On the Increase : ‘Jailhouse Lawyers’ Get Day in Court
If it came to that, Donald Jack Craven would swear on the Bible he’d gone straight. He was working two jobs. He had stopped dealing dope. What went down, he says, was self-defense all the way.
I didn’t mean to kill the guy, he says. That’s why I shot him, that second time, in the legs.
But the charge was homicide. So once again Craven found himself sitting at the defense table in a Los Angeles courtroom. He listened as the judge reviewed the pretrial motions he had filed concerning his criminal record. There were eight “priors” in all. Robbery. A couple of burglaries. Drug charges. Rape.
“May I correct the court?” Craven was speaking. “It was statutory rape. I was 17 and my girlfriend was 16.”
Superior Court Judge Bernard Kamins studied the motion and nodded thoughtfully. This matter of statutory rape, he decided, should indeed be stricken under sentencing rules in which previous convictions can lengthen a prison term.
‘Done a Good Job’
“By the way, Mr. Craven,” said Kamins, “for an amateur, you’ve done a good job.”
“Thank you, your honor.”
Craven, 44, is an unusual player in America’s criminal justice system--a jailhouse lawyer who knows what he’s doing. Craven is one of the thousands of inmates in America’s jails and prisons who go to court in propria persona --without the aid of professional lawyers.
One who is his own attorney, the old saw holds, has a fool for a client. And yet, jailhouse lawyers--sometimes known as “pro pers"--have become a growing, influential column in America’s halls of justice.
Some see their influence as progressive. Most of the landmark advances in prison conditions and prisoner rights in the last 20 years began with an inmate drafting a legal complaint, prisoner rights advocates say.
Have Become a Burden
But at the same time, many jurists complain that pro pers have become a burden. The high volume of prison litigation, the vast majority of it judged to be without merit, adds cost and strain to an overworked court system. According to the Administrative Office of the United States Courts, the number of petitions filed by prisoners to federal courts climbed from 19,537 in 1977 to 33,765 last year. The load is so great in many regions that clerks and even magistrates are assigned to specialize in prison law.
In California’s overcrowded prisons, the upward trend is much sharper. Over the last five years, the number of civil suits brought by California inmates has more than tripled. The growth prompted state Atty. Gen. John K. Van de Kamp in 1985 to establish a separate correctional law section with 24 lawyers to defend the prison system. A year later, the section was increased to 32 lawyers.
In the last fiscal year, those 32 lawyers received about 1,700 new cases and writs, not including more than 600 carried over from previous years. For each of these cases, the courts reject scores at earlier stages because they are judged incomprehensible or frivolous.
Among other things, inmates have filed wrongful-death suits over the demise of “pet rats” during prison pest extermination efforts, and over items on the prison menu. Deputy Atty. Gen. Ken Young, chief of the state’s correctional law division, recalled the deposition of inmate who had “artfully” prepared a writ complaining about improper diet.
“A guard had told him the dessert that day was fruit cocktail. When he got through the (food) line, they had run out of fruit cocktail and so they gave him a banana,” Young said. “That’s what he was upset about. It struck me, this is what I’d been spending my time on?”
Progress Is Slowed
The proliferation of writs “doesn’t help anybody,” Young said. “It doesn’t help us and it doesn’t help the inmates who file arguable cases.
“You get kind of jaundiced seeing so many frivolous cases coming through. It’s harder to see where one might have an arguable complaint.”
In jailhouse law, the public not only pays for the courts and the prosecutors, but usually also for attorneys who are appointed to aid inmates. Judges rarely allow inmates to argue their own civil cases and appeals in court, so the public ends up paying for appointed attorneys.
Don Spector, director of the activist San Quentin Prison Law Office, which is often appointed to argue prisoner rights cases, contends that most complaints could be kept out of the courts if the prisons did a better job of resolving grievances.
In theory, inmates must exhaust all administrative procedures before appealing to the courts. In practice, Spector said, many inmates figure they’d rather take their chances with a judge. A vigilant court will routinely refer complaints back for administrative hearings.
More in Criminal Courts
Criminal courts are also seeing greater numbers of pro pers. At overcrowded Los Angeles County Central Jail, the “pro per tank” now houses about 130 inmates, more than double the number of five years ago. The jail has two law libraries for inmates.
