decisions..." See: 33-501.301(2)(i) c?nte~~lated or existi~g I.itigation· we may have suit for (proposed Rule Changes). vlC?lauons of our constitutIonal. rights? See: lewis surpra What exaCtly does'this'Diean? It appears to this writer at 349. ", ' ' ,', that th~s is a generic phrase' thai, means' nothbtg more than , Shepard's Citations are .not specifically required as part you Will.no' longer be, able to effectively, or adequately of our law libraries collections, however, updated cmt update your case research. ," ' legal informatio~is. See: Bounds, supra at'S27. (stating " In U.S. v. Beckwilli,the Federal District 'Court fOf the "[!]t is lJartic~I!U'ly important thlt officials provide i~ District of Utah stated that in order to afford a defendant WIth access to a source cif curren/legal information.") an adequate. opportunit)!, for, the prep.aration of h~s case. , Is there; anything we can 'do? Probably not since. as ~efendant must, be : allowed, access to, among other ?oted, '~he~'~ are not themselves sPecifically required p~blications. Sh~p'~'S Citations ,when representing; ID the law library, collections and a section '1983 ,claim' hamself. 987 F.Supp;134S, 1347'(0. Utah 1997).. ' ' d~ not lie in a priSOI.l'S refusal to subscribe to and . ~gal precedent, ,as we all know by now, develops in PfQvide Shepard's Citations:. ' an 1Dcreme~~ ~hi~~ •. ~~n one case, is ci~ by a But, keep your eyes, 'Open, sometime in the very near , seco~~ deciSIOn, ~pprop~ate methodology requireS that future one of us will be inj~re:d by either citing bad law or . the second decision be read and its histOty searched. This may in tum require the process to be repeated over and ' , not catching'a bad ci~ by the State as a direct result ofthe FDOC's decision to, r:ely on the CD-ROM version of . over ~gain. WithoUl a, method Uke Sh~parci'S ~itati~ns for "Keycite." " ., , . chec~~ the histo~. of .lJ, ~e, legal res~ch of' any, At that time, you may have a constitutional violation quality IS extremely difficult. See:, Wesl Pub. Co. v. Mead for which you can seek redress from the court Until then Da/aICent., Inc., 616' F: 'Supp. 1571,'15S3 o.l (0. Minn. be diligentin your research, check and double-check you; 1985). ' , ',,,', case cites. do not allow the FDOC the satisfaction of In fact, even the U.S. Suprem~ Court iil Bowu:Js k~ping you locked up one d,ay longer than necessBry. _ considered.the failure to include Shepard's Citations in the collection list of a prison law library as a "questionable . ' oa,nissi9n." S~: }Jmpu/s v. $milh, 430 U.S. 817. 827 (1977). (overruled in part by lewis v. Casey, 518 U.S. 343 "U.S. District CQurt Terminates (1996». . OsterbackIQjunction , Moreover, the American Corrections Association '. by Melvin P6rez (ACA), the Am~ri.can Bar Association (ABA). and the American Assoclauon ofLaw Libraries. require prisons to retain Shepard's Citations as part of its minimum n' a 12 page, opinion issued by the U.S. DiStrict Court, collection for approval. See: Lindquisl v. Idaho Slale Bd. Middle District 'of Florida, 'Jacksonville Divisiont on th . .' _ • . • oICorr.• 776 F.2d 851, S56 (9 Cir. 19S5). , ,by AnthonYM. Gallagher . ., I I 4 Florida Prison Legal Perspectives March 25, 2908. the Court terminated the OSlerback injunction. As many of us know, this case brought about major changes to Close Management (hereinafter CM) units around the State and othe~ types of segregationuni~. Some ofthese~changes included: ' , • Reducing the number'of institutions that house CM prisoners from ten institutions to four .institutions (one for females at Dade CI and three for males at Florida State Prison, Santa Rosa CI, andCharlotte CI). • ' • ,Conducting staff training on mental health issues relevant to CM population. ' • Performing mental health screening before and after plaCement in CM to help ensure timely access to necessary mental health services. ' . • Assessing behavior risk for each CM prisoner, in order to provide more objective information to' be used for mental health and other service planning and administrative decision-making. ' • Providing a full range of outpatient mental health services that are cOmmensurate with clinical need. • Providing self-betterment/stimulation programming to CM prisoners. The case was initi~ted by three' prisoners, Mark oQsterback, - Thomas Gross, and Darryl' ,E. Williams, on August 28, 1997. And later certified as a class action on July 26, '2000, for all prisoners assigned to CM or who in the future will be assigned toCM. In terminating the injunction under the Prison Litigation Reform Act-the Court held that: ,1)' CM staff receive adequate training regarding the needs of CM, but some officers occasionally fail to adhere to that training;' ' 2) the DOC provides adequate mental health screening ofCM prisoners; , , 3) the DOC ensures that CM prisoners have timely access to necessary mental health services; 4) there are sufficient qualified mental health staff at , eM institutions; '5) mental health staff are able to take meaningful steps to ad~ress a prisoner's mental heal~' needs despite any restrictions placed by security staff; 6) CM'prisoners are housed in units that are suited ror extended confinement; i ' 7) although there are occasions when a prisoner loses privileges, for simply speaking to another prisoner, these incidents are i,solated and CM prisoners have adequate opportunities to communicate with each other; . 8) CM prisoners have, adequate access to the dayroom and to reading materials, telephones, radios and television; , 9) CM prisoners have adequate opportunities to ,exercise; and, ' . .I 0) CM prisoners have adequate access to educational opportunities~' and have adequate opportunities to make canteen purchases 'and engage in visitation. , If you are reading this article housed in aCM unit cell, you may find this ruling bizarre. But, despite the fact that·these are not isolated incidents as the Court found, many prisoners sqbjected to abuse on CM units are not speaking out. Many know they will be beaten, or even killed ifthey do. The beatings,. gassings and atrocities ,that are carried out by some guards in theseCM units are known throughout the system. , Prisoners' enforced silence, which ties the Courts' hands on what relief they can provide,' gives ,the cowards who beat prisoners while in handcuffs. torture them with chemical agents (~hile the prisoner is in the shower or in his cell handcuffed), deny recreation, canteen .and o~er privileges; deprive prisoners of property and food; feed prisoners loaf (an unappetizing substance made by mixing various foods and baking the mixture); have prisoners sleeping on a steel bunk in boxers with 18° temperatures, and write bogus disciplinary reports that up-grade. prisones:s to other, CM 'levels, ,the motivation to continue to abuse prisoners. While the Court strongly encouraged the DOC to keep the "Staff Training,", "Mental Health Screening," "Mental Health Treatment," and " "SelfBetterment/Stimulation Programming for' CM prisoners," it may just be a matter of time before CM units ,return to pre.Osterbac/c" .and DOC ·starts opening CM units around the State, as it initially intended. . ,To read the Court's full opinion, See: Osterback v. McDonough, 21 Fla. L. Wkly Fed. D 234 (M.D. Fla., . March 25, 2008). ENDNOTES • Actually, the FDOC cheated on the number of CM institut~ons by housing CM~lassified prisoners at Union Corr. Inst also and designating' it a Florida State. Prison'"annex"-just in relation to the UCI CM units. _ . .5 Florida Prison Legal Perspectives FDOC Prison Gua-:ds Charged,in Drug Conspiracy -Opinion-' Taser Law: Now'Judges Change .Medical Facts To Tailor-Make Decisions by Richard Geftken ince 1999 mo~ than 300 Americans have been killed by tasers used by the police. Some people were merely shopping. .' On May 2, 2008,. Ohio Judge Ted Schneidennan ordered 'Dr. Lisa Kohler, the M.D. licensed to be medical examiner for Summit County, to change'three death certificates. Moreover, she w~ ordered to delete any reference which might suggest being shot by tasers contributed in any way to these murders. The reason is Taser Corporation's. net worth rose from $19 million in 2006 to $49 million in 2007. News that the weapon is lethal might, hurt .sales, especially of their model x26, often called "a sadist's delight" because of the horrors it inflicts while police torture captives., Judges have been altering the law to arrive at orchestrated decisions for far too long. The reason courts use no longer' resembles any kno\W logic. However, it is not rare to find them changing the facts to suit the result they desire. . Until May 2, 2008, it would be up to a jury to decide if Dr. Kobler's professional medical opinion was factually incorrect. Prior to the 21 II century that would involve testimony by conflicting experts. Instead, Judge Schneiderman simply dictated his own explanation for tWo of the three victims. ,Dennis Hyde and Richard Holcomb. He invented "delirium . syndrome" or "agitated delirium", as the cause of death. ' . Neither term appears in any medical manual, but Taser . Corp. currently funds research on "excited delirium." It hopes to blam~ victims for contributing to their own .deaths due to prior prescription drug use or mental illness. Nothing was suggested. about the third victim, Mark D. McCullaugh, Jr., who was a prisoner in Summit County Jail Tbere was no history of prior drug use or mental' illness; Dr. Kohler, M.D., was· simply ordered to delete her. findings it was a "homicide" caused while suffering "multiple restraint mechanisms with ·beating and anal penetration." So much for innocent until proven guilty~ Except for the five deputies charged with sodomy . and murder. In that situation the medical facts are changed by the judge before they stand trial on June S 16,2008•• 6 MIAMl- During July 2008, five' Florida Dep8rtment of Corrections (FDOC) prison guards who worked at Dade Correctional Institution, located in Florida City near Miami, were indicted on charges ofconspiring and attempting to traffic illegal narcotics inside the prison and for accepting cash payments from prisoners in return for helping to deliver narcotics inside Dade CI. . Charged and arrested.were Captain Jimmy Lee Love, Jr., and Correctional Officers Shantavia A.L.. Johnson, Dennafd G. Fluker, Alexander J. Davis, and Ivis N. Grace. Felicia Z. Calloway, a contract employee with the private company that provides food service at Dade CI, was also charged and arrested. Also named in the indictments were six prisonen; Arnold S. Lindsay,.Jr., Jose Rodriquez, Henry J. Be~jamin,Nilo Penton, Joseph Springer, and Leon O. Montes, as well as Barbara