Thoughts From Exonerees

I am not good at days. I forget birthdays, holidays, what day of the week it is. I have never been good at this but prison only made it worse. Each day in prison melded into the next so that time lost its meaning. I cannot remember what day I was released from prison. I recall it was close to Christmas. I certianly do not know what day I was "officially" exonerated by the Court of Criminal Appeals granting my petition fopr writ of habeas corpus. But I can tell you with certianty that today (1 May) marks the twenty second anniversary of the day I was arrested, and that tomorrow is my sons birthday.

       As a kid I lived in Dugway, Utah.  I consider that my home.  I did not graduate from Dugway High but I consider that my alma mater.  I am not Mormon and though I do not share their theological beliefs I have a great deal of respect for the Church and their social culture.  The Mormons put a great deal of emphasis on caring for people with mental disabilities, particularly Downs Syndrome. Mormon culture encouraged people to volunteer for various events benefiting people with various disabilities.  My particular interest developed in working with the Muscular Dystrophy Foundation.  This is where I met the people I consider heroes and whom I admire.

       I find myself in a position where I am told that others admire me for what I have done since being exonerated.  I have been called a hero.  Often I do not feel that I deserve such accolades, I do not feel I do enough.  I know that my story gives hope to others, as the stories of those who were exonerated before me gave me hope.  I know that I have helped to change the judicial system in a minute yet positive way.  But I know the magnitude of the problem and know that my efforts leave but a small mark on the whole.  I do not feel that I work in vain, but I never feel that I am giving or doing enough.  Being a “hero” can be a heavy burden.  (But, so that others will understand that their actions in calling me a hero or in saying that they admire my efforts do not add to the burden, I have to say that my own perspective of heroism and admiration are the significant weight of the burden).

       I wish I could properly attribute the quote: “Heroes are ordinary people committing ordinary acts under extraordinary circumstances.” I believe it was said by Winston Churchill.  The people I admire, my heroes, are those who take the hardships of life and use them to try to make themselves a better person, to help others overcome their own hardships, and make the world a better place.  While we all have good and bad days, my heroes don’t whine and cry about every little – or big – problem in life.  I greatly admired the people who suffered from M.S. that gave of their self so that research could be funded and, some time in the future, a cure could be found.  I do not think of my self as a hero, I do not feel heroic, or particularly admirable.  But at the same time those whom I admired probably didn’t think they were either.  I try to live up to the example that was set for me.  I try to honor the courage and grace which I admired in my heroes.  I rarely feel that I live up to my own expectations, but I am just an ordinary guy trying to do ordinary things in what I see to be the all to common circumstance of having been wrongfully convicted.

 

Cinco de Mayo

        For anyone who has spent time in a Texas prison, today is one of those special days like Thanksgiving and Christmas where things are a little different (though the same from year to year).  Today is Cinco de Mayo, the day of celebration of the Mexican victory over the French occupational forces in 1862.  And like Thanksgiving and Christmas, today is one of those days when I particularly think of the guys still inside, and miss some of my friends.  Somewhere around 1am I thought of the fact of what day it is.  I knew that in a few hours every one would hear the guards yelling: “Get ready for chow. Get ready for chow.” And at 3am, provided count cleared on time, those brave souls who went to breakfast would get to enjoy a meal of menudo, chorizo and eggs.  This is what we had every year for breakfast on Cinco de Mayo.  There were actually times when the kitchen staff would bring in an inmate who knew how to make menudo but didn’t work in the kitchen.  I also know that in a few hours, throughout Texas, the convicts will be dining on what passes for enchiladas, Mexican rice and corn, refried beans, and cornbread with jalapenos in it.  Most likely, dinner will be bologna sandwiches.  I am glad to get to miss this.

        I am thinking also of Thursday.  I will be in Texas again.  This time I will be attending a summit in which various legislators, prosecutors, law enforcement and defense attorneys will try to address some of the issues which cause wrongful convictions.  Most of the time, it would seem to those around me that I look forward to doing this.  I really don’t.  I don’t want to go to Texas.  I don’t want to fight for reforms in our justice system.  I really do not want to do any of this.  I would love to be sitting by a lake somewhere with a line in the water.  Or, better yet, on a river with a trout rising to my dry fly.  But I made a promise to Timothy Jackson and William “Bubba” Kent, and I promised the others that I knew that I would do this:  That every chance I got, I would speak up on their behalf.  And I guess I do this because it is the only time I feel any sense of peace.  I am haunted by the knowledge that others are suffering the same fate that I did.

