Sunday, January 1, 2012

Checkmate in Three

(Admin Note: Thomas' Facebook page has yet again been disabled and deleted by Facebook. At this point in time I will not be starting a new personal Facebook page for Thomas. There will be a place on Facebook for us to share thoughts, links and ideas soon. Please keep an eye out here for when this is done. If you have other friends who were also friends of Thomas on Facebook, please pass this message on as well as share the link to this entry. 

Thank you for your friendship and support - Ecla

Postscript: A Facebook page has been setup for the website and not for a single inmate. The link is to the right of this page or

You are in the hospital.  They found a lump, or a leak, or you have an arrow sticking out of the side of your head.  Whatever.  It’s bad.  Everything in your little room is clean and antiseptic and a pleasant shade of taupe.   Nurses come and go, taking blood and giving you comforting   and sorrowful looks.  They never say anything, except that the doctor will be around to speak with you shortly.  When he does show up, he simply checks your chart, makes a little grunting noise, and remains inscrutable. When they come around in packs, what words they do use are as indecipherable as their handwriting.  They might have your best interests at heart, but if they do, this is an item that must be taken on faith.  Whatever is being done to help you is being done entirely out of your control, and usually entirely out of your knowledge.  It’s your life, but it sure doesn’t feel like that anymore.

This is how most prisoners feel in regards to the court process, save that the environment is not clean, there are no nurses, and whatever contact you have with your attorneys comes almost entirely in the form of letters (and you are just as dead if they screw up as when the surgeon does).  I met with my  trial attorney a handful of times while in the county jail.  I saw my attorney a handful of times while in the county jail.  I saw my direct appeal attorney once – while I was still in the county jail waiting on the Bluebird to take me to prison.  He never once came to death row.  I met with my state habeas attorney twice, the first time for a brief introductory salutation consisting of a five minute speech about how my chances of surviving this experience sat somewhere around 4 to 5%, and a second time for about five minutes, due to the fact that my writ was due the next day and he needed my signature on something that he had procrastinated on for too long to simply mail.  Since my conviction, I have spent less than an hour speaking with my actual attorneys of record about my case.  Now that I am in the federal district court, my attorney is actually pretty good, but I have still only met with him once…for fifteen minutes.  I had David Dow work on one issue of my appeal pro bono, and I have spoken with him for a number of hours, but he is not my official attorney.  The sad part is, even with this dearth of contact, I have still spent more face time with my lawyers than most of the guys around me.  Holding your client’s hand is not, apparently, part of the contract.

So you write letters.  If you are lucky, you get some answered.  If you are me, you write them incessantly and when you don’t get them answered, you send carbon copies of them to the judge to be posted on the docket sheet.  Attorneys are aware that in Texas they can get away with pretty much anything when capital defendants are concerned, so they rarely have the motivation to answer what must seem like simplistic or naïve questions.  Unless you pay them, of course.  My friend Lester has a firm out of Washington DC working on his case pro bono, what has done millions of dollars worth of work in his case.  My other friend M had a pen-pal pony up $250,000 for his defense.  Both are still alive and kicking after a few decades, and both get stacks of attorney mail.  I’m sure that is just a dual coincidence, though, right?  Legal mail is passed out in the mornings (instead of at night like the regular mail), and when you hear them knock on your door your stomach automatically clinches up, the klaxons going off at full volume up in the hypothalamus.  The other shoe doesn’t just drop around here.  It kicks hard on the way down.

About two months ago I received the finalized copy of my federal writ of habeas corpus.  For those of you not well-versed in the game of Three-Card Monty, that is the death penalty appeals process, the system works like this, briefly:  first and foremost comes the direct appeal, which deals with the issues preserved in the trial transcript.  The same judge that sat at your trial makes a recommendation to the Texas Court of Criminal Appeals on this, and since he was responsible for ensuring no hi-jinks went on in the courtroom, he is never going to recommend a reversal based on a point of law.  That would be a tantamount to him admitting he wasn’t paying attention.  Even if you have one of these moments, the final ruling is made by the TCCA, a body of judges entirely made up of conservative radicals who haven’t seen a death penalty conviction they didn’t approve of, save perhaps that of Jesus of Nazareth (but I am not entirely certain of even that).  If you were to create a gigantic Rube Goldberg device which stamped appeals with denials, the TCCA judges could retire and no one would be the wiser.