N. Rodriguez, an associate ofone ofthe prisonen. The four indictments stemmed from Operation Birdcage, an FBI undercover investigation and sting into corruption at Dad" CI. The operation involved several meetings in which an undercover police officer\ posed as a druB dealer. The underCover agent reportedly was referred to prisoners who were connected to Dade CI, and contract, employees. That led to a series of meetings between the agent, certain prison guards, the contract employee, and the prisoner associate, whicb were surveyed and recorded. As a result of'the. meetings, the agent supplied the defendants with fiike cocaine and heroin for introduction. into the prison, and money ,payment for their services. If convicted, the defendants. face a maximum 2o.year sentence .on each charge and a $250,000 fipe•• Private Prison Accused in Prisoner Staph Death T he family of a Florida prisoner wbo died from a drugresistant staph infection (MSRA) claims she contacted it because she had ~n deprived of water for bathmg and 'toilet use at a· state prison operated by the private company Corrections Corporation ofAmerica (CCA). A lawyer, Patrick R.Frank, representing the estate of Emma ' Nobles, who died of MSRA Dec. 15,2005, in a Tallahassee hospital, made the allegation in notice of intent to sue letters sent to two state agencies duriJ)g August 2008. According to Frank's claims, water was turned off for days at a time at the women's prison, Gadsden Corr. Facility, apparentl)( as a costcutting measure. Prisoners at. the facility, including Nobles and others who contracted MSRA. went witho. water in restrooms and bathing facilities possibly for up to a week at a time. Investigation has shown that prisoners were forced to defecate in plastic bags instead of using toilets which were then collected in barrels kept in the prison dormitories, all&lges Frank. . . Nobles, 51, of Wewahitchka, only had 60 days left to complete a drug possession sentence of a little over a year when she died.• Florida Prison Le -al PerSpectives Dear FPLP: I've been doing time for a long time and just want to express a total lack of respect for those liars who every year roll out the same old ti~ rumors to get the uninformed and/or igno~:1t among the pri~n population all worked up and spreading lies. Let me clarify a few facts: Nobody. not the Legislature. the governor. the FDOC, the Parole Commission. etc.• is going to convert old life sentences to 40-year sentences and let thl? lifers go. First, th~ public would go ballistic ifanyone even seriously suggested such a thing (which. despite rumors. no one ever has). It would be on every front page. and the top story on TV news. -Victim groups would be allover it in opposition: Second. there is the little matter ofthe courts. To reduce or'lengthen any sentence there must be a resentencing. While way in thepas~ in F,Jorida. it was law that a life sentence was a 40-year sentence. for specific crimes. such law has long been ch~ged to where life means life. And don't ever think Florida will reduce preyiously-imposed life sentences to save money.' Prisons are big business. there will always be moiley for them. Just look at this year. every agency took budget cuts (5900 million in public education alone). except for the FDOC.it was given!!!2m money to'build more prisons. -Concerning another tire~. old. womout rumor-lie. converting 85% sentences to 65% and letting people go; Not going to happen. not as long as politicians want to keep their jobs. Not without a major change in tIle'law-that woul4 be plastered all over newspapers and TV-and not without major court involvement. Come on. That lie is ~om out., Are you retarded to keep repeating and believing it year after year? Instead of spreading rumor-lies to make yourself feel iniportant, how about doing accurate research, keep up with the facts. eliminate exaggeration 'from the information you pass on. 'and gain respect for ~ .passing on verified. accurate information? Or you can ~eep,on Starting or repeating the s~e old rumor-lies year-after" ' ...., ' year and continue\being what y~u are. and w~at everyone will know you as. a liar. TO DCI Dear FPLP: I read the column written about Mayo CI and wanted to share an incident that I had with staff at Mayo. I was , working in ~e kitchen wiping tables when a sergeant came to me and loudly told me "don't you see all those inmates coming in the door." Then he said that he thinks that I better get my MFA to the other side so that I could clean tables for them to sit. So I and another prisoner were cleaning and the other prisoner walked away. Then the sergeant walked back over to me and said that he thought that I should g~t my sonY ass over there and start off where the other prisoner left off. I then asked him ifhe had a personal problem with me and he got mad and went to the captain. The captain called me over . and as I was t~lIing him what happened. the sergeant came behind me about two inches from my back. He then asked the captain "do you want me to lock hisF-ass up:"On the way to medical. the sergeant called another'officerto help escort me: On the way outofthe medical building, the two ~fficers started hitting me in the back of the head. When they ,were done the sergeant told me that ifI was to tell anyone that it would happen again. Then the other officer said that he . would kill me ifI did. I was then placed in confinement. When the inspector called me I told him what took place. He in tum threatened me about saying anything about the' incident and took no action. My classification officer also called me and threatened to place me back in confinement iff said anything else about this. Since I have been at Mayo. I know of three other prisoners that were beaten by one of,these same officers that hi~ me. Nobody seems to take action against these guards ~t have been doing this to so ,many prisoners. it has become cominon practice with them. BW MCI '" unfortunate FPLP: It is unfortunate that a female prison guard was recently killed by a prisoner at Tomoka CI. It is equally that in Florida females are allowed to even be guards inside male prisons. and that· male guards work at the female ' prisons. Inside the male prisons. female guards are frequently the cause of male prisoners being beaten and abused. If a· female guard claims a prisoner has been "looking" at her. most often the prisoner will be taken to confinement, or another· secluded area. and' while handcuffed and shackled. he will be beaten by a gang of male guards; Same if a female guard claims a'prisoner "disrespected" her. or even questions her often overly-sttict or wrong interpretation of a rule or policy that she often has never even read. or one that she just made uP' because she coUld. ,While some female guards are professional. many others are not. Let one be having a bad day, like younger women often have several days each month. and prisoners often suffer the consequences. Let one be going through menopause and it can be like having a demon from hell on a prison compound, especially if she ,has a little rank. Female prison guards are often insecure and afraid of male p'risoners and so overreact to petty infractions by prisOners, or overreact to tty to appear "tough,II even when such isn't necessary and in itself causes unnecessary problems.' It is not uncommon for female guards to curse at and talk to male, prisoners like a dog, they are trained that this is intimidating and a way to keep control. Occasionally they pick the wrong oneta abuse. lie about, or have beaten. and then the tables tum. Unfortunately. DB WCI 7 .. Florida Prison Legal Perspectives Dear FPLP: I wanted k> bring it to your attention that I presently have a Petition for Writ of Certiorari in ·the 2nd District Court of Appeal [#2008-2621] that may tum out to be very helpful tc;) quite a few inmates in FDOC. It deals with FDOC acting without statutory authority in placing me on Post Release Supervision, under the Repea,Ied Provisional Release Program. It's a unique case because FDOC is claiming that the Provisional Release Program was revived by the "Lynce" & "Gomez" decisions and that gave them authority to release, supervise. violate amJ return me under that program despite the. fact that all the Florida Statutes and F.A.C. rules that govern this program have been repealed since 1993. The FDOC counsel position, claiming revival via th~ Lyilce'declsion, puts them in a' catch-22. If the DCA agrees with their revival claim, then that means the whole Provisional Release Program was revived in 1997 and FDOC owes thousands of inmates. thousands ofProvisional Credits now. And ifthe DCA rules in my favor, FDOC has been putting inmates (under this old system) out OD Provisional Release SuperVision without any aUthority at all, since 1997. I believe I am going to prevail on this motion in the DCA and as I said it will affect a lot of inmates under the old system and exposes FDOC's abuse of power in just one more situation. I don't know if you are able to review this Petition on the Internet but I assure you it is very interesting reading indeed. FDOC will file their response to our motion by August 1st, after two extensions of time. and then my' Attorney gets'to file our reply to their response. Our motion is very strong and as I said earlier a - unique ~ase. I urge you to review it ifyou can. Keep up the good work. JP FSP . I?ear FPLP: As we all knew. the corruption and wrongdoing in the Florida prison system wasn~t wiped out while former FDOC Secretary McDonough was trying to clean it up. it was just laying low and waiting for him to· leaye.. Since Mr. McDonough ,was forced to resigr:t' earlier this year when he angered state lawmakers by being so outspoken about ... "rehabilitation" of prisoners, by pushing for reforms that would have actually reduced crime. recidivism, an~ the need to build more prisons, the corruption and wrongdoing that is at·the very core of the FDOC is again rearing its ugly.head. The abuse and beating of prisoners. which hacl almost stopped under McDonough, is once again becoming commonpla~ at many prisons.