At the crux of jailhouse law are two basic principles: equality of justice and freedom of choice--and not only for the accused, but for the convicted as well.
“I agree with the U.S. Supreme Court,” said John Stinson, a convicted killer and jailhouse lawyer at the California Correctional Institution at Tehachapi. “What more basic right should you have in life than the right to defend yourself?”
Stinson is another unusually competent pro per. Even so, Stinson, who was convicted in 1979 for a robbery and murder in Long Beach, acknowledged that part of the reason he went pro per was “so I could hang around the law library, be on the phone, have a good time.”
Another reason was the court-appointed counsel he met at his arraignment. “He hadn’t even read the police report,” he said. “If it was a choice between me or an attorney of that nature, it would be me.”
A remarkable thing happened in his first trial. Stinson earned a hung jury.
In the retrial, Stinson allowed Rowan Klein and his then-partner, Patricia Nelson, to take his case. “I thought, if I could get a hung jury, maybe some real lawyers could do better than that.”
They didn’t. He got life without possibility of parole.
The right of Stinson and other defendants to fend for themselves was determined in a 1975 case that began with an auto theft in Long Beach and ended when the U.S. Supreme Court affirmed the right of defendant Anthony P. Faretta to conduct his own defense. The 6-3 opinion overturned an earlier ruling by the California Supreme Court that expressly rejected the right to self-representation. (Ironically, it was a another pro per, Clarence Gideon, who in a landmark 1963 case won the right for all felony defendants to be represented by licensed lawyers at the public expense.)
The Faretta decision outlined the perennial debate over whether a defendant should be allowed to represent himself.
More Problems Feared
In a dissenting opinion, Justice Harry Blackmun suggested that the court had guaranteed the right of defendants “to make fools of themselves.” Also dissenting was Chief Justice Warren Burger, who predicted that the incompetence of pro pers would “add to the problems of an already malfunctioning criminal justice system.”
But Justice Potter Stewart, writing for the majority, stressed that appointed counsel should “be an aid to a willing defendant--not an organ of the state interposed between an unwilling defendant and his right to defend himself personally. . . . And although he may conduct his own defense ultimately to his own detriment, his choice must be honored.”
Under court rules, judges are required to warn defendants about the perils of self-representation. If a defendant insists, and the courts judge him mentally competent to understand the risk, permission must be granted.
The effect of a pro per in the courtroom can be comic, tragic and sometimes sinister.
In one recent Los Angeles case, prosecutors recall, a man accused of rape faced overwhelming evidence--including the victim’s eyewitness identification. But the suspect went pro per.
First he faced the victim and interrogated her in the preliminary hearing. He repeated the questioning in trial. Then the judge made a mistake that resulted in a mistrial--and the process started over.
After testifying yet again in the second preliminary hearing, the ordeal became too much for the victim. She was too distraught to testify a fourth time and it appeared that the case might be lost. Prosecutors finally won the conviction with testimony from a psychologist who explained why the victim was unable to appear.
Cases Get Ruined
Legion are the stories of pro pers who ruin their chances in court. Pro pers often enter evidence they should keep out of the record, or they get flustered and offer incriminating statements.
For example, Bubrick said, pro pers “will say things like, ‘Now, it’s been 10 years since I’ve been in prison . . . ' "--unaware that the law prohibits prosecutors from entering such prejudicial evidence.
One judge recalled a pro per who claimed he was nowhere near the scene of the crime. But then he challenged a witness with, “How could you have seen me? It was dark and you were 50 yards away.”
Another problem is that pro pers often don’t recognize a good plea-bargain when they’re offered one. Kamins, who spent 17 years as a public defender before his appointment to the bench, once tried to persuade an accused burglar facing circumstantial evidence to accept a two-year sentence. The man refused and went pro per. He lost--and because of his long record was sentenced to 22 years in prison.
Prosecutors and some judges say that many defendants go pro per because they are guilty as sin and know full well that they face conviction. If even Perry Mason couldn’t get you off, being a pro per at least affords an opportunity to make life behind bars more tolerable.
“The con-wise guys do it,” Kamins said. “I don’t think you’ll find any pro pers who are new to the system.”
