The following people are in on this: Cory, Billy, Ryan T., Nate, Ryan L., Jennifer, Shellie, Mandy, Erin, me, and my sister, Kim.
What do you say to something like that? I could not get over the fact that these people, some of whom I had not spoken to in years, were helping me. This one act of grace put me on a different path. I decided if people were willing to help a puke like me, then I should do the same.
John Fellers and I often walked to the iron pile together at dawn. He figured he might as well use his early mornings to work his way back into shape.
A walk in the morning is one of the best moments in the prison day: dewy grass and sweet air make it seem like a walk in a park somewhere. The compression eases off your chest as you breathe and you try to imagine walking in a straight line right through the fence and razor wire to the field of corn beyond.
On the walk one morning John said he wanted to ask me to do something. I could tell it was important. I knew him well enough to know that he would not ask me to cover for him, to lie, to get him an unfair advantage somewhere, or to get him out of a jam with a thug. I knew that but just the same he seemed uncomfortable. I was worried that maybe his celly had put him up to something.
“You know I’m in here on a meth conviction, but I want to tell you more about it, and I’m telling you for a reason.”
As we lifted weights with a dozen other guys, he gave me the story.
“I never was one for drugs, Shon,” he began. “I was in the middle of an awful divorce when someone handed me something to cheer me up and, man, I was gone. Me and meth were best friends for, I don’t know, a few months. But I was hooked, honestly, after that one hit. The stuff grabs you that fast.”
I had heard enough horror stories from my celly, Robby, to know what that was like.
“I was soon burning through a lot of money, and got in a pinch financially, thanks to the divorce and the way it froze up the car business. So this guy who was selling the damn meth to me says, if they could store some of it at my place, then I could have the next bit for free. So that happened. I even sold a little for them, which was stupid. All I can say was that it was a messed up time.”
I was pressing a barbell on the incline bench. John lowered his tone.
“Then I shook the habit and told them all to get lost. I could see where it was going. It was hard to stop, but I did it, just like that. Anyway, the dealer and a few of his people were later arrested and convicted. You know how it is, the only way to get their sentences reduced was to implicate lots of other people, so they put me on the list.”
“But the police didn’t find any drugs on you? You quit. Or were you still storing it for them?” I asked while curling forty-pound dumbbells.
“No, that stuff was long gone from my life.” He was lifting but not concentrating on his exercises. I was a little confused as to how he could have been arrested, with no possession and nothing but an accusation from someone with no credibility.
“So it was your word, a businessman’s, against the word of a drug dealer?”
“That’s about it.”
“How did that happen? Did you confess?” I stopped lifting and stared at him.
“Yes and no. That’s what I want you to look at.” He set down his weights and came closer.
“Listen, I’m not one of those guys who is moping around prison saying, ‘I was framed,’ and all that. I did what I did. But I’m looking at twelve years in here. I want to appeal the thing, but I have only about six weeks left to file. I asked my lawyer, and he said it was a lost cause, but he would file an appeal if I would pay him twelve grand.”
“The same lawyer who represented you at trial?”
“Yes.”
A grand jury had indicted him solely on the testimony of the dealers. A short time after the indictment, the police arrived at his home, and John let them in. They informed him of the indictment. They wanted to talk about the drug conspiracy and John talked, not knowing any better. Afterward they arrested him without finding any drugs.
If a lawyer had been on the scene, John would not have talked. He didn’t understand his rights or the seriousness of the situation. Without the statements he made to the police, that would have been the end of it—his word against some drug dealer clawing for a sentence reduction. But he ended up in federal prison. I felt bad for him, because I knew a rich guy with a high-level lawyer would be out on his boat right now, not in prison. The system works great for those guys. That’s what I think upset me about John’s sentence. To incarcerate a decent businessman for twelve years on account of a short binge during a crazy divorce was not what Congress had in mind when they created the federal drug laws. Okay, he sold something, so how about a few months in county?
“The trial judge didn’t do me any favors, and now I have only about six weeks to appeal to the Supreme Court. I don’t want a guy representing me who thinks I’m a lost cause.”
I still couldn’t see where I was going to fit in.
“So what I’m thinking is maybe you could do it for me. I can look up some of the stuff myself, but I really would need your help,” he continued. “I’m looking at twelve years in here. Twelve years away from my daughter if this doesn’t get fixed, and you said to come to you if I needed help. I need some help. Otherwise I’m going to be in here. This is going to be my life.”
I didn’t want the remaining seven years of my sentence to feature him complaining every morning that I hadn’t helped him when maybe he had a chance. Nor did I want to spend those years with him complaining that I had screwed up his appeal because I didn’t know what I was doing. It was a no-win situation, unless of course we won, which was next to impossible, and we both knew it. When you’re facing a no-win situation, you might as well do the right thing, but I wasn’t ready to roll over yet.
