Hold the Gate 3… A visit to Death Row.
As I walk out of my apartment at 03:30 in order to make the 6 hour drive up to a prison half way across the State to see a client, I pass nighttime revellers making their way into the take away joints, and wonder why I choose to drive a 12 hour round trip to spend 2 hours with a client when I could have spent the night in a bar and now be going home to bed. The answer is that my client is facing the death penalty and has not had a single visitor other than me for the past 4 years. His parents have died and his sister and her children decided to move out of State due to the death threats they received. He has been granted a resentencing hearing, this is his one chance of not having to go back to Death Row.
I’ve seen the tv documentaries and series depicting Death Row, and I have to say that’s not the Death Row that I see. When I arrive at the prison, which is in the middle of nowhere, I am searched and then searched again as though it is expected that I will have contraband on me and the corrections officers are so disappointed that they haven’t found it, that they search me again, just to prove a point. The reality is that I’ve been going into prisons for over 20 years, I will never have anything in my pockets, nothing round my neck or wrists, I will be wearing jeans and a long sleeve top, showing as little flesh as possible, and will carry a pad and pen. In high security prisons anything is a commodity, even a paper clip or an elastic band, or sneaker laces. The only commodity I have is me, and I hope that my client believes that I am a more valuable commodity working on his case that being held as a hostage!
When a Death Row inmate is moved, the whole prison is placed on lockdown, hence the other prisoners do not like the Death Row inmates. The corrections officer tells me that they are taking me over to Death Row as the conference room is busy. It’s the first time I have been to this prison and I assume that they are saying this to scare me. The reality is that, as I haven’t been to this death row before, I am desperate to see inside it and see what it’s like, and if it’s as bad as I’ve heard.
We walk through the prison wings, through one locked door after another, I am aware how empty the prison seems. Usually when I walk through prisons I come across inmates everywhere, polishing floors, pushing laundry carts, carrying boxes for staff. But today, as I’m being taken to Death Row, there is noone around, it seems eerie. It really is a lock down. No wonder the rest of the prison inmates don’t like the Death Row inmates.
We arrive at Death Row and I’m struck by the fact there are more corrections officers in this wing than anywhere else, but no inmates. They are all locked away behind cell doors. There is a table in the middle of the room and I’m told to sit there. It’s a very hot day outside and there is no aircon in this wing, Infact there is very little air in this wing. There are a couple of electric fans on the wall and the corrections officers have angled them down towards their chairs. To say it’s stifling in the wing is an understatement.
I notice that every other cell is empty, so that the inmates can’t even talk to the person next to them. I know from conversations with previous clients who have spent time on Death Row, that they are not allowed a colour TV, they can buy an overpriced black and white one which only shows the State run channels….that is the Government channel and a religious preaching channel. The inmates are locked up on their own for 24 hours a day, they usually get one hour of yard time a week, and that is usually in the yard on their own. They can have a couple of phone calls a month, but very few have anyone to call. There are no cats, or birds, wide screen TVs, communal areas, basketball matches.. These seem to exist only in tv documentaries. My client hasn’t had a hot meal since he arrived at Death Row as his food is driven over from the main wings, by the time it’s pushed though his door it is always cold. A few weeks ago his cell was searched and his mattress, sheet and pillow taken, he still doesn’t have them back. He is given postage stamps by the State, but isn’t allowed a pen or paper. His only book permitted is the Bible. Effectively Death Row sends my clients mad.
My client is brought out to the table, shackled at hands and feet, and round his waste. The hard cuffs on his wrists don’t even give him the flexibility to use a pen to sign the forms I have brought with me. I start to ask that my client is unshackled, but he gets very nervous and asks me not to make a scene. As I sit with him I am conscious of corrections officers walking past, much too close, as if to antagonise him, and they then start coughing and muttering things under their breath. So now I’m antagonised! I stand up and say “seems a lot of you in here have a cough, next one who disrespects me while I’m sitting with my client gets to walk the Green Mile to the Warden’s office, now get these cuffs off and move out of our personal space.”
The client looks stunned, the corrections officers stand rooted to the spot and then one comes over and says “he’s a killer, if he kills you, don’t come complaining to us.” The irony seems lost on him.
My client is unshackled and all the corrections officers move to the end of the room, obviously hoping that my client is going to come true on their warning. My client smiles and says ‘no one has ever fought for me before.”
We get to the end of the visit, the client hasn’t killed me, and I’ve ascertained that he went to Death Row aged 18 for a domestic killing. He shot someone who was beating on his mom. The problem was that he is black and the guy he shot was white, and the area they lived in still had segregation until the late 1970’s so at the time of his offence race issues were still prominent.
I could petition the Warden to get my client a mattress, sheet and pillow, pen and paper, but I know it will be of little use. Instead I submit the form I’ve just had my client sign.. The transfer form to get him moved to a jail closer to me so that I can work on his case. A jail that isn’t luxurious, but where he will at least be able to talk to other people.
Meanwhile, I have the unenviable task of trying to prepare a sentencing package for a 30 year old case in which the previous lawyer, who was not a criminal lawyer, didn’t turn up for the sentencing hearing as he was working on a private civil case, but in which the judge didn’t feel the client was sufficiently disadvantaged to postpone….