· Especially those in the Panhandle and North Florida regions, specifically Santa Rosa, Gulf. Washington. Taylor, Mayo and Union CIs.' At Union CI the guard-on-prisoner violence has dramatically increased in the past few months. Elderly prisoners are being bea~n, some injured requiring hospitalizatioD.aS are confinement, CM, and mentallyill prisoners. In just the past month two elderly prisoners at the UCI open population SW Unit weie\severely beaten by male guards instigated by female sergeants on the 4-12 shift. One prisoner remains in an outside hospital undergoing facial restructuring. The pther was beaten in the face with a metal walkie-talkje wbile being questioned about why he was sending letters to o~ide agencies about prisoner abuse at UCI. Both beatings were coyered up with bogus charges against· the prisoners-as is. normal~ It's even worse in the mental health units at l!CI. Young,· pumped up. minimally educated guards frequently beat prisoners in thoSe units who act out, they claim the prisoners are "faking being crazy." Supervisors, .who know what's g6ing on; approve and help cover up the abuSe. Medical and mental health personnel look the other way ,and keep their mouths shut to preserve their jobs. Prisoner orderlies are threaten'ed to where they "know nothing and see nothing." And the cancer grows, again. We can stand together or hang separately. to paraphrase Ben Franklin. I donlt advocate sacrificing yourself in a no-win situation. But if you see or kjlow of serious abus~ of.other prisoners or crimes committed by FDOC st8.fh have your people rep.0rt it to the FDLE and/or FBI Cjvil Rights Division. Use the anonymous Crime Tips Hotline available on the telephones to report assaults on fellow prisoners or crimes by staff. Respect yourself. or no one else ever will. MW UCI '. • . . . . c' , FPLP: After reading some repulsive prison cases from around the country that are published in the Federal Reporters ' dealing with prisoner abuse, it's obvious that a segment of people in society afflicted with profound and severel mental issues are attracted to,the prison workforce. In this advanced day and age it seems reasonable to believe that some fonn of psychological screening, at least a personality inventory, should be a matter of roiJtine beforejust anyone. is able to secure ajob in this field. In Florida, for e~ple, psychological testing is not,8 qualifying factor for a position as a correctional. officer. Florida Statutes 943.085. legislative intent with respect to upgrading the quality of law enforcement and correctionalofficers, nor 943.13, minimum qualifications for correctional officers. refer to nothing that remotely resembles psychological testing. Is this omission intended or an oversight on the part ofthe Legislature? Who knows? But one.thing is for certain, it allows people who are prone to grossly sadistic and unscrupulous behavior to work in an environment they are unsuited and'unqualified for. In order to preserve a prisoner's rehabilitative goals and to respect basic human ripts, infinn agendas must be eliminated. I believe that psychological testing and evaluation is a necessary qUalifi~on component that should be required by'law for all potential Departnient ofCorrections personnel.· MD LCI , 8 ' Leiters to the Editor from FPLAO members may be printed in this section. The identity oflettlfr writers will be by abbreviation, U1Jless otherwise specified by the writer. for protection against ppssible retaliation. and to encourage freedom ofspeech. All letters printed are subject to ediling for clarity and length. A// leiters cannot be printed but are . invited. Address leiters to: Editors. FPLP, P.O. Box /069. Marion; He 28752. If your letter also concerns membership.. membership renewal. address change. ide.• please address that molter at the beginning of the letter to assist staJ! in processing your mail. • .' Florida Prisqn Legal Perspectives POST CONVICTION CORNER" .'"I",: .' .. .. ~ ~'\ " by Loren Rhoton, BIq. , . " .Recently it seems that I have seen a rash of cases where incarcerated individuals have hiredpostco~victioncounsel, in an effort to attaekthe effectiveness of trial coUnsel, only to once again receive ineffective assistance at the hands ofthe postconviction counsel. Unfortunately, for the most part there is ' no. constitutional right to effective assistance o(po~tconviction counsel. .However, If an attorney has been retained to pursue a cOll~tend postconviction proceeding . and a}lowstheclient',s two year period oOiniitations (as imposed py Rule of . Criminal. Procedure 3.850) to lapse wi~out.timelY fiJing a mot~on, the client ',should at least be able'to obtain'the ability to file a belate4 Rule, 3~8.50 Motion. The following article addresses the above, situatiQri.. (.. It is true that a criminal.defendant does 'not have a due process riiht, . PurSuantto the.Sixth Amendment ofthe United States Constitution, to effective assistance of counsel in a post conyiction proceeding. I.,ambrixv. State, 698 So.2d 247 (Fla. 1996).flowever, the 1101diI.lg ofLambrix do~snot dictate thaloa post conviction Movant is.to receive no due process whatsoever. In fact,. it was held in State v. Weeks, 166 So.2d 892 (Fla. 1964), that "[postconv.iction] remedies are subject to the l11ore·fl~xible~dards of du~ processannounced.inthe Fifth Amendment, Constitution ofthe ·United States." Weeks at 896. For example, in Weeks and Graham v. State, 372 So.2d 1363 (Fla~ '1979); the Flonda Supreme .Court held that due'process:required the appo~ptmentof p.ostconviciion counsel when a prisonerfiled a substantially ·meritoriQUS postconviction motion and·a.. · hearing on .the motion was potenti~ly so.complex that the. as~istanceofcoU11$el was needed. Thus,although a post conviction. movant ~y nothav.e ~e right to effectiv~post'conviction counsel pursuant to ~e Sixth.AJ.p.endment ofthe United States Constitution, said movant shall still be ~fforded the more flexible standards of due process. In Steele v. Kehoe, 747 So.2d 931 (Fla. ·1999), the .Florida Suprem~ Court addressed the factual sceI;lariowhere a ~fen~t was due relief pursuant to the more flexible standards of due process announced in the. Fifth Amendment-of-the United States Constitution. In Steele, the defendantw~,convicted. or'fIrst degree murder and sentenced to life in prison. ML,Mr.S.teele claimed thathe.retailled an . attorney to fil~ a motion for postconviction relief pursuant to Florida Rule of Criminal Procedure 3.850, and that said attorney orally agreed to file a motion for postconviction relief. '!d:. at 932. The attorney ~en failed to file a post conviction 9 Flori~a Prison Legal Perspectives- motion on Steele's behalf in a timely manner, i.e., after the two year penodof limitations for filing such a motion had expired. Id. Mr. Steele's pro rille 3.850 motions were rejected by the trial court and the Fifth District Court ofAppeal because they ,were filed after the'two-year deadlinehad expired. hL , As a.result ofhis pOSt CQnvictionactions being barred, Steele filed a legal malpractice'complaint against his postconvietion attorney: But, since Steele;s 3.850 motions had, been dismissed, Steele did not have an opportunity to ' demonstratethat he was improperly convicted as a result of his attorney's negligence.kL"The trial court dismissed Steele's complaint because he could not prove his actual innocence or that his underlying conviction had been set'aside. se ML , The dismissal of Steele's complaint was 'affmned by the Fifth District Court ,ofAppeal because exoneration is a prerequisite to a -legal malpractice action ' arising'from a criminal conviction. Id:. However~ the Fifth District was 'troubled by the result,' noting th~t irrespective of its holding, a mon~tary remedy in a civil action would be inadequate to redress Steele's injury. And, although'the court recognized that; pursuant to L~brix v. State'698 So.2d 247 (Fla. 1996), Steele 'had no right to effective postconviction counsel, they'di:d,consider what other possible remedies were 'available. The DiStrict Court considered what remedies would be available to a prisoner who' hired an attorney to pursue postconviction relief and sald attorneyfailed to timely file a motion withiti the tWo year period.' The District Co~ held that "[i]fa prisoner is denied the opportunity to challenge his eonviction'urider'an appropriate rule only because ofthe negligence ofhis attorney, then dUe process requires a belated filing procedure similar,to'that allowed in belated appeals." Steele Kehoe, 724 So.2d 1192 (Fla.'Sth'DCA· 1998).. " , On app~, the Florida Supreme CoUrt in Steele y. Kehoe, 747 So.2d 931 (Fla. 1999), agreed with the Distrlct Court, stating that" ...d1iet process entitles a, , prisoner to a hearing on a claim that he 9r she missed the deadline to file a,rule 3,.850 motion because his or her attorney had agreed to file the motion but failed to do so in a timely manner." Id:. at 934. As such, the Florida Supreme Court held ' that the correctprocedqre would be for the trial court to conduct a hearing on wheth~the postconviction attorney undertook to file a 3'.850 motion on Steele's behalf, );>ut failed to timely file the motion. And, if such circumstances are proven, then the right to file a belated 3.850 motion should be granted~ " As a result of Steele v. Kehoe, 724 So.2d r 192 (Fla. 5th DCA 1998), Florida rule ofCri~al Procedure3.850(b) was ani.ended to provide a pew exception to the two year period oflimitatiOits for 'filing a Rule 3.850 Motion for . Postconviction Relief. Rule 3.8S0(b)(3) now provides that an exception to the-two v. 10 Florida Prison ~gal Perspectives year period of limitations occurs ~hen "the defendant retained counsel.to timely file a 3.850 motion and counsel, thiough neglect, failed to file the motion." . If, as I have been seeingmQre and more of lately, you have hired an attorney to timely file a postconviction 3.850 motion, and said motion was not timely filed, your case is not necessarily dead.' The procedures outlined in Steel' should De. . followed in an effort to conviI?-cethe trial court to allow you to file a belated 3.850 motion. Thereafter, in the belated 3.850, all issues which 'should have qeen raised in the first place can thel{ be argued. . Loren Rhoton is a member in good standing with the Florida Bar and a member ofthe Florida Bar Appellate Practice Section. Mr. Rho~on practices almost exclusively in the pos!convictionlappellate area ofthe law, both at the State and Federal Level. He has assisted hundreds ofincarceratedpersons with their cases and has numerous written appellate opinions. ~ . • -----------------------------------~ -----------------. EXPERIENCED' CRIMINAL DEFENSE ATTORNEY .AVAILABLE FOR STATE AND FEDERAL POST-CONVICTION MATTERS • Admittedto the:Florida Bar in 1'973 • OveFthirty years experience in the practice of criminal Law., . . • Providing represen~tion in Direct Appeals, Belated Appeals,3.850· motions, 3.800 motions, 2255 motions, State and FederaIHabeas CorpusPetiti9ns, DetainerIssues, and, otherPostconvictipn MatterS. Inquiiiesto: .law.O.ffice$ of· .' Vanier 'D. 2v1.azar· 21'53 .lee 'Roaa 'Winter' ParR.~ :F£ 32789 . To{( free ,'fee 1-888-645-5352 Tee (407-) 645-5352 yax:(407) 645-3224 fta ~ ~f • ~.