In most states, after the direct comes the state writ of habeas corpus.  In Texas, however, the writ and the direct appeal run concurrently.  This prevents one from using errors in the direct in your habeas, of course, but this system was designed to speed up the process, not give careful and nuanced decisions.  In this phase, you are allowed to address issues not directly noted in the trial transcript, like, say, your attorney was asleep (true story) or that the DA withheld exculpatory information that should have been presented to the defense (an event so common it has passed into the realm of cliché).  Once again, the trial judge makes a recommendation to the TCCA, who almost always deny relief.  The degrees to which the TCCA will go in order to approve of a death sentence are legendary in legal circles, and over the last few years even the 5th Circuit (the most consistently conservative federal circuit court, by far) and the SCOTUS (one of the most conservative in US history) have issued blistering rulings assaulting their competence.  So far, they have not made any adjustments down here in the Lone Star State, probably because all elected officials here know exactly who to pander to in order to get elected.  Remember, we’ve elected Mr. Can’t-Remember-A-List-of-Three-Things multiple times.  I won’t even bring up good old GW.

After the state courts come the feds.  Your first stop is the federal district court, which is where I currently find myself.  Thanks to the Antiterrorist and Effective Death Penalty Act passed by Congress back in the 90’s, the capital defendants are severely limited in which issues they can address in this court, and one has only a short amount of time with which to investigate one’s claims.  For most of us in Texas, the federal courts present us with A) our first contact with a qualified attorney, and B) a judge who *might* actually be willing to looks at one’s claims.  Why? Simple: federal judges are appointed for life, not elected, meaning they can rule based on the laws, and not public opinion.  Think about that when you vote for Newt, you nut-jobs.  Anyways, if one loses at the federal district court level, one moves on to the circuit court, which in Texas means the 5th Circuit.  The 5th has almost as bad a reputation as the TCCA, so the reality is that once you are denied relief by the fed district court, you are dead.  The 5th is not going to help you, and the only step left after that is the SCOTUS, who only look at a tiny fraction of cases each term.  Once you hit the 5th, in other words, it’s just a matter of time.  This is analogous to the doctors telling you that they growth is cancerous, the stay IV kind, and that you have a few months to put your house in order.

Below I am including a copy of my federal writ for your consideration.  It is a bit large, so I thought I would add a little table of contents for you.  I am bringing up only four issues in this writ, a significant decline in the number found in my state writ.  As I mentioned, the fed limits what issues you can appeal on quite severely.  The first claim is found on page 5, and deals with a bad plea agreement the state used to con me and my trial attorneys.  Claim 2 is probably my best, and starts on page 23; it deals with ineffective assistance of counsel at the trial level.  Claim 3 can be found on page 68, and is a three-pronged attack on the concept of “future dangerousness”.  The first two prongs are a bit complicated, so if they start to bore you, try to zoom in on the third (labeled “C”), which can be found on page 91.  Claim 4 is found on page 95, and is the standard 8th Amendment objection to the lethal injection protocol found in all writs.

The rest of the writ deals with exhibits, a list of which can be found on page 98.  I will leave it up to you to determine which of these merits your attention, but basically all of the errors in my trial are contained within this section.  I would like to bring two of them to your attention, if I may.  A few years ago, a major US “news” program went to Mexico and spoke with some of the people I lived and worked with during my time down there.  The interviews shocked me, because I still write this family, and the things that were said in the interviews were diametrically opposite what I was seeing in the letters.  Immediately after this program aired, I received letters from them which expressed their dismay at the way this program was misused, manipulated, and mistranslated their true comments.  While it does me little good now, I was able to get affidavits from this family about what they really feel about me for this writ, and I want to post them separately so as to prove a point I have made here in the past, namely that the majority of the embedded media sources in this nation have long since lost track of what honest journalism is supposed to be about cold, hard facts, not super-sensationalized drivel.  In any case, I am going to climb off my soapbox to let you peruse the writ, if you care to.  A few of you made donations to my DEFENSE FUND to help me pay for this thing, and I truly thank you.  If it is better than anything I’ve been able to submit in prior appeals, this is mostly because of you.

My federal writ of habeas corpus can be found HERE.

Exhibit P by Silvia Edith Salazar Toscano can be found HERE in English and in Spanish.  For those of you who want to know who I really am outside of all this mess, these may be as close a set of accounts as you are ever going to find.

© Copyright 2011 by Thomas Bartlett Whitaker. All rights reserved

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