* I subsequently agreed a sentence of 40 years incarceration (with life probation) with the prosecutor… After all those years on Death Row, my client’s health is so bad I doubt he will make 58, but at least he has some hope, he has a prison job, and the State has been saved the exorbitant amount of money that it costs to keep an inmate on Death Row each year
Hitting the Real Life Murder Scene & Trying to Keep the Client From Death Row
My mum had high hopes for me as a lawyer, but it turns out, I only like the dirty gritty edgy stuff that brings me into contact with the worse crimes that you can imagine. The kid found in a suitcase in the canal, the torture of a gang member and anyone who just happened to be a member of their family, the tourist abducted from the beach during a night time stroll and buried alive. Yet I also see those who are accused of the crimes, the lives they have lived, and still live, and I also have at the forefront of my mind the fact that they might, just might, be innocent. I’m a defense lawyer trying to keep those charged with the most heinous crimes from Death Row.
Standing in a street which was the scene of a drive by shooting two days earlier, I count the number of bullet holes in the building opposite, and then notice that the cars in the neighboring yards are also riddled with bullet holes and that the 2 inch thick metal fence posts didn’t fare a lot better. Meanwhile cars with blackened windows cruise past very slowly, and I’m conscious that if the window rolls down and there is an automatic weapon on the other side, those holes aren’t just going to be in a fence post and house brick.
So why am I here? It’s a crime scene and my client is charged with murder, it’s as simple as that. I want to look at the crime scene, get a feel for it myself, speak to the neighbors – if any will speak to me – I’m a middle aged white woman in a predominantly black poor neighborhood. Some call it the ghetto, but its not, there are good, hard working decent people living here, they would like to move but are unable to, they are in hock to the bank for their houses and no one is going to buy a house from them with the added selling pitch of MP5 bullet holes. Instead they have to hope that their son coming home from school at 5pm isn’t the next innocent victim of gang turf wars that have spilled over to these streets in recent years.
I don’t have the back up that the cops have when they visit these areas, I don’t have a firearm, or a radio to call for back up. To advertise the fact that I’m not a cop, I often show a lot more flesh than I usually think appropriate for a defense lawyer at work, tight cropped jeans so that its clear I don’t have a firearm strapped to my legs, bare hips and small of my back, showing there is nothing concealed in my waistband, and a Public Defender tag around my neck. It’s as good as a sign on my head “Yes I know I’m way out of my depth on these streets but I’m not a cop or looking to buy drugs”. In reality my best asset is my English accent, its very rare for a person not to respond to me when I ask to speak to them.. there is always that curiosity, it might come in the form of “I love your accent, where are you from?” or “hey Bitch where you from, that ain’t no Hood accent”. To me it doesn’t matter so long as it gets people talking, as that what I’m there to do. Many of the people in these streets will have refused to speak to the police, or to provide statements, but they may be prepared to talk to me. A street of 20 houses, at least 10 of them hit by stray gunfire, and when the police attended, no one heard a thing, apparently they were all asleep. I can usually find at least one or two who were not quite so asleep after all, and then there is always the local gossip who may actually hold a fair amount of truth.
I take photos of the scene on my iPhone, locations and lighting, where cars would have likely been parked, lines of sight for the neighboring and opposite houses. I’m not a crime scene investigator, but I have a good eye for a crime scene and will pass all my information back to the defense investigators and tell them what I want them to look for, what reconstructions I want. If it was a night time shooting then I’m sorry but I need an investigator to go back at night time. A day time photo or an ariel shot from Google Earth isn’t going to cut it with me.
I will often go back with the investigators to show them what I want. In the past I’ve borrowed cars to carry out reconstructions using the exact same car the police were sitting in to show that they could not have seen what they say they saw from inside the vehicle. I’ve asked cops to interrupt their lunch to get down on their knees in the middle of the diner and pull a weapon to show me whether it can be done the way my client has said it happened, and I’ve visited snitches in jail to tell them that so long as they keep out of my client’s way they should be ok as I’ve told my client that if the snitch dies, they too are going to face the same grim reaper that they have tattooed on their arm!
I am sure many of you are thinking that this is the stuff of Hollywood and doesn’t happen in real life, and that’s right, many lawyers don’t do anything more than meet their client at court and speak to them occasionally on the phone. But that’s not me, I need to get into the mind of my client and their life, and because of this I have ensured that most of my clients don’t go to Death Row and with those who do I can say I have tried.
Next stop is the local liquor store as these are often the focal point for these neighborhoods. As I walk up to the liquor store with its blacked out windows I’m never quite sure what to expect inside, but it is the usual, the clerk and all the alcohol behind bulletproof glass, money passed through a small gap where the glass meets the counter, a big metal pull out tray under the counter where the alcohol is delivered after payment is made. The only stuff on show are a few cans of coke in a side fridge. I grab a coke and join the queue, which parts for me to go to the front. I’m not from round here, they want to know why I’m there and possibly get me out as soon as possible. My problem is that I don’t want to go first, I want to talk to the clerk when he’s on his own. As soon as I walked into this store I realized that my client wouldn’t have walked into this store to jack it, the bullet proof glass, with American Rifle Association stickers all over it, gave it away that it’s not quite an easy target, so the other option is that he or those with him, were in here to buy a firearm. I explain to the clerk who I am and tell him that I am confused as to why my client went into the store that evening as surveillance footage shows that he didn’t exit with any liquor, was it perhaps that they card everyone, and my client didn’t have ID? The clerk completely ignores me.. oh well that’s a bust then. Two guys behind me snigger as though they can’t believe I am naïve enough to think that this liquor store cards all its customers. As I walk past them I mutter “or is it that he wanted something else that went in his waistband?”
