His prognosis was fair. Lymphoma is often a deadly disease, but Dad had his youth, forty-seven, and modern medicine on his side.
The Eighth Circuit Court of Appeals, as instructed by the Supreme Court, ruled that John Fellers’ first confession was null and void. They then heard Noah’s arguments that the second confession was therefore poisoned. We were waiting for their decision when big news came from Washington: the Supreme Court had ruled on another case potentially affecting tens of thousands of prisoners.
In the biggest criminal law decision in perhaps forty years, the Court threw out the Federal Sentencing Guidelines. Their decision was based on the reasoning they had established five years earlier in Apprendi v. New Jersey. The new case, United States v. Booker, ushered in a dramatic change. No longer were sentencing judges required to stick defendants, especially nonviolent drug offenders, with decades of imprisonment under the old guidelines. They could still do it if they chose to, but advisory guidelines are much different from mandatory ones.
I had been tracking Booker and several other sentencing-related cases for the better part of a year. I was helping a guy named John Davis, a Nebraska farmer who was in on drug charges.
John was so angry at the “criminal injustice system,” as he called it, that he soon picked up the nickname Hater. His conviction for possessing and distributing meth was based solely on the testimony of drug addicts who cooperated with the government in order to reduce their sentences. Although Hater was a decorated Vietnam vet and had never been in more trouble than a traffic stop, he had been sentenced to life plus ten years.
His appeal had been denied by the Eighth Circuit, and now he was facing a deadline if he wanted to take a final appeal to the Supreme Court. The petition was due by the beginning of June 2004. He asked me to look into it.
“What happened with John Fellers was a fluke,” I told him. “I can’t really help you.”
He called me names that I will not repeat. But his anger, though taken seriously by others, was a joke between us—he had become a friend.
My every prison day now had a set pattern and he had become a part of it: I woke up to the normal symphony of clanks and flushes and guys talking. I worked out first thing, then showered, then went to Hater’s cell for coffee and to hear his stories before starting on cases and then heading off for my work in Vincent’s office.
Hater’s cell, near mine, was the established coffee place. It was like the small-town breakfast joint where farmers stop for a cup of coffee and to share bad jokes and donuts.
“How are you today, Hater?”
“I’m surrounded by idiots, but it could be worse,” he said, patting his stomach.
He was older than I was and had stories about being left for dead a few times during the Vietnam War. He had stayed in Southeast Asia after his enlistment and worked in Thailand flying for the CIA’s Air America. One evening in Vietnam he woke up in an opium den with a Vietcong soldier across the room from him, his AK-47 rifle propped against the wall. They stared at each other for a long time. Instead of fighting it out, they continued smoking. Hater was a good storyteller and had hundreds of stories to tell.
He had become a farmer after his time overseas, before he got caught up with drugs. Dealers later fingered him to prosecutors to obtain a plea deal. If it sounds just like John Fellers’ case, you have to understand that there are cases just like that all over the prison system. The drug laws and the plea system place an incredible amount of pressure on people to fabricate exaggerated or outright false accusations.
I called Noah and told him about Hater’s case. He asked if I had been following the sentencing case that an attorney he knew, Jeff Fisher, would soon be arguing before the Supreme Court. I researched that case and could see that if the Court agreed with Fisher, the decision would also call into question the federal guidelines. That was a train we wanted to get aboard.
We filed a cert petition two weeks before the Court issued its momentous decision in Blakely v. Washington, holding that any facts that increase a sentence under the Washington State sentencing guidelines had to be proved to a jury beyond a reasonable doubt. Blakely was simply an extension of the Apprendi decision, which had led me to the law in the first place. The Blakely decision caused many lower federal courts to believe that the same reasoning applied to the Federal Sentencing Guidelines. So a couple of months later the Court granted the petition in a case called Booker, which said that the Federal Sentencing Guidelines were unconstitutional. All of this opened the door for Hater’s petition to be granted, and I had won in the High Court again. Rather than hearing the case, the Court simply remanded Hater’s case back down for possible resentencing.
I had filed three cert petitions and two had been granted. That was a terrific batting average for any lawyer, but for a prison inmate with no formal education in the law, it was almost incomprehensible. I felt proud, but unfortunately my record of success was making me the enemy of the other jailhouse lawyers at Pekin.
Noah filed a brief with the Eighth Circuit, arguing that John Fellers also qualified for resentencing under Booker. The Court ruled that the second confession was valid, not poisoned, but, hallelujah, they remanded him for resentencing under Booker. As a result, four years were lifted from his sentence. That could not have happened if his case hadn’t still been on appeal.
John wasn’t exactly packing to go home yet, but he could now see daylight: he had two more years to serve instead of six. And he could yet have a life with his young daughter.
Those two years went quickly. When he finally made it back to Nebraska, he restarted his car business and was fine. And his daughter was still a youngster—he hadn’t missed all that.
It was different for Hater: the Eighth Circuit ruled that his trial lawyer had not objected to the Booker issue back at his sentencing, and the resentencing claim was therefore waived. But we resolved to keep working toward proving his innocence, a cause I believed in. And still do.