For example, unlike most inmates at Central Jail, pro pers have single-man cells to ensure that their legal paper work is protected--a relative luxury in a jail where crowding has forced some inmates to sleep on the floor.
Pro pers also have access to the jail law library--and its bank of pay telephones--for two hours a day. They have a court stipend of up to $40 per case for phone calls and writing supplies, plus the authority to hire licensed investigators at court expense (usually $200 to $300 per case) and friends as legal runners (usually about $5 an hour). They also have longer visitation periods.
Jailers say these are “privileges"--a contentious word to a jailhouse lawyer.
“Privileges? They call going to the library for two hours a day a privilege ?” jailhouse lawyer Craven asked. “These are constitutional rights . That’s what we’re talking about. . . . There are no privileges to being a pro per except you’re your own man, making your own decisions.”
But even Craven and Stinson acknowledge that most pro pers aren’t serious about the law. Sheriff’s Deputy Joe Koch, who has overseen the jail’s law libraries for four years, estimates that no more than 25% persevere on their cases.
The pro per system also provides opportunities for corruption.
While most prisoners see visitors--save for their attorneys--through a glass partition, pro pers can meet face to face with investigators and legal runners. The potential for smuggling in contraband is thus greater.
A few months ago, for example, a pro per was handed a cardboard box containing court records and writing supplies. Deputies inspected the box and cleared it.
Clever Hiding Place
Only later did they learn that tucked inside the cardboard corrugations were cocktail straws filled with heroin. Now such boxes are forbidden by jailers.
In another case, a private investigator was suspected of a kickback scheme in which he gave half his fee back to his client. The investigator “was very popular with the pro pers,” Koch recalled. He has since been stricken from the court-appointment list.
Pro pers are notorious for legal manipulations.
“By and large, most are a pain,” said Commissioner Sam Bubrick, who chairs the Los Angeles Superior Court’s pro per committee. “They slow down the process . . . . They get away with a lot of stuff that most lawyers would not even think about doing. It’s easier to let them do it than to keep admonishing them in front of a jury.” Inside the courtroom, pro pers, like many defense attorneys, use delay tactics. They know that as the months pass, witnesses may forget, move, lose interest or die. And besides, when it comes time for sentencing, pro pers know they’ll be credited for time served in jail.
In itself, pro per status provides the means for delays. Koch and other jailers spend much of their workday in court denying charges that they have tampered with an inmate’s legal papers. Inmates insist harassment is common; jailers deny it.
And just when it seems a case is ready to go to trial, judges say, pro pers often request court-appointed counsel, prompting yet another postponement. For many pro pers, a conviction simply means their legal studies must now concentrate on appeals that might set them free, shorten their terms and force new trials, as well as petitions concerning prison conditions and legal rights.
Since his conviction, Stinson has filled his days inside Tehachapi reading philosophy, playing chess by mail in U.S. Chess Federation tournaments and practicing law.
Stinson has twice helped fellow inmates win early releases from prison. There are ways of getting paid, he said, but for him, vengeance is motive enough. “I like to beat the system,” he said with a hard tone. “It makes me feel good.”
Helped by Attorneys
Interviewed through a glass partition, Stinson showed no bitterness toward his attorneys. Klein and Nelson “did a much better job than I did at the first trial,” he said. “Juries are so fickle and unpredictable. . . . I led a life style that put me where I’m at. I was a sociopath and that’s why I’m here.”
In an appeal, Klein succeeded in having Stinson’s sentence converted--at least for now--to 27 years to life, with parole possible as early as 1996. Another court date has been set to resolve a crucial issue--whether or not Stinson had intended to kill his victim.
“It doesn’t look good,” Stinson acknowledged. “The guy was shot at point-blank range in the neck. . . . But there’s some question about my ability to form intent. At the time I was a dope addict, and there was a big struggle. . . .”
Many jailhouse lawyers figuratively hang up a shingle and a few literally print up stationery, trading their talents for money, cigarettes and drugs in the underground economy of prison life. Some are known to have money sent to their families in return for their work in major cases. Such practices are rarely admitted, because practicing law without a license is illegal.
Scorned by Authorities
The most prolific jailhouse lawyers have earned the scorn of prison authorities, judges and prosecutors with their continuing complaints. Even prisoner rights advocates take a dim view of some. Many inmates amount to jailhouse shysters who profiteer by raising false hopes among inmates.