By the time I exit the liquor store there are kids circling on bikes “hey lady, you been asking questions in my neighborhood?” It’s amazing how a 12 year old kid can create such an intimidating atmosphere, but my clients over the years have taught me ….don’t back down, don’t show a sign of weakness, you might still get shot or beaten but its less likely ..jeez thanks. So I don’t back down I walk up to the kids, I hand them all one of my cards, and they let me walk off. As I drive out of the parking lot, one of them circles up to my car, and gives me a name…it might come to nothing or it might be the breakthrough in my case. My client’s life might actually be saved by a 12 year old riding a bike!
Is the detainee a suspected offender, a human trafficking victim, or both? The Dilemma for Custody Sergeants, First Responders, Appropriate Adults and Police Station Reps
The portrayal on TV of human trafficking investigations usually involves large scale police operations where a house or warehouse is raided and thirty to forty human trafficking victims are discovered chained to beds or walls, in the dark, and the victims are emancipated and in poor health. I have worked with law enforcement on human trafficking operations around the World, and this portrayal is rarely the reality. The whole point of human trafficking is to exploit the individuals, hence they are unlikely to be found in a state where they cannot work for their traffickers or enforcers due to the fact they are chained up all day and in very poor health. Most victims of human trafficking will be found outside in the local community or working in factories or fields. Many will only come into contact with the police due to the fact they have been suspected of committing a crime or are the victim of a crime. Their first contact with the police will be a response officer or a neighbourhood PCSO. Human trafficking victims are warned by their traffickers not to speak to the police, and may come across as hostile.
At a meeting with frontline police a few weeks ago, we discussed the daunting task for a custody sergeant in terms of identifying potential victims of human trafficking in the cells. The decision that the custody sergeant makes in the first few hours after an arrested person is presented to them at the custody desk can make or break a human trafficking investigation. This may sound dramatic, but unfortunately it is the reality.
For example, a 12 year old child is arrested for pickpocketing. The child states that they do not speak fluent English. The child is entitled to an appropriate adult in custody, the child provides a number which she says is her dad’s number. A call is made to dad who agrees to come down to the custody suite. On arrival he is polite and apologetic for his daughter’s behaviour and asks to speak to her. He then speaks to her in their native language, says that his daughter is ‘Sorry’. Is this a concerned father and contrite daughter, or a trafficking victim who has been told by her trafficker or enforcer that if she says anything he will hurt her younger sister?
The language spoken by the child is not one regularly heard in the police station, an interpreter has been requested but will not be available for a few hours, the custody sergeant is being pressurised by an officer who is due to go off shift soon and wants to interview, it is now after midnight, and the child has already been in custody for two and a half hours. Dad has stated that he speaks perfect English and is happy to interpret, he doesn’t want his daughter detained in the cells any longer than absolutely necessary, and as he is present he doesn’t see the need for lawyer, his daughter has admitted to him that she stole the mobile phone as she wanted the same type as the other girls at the school and he had told her she had better save up for one, but she stupidly saw a phone hanging out of someone’s jean pocket and decided to take it.
Due to the nature of the offence, the father’s concern and his sensible approach, it may be the best decision that the interview go ahead with Dad interpreting, hence the child is not detained at the police station late at night, and the matter can be resolved that evening. But, if Dad is a trafficker or enforcer, throughout the interview the child could be saying “he makes me steal” for which Dad’s interpretation may be “I am sorry, I apologise, I know it was wrong”.
In the latter scenario, the child may receive a reprimand or final warning for an offence for which they have a defence, but just as important, the child will see the police working with the trafficker or enforcer and not protecting her and will be highly unlikely to ever trust the police again. Add into this mix the fact that the police will release a victim back into the hands of a trafficker or enforcer, igniting huge safeguarding issues.
Those who work on human trafficking investigations are aware of the large amount of false documentation often found in premises used to house trafficking victims. This documentation is usually good quality and hence it can be simple for a trafficker to produce documentation indicating that they are the child’s father – especially in cases where the child has also been used for benefit fraud as well as pickpocketing.
Contrast the above scenario with the case of three detainees who tell the police that they are aged 15, when in actual fact one is age 20 and actively working as an enforcer of the other two. If a custody sergeant decides that there is a likelihood of the detainees being trafficking victims, and treats them all as victim, this may jeopardise any investigation into their criminal activities and again, the trafficking victims may see the police as being ‘soft’ on their enforcer and assume that he has paid off the police (as is common in many of the Origin countries for the trafficking victims). Hence the enforcer’s victims will not be open to the police, and the enforcer may be released into the hands of the social services and have disappeared within 24 hours.