The months and cases rolled by. I was cranking out documents like a print shop. I had lots of time to work on cases because my back hurt so bad that I was bedridden on and off for six months. Basketball falls and weightlifting had seriously damaged my lower back.
A prison doctor examined me, listened to my complaints about chronic nerve pain, and concluded that I suffered from psychosomatic pain. He prescribed antidepressants, which I didn’t need. Although the medication didn’t reduce my pain, it did prevent me from performing legal work because I was walking around like a zombie. Maybe that was the point.
Mom called both of the senators from Nebraska and asked them to contact the prison and order them to give me appropriate medical care, but it didn’t do any good.
Noah sensed I was coming apart, that the pain was taking a toll on my mental well-being.
“Why don’t I talk to the other partners here at WilmerHale?” Noah asked.
“Talk to them about what?”
“About what options we have?”
“Noah, my mom and dad want to help me, but they don’t have the money to hire you.”
“Let’s not worry about that now.”
The partners at WilmerHale decided that Noah should be my official attorney, pro bono of course, and a letter from one of the most prestigious law firms in America arrived at the medical administrator’s office. I was taken to an outside neurologist three weeks later.
Coincidence? Probably not.
Mom was happy that I had received medical treatment, but she had something more important on her mind: every time I called home, she gently reminded me that I needed to work on my spiritual side. Since Dad had been diagnosed with cancer, she was less patient with anyone’s—especially my own—reluctance to make a commitment.
I had actually been thinking about it. My friend Montreal Dungy was also working on me, as if he had been hired by Mom.
“Shon, when are you going to get real with God? I bet your momma is praying for you right now.” Mom’s campaign was well known,
as my locker had become a lending library of religious books.
“Why don’t you just do you and let me do me?” I said. This was a common prison saying.
“That’s the problem. You doing you is what got you here.”
Montreal’s religious conversion had come shortly after he had received a thirty-year sentence for possessing a few handfuls of crack cocaine. He was now studying to become a minister, taking correspondence courses from a divinity college.
He wasn’t the only one hammering me. Of all people, Robert Lynn Jones, the notorious drug smuggler, had decided to “give his life over to God.” He told me one day in his cell that it was “time to make a change.” Then he started talking about forgiveness over vengeance. That was an incredible turnaround for a guy who was serving an extra decade because some bogus sheriff had planted drugs in his house. As far as I could see, he had a right to be angry. I thought he was putting me on—making fun of the whole jailhouse conversion scene—but he was serious about it.
A few guys started a modest Bible study group in Robert’s cell. At the Bible study, one of the guys read Matthew 22, where a Pharisee asks Jesus if it’s cool to pay taxes to Caesar—the “render unto Caesar” line. I knew Bible stuff from growing up, when our living room was practically a church, and, of course, from the books Mom had sent me.
“Does that mean we have to follow everything the government tells us to do?” Robert asked.
Obviously, any interpretation requiring us to conform to the dictates of the federal government would be looked down upon.
“That’s what it means, bro, right down to making our beds because the inmate handbook says so,” Valmarcus, who had been into religion for a long while, said.
The lawyer in me viewed the whole discussion differently. I contended that the Bible passage addressed only taxes, nothing more. “Show me where the Bible says I have to make my bed, and maybe I’ll make my bed,” I said.
My newfound ability to reason and analyze things was my new religion, and it gave me comfort and a way to see life. If the Bible were a law book—and that was how they were using it—it was full of holes and contradictions. I preferred Modern Criminal Procedure—now there’s a good book.
An interesting test of who I was, or who I might become, arrived in those same weeks. I was offered a deal by a friend of a friend. If I would write an appeal on a difficult case, $10,000 would be deposited in an outside bank account in my name. I could use it for college tuition, to pay down on what I owed the government, or for whatever I wanted. And it would be mine, win or lose—it would not be a contingency thing. I knew it was for real, because the guy had outside access to major money. I analyzed the case enough to know why he couldn’t find a willing attorney. He really didn’t stand a chance.
He said he knew it was a long shot, but he was willing to see what would happen. In other words, he wanted some hope—something that might shorten his stay in hell, or at least make it seem to go faster. My friends and his friends lobbied me. I said I would think about it. Everyone knew I was busy with other appeals.
The idea of taking serious money concerned me. Guys were generous with snacks and supplies. Some, like Hater and his father, Herman, showed their appreciation by helping me pay for a couple of college courses on “repay someday” terms—not because they had to but just because they wanted to.
This proposal was different. I was different. For some strange reason I had come to the idea that I shouldn’t take money I hadn’t earned, and I didn’t think I could give this guy his money’s worth in terms of results.
That next day at evening chow a young black kid, Melvin Brown, came up to me. He sort of reminded me of the young guy I had sat next to on the Con Air flight into Oklahoma City. He was a gentle, religious kid with a deep-voiced chuckle that carried nicely through the unit. He said that he had a not-so-good lawyer and he wondered if I would please look at his case. The deadline for his appeal was in two weeks.
Two weeks just doesn’t work for motions of that magnitude, so I almost blew him off, and would have if not for his courtesy—uncommon in prison. He hadn’t had many breaks in life. Not many people had said yes to Melvin.