        Lastly, I am thinking of yesterday.  I wish to commend Jenny Dubin and the crew at 60 Minutes for the exceptional story which broadcast last night covering the monumental events occurring in Dallas, Texas.  Craig Watkins, who is the District Attorney in Dallas, is forging an historical path of change.  Mr. Watkins has opened the doors of the District Attorney’s office to the Innocence Project of Texas and their minions, creating a task force to examine old convictions and determine how many wrongful convictions have occurred in Dallas, and free those still in prison.  This is an unprecedented event.  James Woodard  has become the 18^th person convicted in Dallas to have been exonerated by DNA.  This exoneration is due by no small means to Mr. Watkins’ courageous policies.  So in thinking of yesterday, I am also thinking of tomorrow (more precisely, Thursday) when I hope to meet James for the first time.

http://www.cbsnews.com/sections/60minutes/main3415.shtml

My trip to the 2008 Innocence Network Conference has begun.  I am currently flying at 32000ft, 432.5 mph, heading 269degrees, between Topeka and Denver.  I know this because my Garmin GPS tells me so – and I trust it (of course, LOL).  I had to see if this thing would work inside an airplane.  I am not so certain that my Wi-Fi will work up here [hmmm, thought not] so this will have to be a delayed post.  Even so, it is fascinating to be able to follow the progress of the aircraft on a map.  This is a trip I have been looking forward to for quite a while.  This is the first conference I have attended where I have paid my own way.  This is a significant accomplishment to me.  Even though I do not yet feel asthough I am successful I am making headway and it feels good!

(this is a screen shot of the GPS a little later in the flight while over Nevada.) 

                Today I read an article, Frivolous Legal Actions Cheapen Judicial Process, in the Monday edition of the Kansas City Star, written by Michael Smerconish of the Philadelphia Inquirer.  I will begin my comments with the caveat that I am not endorsing the abuse of the judicial system nor addressing the merits of the claims filed in the suit against Mr. Smerconish.  I have read neither the article written by Mr. Smerconish from which the complaint arises, nor the pleadings filed against him.  As any allegations made against the plaintiff by the defendant (i.e. Mr. Smerconish) in the article I did read are unsupported by evidence I cannot address their merits either, though on the face of the claims the defendant may have merit in arguing that the Plaintiff has some history of filing “frivolous” suits.  However, having served almost 18 years in prison without having committed a crime, I am able to address some of the issues presented by Mr. Smerconish.

        Mr. Smerconish seems to be amazed that the plaintiff who is in prison claims to have suffered “major mental damage” from statements Mr. Smerconish made about criminals.  Why is it that some people in this world, upon seeing an animal in a cage pick up a stick and start poking at it?  And then wonder why the animal tries to bite him?  Is it the cage that pushed the animal over the edge or being poked at?  From my experience, human beings who are in prison tend to block out as much of the horrible experience that they can.  Those unable to do so tend to commit suicide.  When you insist upon forcing someone to deal with the horror of being in prison, indeed even if it is of facing what a person is, you are poking at him with a stick. 

        Define frivolous?  One hundred years ago it would have been unheard of to sue your employer because you cut your finger off in a meat packing plant due to a dull knife.  Fifty years ago you would have been laughed out of court for suing a co-worker for making a sexually based joke.  Twenty five years ago it was laughable to think that a tobacco company could be sued because it sold a known carcinogen to people who voluntarily ingested the product.  Ten years ago, most people figured that it was common knowledge that coffee was hot when you bought it at McDonalds and shouldn’t be put between the legs while driving, so any claims arising out of an accidental spill would have been considered frivolous.  How many of us would have thought that the company might face liability because it used thin cups, poorly designed lids, and didn’t warn us that the coffee was hot?  Mr. Smerconish suggests in his article that being in prison presents one with unlimited time with which to promulgate unmeritorious litigation.  I would hazard to suggest that the majority of the frivolous claims filed in our judicial system are written by attorneys and filed on behalf or persons who are not incarcerated.  I wonder if Mr. Smerconish is offended that a person would consider filing pro se instead of having hired an attorney (and paying ridiculously exorbitant fees).  I am sure there is at least one attorney who would have been glad to have filed this suit. 