These are just two of the many scenarios which a custody sergeant may face, there are many others. For example if a potential trafficking victim is kept in a cell for a few hours while the investigating officer/arresting officer decides whether that detainee is a victim or potentially involved in criminal activity, or both, any trust that the victim had in the police may have been lost by the police placing them in the exact same situation as the traffickers – locking them in a room and telling them not to worry as they are safe. The alternative is to treat the detainee as a potential victim, but this may have serious implications for any future investigation and prosecution if it can be argued that even the police did not suspect them as being involved in criminal activity. Ultimately this always has to be an operational decision, but it is a decision that should be made with awareness of the issues surrounding potential human trafficking victims.
Hence, while each police authority may have set up specialist units to investigate human trafficking, it may be the custody sergeant who plays the most important part in making or breaking the trust of a human trafficking victim. I do not, for one minute, suggest that custody sergeants and initial arresting officers are not going to recognise that in some situations the relationship between a child and a appropriate adult does not seem right, but taking the leap from this to recognising a potential human trafficking victim may be difficult.
Migrant Helpline is a Home Office/UK Human Trafficking Centre recognised first responder for potential human trafficking victims and offers free training to frontline officers and custody sergeants on identifying human trafficking victims and the current human trafficking trends. For more information contact Alison Gurden on gurdena@btinternet.com
Hold the Gate 2……Firearms, Drive By Shootings and Red Mist can end in a Death Row cell
For anyone who visits Florida Jails and prisons that is a familiar phrase. It essentially means that the doors and gates inside the jail are locked shut and there is no escape.
“Hold the Gate’…..I enter the pre-trial detention center in Miami just as a troop of defendants, some dressed in their own clothes, most wearing orange trousers and smocks, all shacked together by the hands, cross in front of me on their way to court. The gate behind me, which is my exit to the outside World is locked shut.
‘Morning Miss’ say some of the troop as they shuffle past, others smile or nod their head. Due to the number of inmates being taken to court, there is a backlog and the hall begins to fill up with inmates. The hall echoes even when empty, but with all these inmates and corrections officers in one space, it is deafening.
A guy sits down next to me, a plain clothed cop. ‘Which floor you going to? I ask him.
“Gladiator” he replies. The 5th floor is known as the Gladiator floor as it is the roughest floor of inmates. My defendant I want to see that day is on the 5th floor.
“Damn…are you interviewing or taking someone away?” I ask, ever hopeful that he is not going to queue jump me. There is only one interview room on the 5th floor and cops usually get priority.
“Picking someone up for the State’s Attorney’s Office”. My interest is now piqued, if he is taking someone to the SAO, they are probably doing a deal, i.e. ‘snitching’, and I need to make sure it is not my defendant who is being interviewed without a lawyer being present. To be fair, none of my defendants consider speaking to the cops without a lawyer when they know I am around. I have threatened all of them that the work I will do on them is ten times worse than anything the cops can throw at them if they speak without a lawyer…they now seem to know the score.
The noise is still deafening, as more inmates shuffle into the room, and then the door to the courthouse is released, the inmates file out and the room is suddenly quiet again, and the gate is opened for more lawyers, and cops to enter. I sit and chat to the cop about a recent shooting spree in North Miami and he tells me that it is a gang feud, both gangs are trying to assert their authority and take over the patch, and in the meantime innocent people end up the victims of drive past shootings. I tell him about a woman I met a couple of weeks ago whose daughter was killed while she was asleep in her bedroom, the bullets from a drive past shooting went straight through the outside wall and into her bedroom. It turned out that the shooters had targeted the wrong house as they had mixed up the house numbers. He tells me that he now has at least one automatic assault rifle in in the trunk of his vehicle as well as his automatic sidearm, and he is nowhere near as well equipped as the kids carrying out these ‘drive bys’.
The cop asks me what firearm I carry and I tell him that I don’t, and don’t have a permit to carry. He looks at me in amazement ‘but Ma’am in your job, you must have a firearm’
I tell him that I won’t carry a firearm for many reasons, but one reason is that I know I have an instinct of survival and that if I carry a gun I might just feel tempted to use it. To which he replies “that is the point!”. I explain that I wouldn’t be able to live with myself if I pulled the trigger and killed someone, no matter what the circumstances and he tells me “you English sure are principled”.
The reality is that I can use a firearm and I regularly visit the shooting range as I like to use all the firearms my clients are alleged to have used, so that when they give me the standard phrase ‘the gun just went off’ I can tell them that it doesn’t happen like that, I have tried the firearm and the trigger pull is such that it can’t just go off. But I will never carry a firearm, as I know that one day I may be in a confrontation and the ‘Red Mist’ may come down, and that is when I would end up like many of my clients…a kill shot in anger can end with a cell on Death Row.
The lift doors opens and an inmate is escorted to the holding cell in the hall. This is where he will be held until the cop has completed the paperwork to take him to the State Attorney’s Office. In the meantime, all the inmates who walk past and see him in the holding cell, and the cop in the Hall, shout out ‘Snitches get Stitches”. For this inmate, if he is returned to the Pre Trial Detention Centre he will not have an easy life. It is common for the inmates to be transferred to another jail after a visit to the SAO, and often they end up with a stay in solitary confinement for their own protection, to stop them needing ‘stitches’
I scoot over to the lift and push 5 before anyone can challenge me…the Gladiator floor is often placed on lockdown after an inmate is taken out of the pen as the other inmates get worried about whether the inmate is going to snitch on them, so I want to get in to see my client before lock down comes into force.