I told him what little I knew. His lawyer was right to tell him that the odds were long. Preparing a case for the Supreme Court is like brain surgery compared to the elementary first aid I had been doing. It would take a ton of study. Could I learn to write a brief like that from scratch? No way. Not in six weeks. Probably not in six months.
“I know, Shon. What I was thinking was maybe you would take a look at it, just spend an hour looking at it. Your one hour against my twelve years. As a friend.”
“John, if your lawyer thinks you have zero chance, you have less than zero with me.”
“Well, you know, except for our time, which is a good thing to kill, we got nothing to lose but a postage stamp, and I’ll spring for that.”
The weight on my chest grew heavy. He watched me lift for a minute. Then he looked around and that made me look around. You have to stay vigilant because you never know when something might happen. Like when you’re driving a car or bike, you always need to know what is happening on all sides of you. Sometimes you feel like you need to be extra alert. It was like that—a moment when everything might change. But all the dangerous energy was coming from John.
“Listen,” he said with an odd burst of a salesman’s forced enthusiasm, “I have a good feeling about this. I think you could maybe pull off something amazing. I really do. And wouldn’t that just impress the hell out of Annie?”
Indeed. Annie seemed long gone. But the veteran car salesman had me. He had lured me into his office and made me sign on the line. He had used the old impress your girl closing, probably because it always works.
I had been thinking a lot about the Supreme Court anyway. History turns on the actions of Congress and the president, and of course on tragedies, wars, booms, and busts. But when you examine the big moments when the conscious decisions of men and women have reshaped our lives, those decisions have often come down from the Supreme Court.
The language of the Court is interesting all by itself. The men and women who argue cases there, and who sit on the bench as justices, seemed to me a breed apart. They are warriors who use words, employing remarkable memories and razor logic as deftly as swords in mortal battle. And lives hang upon t
heir skills. Darth Vader robes and marble chambers aside, there is something fascinating about that. They are almost like more highly evolved creatures. I have never been too easy to impress, but I was constantly amazed as I read the transcripts of these people who think on their feet so brilliantly, with a nation’s future or a human life at stake. If it were a game, which it is not, it would be the best and hardest mental game in the world.
So, like a lost tourist who can’t even read the street signs, I started poking around the Supreme Court law books on behalf of John J. Fellers. But without that law library job, it was hard.
The way I now had it organized, my job with Vincent really took me only an hour a day, so I used the desk time to do my schoolwork and to dig deeper into John’s case. Vincent knew I was working on it, and he respected that. The harder I worked, the better I managed things with him and Terri.
When I couldn’t be at my work desk, I tried to work in the law library, but so many guys were peppering me with questions that it became far easier to work in my cell, especially as Robby was such a good bouncer for me.
John’s case was a puzzle to me—very off-kilter. If I could figure it out, I would be the first to do so.
When the police had come to John’s house, they told him that a grand jury had indicted him on meth trafficking charges. They described what the dealers had said against him. Then they let silence happen, and John started talking. They didn’t interrogate him; they simply created a quiet space for John to fall into.
They arrested him and transported him to jail. When he arrived there, they read him his Miranda rights and he signed a waiver of rights form. He figured he had already let the cat out of the bag once, so he told them the same story again.
The prosecutors would later say that the police weren’t required to read him his Miranda rights at his house because they weren’t interrogating him, and that the real interrogation came later at the jailhouse—after they read him his rights and he waived them.
I started to read hundreds of Miranda cases. Miranda warnings are primarily intended to protect your Fifth Amendment right against self-incrimination. If the police take you into custody and they interrogate you about a crime, the Self-Incrimination Clause says you can’t be made to testify against yourself. In the Miranda decision, the Supreme Court said you must be told that you have the right to remain silent and to acquire legal representation. Lately, the Court is now saying you have to expressly invoke your right or else the interrogation can go on ad infinitum.
I found a case where the Supreme Court defined interrogation as express questioning or “any words or actions … that the police should know are reasonably likely to elicit an incriminating response from the suspect.” That might help John. If he could claim his first confession was legally void, then it might be possible to say his second confession was void also, since John confessed because the police let him assume the cat was already out of the bag, when maybe it wasn’t. That is called the “fruit of the poisonous tree” doctrine—and it’s fairly well-established law. In a nutshell, it says the prosecution can’t profit downstream from an illegal interrogation or confession.
But all this had been known by his lawyer, by the trial court, and the court of appeals. The court of appeals had said that John had not been interrogated by the police when they were at his home. And they had said that, even if he had been interrogated at his house, the fruit of the poisonous tree doctrine did not apply to Miranda violations. So John was screwed either way.
The court of appeals’ decision against John was based on a 1984 Supreme Court opinion called Oregon v. Elstad. In that case the Court claimed that Miranda was not really a constitutional matter. This point was the subject of a long-running feud between liberal and conservative justices. Sure, Miranda protected the Fifth Amendment right against self-incrimination, but the Court concluded that Miranda was not on par with, say, a Fourth Amendment right to reasonable searches and seizures, and therefore the fruit of the poisonous tree doctrine did not apply to Miranda violations. It had to do with whether a right was written into the Constitution or if it was a derivative thing. Miranda was derivative, not enshrined in the Constitution itself. If your head is spinning, believe me, so was mine.