~ i. lUlirl;lo~td8oUiOnt:hatahould nOt be bIllled lIololy uponadvertiBOIIlQDts. ~oJ:O '. .k a- to .8lidyciUfJ:ellinft:il:lUtlonabout.~qwalUiClAtionll ZInClexpodonQj:i'. . ~ ~, ~--- .. ~------_._~-----._ . 11 Florida Prison Legal Perspectives. LorenD~. Rhoton Postconviction Attorn.ey • •. • • • • Direct Appeals Belated Appeals Rule 3.850 Motions Sentence Corrections New Trials Federal'H~beas Corpus Petitions 412 East Madison Street, Suite 1111 Tampa, Florida 33602 (813) 226-3138 .. Fax (813) 221-2182 Email: lorenrhoton@i.hotonpos~conviction.com Website: www.rhotonpostconviction~com The hiring of a lawyer is an important decision that should not be based solely pn advertisements. Before you decide, ask us to send you free written information about our qualifications. BUY THE·BOOK - ON SALE NOW POSTCONVICTION RELIEF FOR THE FLORIDA PRISONER A Compilation ofSelected Pbstconviction Corner Articles .- A collection of Loren Rhoton's Postconviction Corner articles is now available in one convenient book geared towards Florida inmates seeking justice in their cases. 'Insights basea. on professional experience, case citations, and references to the relevant roles ofprocedure are provid~. This book is specifically directed toward those pursuing postconvi~on relief. To order, send $20.00 in the form of a money order, cashier's check or inmate bank check (no stamps, cash or personal checks please) to the address above, or . order online at www.rhotonpostconviction.com. . ., 12 Floride Prison Legal Perspectives D. B. GRIEVANCES / APPEA'M AND JUDIQAL REMEDIES BY DANA MERANDA AND HOWJUU) RICHMOND, . . .......,p,.... PABTD, TtaeDJ... .In order to get an understanding of the law that's applied to FDOC discipliDaly process, there are some basic concepts to briefly cover f i r s t ' -, . . ' . FDOC is an Administrative Agency. Administrative Agencies are executive branch entities. Th~ :function in government is to "administrate" the public policy which is more commonly known as statutOJy law. Agencies are created by statu~ and their powers and authority do not extend beyond that provided by stabIte. In the rea1in of Quasi-Legislative' Powers the legislature delegates the authority to an agency to create rules. That authority is limited however'to implementing a Florida Statute. In other words, just having ruJemaking authority is not enough to adopt a rule. A specific law (statute) to be implemented is also required. " . . An agencyls rule making policy is governed by Chapter 120.54 Florida Statutes, and the statute an agency relies on to promu1~e a rule must provide adequate guidelines that will establish the extent to.which an agency may exercise those powers. ' Similarly, quasi-judicial powers are adjudieatOly powers and specifically p.rovided for by Article V, Section 1. of the Florida Constitution, which states that the legislature may grant administrative bodies quasi-judicial powers in matters coonected with the function of their offiCes. An administrative judgment is Quasi -Judicial in nature when notice 8nd a hearing are required and the judgment is rendered llPon the showing made at the hearing. BecaUse these administrative.pro<:o>dings resemble a judicial function, they are called quasi-judicial. ' .. Prison Disciplinmy proceedings, while Quasi-Judicial· in nature. hlPlemarked differences fiom the adjudicatOry actions taken by the other agencies in Florida. . Chapter 20.315 Florida Statutes creates the Florid8 Department of Corrections and Section (1) establishes its PurPose. ' _ Section (3) expressly provides "The SecretaJy shall ensure that ~e programs and services of the department are adminiStered in accordance with stale and federal laws, rules, and regulations, With established program standards and consistent with legislative intent." " , Chapter 944:09 Florida Statutes gives FDOC the authority to adopt rules pursuant to §§120.536 (I) and 120.54 Florida Statutes to implement its statutory authority.. Section (I) (a) - (q) encompasses several categories including the rights ofprisoners ~ disciplinary procedures and punishment ~apter 944.275 (5) Florida Statutes states that "when a prisoner is found guilty ofviolating the laws of tis state or the rules of tile department gain-tUne may be forfeited. . Chapter 944.28 (2) (e) descn'bes the method of decIariilg a forfeiture, .therefore the right hearing is predicated upon the potential loss ofgain-time. ' Keep in mind- Prisoners are not the only ones required to follow the rules. An Administrative Agency must also comply with its own rules. . : , to Due Process and P~D Disciplinary ProeeediDgs. It is important to first understand when due process attaches to prison disciplinary pfoceedings. Although the Comt in Sandin v, Conner. lIS S.Ct 2293 (1995). refined the inquiJy into the existence ofi statoe:teated liberty interest (1ater reaffinned and explained in WilkiltllO!! v, AustilL 125 S.Ct. 2384 2393-94 (2005), the Sl!ndin Court clearly held that state action that effects the length oflieDteDC8 trigger the 14lb Amendment's protections. Malebi y, Thaler, 211 F.3d 953 at 959 (5th Cir. 2000). The ~ Com added the additimial requirement of an atypical and sigJiificant hardship. Under this approach the most common way in which entitlement to due process protections are created after S!I:n!tin is when there is a stat(>o created h'berty iDterest which when dCmed imposes atypical and significant hardships beyond the "ordiJiary incidents of prison life." A state-created liberty interest 'arises when the state through a statute, or rule creates "mandatory rule and remWuions to govern disciplinary proCeedings". This can occur when the state in its statntes, rules or regulations "uses words like will, shall. or muSt". '(To establish "the right to due process protections an inmate must show (1) the state used maDdiltory language in i~ relevant statute or regulation. thns creating a liberty interest; and (2) the punishment·... endured constitu1ed an 13 Florida Prison Legal Perspectives 0, I . . "atypical ~d significant hardship"). Columbia Human RighfS 'Law Review, A Jailhouse Lawyer's Manual, 622 (st' ed 2000). . . , For example. when there is aloss of gain-time duiins a diScip~ proceeding. due process attaches and tho procedures in Wolffy. Me Donnell 94 S.Ct. 29~3 (1974), apply. The Wolff Court articulated: .. . (1) The function of the written notice of the charges is that it must be given to the disciplinary-action party.in order to infonn him ofthe charges and to enable him to marsbaI the facts and prepare a defense. (2) The Court reasoned that there must be a "written statement by the fact-finders as to the evideDce. relied on and reasons" for the disciplinaty action because such proceedings may involve review by other bodies; written records ofthe proceMings will protect the·imDate against collateral consequences based, on a misunderstanding of the nature. of the original proceeding; and 'written records helps .to insure that administrators faCed with scrutiny where constitutional rights may have been abridged, will act fairly. W,rthout .written records, the inmate will be at a severe disadvantage in . propounding his own ~ to ordefending himselffrom others. (3) To call·witnesses to present documentary evidence in his defense, if permitting him to do so will not jeopardize institutional safetY or coaectional goals- balaDcingthe inmate's interest in avoiding loss ofgood time a8ainst the needs of the prison, and some amount offlexibility and accommodation is required. ~94 S.Ct. Id. at 2979-80. The following is available. a general overview of the Disciplinary Process. References are made to case law when RepordDg Diseiplinary InfraCdoDS 33-601.303 . Some infractions can be properly disposed of without a formal Disciplinary RepOrL This usually occurs with a verbal reprimand or in writing through corrective consultation (CC) Form DC6·117. . . Verbal counseJingis designed to motivate the imnate to comply with or clarify the roles of institutional regulations I po1j.cy, and will be documented on the inmates contact card. " In contrast a (written) corre:ctive consultation (COC) will be provided to the inmate withi,n 24 honrs of thO writing and a copy will be placed in the inmate's institutional file. A Corrective consultation is not considered a discip1inaJ:y action under the grievance process, 33·103.-005 (1). yet loSs gain.time for the month usually ~ts therefrom. Pnp8nldoD ofDisciplinary Reports 33-601.304 . . . Only one violation shall be included in eaCh disciplinary report. Separate disciplinary reports shall be nsed for multiple offenses. Subsection (2) provides what shall be in the statement of&cts on the DisciplinarY Report. See Gill v, Cmsb,y.884 So.2d 442 (FIa. III DCA 2004). " : . .. ' .. I· Inmate DisdpUne -mvestigadoa 33-601.305 The investigating officer shall initiate the investigation of the iDftaction within 24.hours of the writing of the disciplinary report. The investigating officer has numerous responsibilities under this particUlar rule. . Pursuant to Wolfv. McDonnell 418 U.S. 539, 94 S.Ct. 1963,41 L..Ed. 2d 93S (197~), an inmate charged with a disciplinary infraction is entitled to: (1). advance written notice ofthe charges; . (2) an opportunity to call 'Witnesses and pxesent documentary eviden~ when it can be done safely; and (3) a written statement of the .evidence upon" which the disciplinary team reliecl and the reasons for its disciplinary action. .. . " . .'. . . ~da .Adminialrative Co4ie Rules 33-601.305 (2) (d) and (3) ~ the Department's investigating ofticer:to, among other things. ask the inmate ifhe has any witnesses to off~ on his behalfand interview "additional shift: inmates, and other ~ who have information pertaining to the infraction." If the d.isciplinmy team etenies an inmate's witness or evidence request, it must explain its reasons for doing so. See e.g. Plymel V, Moore, 770 So.2d Z42 (Fla. lit 11a DCA 2000); Giordano v' Dixon. 744 So.2d 1024 (FIa. 4 DCA 1997); Dmartment'Of Corrections y. Marshall. 618 . So.2d 777(FJa. 1st DCA 1993}; Holcomb y. Department of Corrections. 609 So.2d 751 (Fla. lit DCA 1992); See gen!'J'ally Franp. y. Moore, 778 So.2d 1003, 1004 (FIa. III DCA 2000); &j?osito V, McDonOugh 971 So.2d 203 (Fla. III DCA2007), and those reasons must be valid, Mariah v, Moore.. 