As I get into the lift, I hear the Cop’s voice behind me…”You want to think about that firearm, Ma’am”. He points his two fingers at me as the lift doors close and smiles..
Hold the Gate….
This is a familiar phrase for anyone who visits Florida jails or prisons. It means that the exit gates and doors are locked shut as there are inmates walking past.
Its 8am, and as I walk though the gate into the elevator lobby in the Pre-trial Detention Center in Miami, I hear the familiar phrase and a line of inmates in Orange shuffle past me, handcuffed in two’s and shackled to the inmates in front. They are all on their way to court. Some say ‘Good morning Miss’, others nod at me or smile, others keep their heads down or eyes straight ahead. These are usually the inmates who are new to the system, and who cannot grasp what is going on around them.
This part of the jail is mainly metal gates, the lobby echoes, and with all these inmates and the corrections officers directing them, the sound is deafening. I get the nod from the front office, the interview room on the floor I need to visit is free, I can go up. Despite the fact the room is full of shackled inmates, with no space to squeeze around the edge of them, I will not miss the opportunity to get into an interview room, there are only one or two on each floor and as the day progresses they will become more in demand. I eye up a couple of inmates who have nodded to me and said ‘Good Morning’ to me.
“Excuse me lads, you couldn’t just crouch down so that I can jump over your chains could you?” They oblige and I skip over their chains and head for he lift. Don’t get me wrong, I have no illusions that all inmates will be nice to me, and I will never duck under the chains, as it would be all too easy for an inmate to loop that chain around my neck. For the very same reason I will not sit in an interview room with an inmate who is handcuffed (inmates are handcuffed to the front), although I believe I have a good gauge of my defendants, and have never had a client, either in England or anywhere else, make a move on me, I don’t want to be in a 6′ x 6′ locked room with an inmate who has a metal strangulation method on their wrists, everyone has bad days..
The inmate I am going to see is charged with capital murder, but is not considered to be a high risk, and so is on one of the less violent floors. He is based in a pen with 23 other inmates. The corrections officers know me as I regularly visit him and spend hours with him in interview. They take my badge and allow me to walk down to the pen gate. Before I can yell to my inmate, others have seen me coming and have already called him. The rules don’t allow me to stand at the gate and talk to the inmates, but it doesn’t prevent me from taking a very slow walk back to the interview room whilst chatting to the inmates who have come to the penn gate. To many, this is the only contact they get with someone who is not a corrections officer or inmate. Our conversations are like normal office talk ‘did you see the game last night?’ ‘Have you heard the new Usher track?’.
I wait in the interview room for my client to be brought in. He is handcuffed and the first thing I ask is ‘Cuffs off please’. The corrections officer is new, to the floor, I have not seen him before. “I don’t know m’am. Its for safety.” he says. I look at my client “You aren’t scared of your safety with me in the room are you?”. He laughs, and the guard takes the cuffs off. I shake hands with the client and we sit. There is just enough space for the table and two chairs, the room has windows on two sides and as we talk, the inmates outside preparing the lunch trays watch us. They are ‘Trustees’ which means they have earnt the right to be out of their penn carrying out jobs. Earning the right usually means they have behaved themselves, but it also means they have been in jail for a long time. They know me and know better than to interrupt my interview by banging on the window, or trying to attract my attention, but they give a small wave and nod as they go past, and I return the same.
This client is one I first met two years ago, and I have spent a lot of time with him since. He is charged with capital murder,
“How are you doing” I ask.
“Ok, there was a fight in the penn last night. Dude got shanked, he was cut real bad”
“Who?”. He tells me, and I recognize the name. An inmate who is a co defendant on one of my other cases.
“Can you find out how he is?” Just as I think my client is feeling compassion for this inmate, he continues “cause he has a good bunk and if he ain’t coming back I want his bunk”.
“Wow you are all heart, you know that?” I make it clear that I am not impressed with his lack of compassion. He just nods.
We talk about things that have happened in the jail since my last visit and then we talk about the specific element of his mitigation that I want to cover that day. This client is not the easiest to obtain information from, not because he is not prepared to talk, but because his thought processes don’t work in a logical way. I cannot ask direct questions as he either does not understand them or cannot think through the answers. So I have to ask roundabout questions. For example when I asked him ‘Did they cuff you to the back in the cop car?’ he didn’t know. But when I said, think about sitting in the cop car, was it uncomfortable, did it hurt?’ he replied ‘yeah, as they had my hands cuffed behind my back so I couldn’t sit back’. I have probably spent over 200 hours with this client, and from that have obtained the occasional chink of helpful information. That is one of the benefits that I can provide to the public defender’s office, as I am a volunteer, I am not on the clock and can spend hours sitting talking to the clients, whereas my colleagues cannot justify doing so as they have so much other work to do.