“I’m sure it goes on all the time,” Klein said. “It’s just the rule of the jungle. Any way one person can rip off another, they figure it out.”
Still, some exhibit remarkable skill, and a few have remarkable credentials.
In the 1950s, Caryl Chessman’s writ-writing prowess helped triggered a cause celebre that helped keep him alive on San Quentin’s Death Row an extra 12 years before he finally went to the gas chamber. During the 1970s, Jerome Rosenberg of New York’s Sing Sing prison won a measure of fame aiding such clients as organized crime boss Carmine (Lilo) Galante. For a brief period, jailhouse law was even practiced by former U.S. Atty. Gen. John Mitchell and some other trained attorneys who had been in the employ of the White House.
Every jail and prison, it seems, has its hotshot. In California, two of the best known are Daniel J. Fabricant, now incarcerated at Ventura County Jail, and Willie Ray Wisely, a convicted murderer at Orange County Jail.
Once considered the premier car thief in the San Fernando Valley, Fabricant now has four appellate court opinions in his name. He claims to have beaten primary criminal charges in 15 out of 18 cases, mostly alleging theft, robbery, firearms and drug violations.
Wisely, who was convicted of murdering his stepfather, has waged legal war with Orange County Jail officials for several years. His victories have made him the sole occupant of an eight-man cell equipped with his own computer and television, as well as a small law library. But Wisely accuses jail officials of putting him in solitary confinement, shackling him, opening his mail and stealing his Playboy magazines--all as retaliation for his legal successes.
The litigation of inmates like Fabricant and Wisely reflect the dramatic changes that have taken place since the days when courts left the matter of prisoner rights in the hands of prison officials.
Craven, a former member of the Black Panther Party, has an insider’s perspective on the old days. As a Texas prison inmate in the early 1960s, prison guards often beat him and placed him in solitary confinement for writing writs, he said. “I got throwed in the hole a lot.”
Several years and several crimes later, Craven served as inmate clerk in the Tehachapi Prison law library. Paroled in 1979, he did paralegal work part time for a lawyer friend. He appeared to have broken his crime habit.
But then, one night in 1984, Craven got off work, cashed his paycheck and went home. Seven gang members--some of whom were neighbors--were waiting. They accused him of stealing from them a batch of stolen credit cards, Craven said. When Craven denied it, they beat him with a lead pipe. He lost his pay and nine teeth.
Craven and police reports give this account of what happened next:
The following night, frustrated that police had taken his statement but made no arrests, Craven decided to go back for his money. He took along a loaded shotgun--for protection, he insists, not revenge. In the upstairs hallway, he confronted one the assailants. Then the man reached for an apartment door behind which--as Craven already knew--a gun was kept. (Police later discovered the weapon just behind the door.)
Craven leveled his shotgun and fired. Seriously wounded, the man lurched forward, reaching for the shotgun. “So I backed up and shot him in the legs,” Craven said. “When I left he was breathing,” he said. “If I wanted to kill him I’d have finished it right there.”
The man died three days later.
Inside Judge Kamins’ courtroom, the question was, what should be done about Craven?
Already a plea-bargain was on the table. Prosecutors, acknowledging some “extenuating circumstances,” said that if Craven pleaded guilty to voluntary manslaughter and accepted an eight-year sentence, they would waive his prior convictions--penalties that could stretch his sentence another 16 years.
No deal, Craven said. It was self-defense, he protested. A jury would acquit him, he said. Or maybe the verdict would be involuntary manslaughter.
Kamins asked him to think about it. The facts, he said, suggested a “classic voluntary manslaughter.” But what if a jury thought his actions were premeditated? The verdict could be first-degree murder. And even if he got the involuntary manslaughter verdict, the judge pointed out, Craven’s priors would push the sentence beyond eight years. Kamins then told Craven the story about the burglar who refused the two-year deal and got 22 instead.
Craven sagged in his chair. A few days later, he accepted the prosecutor’s offer. The earliest he could be out is 1991.
“If I didn’t have such a big record, I’d have beat this,” he said, at once defiant and glum. “I definitely would’ve gone to trial.”