765 So.2d 929 (Fla. lit DCA 2000). .. While a disciplinary team may exclude testimony if it is immat!'rial. iJTeJevaot, or fePi'litive, they should not. prejudge the weight to be given to testimony of evidence prior to it being presented. The·Disciplinary team C8IIDOt deny prisoner's request for additional witnesses on ground that testimony would have been contrivecl:o Mariah,Supra. The prodnetion of evidence. request for witness statements and related matters .are largely dependent on the investigation i t s e l f . · " 14 -. . . I I .. Florida Prison Legal Penpeetives . This is a highly critical stage in the disciplinary process. The Investigator/Staff member who is assigned to conduct.the investigation have been known to impede the investigation process. by notins-for example. the ibmate &iled or retbsed.to complete and sign the relevant witness Form(s); refused investigation. participation etc., eta. ,As a precaution to decrease at eliminate the intentions 'of this type of unethic81 (official) Conduct eneis well to start a paper trail. using an inmato request addressed. to the colonel. Major,. Asst. Warden, Head of Classification, etc.' aIIeging (as a fonnal request).tJiat desPite any potential. ,inconsistencies in the investigative record/pl'QCCSs. the, inmate is not refusing to participate in the process. is not Waiving the right to seek witness ~ents or the production of evidence, and that the D. R. team ~uireBJ;ld review documentary evidence, daily logs in special hoUsing units, etc. Use a tri-colored DC6-236 Inmate Request if aVailable and keep the pink copy. Inmate DisdpUne- Use OfCoDfi~endaJ InformanD 33·601.3055 ' The Investigator bas some specific obliSations when investigating confidential inft>nnant (snitCh) evidence.. The Investigator shaH interview and o'!l~ asuitement from the informant, which shaH_be reamlecfin the disciplinary investigative report.. The infomiant's signature is not required and is only identified by hislher social securitynwDber. " '. ,' .. , ' , ; ,, • There is sPecific documentation that is required to be included iI;1 the investi~ve report before confide;ntial informant evidence can be used in D. R. court (1) the Investigator shaH document wbetJU:r the informant bas direct or indirect lcno~ledge orthe case. (2) whether the informant has provided information in"the ~ast, and (3) whether the information has been reliable. Unreliable. or b o t h . ' . The informant's history and· hislher reliability cannot jttst be aIIeged. It must be specifically documented. If the informant bas providedconfidential.infonnation in the past, the Investigator will document to whom and confinn it with • the staffmember and reCord it in the discipliDary investigative report. ' . ' ~ process requires that a confidential informant's credibility must be independently confirmed by officials. , Kyle v!'Hanbeny~ 671F.2d 1386, 1390 (illb Cir. 1982)., " " ' . , It's also'debatable whe'her a D. R. based upon confidential informant's tCstunony) without other evidence of guilt, amounts to gi~ one prisoner supervising or4isCiplinary control over another prisoner. McDuffie y, Estelle, 935 F.2d 68268~ 0.6 (Sdl Cir. 1991). See CJuq)ter33-602.101 (9) (no Inmate shall be given control or authority over other ~ ~. . ' Rule 33-601.307 (3) (h), prohibits·the Disciplinary Report T~ 'from baSing a finding of guilt on snitch testimony that is' uncolTOborated by some other evidence. It also requires the Disciplinary Report Team to independently assess the informant~s reliability and IP8Y not accept assurance from an officer as to ~ authenticity ofthe' informants infonnation. m " i rr===a::::========iI T Y P I, N G ~·E··itVI'C E : , Computer .. Typewrlte~ Kr~N~D',S·.O F 'AL'L T'YPI MG';' Includlng.but l10t limited to: ' .·~artl~~tJd~,.nts., ' , ,N.~,,·k~(c(ts. ~o~. " MIIJl'"~jtS.Q!Jt8~.:Ch,arts. ' Forms. ..' Flyers;·Elwelopes; .. . ETC" ,Black" eoior'p"ntlng &.CopYlng . , .' ,'~.' I .... , _, ,aSPfS'Hf'WsBlBPBlsqttER'o FLORIDA CLEMENCY SPECIALIST For 1Dlb. OIl Scatcoco ~ 11lrDugb EucuIiw CcaIcDcy NATIONAL CLEMENCY PROJECT ' 8624 CAMP ~OLUMBUSROAD '. HIXSON, TENNESSEE 37343 (423) 843-2235 c.u.YE4RS OF a.EMENCV &I PAROLE ASSlSJ'ANCE) FOR A'-FR£EnPRICE UST AND MORE INFQ8MATION .SEND A . SASE TO: (:ET' ",'Y"'FINGERS .00 :'(QU'(TYP"iG , . 8ancIra Z. Thomas POBox4178' " WlirterPark, FL 3279$.4178 . Phone: 407-579-5563 15 Florida Pri~on Legal Penpectives Th8followlng are summaries ofr~ent state andftderal cases that may be useful to or have a signiflcant impact onFlorJdaprisoners. Readers thovld q/ways read tlrefUll opinion as published in the Florida Law Weekly (Fla. L WeeKly): Florida Law Weekly Federal (Fla. L. Weeldy Federa/),' Southern Reporter 2d (So. 2d): Supreme Court Reporter (S. Ct.): Federal Reporter 3d (F.3d),· or the Federal Supplement id (F.Supp. 2d), since these summaries arefor general information oniy: . ' , , Florida Supreme Court Stale v. ~ltell. 33 Fla. L. Weekly S2SS (Fla. 4124/08) . . The Second District Court of Appeal had reversed Charles A. Kettell's conviction opining that a violation of Florida Statutes. section 790.19. wantonly or maliciously. shooting at, within. or into a building, required more than mere proof of the shooting. See: ~tte// v. State. 950 So.2d 50S (Fla. 2= DCA 2007). . The Second District's .opinion, however. was d~y and expressly in conflict with the Fifth District's in Holtsclaw' v. State. 542 So.2d 437 ~Ia. Sib DCA 1989). The Florida Supreme Court, upon ~viewing the conflict, held that it was error for the trial court to instruct the jury in Kettell's case that the statute is violated by a person who shoots at" within, or into a building per se, and the error was not harmless. It was held that the wanton or malicious intent element. ofthe crime define4 by section 790.19, Js not established solely by evidence that a defendlll1t fired a shot at, within, or into a building. The State must also prove that the shooting was done wantonly or maI~ciously as those tenns are defined in the standard jury instructions. There fore. the Second District's decision was approved. and the Fifth District's was disapproved. Kettell's case was remanded for' further proceedings consistent.,with the FI~rida Supreme Court's Qpinion. State v. Johnson, '33 Fla. L. Weekly 16 s265 (Fla. 5/1108) The Second District Court of defendant, defendant would have Appeal in Lorenzo C. Johnson,'s case, exercised his right to trial. Johnsan v. State. 929 So.2d 4 (Fla: .Such a claim must be filed with 2= DCA 2005). opined that the two years after the conviction based admission of a Florida Dept. of Law\ on the plea the def~ndant is attacking Enforcement ,lab report establishing becomes final. It was further noted the illegal nature of substances however, although the defendant' in posSessed by. a defendant' does thi~ case, Ey. filed his motion after violate the confrontation clause and . the two year period, his' motion was Crawford v. Washington, 541 U.S.' deemed timely because at the time of 36 (2004), when the person who the filing district Courts had held in performed the lab test did no,t testify. similar claims' that the clock started A certified question as. to the on the date defendant discovered the SeCond District's decision was filed' . enhancement in his sentence. . and reviewed by the Florida Supreme Court where the decision was , Jackson v. State, 33 Fla. L. Weekly approved. S357 (Fla. 5129/08) In Bertha Jack$on's' case, the Eyv. Stale, 33 Fla. L. Weekly S321 Supreme Court of Florida held that (Fla. 5/15/08) . the denial'of counsel at sentencing is .!1 Robert Ey's. case, the Florida , not a "sentencing error" under rule 3.800(b).. ~reme Court held that when a defendant has committed two crimes Denial of counsel ,at sentencing, and infonns his attorney about both occuning during the while sentencing process, ,is not an error in of them." the attorney's en-oneous an 'ord¢r' @ntered as 'a result <of the advice that dofendant'splei:' in one case could not be used to enhance his . sentencing process. See: PIa. R. sentence in the other constitutes . Crim.P. 3••00 c.ourt cmt. It was'held <ineffective assistance ofcounsel. .: in, this cge that to JSSert ~cb.a claim To raise a facially spfficient ,~lllim , on appe8i, 110 motion under' rule on sucli an. issue, the <Florida 3.800(b) need be filed. Such errors Supreme Court outlined four things remain " subject. to ',the the defendant must plead: Before conternppraneousbbjectloJ). rule; if entering the plea, the' defendant not preserved at trial.· they may be, informed his defense counsel that he . reviewed on appeal only for committed another crime for which fundamental error. he had not yet been sentenced; < As to Jackson's case, it was found defendant explained to Counsel the' that the claim did not meet nature of the crime; The counsel fundamental error status. because erroneously advised defendant about counsel Was found only to be absent the potential use of the conviction to for only part of the victim impact enhance a subsequent sentence for testimony during the sentencing that other crime (explaining why the process. advice was erroneous); and. Had counsel .not . erroneously advised· I The Florida Prison Legal P~rspectives felt a .Iump in the pocket that he believed to be some sort of narcotic. Upon removing the item from Evans v. State. 33 Fla.L. Weekly Perkins' .pocket, the officer ob~rVed 01066 (Fla. Sib DCA 4/18/08) a folded dollar bill with less than a . Robert L. Evans' appealed the' summary denial of his rule 3.850. gram of powder cocaine wrapped inside. ' motion where. he had claimed , The trial court in denying Perkins' ineffective assistance of-counsel for suppression motion, relied upon the . failing ~ object to - a vindictive '~plain feel" doctrine, and on appeal, sentence. the "plain feel doctrine" exception The appellate court opined that it was reviewed, citing Minnesota v. was error for the lower court to deny, Dickerson. S08-U.S. 366 (1993). Evans' claim where it failed' to In Dickerson, it was held that ~nduct a totality of circumstances because~the object in Dickerson's analysis. . Such determination is pocket was not "immediately needed to show whether a sentence is apparent'" as to what lhe object was vindictive where a trial court has and determining that the pocket did inserted itself into plea negotiations not contain any weapons, an officer's and imposed a harsher sentence after ~ntinued exploration of the pdcket a defendant's rejection of the plea exceeds the scope of the search bargin; After its own analysis of Evans' ' permi~ by'Terry V. Ohld, 392 U.S. 1 (1968, thus violating Dickerson's sentencing, the appellate court Fourth Amendment rights: " determined the sentence imposed Perkins' case was found to be upon him was vindictive. Evans' Similar. The appellate court noted sentence was reversed and the case that it .was only after the officer was remanded for ~ re-sentencing further searched Perkhls' pocket and before a different lower court judge. .ran his fingers over an unktJown object did he make a determination Perkins v. State, 33 Fla. L. Weekly as the· object being contraband. As 01102 (Fla. lit DCA 4/23/08) . such, it was opined that the~lain . Gregory Perkins appealed his feel" doctrine did not apply aiiat did ,conviction of possession of cocaine not validate the officer's further where it was upheld by the lower search and seizure ofthe object. court subsequent to denying Perkins' Perkins' conviction was reversed suppression motion. and the case was remanded for the The -background of this case ..lower cOurt to grant the suppression began when police officers stopped motion.' . the"ve,hicle Perkins was a passenger . in. An· officerl then opened the Harrington v. State, 33 .Fla. L. passenger door to advise Perkins that Weekly .01164 (Fla. SIbOCA the vehicle was going to be searched. 