The fact that John’s second statements were admissible under Elstad was a major problem, but one that seemed beside the point unless it could be proven that John was actually interrogated in his home, an argument that seemed weak. The police said they were there to discuss methamphetamine, not to ask John about it. Cases often turn on fine distinctions like that.
I rolled the arguments over in my mind a thousand times, always coming back, instinctively, to one of my favorite textbooks: Modern Criminal Procedure. Something was missing. Something else was going on, and I could not put my finger on it. It was like a ghost in the corner of my eye that darted away whenever I tried to turn and see it.
“You’ll figure it out, Shon,” Robby said to me. He did let John come into our cell, as John was often bringing us a couple of candy bars and nachos; I was missing some meals because we were running out of time.
John would hover, waiting for some good news, waiting for me to look up and smile. I would say hello without looking up from my reading or notes. Still he would linger, his little daughter on his back, his laundry bag ready for the trip home. This is how I imagined him and why I did not look up.
“Go away, John,” Robby would finally say. “Shon here can do it. Just keep the Snickers coming.”
I was reading by moonlight one night, late after lights-out, when Robby woke up and looked over from his bunk.
“You’re going to ruin your eyes. Whatcha reading now?” I held it up. The moon and the perimeter lights streaming through the barred window illuminated the book’s cover: an embossed image of the Supreme Court’s pillared front facade. Robby was half asleep.
“Hell, it looks like a bank, Shon. You can take that mother,” and he rolled back into his dreams.
My concentration was making me irritable. I really didn’t want to let John down, and I really didn’t want to think I was too stupid to figure it out. I was worried that maybe John didn’t have a claim after all. Days and nights went by, and I kept other guys at a distance. When I did have conversations, I was unfocused. My notes looked like the disorganized scrawls of a madman.
Me during my high school basketball years. I played for hours at the David City Elementary School, where the best players in town gathered for some heated competition. Basketball in prison was beyond competitive; it was dangerous.
Ann Marie was always running. She was way out of my class, but I could dream.
Most of the banks we hit were small-town, main-street banks like this one in Petersburg, Nebraska.
From left to right: Bobbie, Hater, me, and Robby. In prison, your best protection against violence and total depression is to have a circle of very dedicated friends. I did.
John Fellers and me after a workout. This was taken before we could ever imagine what was to come, for both of us.
The Supreme Court order granting John’s petition. This kind of note is as rare as a winning lottery ticket.
Annie returned to Nebraska from an anorexia treatment center in late 2006. She came to visit me several months later. I spent eight postage stamps to have my khakis starched and ironed—like that would impress her.
Mom and Dad visiting me in prison. They continued to come visit me over the years, despite all I had done to embarrass them.
From left to right: me, Renee Goss, Andy Cockle, and Trish Billotte of Cockle Law Brief Printing Co. in Omaha.
Seth Waxman, me, and Noah Levine at Harvard.
Lovely Ann Marie with daughter, Grace Ann.
Annie and me outside the Supreme Court of the United States. We had just received the grand tour and seen Seth Waxman in action. Courtesy of Brice Richards
Pastor Marty Barnhart and me.
Me, my brothers, Brett and Brook, my best old friend Tom, and John Fellers.
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br /> I took my opportunity to kiss the bride.
At my sister Kristin’s wedding, with Mark Hopwood and Annie.
I was using parts of my brain that had been previously unused, or at least had not been used in quite some time. In my worst years, when I was in trouble, I experienced a strange phenomenon. The more danger you’re in, the more your perspective narrows. Your imagination shuts down. Your empathy shuts down. Your creative vision closes in. Your ability to plan even simple things deteriorates. On some level it is simply denial of what is inevitably coming, a state that forces you to focus only on what is small and immediate and right in front of you—closer and closer things. I would be unable to solve the riddle of John’s case unless I could think outside the box I had put myself in, which was as much mental as it was cement and steel.
Even when I was robbing banks, I was aware of the shutting-down process. Each bank job had less planning and thought than the one before. I was narrowing to a dangerous level.
Right after the first bank job, flush with cash, I had moved to Lincoln and roomed with some guys going to school there. An old high school acquaintance, Craig, showed up one night. He had been down the same roads, having spent some time in the armed services before coming back emotionally drained. Unlike me, he had had a tough childhood, including trouble with the law as a kid and a stint at Father Flanagan’s Boys Town, which is on the David City side of Omaha. He was kicked out of the Catholic school in David City and ended up in the public school, where I met him. Out of the Army, he was sleeping in his car in Lincoln. I asked my roommates if we could take him in. Craig and I had nearly fought in high school, but I couldn’t see him sleeping in his car.
Law Man: My Story of Robbing Banks, Winning Supreme Court Cases, and Finding Redemption Page 12