        The Plaintiff in the suit against Mr. Smerconish is amongst a group of people in prison known, often unaffectionately, as writ writers.  I was a writ writer.  I have filed pleadings in both criminal and civil litigation.  I am one of the few writ writers who for the most part got themselves out of prison.  When I first began my appeals it was considered a frivolous claim to allege that being innocent was cause to reverse a conviction.  Time and again the courts ruled against myself and other “criminals” as having presented a frivolous claim because we said we were innocent.  But there is another case, at least in my opinion, which is far more revealing: Ruiz v. Estelle, and its progeny.  You see, years ago in Texas it was considered fair and proper to mistreat criminals and that whatever means necessary of running a prison as cheaply as possible were acceptable.  There was this group of writ writers who thought otherwise.  They found it reprehensible that the State of Texas would assign other prisoners to act as a security force.  These inmates had the job titles of Building Tender or Turn Key.  The writ writers also thought that the State had an obligation to provide minimal medical treatment and to provide physical safety to inmates who could not defend themselves against larger inmates or gangs.  At that time, most of the medical treatment was provided by other inmates.  The defendants, Mr. Estelle and the rest of the  Department of Corrections’ administration, claimed that these criminals were receiving constitutionally adequate treatment, thus the claims by Ruiz, et al, were frivolous and should be dismissed.  I am not certain, but I believe that before the Honorable William Wayne Justice (I love his name) became the presiding Judge over the case, Ruiz and the rest were almost dismissed as frivolous.  No, Mr. Smerconish, frivolous suits do not cheapen our judicial system.  It is the frivolous suits that define our society, that preserve the sanctity of our courts and society.  We will always be at the mercy of unscrupulous persons.  It is when we are at the mercy of governmental restrictions on the judicial process that our Constitution is sorely tested.  The constitution was not written to protect us from each other, it was written to protect us from the government.

I am a big fan of music.  Music sustained me through the years when little else gave me joy.  One of my favorite singers is Jean Felix, a marvelous Brazilian lady with the voice of an angel who gave me the ability and excuse to cry when I could not do so otherwise.  Since my release music has continued to be a solace from the turmoil I call my life.  Even when I seem to others to have my life together – which I know isn’t true – it is music which quiets the voices of despair ever otherwise screaming in my head.  I have an iPod in my car (thank you Nina Morrison) and one by my bed (currently playing. It is rare that I do not have music playing.  Billy Joel wrote An Innocent Man many years ago, which I loved before I was incarcerated.  I have become attuned to songs about being innocent and in prison.  Recently I have been listening to Natalie Merchant.  I loved her music with 10,000 Maniacs and solo.  The words of her song I’m Not The Man never fully registered until a few weeks ago.  I am re-printing them here with thanks to NatalieMerchant.com:

I'M NOT THE MAN

Natalie Merchant/ Christian Burial Music © 1992

it crawls on his back, won't ever let him be
stares at the walls until the cinder blocks can breathe
his eyes have gone away, escaping over time
he rules a crowded nation inside his mind

he knows that night like his hand
he knows every move he made
late shift, the bell that rang, a time card won't fade
10:05 his truck pulled home
10:05 he climbed his stair
about the time he was accused of being there

but I'm not the man
he goes free
as I wait on the row for the man to test the rope
he'll slip around my throat...
and silence me

on the day he was tried no witness testified
nothing but evidence, not hard to falsify
his own confession was a prosecutor's prize
made up of fear, of rage and of outright lies

but I'm not the man
he goes free
as the candle vigil glows
as they burn my clothes
as the crowd cries, "hang him slow!"
and I feel my blood go cold...
he goes free

call out the KKK, they're wild after me
and with that frenzied look of half-demented zeal
they'd love to serve me up my final meal

who'll read my final rite
and hear my last appeal
who struck this devil's deal?