4125/08) : During that time, the officer Katrina Harrington appealed her observed a 'pocketknife in the front convictions' of' trafficking 'in , pocket of Perkins' pants, whereupon methamphetamine and possession of . Perkil1$ was warned to keep his paraphernalia. hands out of his pockets. However, On appeal, it waS opined that the Perkins tailed to comply With the state failed to offer any· independent officer's warning after, being advised proof that Harrington was a joint twice by the officer'to keep his hands occupant of the house in which the away trodl his pockets. At that point, drugs were located.,' or that the officer conducted a pat down Harrington possessed the knowledge search of Perkins to determine of and the· abi~ity to control the whether he was trying to hide drugs. See: Brown v: State, 428 another ,possible weapon. As the So.2d 250 (Fla. 1983). There was no' officer removed the pocketknife, he District Courts of Appeal • . . direct evidence introduced at trial to prove Harrington also had access to the looked safe where the drugs were found or the knowledge of the safe's contents. It was ,further· opined that evidence was in sufficient to show that the alleged paraphernalia'items that were 'found had been' used, or were intended for use, 'for illicit . purposes. Harrington's . Accordingly, .convictions were reversed. Grayv. State. 33 Fla. L. Weekly 01261 (Fla. 41b DCA Sn108) . RaShion· Gray appealed his convictions from a no contest plea and argued that the trial court erred 'in denying his motion to suppress all physical :and testimonial evidence against him. '. Gray was convicted of burglary of a dwelling while armed, grand theft of 'a firearm, possession of a firearm or ammunition by a convicted feloD. criminal mischief, giving a false name, carrying a concealed firearm, and carrying a concealed weapon. The background that led to'Gray's arrest began when h~ was called over to talk to a police officer who had observed him and' opined his actions wa~king down a driveway were suspicious. After Gray consented to questions and search for weaPons on his pe~on, ito weapons were found, the officer allowed Gray to go on his way. , Subsequently,however, because the situation seemed a "little odd." the officer returned to the area where Gray' was' standing before he called to him.. There,. he found a black powder pistol laying on the wet . grass, the pistol was dry. The officer . then placed a radio transmission out· to other officers in the area to stop Gray, a. BOLO. Upon hearing the 'BOLO, another officer spotted Gray _and stopped him. The officer I,tad Gray to, place his walking stick on the hood of the police car then ~andcutfed Gray and read him his Miranda rights.. a 17 1 Florida Prison Legal Penpectives When Gray responded to the officer asking for his name, the officer told him that he did not believe him, where upon Gray admitted that he gave a false name because he had walked off a work program. Gray further confessed that .. he committed a burglary, a burglary _that the police had no knowledge of prior to the confession. The arresting officer then opened Gray's walking . stick where he found a sword inside of it. Gray then led the officer to the location of the burglary he committed which led to the discovery of additional incriminating evidence. On appeal, it was pointed out that there are three levels' of. policecitizen encounters under Florida law. See: Popple v. Stale, 626 So.2d 18S, 186 (Fla. 1993). The first is a consensual encounter, during which a citizen can either comply with the officer's requests or ignore them and leave. . The second level is an investigatory stop. -under Terry v. Ohio, 392 U.S. I (1968). In an investigatory stop, th~ officer must have a reasonable suspicion that a' person has committed, is committing, or is about to commit a crime. The third level is an arrest, which must be supported by probable cause that a crime has been or is being ·committed. Reviewing whether probable cause existed at the time of ' arrest requires a very fact-specific analysis. See: MarylaiuJ v. Pringle, 540 U.S. 366, 370-71 (2003). After reviewing these levels and its analysis of the case, the appellate court determined.it was error forthe lower court to have denied Gray's suppression motion. The initial officer. stated at the suppression hearing that he could not see what Gray was doing when. he saw hi,m walking on the driveway. The arreSting officer presented no' evidence that he had knowledge that Gray had committed or was committing a crime. Likewise, the arresting officer did not have sufficient knowledge and 18 information to believe dray was carrying a concealed' firearm or weapon. The pistol was found on the grass after Gray left the area, and the initial search of Gray's person revealed no weapons or-firearms. As such, there was a lack of requisite probable cause for Gray's warrant less arrest. See: Berry v. Slate, 493 So.2d 109~, 1100 (Fla. 4lh DCA 1986); Gray's case _was_reversed and 'remanded with directions for the lower court to disch~e Gray. Christner v. $tate, 33 Fla. L. Weekly 01333 (Fla. ~nd DCA S/16/08) , ~raQdin Christner appealed from an- order in which the lower court denied one ground of. his rule 3.8S0 motion and struck the second ground as facially insufficient with leave for Christner to file an amended, facially sufficient motion within 30 days, should he choose to do so. • The' appellate court noted that Christner did not avail himself of the .opportunity to file an amended motion within the time prescribed. As such, it was opined .that .it presented ajurisdictional problem for the appellate court. In reviewing this problem, the Second District noted that the .Fifth District opined that an unfavorable ruling. on one or more posteonviction claims with leave to amend is not an appealable, fmal order. See: Howard v. State, 976 So.2d 63S (Fla. Slh DCA 2008). The Second District, however, could not concur that they should precipitously dismiss such appeals, placing the burden on the defendant to obtain "a denial of the motion that does not include leave to amend." Id at 636. In Christner's case it was noted that he could not he found entirely to blame for filing a premature appeal of an order that was'not yet final. He simply obeyed the- circuit court, which its order stated "this is a final order" and erroneously informed him he had 30 days to appeal the. ruling. As such, the Second District opined that lower court judges would be well advised to expressly inform movantS that such im order is "not appealable at this time." Having confirmed Christner did no~ take advantage ofthe'opportunity to amend the second ground, the appellate court elected not to dismiss the appeal as from an order that is not final. Instead, it was directed that the lower court should enter a final order disposing of the motion within thirty days. Such rendition will rescue the premature appeal from the jurisdictional problem. The appellate court could then consider both the lower court's denial of one claim addressed on its merits and· review the detennination it make on the other claim as being facially insufficient. It was stressed that movants should understand that when they elecl nol 10 amend a motion when given that opportunity, the order that will be reviewed is a final order that, if affirmed, will generally nor' allow them 10 relitigate additional .additional _postconviction postconviction issues at a later time; The . Second Districes opined procedure in this case was adopted by it for all appeals, subsequent Spera v. Stale, 971 So.2d 754 (Fla. 2007),- that are brought prematurely to it ,after it has been confirmed an amended claim was not submitted. Further, if the appellate court determines that an appellant in a similar· postconviction appeal has filed an amended claim 8J1d has not yet been finally detennined by the lower court, the appeal will be dismissed with directions to the appellant to appeal the .fmal disposition and hence capture review of all claims raised in the' initial motion and the amendmeht. If the appellate court determines that an amendment has been filed and finally' detennined by the lower court, an order will issue for SUPPlementation of the appellate record, 'summary or otherWise, with the final, appealable order, thus J1laturing the premature appeal. Florida Prison Legal Perspectives Accordingly, the lower court was directed to enter a final order on Christner's motion within thirty days. Lyons v. Jackson C.I, 33 Fla. L. Weekly 01343 (Fla. lSI DCA 5/21/08) George Lyon sought a mandamus writ on ~e grounds that the Jackson County Circuit Court Clerk required him to pay an administrative fee and complete an· application for a determination of civil indigence status before processing his tort complaint. The respondents in Lyon's case conceded error on the basis of the appellate . court's ruling· in Musmacher v. McDonough, 969 So.2d 1101 (Fla. 1st DCA 2007). There, it was held that the tendering of any filing fee is not a precondition to filing a complaint in that the circuit -court clerk has a ministerial duty,to accept a complaint for filing. ,Accordingly, Lyon's' mandamus petition was granted, issuance of the writ was withheld, however, because . the court clerk will process the complaint,in an expedious manner. Hall v. O./ftcer Knipp, Flo. Dept. oj Corr., 33 Fla.L. Weekly 01348 (Fla. 1st DCA 5/21/08) Wendall Hall, as an indigent prisoner,appealed the dismissal with prejudice of a complaint that alleged an officer of Fla. State Prison wantonly, maliciously, or' in a manner' exhibiting wanton and· willful disregard. of human rights, safety, or property, withheld blankets, bed sheets, .and clean clothing for some four and a half months, causing him injury and illness. The lower court dismissed die original complaint without prejudice; then dismissed the first amended complaint with prejudice, all pursuant to section 57.085(6), Florida Statutes (2006). It was opined that sovereign immunity barred the claim against DOC. as such, the lower. court properly dismissed that part o~ the discovering the mi,advise. Galindez V. State, 909 So.2d 597. 