We talk for about an hour and I manage to get a small amount of useful information from my client. I always try to finish the interview on a positive note, rather than dwelling not he case, and this morning we talk about one of my recent escapades…
I bang on the window to let the corrections officers know I want to be released, but I am not sure that they hear me as they don’t make a move, so I catch the attention of the trustee and get him to let them know I want releasing. I do often wonder, if my client were to start kicking off whether the corrections officers would notice in time to help, but fortunately I have never had that scenario. I have had situations where I can see that a client is changing their demeanor (I have one client who hears the Devil every so often), and when that happens I decide it is time to go, the last thing I want is for my client to get in trouble because I have pushed his buttons too much.
As I leave the interview room I have a chat with the trustees, one of them wants to know whether I can teach him the rules of soccer. “Another day’ Honey..’ I say as I get in the elevator.
The lift arrives in the lobby to another mass of orange, and the familiar ‘Hold the gate’. Once again I am trapped in this noisy lobby with over 40 inmates. One of them leers over towards me, I stand my ground…any sign of weakness can get a beating or a reputation of being scared…I want neither. The line of shackles move off and the leering inmate moves forward and out of my way…
The gate is released and I can walk out into the sun and humidity of a Miami morning. Every time I walk out of the jail I am eternally grateful that I have my freedom, and the humidity, that I usually bitch about, is suddenly a great feeling. I am aware that some of my clients have not had that feeling for the last 5 years, and may not get it again for a long time, and when they do, it will be in a yard surrounded by barbed wire and watch towers.
Since the Trevor McDonald programme I have been inundated with questions about my life with death row prisoners, and those in jail awaiting trial for capital cases and who may be ordered to face the death penalty. This is the first in a series of blogs to explain the reality..which is nowhere near as glamorous and dramatic as the TV indicates. This extract of a jail visit is made up of my experiences with different clients in order to protect and preserve their anonymity.
I am happy to answer questions about my work, but I will not under any circumstances provide any access to my clients, so please don’t ask me if you can interview my clients, visit my clients, interview me about my clients, or come with me on a visit to the jail or prisons because the answer will be a resounding ‘NO’ . These are peoples lives I am dealing with. I am not a bleeding heart lawyer, I accept that some of my clients are guilty, and some are innocent, and that the guilty ones caused the death of another, often in horrific circumstances, but that does not make them a circus animal they are still entitled to the best representation, and I will do my utmost to protect them to make sure that there is a due process of law.
How I Defend Killers and Still Sleep at Night
As a defence lawyer I am often asked how I cope with representing those defendants charged with the most serious crimes, in particular rapes and murders. Much of my work is with defendants facing the death penalty in Florida, so they are alleged to have committed the most heinous of murders.
For me, the answer is simple, I believe that everyone is entitled to a fair trial and that involves legal representation by a person committed to their case. In all my cases, it is not my role to judge the guilt or innocence of my client, that is for the magistrates or jury. My role is to review the evidence and to advise my client on the evidence as it stands. I will often advise a client that based on the evidence, I consider that a jury will find them guilty, however the decision remains theirs as to whether they plead guilty or take the case to trial. They have a right to a trial, even if the evidence is stacked up against them, and I can quote many high profile cases where the media portrayal of the evidence was such that it was assumed that the defendant would be found guilty, yet the jury found otherwise.
I believe very strongly that a client should have the right over their own destiny, and if they want to take their case to trial, even with the odds stacked against them, that is their decision. Who am I to dictate to them how they should behave, if I have advised them of the consequences as I see them, it is up to the client to decide how to deal with those consequences.
Nowadays I choose to act solely for the defence, however in the past I have prosecuted and defended, and as such I am fully aware that not all my clients are innocent, and that in many cases there is a victim involved. The impact of the crime on the victim should not be ignored. I know of some lawyers who will always try to justify their client’s offending, and will try to vilify the victim. That is not a practice I admire. For one, the fact that there is a victim means that as well as the defendant, there is at least one other person whose life has been affected by the crime (and I put in this manner as it is rare for false accusations to be made in court, so there has usually been a crime committed, what is questionable is whether my client committed the offence). Secondly, to ignore the impact on the victim means that the feelings and empathy of the jury is also being ignored, and this is dangerous, a lack of understanding of the jury means that a defendant may not be receiving the best advice on how the evidence against him or her is going to be perceived by the jury.
I can sleep at night as I know I give my clients the best representation that I can, and I hope that this results in them receiving a fair trial if they decide to plead not guilty, or a fair sentencing hearing if they decide to plead guilty. I am not perfect and they may be cases where I have misjudged the impact of evidence, or miscalculated a jury, however I always fight for my client no matter who they are or their alleged offense. If that means I earn some bad publicity on the way, due to the offences charged, then so be it, this is the profession I have chosen, and I consider myself to be fortunate to be able to do a job I love.
Dazzled by Science – The Dangers of Lie Detectors
About this time last year I sat in a conference room in a hotel in New York surrounded by lawyers, homicide and vice cops, and journalists, while an academic demonstrated the wonders of a new lie detector test he was developing – the use of MRI scans to test a person’s truthfulness. In essence, he was showing us images of the brain and explaining that when the subjects lied, certain parts of their brain glowed red on the scan and that this could be transferred to the use of MRI scans in the criminal justice system, if a person responded to a question and a certain section of their brian glowed red on the screen then they were lying.