 

I think of those who, like my friend Nick Yarris, spent years on death row before DNA exonerated them.  This song sings out their plight and mine.  I think of our justice system.  I was raised to believe that we have the best Justice system in the world.  I have travelled enough of the world to know that this is fairly true.  But what do we mean by “the best?”  Does this mean we have a perfect system?  I do not think so.  Our system is made of human beings and we are fallible.  So what of the mistakes made by the system?  Without even looking into the causes, the negligence and malfeasance, the incompetence and corruption; what do we say of the errors?  There are now over 213 Innocence Project DNA exonerees (http://www.innocenceproject.org/) many of whom were on death row.  What is the judicial system's error rate? 10%? 1%? 0.1%?  Think of this:  There are over 2,258,983 men and women in State and Federal prisons in the United States (http://www.ojp.usdoj.gov/bjs/prisons.htm), if there is only a 0.1% error rate, that means there are 2,258 who are innocent!  So, when I listen to Billy Joel and Natalie Merchant and Bob Dylan's The Hurricane(about Rubin Carter and an all time favorite song) I think of these men and women.  Do you wonder why I hear despair? Do you wonder why I often don’t sleep?

Today is the likely release date for Tim Masters in Colorado.  After almost 10 years of imprisonment for a murder he did not commit, Tim is going to court in a few minutes seeking his freedom.  My support goes out to him.  I know what he is going through.  Even with it being a wonderful experience I hope that Tim is realistic enough to know that the exoneree’s motto will apply to him as well: Freedom is just the beginning.  There are a lot of challenges ahead of him.  I was glad to hear him say the very words I have often expressed (I think it is a military saying): “Hope for the best, expect the worst.”

 I saw an interview with him on CNN:

http://www.cnn.com/2008/CRIME/01/22/masters.case/index.html#cnnSTCVideo

I hope that many people will watch it.

       For Tim, I would say: ”Man, you can call me anytime you need to.  I may not be able to help, but I will do the best I can and try to find someone who can.”

       For the rest of the United States: Keep in mind that the world has changed in the past 10 years.  Tim is going to need help.  This wonderful country was founded as We the People, bringing with its foundation a responsibility to each other individually and as a nation.  There are individuals whose actions caused Tim’s incarceration, but it is We the People who bear the burden and responsibility of those actions and we need to shoulder our responsibility.

Several things bring me to the point where I am writing here today.  I cannot be mad or disappointed with anyone else for not writing in their blog if I am not doing the same.  A friend of mine reminded me of that fact.  I also received an email from another friend speaking about The Blog.  Finally, I subscribe to Justice & Reform, Theresa Caballero’s blog.  She recently posted an entry about her visit to the Abundant Living Faith Center, in El Paso.  This was my church before I was incarcerated.  I can attest to the charm and kindness displayed by Pastor Nieman.  He is a very charismatic man.  I hope that Theresa’s experience ends better than mine did.  While I truly believe that we should forgive others I do not so easily forget.  The Bible reads:

“I was a stranger, and ye took me not in: naked, and ye clothed me not: sick, and in prison, and ye visited me not. Then shall they also answer him, saying, Lord, when saw we thee an hungred, or athirst, or a stranger, or naked, or sick, or in prison, and did not minister unto thee? Then shall he answer them, saying, Verily I say unto you, Inasmuch as ye did it not unto one of these least, ye did it not unto me. And these shall go away into everlasting punishment: but the righteous into life eternal.” Matthew 25:43-46

I do not hope for everlasting punishment for anyone. Yet every day I remember that I am one of the least.

For the end of the entry, Ms. Caballero stated:

“I am available to meet with your civic group/church/ synagogue/mosque.  It was through a supporter that I was set up to appear at the Abundant Living Faith Center. If you have any ideas please call 241-8418. “

I am taking this as a personal invitation to suggest a civic group whom Ms. Caballero could meet with.  This coming March 28-30 the Innocence Network is holding its annual convention in Santa Clara, California.  Typically there are around 25 exonerees and numerous lawyers associated with the Innocence Network in attendance.  This is a CLE program, so Ms. Caballero could conceivably kill two birds with one stone.  I am not an official with the Innocence Network and thus cannot offer an official invitation, but I would like to provide a personal invitation for Ms. Caballero to attend.  I will be in attendance, as I hope will be Alex Hernandez, another exoneration from El Paso.  Craig Watkins, the Dallas County District Attorney, has spoken to the members of the Innocence Project of Texas.  I have had the pleasure of speaking with this gentleman.  I respect the concepts which he purports, and I respect the bravery with which Mr. Watkins has addressed the same types of problems Ms. Caballero expresses a desire to amend.  I cannot, and do not express any support for any candidate to the El Paso District Attorney’s Office.  I do express my support to improving all of the various judicial systems across the country, and personally to those who are the mechanism of this change.  I believe that we have a great system in principle, but many of the gears of this machine are rusted and broken from lack of maintenance and improper usage.  I hope we can all come together to restore Lady Justice to her rightful dignity.