598 (Fla. 2nd DCA 2005), is one of many. ,However, the Fiorida Supreme Court rejected that view in Ey v. State, 33 Fla. L. Weekly Sl44, Sl46 (Fla. Feb. 28, 2008), [and revised-on rehearing at 33 Fla. t. Weekly 5321 (Fla. May 15, 2008}-which has been noted wi~in this issue of the FPLP unde.. the Supreme Court of Florida's Notable Cases section.] The appellate court noted though, "That... is not the end of the matter." In iEy it was ~cognized that an, opined, rule conttary to the one adopted in, Ey had previously been applied by the district courts. See: Ey, 33 Fla. L. Weekly at SI46 and S323. As such, Ey's motion was . deemed timely: Similar ci'rcumstances were found to exist in Singleton .and the appellate court Singleton v. State,,33 Fla:'L. Weekly opined that accordingly~ Singleton's Dl366 (Fla. 2nd DCA 5121108) , motion should be found timely filed. Michael Singleton presented a Therefore, Singleton's case was timeliness issue of his rule 3.850 reversed and remanded for the lower moti9n to the appellate court that he ' court to consider· the claim. On filed more than seven years· after his remand~ the lower court was directed ,Judgment and sentence became final, to either attach portions ofthe record when- he discovered the ineffective that conclusively refute the claim or assistance ofcounsel ground. conduct an evidentiary hearing on Back in 1.997, Singleton was told the issue. ' by his counsel that he,~ould be eligible for parole after twenty-five Harley v. State, 33 Fla. L. Weekly years, if he were found guiltY at, trial 01474 (Fla. 1st DCA 6/5108) .on his capital sexual battery charge. Damion Harley sought a direct ~ecause of that advice he rejected review of ineffective assistance of the state's favorable plea offer of ten counsel issues. , The' appellllte court noted that years prison, if he plead guilty to the lesser-included offense of lewd and Harley's claims were _cognizable on lascivious battery. appeal. It was found to be apparent Subsequent to· Singleton being on the face of the record' that counsel found guilty at trial, over sev!'n years was ineffective. However. there was later. he discovered through no 'merit to' the claims. Harley failed information requested and received to demonstrate that. but j01' dejense by the Florida Parole Commission · counsel's deficient performance, the that he would never be eligible' for results ojthe proceeding would have . parole. Thus. he filed his rule 3.850 · been different. motion., District Courts have opined that · [NOTE: Whether on a rule 3.850 postconviction motions based on motion or on direct review. one must such claims of counsel rllisadvise always show both of the prongs in concerning gain time eligibility or Strick/and v. Washillgton, 466 U.S. the forfeiture of gain time were 668 ',(1984), . w~en claiming timely if filed within two-years of ineffective assistance of counsel. &I complaint. However. the officer was not immune from suit where amended complaint alleged that the officer wantonly· or maliciously chose to breach a common law duty. of reaSonable" care posing unreasonable risk of, and actuallycausing, physical harm. In other words, it was alleged that Officer Knipp acted ouiside .the SCQpe of his employment-in the sense of not exercising power lawfully vested in him-and· was guilty of "an unlawful usurpation of power the officer did not rightfully possess." See: McGhee. v. Volusia .Co., 679 So.2d 729, 732·(Fla. 1996). 'The lower court's judgment was revers~ insofar as it dismissed the amended complaint against Officer , Knipp individually.and the ·case was remanded for further proceedings. .. 19 Florida Prison Legal Penpectives I, AZ - On May 8. 2008 six,prisoners were airlifted, for medical treatment from the med'ium-securi~ facili~ at the Arizona State Prison ComplexDouglas. Officials say that the prisoners received injuri~, after a series of small fights broke out at the prison. . CA - On May 27. 2008. the San Francisco Chronicle reported that DOC officials are. bracing for more prisoner violence as they prepare to 'obey a mediation agreement, and desegregate cells. II We will have a spike in fighting becaUse we have races that d~n'1 get along. if it was up to us we'd keep it.the way it is,"Lt. Rudy Luna, Asst.W~en at San Quentin State Prison. told the Chronic/e. Prison officials say that they will evaluate each prisoner. and , those, who qualify for integration. but refuse. may face disciplinary action. CA' - During the third week of June 2008. San Diego jail officials revamped their .phone system to ensu~ that calls between. prisoners and their attorneys were not being recorded. This move. came after attOrneys complained that the jail's policy to record all calls violated their attorney-client privacy rights. hospitalized while 12 were. treated at the scene. '" <:;0 - On May 20. 2008. a federal jUtf. in Denver sentenced prisoner Ru~: Cabrera Sablain to life in prison. Cabrera was charged with choking and disemboweling Joe Estrella in their cell at the federal penitentiary, il) Florence. The incident took. place in 1999. P{Osecutors bad asked the jury to sentence Cabrera to death. FL - A judge sentenced a former Coral Springs mayar' ,,00 June 3. 2008. to 4 1/2 years in prison followed by 30 years of sexual offender probation after pleading no contest to child molestation 'charges~ 'John Soinmerer, 60. was accused of molesting a girl under the age of 12. CT - Justen Kasperzyk, a former . New Haven detective. ,was sentenced on May 27. 2008. to 15 months in federal prison for planting drug evidence and stealing money from a c~me scene. Last year. Kasperzyk pleaded guil~' to cOnspiracy to violate civil rights and. theft of government property.. . FL - Bennett Brummer. the Dade Courity's·public defender. announced on June 4. 200'8. that his office plans to refuse most felony cases du~to state budget cuts. Brummer said that his attorneys are obligated by the Constitution to provi~e effective legal representation, however, his office is short-staffed, and under funded. This means that his attorneys coul~ not effectively cover their caseloads, said Brummer. CT -. A state prisoner. Waldemar Rivera, 28. was charged on June II. 2008, with the murder of another prisoner. Officials charged Rivera for the murder of Kevin Cales which too~ place last month at, the Suffield Prison. The motive for the fatal beating has not been determined, said officials. DE - On May 21, 2008. a retired police officer and former ci~ 'CA - LevarWashington, 30. was administrator. John' Manning., 61. sentenced to 22' years in federal prison on June 23. 20PS. for plOtting, pleaded guilty to one count of possessing child pornography. while incarcerated at sarita Ana to Federal agents found the images on attack mili~ sites.. bftici~ls say that Washington. was part of a prison _ ~mputers seized at Manning's home. Manning resigned from the personnel gang cell of radical Muslims .who . planned attacks and .intended to department in April after being on suspension since October 2007: finance them through robberies: CA - On June 24.' 2008. a bus carrying an inmate firefighting crew overturned in RiverSide'County. The incident left i6 people injured. two critically. said a spokeswoman for the coun~. Four people were 20 who served as Delaware Correction Com-missioner in the 1970s. Vaughn died last year after he resigned from the state senate. DE - On June 4,2008. Gov. Minner signed legislation formally changing the name of the state's largest prison. The name of the Delaware Correctional Center near Smyrna was named in honor of James Vaughn, FL - On June 17-18. 2008, the State of Florida held its first statewide Restoration of Civil Rights Summit at the state Capitol building in Tallahassee. The Summit's shortterm goal was to gather input from other agencies' and communi~ organizations to identify barriers to successful re.entry of ex-offenders to society. The long-term goal is to develop a formal and comprehensive re-entry strategic plan to reduce recidivism. Both Gov. Charlie Crist and FDOC Secretary Walter McNeil attended the Summit, which was funded. along with other re':'entry efforts, by a 540,000 grant from the Annie E. Casey Foundation. Florida currently has over 96.000 prisoners, with about 35.000 being released from prison each year. Almost a third of prison' releases return _to prison within, 3 years. In addition to the Summit, in June SeCretary McNeil Florida Prison:Legal'Perspe~tives . appointed an Advisory.' Council consisting of' legislators. law enforcement, social and community workers to. assist the FDOC in . developing strategies 'to reduce recidivism. The Council. in addition to helping 'develop strategies. also allows the state to qualify for federal funding under. the' Second ChanCe Act that was recently signed into law by President Bush. The Casey grant will alSo be· used to fund' the following'aids~'t;, - mid-J~ne 2008.. Guards.opened th~ , letter beeause it. didn't . have .the sender's name. Officials then investigated the name where the letter was being sent and learned that it was Robert Rackham's father. More' methamphetamine was found in. Rackham'scell. said authorities. initial'health examinations within the required time, said the conuD1ssion. 