As I looked around the room I was amazed at how easily all these delegates who, by nature of their professions should have been overly inquisitive and skeptical, were lapping up this information. When I raised my hand and asked if anyone else was feeling as uncomfortable as I with these findings, based on tests with those who were not people under criminal investigation, I was greeted with a looks of distain. With the exception of a homicide cop, no one else in the room seemed to have a problem with the suggestion that this was the ‘future’ of interviewing defendants.
While I accept that I am not scientifically minded and as such can be skeptical of a lot of scientific findings, my main issues with this new lie detector model were that the testing was done on students, in a controlled environment, who had volunteered to take part in the research, they were all at least college level educated, and had been given a script, and had then been told whether they had to lie or tell the truth from the script. There had been no testing of defendants of low intelligence, placed in the extremely stressful environment of a police interview room, who were sleep deprived, had recently taken illicit or prescribed drugs. Neither had there been any testing of defendants who had good reason to lie to protect themselves or others, and who knew that they were in danger of facing a lengthy prison sentence.
Even worse, the fact that all of these people, who should have known better than just to accept findings without questioning them, had collectively accepted the findings, made me realize that a jury would be unlikely to question any of the findings. If the scan showed a brain glowing red, the subject would have lied, and hence the jury would have no reason not to find them guilty.
And that is the reason that the lie detector must be viewed with skepticism, it is rarely tested in the exact environment. I have spoken to many defendants in the USA who have been the subject of a lie detector, many felt scared of the physical element of the test, having wires attached to a cuff on their arm and chest. The demeanor of the person carrying out the test has a big impact on many defendants, some felt that they were being encouraged to answer in a certain way by the machine operator. The format of the questions can have a big impact on the answers given by the defendant. Finally the analysis requires someone to make an assessment of the findings, I have experience of the same defendant answering the same questions in three different tests and each assessor came up with a different conclusion.
In theory, the tests that have been carried out on sex offenders may have produced some results which can be seen as positive, but can they actually also be determined as truthful? And if the lie detector is introduced in this area, how long will it be before it is introduced into the criminal justice system in other areas. Beware the dazzling effect of the mumbo jumbo…..
The Derek Bentley of the 21st Century
The case of Miller and Jackson made the headlines in the USA and Europe last week, following the US Supreme Court decision that juveniles sentenced to Life Without Parole for homicide offences should be entitled to a new sentencing hearing. On first perusal this looks like a ground breaking decision of the US Supreme Court, but in reality it will do very little for most of the inmates who were sentenced to Life Without Parole while they were juveniles, other than provide many with false hope of release.
The circumstances of Kuntrell Jackson are very similar to those of Derek Bentley – all that separates them is a big pond and 60 years. Kuntrell Jackson was 14 at the time of the homicide, he and two others decided to rob a video store. En route to the store he realized that one of the others (Derek Shields) was carrying a firearm. Kuntrell Jackson waited outside of the store while the other two went inside. Derek Shields pointed the gun at the store attendant and asked her to give up the money. While the gun was still pointed at the attendant, Kuntrell Jackson entered the store, his version of what happened next is that he said to the others “I thought you all was playing..” the State version of events is that he said to the attendant “we ain’t playing”. Shields then shot and killed the attendant.
In most US States, felony murder attributes murder to all persons who had an intention to be involved in a felony and during the course of that felony a homicide occurred, regardless of whether the person actually killed or intended to kill. The fact Kuntrell Jackson had planned to rob the video store, and during that robbery the attendant was killed by another was sufficient for transferred malice, and for him to be sentenced to Life Without Parole for homicide.
The Opinion of the US Supreme Court in Jackson (and Miller) makes it clear that it has not given Jackson a get out of jail free card. The court’s opinion is very prescriptive, and much more narrow that its previous decision (Graham) concerning Life Without Parole for non-homicide offenses. The court has made it clear that Jackson’s case should be remanded, so that the court can determine Jackson’s intent with regard to the homicide,and reconsider the sentence. The US Supreme Court even went so far as to indicate that if Jackson did have the intent for Shields to kill the store attendant, then Life Without Parole may still be an appropriate sentence. Justices Breyer and Sotomayor went further and stated that ‘..this type of transferred malice is not sufficient to justify the intent to murder that could subject a juvenile to a sentence of life without parole…..The only juveniles who may constitutionally be sentenced to life without parole are those convicted of homicide offenses who ‘kill or intend to kill’. These Justices opinions are persuasive, but not binding, and in States where the courts were happy to rule that transferred malice is sufficient to lock a kid up for life, it is highly unlikely the courts will now look kindly on these persuasive views.
Hence, Jackson, and many others like him have another chance of putting their case across in the hope of some kind of reduction in sentence, at least they are getting chance of release at some stage in their life, a chance that Derek Bentley never received.
Foreign National Prisoners – the Forgotten/Ignored Prison Population
Yesterday, I spent the day hearing about the problems faced by Foreign National Prisoners (FNPs) and the advice workers who support them. The main problems which came across quite clearly are that the prisoners have no one to take on their legal complaints, most of which are the result of State action or inaction.