Today is Thanksgiving Day.  And I have just been reminded that I promised to write about the day and Thanksgivings past.

It all started many years ago, not long after being incarcerated, I watched an episode of Northern Exposure in which Chris Stevens (John Corbett) reminisced about past Thanksgiving Days which he had spent in prison.  I was befuddled. Are you nuts!  The last thing in the world I am going to do is reminisce about holidays spent in this wretched place, I thought.  Then a few days ago while at work I found myself talking with the guys about music.  Somehow we found ourselves discussing Arlo Guthrie’s classic Thanksgiving tale of woe: Alice’s Restaurant.  I love that song and can recall the first time I heard it – late Thanksgiving night and the laughter it created woke the whole house (I was listening to it at tremendous volume through headphones). And since this is Thanksgiving and I am talking about Alice’s Restaurant it is appropriate that I am listening to this marvelous song while writing this entry.  In Arlo’s words: but that’s not what I came to tell you about.  Many years after the Northern Exposure episode I was sent to the real big house where I eventually made it into the fortunate ranks of those inmates allowed to participate in the craft shop program.  There I learned all sorts of groovy things and met all sorts of mean and nasty and ugly and horrible guys with whom I ended up sharing entirely too many Thanksgiving Day meals.  Thanksgiving Day was one of the three special meals, along with Christmas and Cinco de Mayo, in which we as inmates were treated to something other than the standard daily fair in the chow hall.  Since the meal was much larger than normal and attended by a greater number of inmates than usual, the administration was unusually considerate in allowing us to take our food back to the cell block and day room to eat instead of eating in the chow hall.  Being one of the fortunate I took my plate of food into the craft shop, and participated in the camaraderie of sharing Thanksgiving.  Now one of the mean and nasty and ugly and horrible guys that I met was a guy that went by Slim.  OK, every prison has at least one Slim, but Slim Melton is a guy that stands out amongst all the Slim’s I knew.  And Slim Melton liked Alice’s Restaurant. Fortunately, one of the local radio stations played Alice’s Restaurant every year for Thanksgiving.  Slim had a Big Real (a Realistic radio with a speaker) upon which he would play Alice’s Restaurant for the amusement of all.  Not everyone initially appreciated this masterpiece and at first it was just one person singing along and many thought he was really sick, but leave it to Slim: he created a movement – our own little craft shop tradition which carried over into the other craft shops.  It is in many ways a scary thought to recall the sight of a craft shop – with plenty of knives and various implements of destruction – full of half drunk inmates all singing Alice’s Restaurant.  So maybe it wasn’t such a pastoral scene, maybe my memory isn’t as exact here as it might be, but I like to think of those times as being the little escapes that we all longed for, the times when we could drop our masks and be civilized human beings, not common criminals sitting on the group W bench.  I find myself reminiscing and missing my friends.  So tonight I wish them all well and hope they had a good Thanksgiving.

       Today I jokingly told my girlfriend that I am a little miffed that “W” is in town for the second time and I didn’t get so much as invited for dinner.  I was in a really good mood but the more I dwell on this the more upset I really get.  Think about this:  George W. Bush as the Governor of Texas claimed that I – an innocent person in a Texas prison – did not exist.  While a number of the Senators in Texas who had never personally offended me apologized on behalf of the State and themselves, the President of the United States and former Governor of Texas has not so much as said “Howdy.”  I was raised to believe that a man, or at least a gentleman, apologizes if he has harmed or offended someone. In this apologetic society – where we apologize for all sorts of things (some of which occurred before we were born) – I haven’t heard a word from the former Governor. I am one of the few Texas inmates, and probably the only innocent inmate, who cheered for Bush both as Governor and President.  Yet not even a muttered sorry from D.C. Even the current District Attorney in El Paso apologized.  Well, Mr. Bush next time you are in the neighborhood let me buy you a real KC Strip (that is a steak for those of you who aren’t aware).

[note: if anyone reads this and is of a mind to do so, please feel free to express my sentiments to Mr. Bush or to anyone else for that matter]