'ME- DOC said on June 23, 2008, that a 'website which will list state prisoners and probationers will be up . in. about two months. The site will include' projected release. dates, names, physical descriptioliS, birth· dates. and offenses. . KS -'On May 27, 2008. a woman • who was a dog trainer ~and helped MT - DOC officials, say that two John Manard escape from.pri!'6\\' in a dog crate in 2006. was releaSed from . female prisqners'~ on May S, federal prison. Toby Young served , 20Q8,from the Monta,na W~men1s , Prison. Alicial, Luke, 27, and Jenny ~early two. y~ in ~tate and federal • An .On-line Resource. prison for helping Manard ..escape Terrell~ 31, were kitchen workerS and Directory which will in~lude. from the Lansing. . COrfe~tiorial apparently left through a receJving info from all 61' counties Facility. Young,must also serve three area, said officials. The two prisoners . housing. '. jobs. about years ofprobation.' were serving sentences for escape at education. job' .training. the time the incident took place~' . mental health and substance KY ,.:' The Sheritrs Department abuse. clothing, food and announced on June 2, 2008, that a more; , NV-· .The Nevada State ·Prison,. Boyd County. Jail guard. f-aces drug which dates back, to the 1860's, may • " Virtual' 'Case Managers charges after, allegedly. purchasing .close ,by, next January due to'budget contactable by phone. fax or prescription pills that he planned to cuts. Officials said on June J8, 2008, . email during business hours sell to inmates. Loval Marshall, 37,. that this would save $19 million a to.provide resource'info; .. year in operation costs. • . Focus Group~ ~o help .ex- . met with an informant and bought 13 .oxycodone· pills.. Marshall' then led offenders reintegrate; and ' police on a,slow.;.speed chase before NY- The U.S. Attorney's Office •. A pocket-siZe resource guide throwing the pills out the wiqdow, .. announced on May 21, 2008, that the given to' prisoners upon' .said officials; .The pills were state must pay $972,000 to 23 rel~ providing into on correCtion guards .who accused the recovered by authorities. housing. e~ployment. health state of pregtiancy discrimination. care, family issues. etc. KY - The state's Criminal. Justice This pay· would include back pay, Counc,il began studying the state's interest, and damages. State officials GA - A jury convicted a former also . undergo . antimust after' Gov•. sentencing ,practices Atlanta polite officer. Arthur Tesler, Beshearcalled on lepl authorities to d~crimination training. To, no on' May 20, 2008, of killing a 92find ways to,ease the prison system's surprise, DOC. denied' the year-old woman after a. botched drug, on . financial ,burden. Beshearsaid claims. discrimination iaid. The incident took place.in'2006 June 8,· 2008, that . the . prisoner when plainclothe$ officers used a' n(> population was increasing at the NY - During the first week of June • knock warrant 'to raid Kathryn in the nation. By Dec. 1, highest rate 2008, the New YOlk Times reported Johnston's home. When the officers the council must report ~ack with that 'state prisoners. were.. training burst in Johnston 'began fjring her recommendations. service dogs forwoundeQ veterans gun at the officers.' police then' fired . ' . , . . who haye. return.ed from Iraq and. 39 bullets. said prosecutorS. The LA ~ The National Commission on. Afghanistan. The program is' called' warrant 'about, drug dealing was Correctional Health Care re~easedits Puppies' Behind Bars. New Jersey based on false inf(mnation. said findings on.· May .19, 2008, ~m a and 'Connecticut prison~ also have authorities. Two other officers have .review.. it conducted in, the ~~w similar:programs. There are about 80 pleaded guUty to charges of Orleans Prison. The commission Labradorsand Golden Retrievers at manslaughter and federal, civil rights found that the prison was not doing male and. three female prisons, four charges. Tesler faces up to five years ~nQugh to care f()r prisoners who , Times. Prisoners teach the . said. the in prison. . .sl,lffer from mental illness. The dogs 82 ~mmands • that can help m - An iqrnate at the ,Twin Falls prison lacks. enough. mental. health individuals, who are' missing.8 limb counselors and fails to· complete or need wheelchairs,. the Times County Jail tried to seridhis father reported. methll.Dqll}etamine in a' letter during 21 " ' , , Florida Prison Legal Penpectives OR ~ A judge, on June 10, 2008, nded that the state's methOd of lethal' injection was unconstitutional. Judge James Burge said that the state's lethal injection procedure .doesn't provide the quick and painless death required by state law. The state ~es the same th~rug cocktail held constitutional by the U.S. Supreme Court tn Kentucky, however, the' procedure is not identical. 22. took two hours last week to restore order at maXimum-security Lee Correctional ID5titution, said Ozmint. ' However, he' gave no further details about the incident. TN The state's correction commISSioner, George Little, announced on June 8, 2008, that the state's 16 priSQns will work together .growing v~getables' best suited to their-.\~tiop.·This move came in an ' effort to reduce the higher costs· of OK - Corrections' spokesman Jerry Massie said during a press release .buying an!! transporting food to the that more than a doze!) prisoners prisOns. The vegetables will be attacked each other with makeshift ' shared with other detention centers. weapons at the Oklahoma' State Officials saY' thattrilcks that already Reformatory on May 19; 2008, carry prepared food to the prisons leaving two dead and' 13· injured. , will be used to .transport the produce. Fights broke out in 'recreation yards to the state's 16 prisons; of two of the prison's six housing TX • As of June I, 2008, about a units for about five minu~s. Most of the injured prisoners suffered cuts dozen Texas jails started allowing inmates to receive e-m,ails, even and stab wounds, said Massie.. Prison 'staff were not injured during the though they will not have internet incident. ' , access. A Dallas-based website will allow jail officials to print the .emails and deliver them. Inmates can PR - Some Puerto Rico public reply by filling out a reply form officials, including the island's w~ichofficials will scan and e-mail former health secretary, said on June 18, 2008, that they will push to back. legalize marijuana. The groups claim TX - The U.S. Supreme Court that this move will redue.e the prison population as 24% of the ' 13,500 reversed on June 16, 2008, the case of the longest-serving prisoner on prisoners in the system have drug Texas' death· row. Ronald Chambers, charges. These officials say that 53, has'been on death row for over marijuana would be taxed like liquor 32 yearS; The Court, without and. tobacco, with proceeds, going comment, remanded the case to the toward drug treatm~nt progra~s. trial court over questions jurors used. in deciding Chambers' death PR - Federal authorities arrested six sentence. ' Puerto Rican police officers on June 24, 2008, for building false cases and TX .' Prosecutors say that the new possessing cocaine with. intent to DNA tests that freed ~omas distribute. The officers'plante~ drugs McGowan, who did about 23 years •on at least three people from 2002 to in prison for rape, implicated another 2005, said federal authorities. Last prisoner. The new tests matched year, four officers were arrested on prisoner Kenneth Woodson, who is s~i1ar charges. The o~cers'in both ilready serving a 30-year sentence, incidents worked at the AreCibb Uhit said officials. McGowan was released during the month of April SC - DOC director, Jon Ozmint, said 2008. Woodson will not be charged during Ii brief statement, on May 26; because the statute of limitations has 2008, that lack offundihg leaves his expired, prosecutors said. officers struggling to prevent escapes or respond quickly to emergencies. It '. UT - DOC 'spokeswoman Angie Welling said on June 16, 2008, that DOC has struggled to keep staff members because many have left to otherjobs for higher pay. The system has about 100 positions open. The . Dept. has asked lawmakers for $3 million fO,r salary increases. , , VA • Following Gov. Mark Warner's order in 2006 to review old cases for DNA tests, on June 18, 2008,the state's Forensic Science Board 'began searching· for voluDteer lawy.ers. These lawyers would help the board locate ,about ,900, felons Who were convicted between 1973 and 1988, some wrongly convicted., Warner's order came after a sample .test of 31 felons cleared two ex-prisoners of rape charges. WI - A judge ruled on June 4, 2008, that state prison officials had violated a prisoner's free speech rights by ,denying him a. newsletter critical of their policies. DOt officials had claimed that the newsletter was inflammatory. However, the judge ord~ DOC to immediately deliver the now~efunct newsletter to prisoner LoZODZO Johnson at the ' Waupun Cofrectional Institution. Compiled, by Melvin Perez • Advertise. in FPLP Reach new clients or customers· th~oughadvertising . In Florida Prison Legal' PerSpectives., To obtain . advertising~nd rate , Information write or email us . at: FPLP' • Attn: Advertising P.O. Box 1069 Marion, NC 28752 • Or ,fplp@aoJ.com Florida Prl.soners' Legal Aid Organization Inc. BECOME A MEMBER ., , YES ! I wish to become a member ofFlorida Prisoners' Legal Aid Organization, Inc. 3. Y09r Nallie and Address (PLEASE PRINT), 1. Please Cheek .(' One:' .. c:J Membership Renewal _ _ _~ Name' CJ New Membership -.:DC# _ AgencylLi~lInsti~tionIOrg} 2. Select ./ ~I): Address c:J SIS Family/AdvocatelIndividual Cl $10 Prisoner City State .' .Zip c:J $30 AttomeyslProre¥ionals Email AdJress and lor Phone Number C $60 Gov't AgenciesILibrarieslOrgsJete. ~ Please make all checlcs or :money orders payable to Florida Prisoners' Legal Aid Org., Inc. Please complete the Bbove fonn and send it ~cing with the indicated membership dues to : FPLAO, Inc., P.Q. Box 1069, MariOh NC 28752. For family members or loved ones ofFlorida prisoners who are unitble to afford the basic membership dues, any contribution is acceptable for ~embership. Memberships run one year. If you would like to make a , . odonatlon to FPLAO, Inc., to help the organization continue its work for prisoners and their families, send donations in any amount to the same address. Thank You. All members receive FlorIda PrIson Legal Perspectives. . .. David W. Collins, Attorney at Law Former state prosecutor with more than 20 years of criminal law experience "AV" rated by Martindale-Hubbell Bar register of Preeminent Lawyers ' Your voice in Tallahassee representing prisoners in all areas of post-conviction relief: I , • .. Appeals Plea Bargain Rights 3.$00 Motions Sentencing and Scoresheet Errors . 3.850 Motions 'Green; Tripp, Karchesky, Heggs cases State and Federal Habeas Corpus Jail-time Credit Issues Writs of Mandamus Gain-time Eligibility Issues Clemency Habitualization Issues Probation Revocation Issues' .. . .' Write me today about your case! David W. Collins, Esquire P.O. Box 541 Monticello, FL 32345 (850) 997~8111 "The hiring ofa lawyer is an important decision that should not be based solely upon advertisements. Before you decide, . ask me to send you free written infonnation about my qualifications and experience." --------~----. . .- - - - - - - - - -.... 23 . ... 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OfBII'izltklns) subsaiption rIItd an: S60 a year. A SImPk: copy 0( PLN is avail.lb&c Cor St. To subscribe 10 PUt conDcC; Prison l.<pl N<ws 2400 NW ~ ST. '148 lns!. (aI1Gmq-s. Sc1Uk. WA 91117 \2(6)246-1022 Ittt;rI1'\ooww pru""rpMWl.or'C IOrdm - . - bypboaoOlonfn:1 Address City Slate Zip @M.U to: FPLP, PO Box 1069 Marion. NC 28752 VOLUME 14 ISSUE 4 JULY/AUG 2008 Florida Prison legal Perspectives ** USA PO Box 1069 Marion, NC 28752 ~. * ... __.. I!!It