It must be remembered that most FNP’s are not asylum seekers, most are serving a prison sentence and would like to return home at the end of their term. For example, the Foreign National Prisoners who have confiscation order proceedings running against them. In many cases, these proceedings have been running for over 2 years. The FNPs have served their sentence and wish to return to their home country but can’t do so as the State won’t agree to their release due to the pending confiscation proceedings. There is no Legal Aid available to support these FNPs, and therefore they have to languish in jail until the State can get its act together on the confiscation applications.
The 20 year old criminal defendants who found that they were sentenced to 12 months or more in custody, but their co-defendants who were equally culpable received lesser custody. They wish to appeal against their sentence, but can’t find a criminal lawyer prepared to take on their appeal due to the fact that any reduction in sentence will only be a month or so. The reality is that this month can be the difference between deportation for not for these FNP. The criminal lawyers don’t appreciate the deportation rules in relation to FNPs.
The FNP who had a piece of family jewelry taken from him when he was detained in the police station. He subsequently requested its return, and was told that it had been auctioned as that police authority only kept a person’s property for a year. The police authority had written to the FNP at the address he had given when arrested, but since that date he had been detained either on remand or as a serving prisoner. He wishes to bring an action against the police, but is unable to do so from inside his prison cell and without legal aid, or any money to pay a solicitor.
The male charged with false document offenses who told his lawyer that he was being forced to travel into the country to work in a food takeaway, and had been handed the documents just before they arrived at the port and told to show them. His family had been threatened and he felt he had no option but to travel to the UK and undertake the work. The police and his lawyer determined that he was a smuggled person and not a victim of human trafficking because ‘human trafficking victims come in on the back of a lorry’. He is detained in prison, awaiting deportation, desperately worried that his family are being punished, and his traffickers remain at large, released by the police due to lack of evidence..
There are numerous young detainees who have realised for the first time, while in prison, that they may be subject to deportation. All stated that they were not advised by their lawyer that there was a risk of deportation, and many don’t actually realise that they are Foreign Nationals as they have been in the UK for as long as they can remember.
While the prisoner advice agencies are able to help with the day to day enquiries for these FNP and in many cases provide a lifeline, they are unable to take on the FNP’s legal complaints. Without the possibility of legal aid, they rely on the pro bono assistance of lawyers, but only if the lawyers understand the problems faced by the FNP and the consequences of their serving a custodial sentence will they be able to provide any meaningful assistance. In the meantime the FNP’s, whilst remaining a political issue for the Home Secretary, for most of the population they are the forgotten ones.
Law Gazette Opinion – Criminal Justice System Failing Asylum Seekers
More Concern that Criminal Lawyers may be failing migrants by providing poor advice says CCRC
More Concern that Criminal Lawyers may be failing migrants by providing poor advice
http://www.lawgazette.co.uk/news/hundreds-miscarriage-justice-claims-over-legal-advice-failings
“If I had known I had a defense to not being in possession of a passport, I would not have pleaded guilty”
Due to the complexities involved, and the fact the clients are often reluctant to assist their lawyers, immigration offences prosecuted by the CPS are an area which falls outside of the general knowledge of many criminal law practitioners. It is essential that anyone advising those suspected of immigration offenses are aware of the law. From police station representatives to those providing representation in court, a lack of knowledge of this complex area is resulting in some clients pleading guilty or being found guilty of offenses for which they have a defense.
In interviews with inmates at the prisons housing foreign nationals, the common comment is that they were not aware that a conviction could mean they were likely to be deported at the end of their sentence.
In the USA, a failure to advise a foreign national client of the possibility of being deported if they plead guilty to an offence is regularly classed as Ineffective Counsel, and has been the result of many successful appeals. While it is not suggested that the Ineffective Counsel arguments are adopted in the courts in England and Wales, a better awareness of the offences and defences available is essential if the clients are going to be effectively represented.
- The detainee without a passport may have been a victim of human trafficking.
- The youth in the YOI may mistakenly have believed that as he has leave to remain he would not be deported at the end of his sentence for his involvement in the Riots
Take the first step to identifying the immigration offences and the defences available – come along to a free training session “Identifying Victims”, where Migrant Help Prison advisors will explain their role in assisting inmates facing deportation.
Alison Gurden of 1 Grays Inn Square chambers will talk about identifying victims, including the indicators of a human trafficking victim and how they differ from a person who has been smuggled into the UK.
Click here for the course schedule and the subject areas covered ☞ identifying clients as victims schedule
Free Training (2CPD applied for) : but places are limited – RSVP to gurdena@btinternet.com or agurden@1gis.co.uk
- 5th July 2012, Hotel Russell, Russell Sq, London WC1B 5BE (Russell Sq Underground). 6-8pm. Introduction by David Malone, Head of Chambers 1 Grays Inn Square Chambers.
- 12th July 2012, Canterbuy Christchurch University, Broadstairs campus. 3.30-5.50. Introduction by Bob Underwood, retired Police Officer and tutor of Policing Studies.
Open to anyone involved in the Criminal Justice System – e.g. police station reps, lawyers, law students, magistrates, judges, advice agencies, police officers, probation officers, prison officers.
alisongurden 