He had a history of the petty crimes that come with growing up in poverty. Most recently he had been busted with four grams of crack. Smoking crack was bad for you, of course, but I could never understand why black man’s crack cocaine merited a much longer sentence than white man’s powder.
The two-week deadline was the biggest challenge. A law had been pushed through in 1996 after the Timothy McVeigh bombing: the Antiterrorism and Effective Death Penalty Act. It limited a prisoner’s right to a habeas corpus appeal to within one year of sentencing or the denial of direct appeal. Death row prisoners generally had two capable attorneys assigned to them, so having a year to prepare a habeas motion was doable. But for petty criminals like Melvin who were unable to afford an attorney and were probably in prison because the attorney they did have was incompetent, the deadline was daunting if not impossible. Such guys would be lost in the law library, trying to figure it out for themselves. Instead of education, most had mental illness, and the law books might as well have been written in Latin, which they kind of are, especially habeas law.
The antiterrorism bill not only shortened the time available; it also added to the complexity of the undertaking, creating more hoops to jump through or you would forfeit the right of appeal.
For most of that year Melvin had been moved around in county jails, where you really have few resources at all, so he was screwed.
I knew I would not have time for the $10,000 case if I helped Melvin.
I thought about it in my bunk that night. I had to decide what I really wanted to do and who I really wanted to be, and what I wanted my relation to the law to be. Was I going to be a take-the-money-and-run guy like some of the attorneys I had witnessed? Besides, Melvin was a good kid; the other guy, not so much.
I decided on Melvin, not the money. I felt that the decision could be a turning point for Melvin, and for me.
I dove into Melvin’s case, marshaling help from a few guys I had come to trust. In fact, I had what looked like a busy operation going. There was copying, mailing, typing, filing—I couldn’t do it all alone. It made the time move faster; this was 2005, and I had three years yet to go, assuming good behavior.
My typist was Glenn, one of the Wagner brothers—two brothers who shared a cell. In their early forties, short, unscathed by exercise, they were a bit Jekyll and Hyde: Glenn was clean-cut and educated; Frank looked like a troll from under a bridge.
Drugs had done a number on both of them. Before they were arrested, Glenn was doing the books for an Omaha dealer in exchange for crack—Glenn was a former accountant. The two of them had smoked crack all day long. They were victims more than criminals, but drugs do that.
Frank and Glenn took care of each other. I knew two other sets of brothers at Pekin, and they did the same. The Petty brothers, two skinny African-Americans, spirited so much food from the kitchen that their sandwich operation made them a small fortune. They were happy guys, big Eddie Murphy smiles, selling their sealed baggies of patented Petty Sandwiches for three or four stamps each: fresh Wonder bread, bologna, lettuce, tomato, cheese, all fresh-stolen, plus little packets of mustard and mayonnaise.
Melvin bought me a new typewriter ribbon and a prepaid card for the copy machine. That set him back about $14. We called it square.
Despite the fact that he had been arrested with a very small amount of crack, his sentence was over sixteen years. It was long because he was treated as a three-strikes career criminal. How someone could be a career criminal at twenty-four was beyond me. One of those three arrests had been for possessing a tenth of a gram of crack with intent to distribute. But when he pled guilty they had dropped the distribution part of the charge and he was convicted for simple possession. For him to be classified as a career criminal, he needed two prior distribution offenses. With the one charge dropped to simp
le possession, he did not have the two priors, and he should not have been sentenced as a career offender. His lawyer had missed that distinction, so the kid had been sentenced to sixteen years instead of probably five.
I wrote the brief over the course of a day; it was easier than I had anticipated. A month later his sentencing judge agreed with our contention, and, for his $14 and his courtesy, Melvin was resentenced to five years and some change. When he made it back to Pekin after resentencing, he gave me a big hug in the middle of the compound. That was not your standard prison protocol—a guy showing real affection to another. But neither of us cared.
Most of the black guys in my unit were ecstatic that Melvin would be going home. Big Meeks gave me a rare smile and thumbs-up across the dayroom. It was a really big thumb. Getting John Fellers his day in the Supreme Court was maybe my first big legal victory, but Melvin was my first pack-your-bags-kid-you’re-going-home victory—well, it was almost that: he had two years to pack, but he would be going home a decade early.
While I was still in the glow of that victory, I received two important packages. The first was the equivalent of a legal care package, compliments of Noah. I had asked if the firm had any extra briefs around, because reading other people’s briefs was how someone who couldn’t attend law school could learn. Noah had contacted people at WilmerHale and rounded up a box of Supreme Court briefs. I was grateful that Noah had taken the time to gather them and ship them to me.
I was also grateful for the encouragement Noah had given me. He strongly advised that I pursue law school when I was released.
The other package came from my mother. In it was another Christian book, and stuck inside the book was a written speech my dad had given at church:
I know I would have never gotten through this last year without having faith that God was in control. Cancer can be a lonely disease. You sit in a doctor’s office, you sit in scanning machines, you sit at home sick, a lot of times by yourself, for hours. But God impressed upon me during those times that when He is all you have, He is all you need. It was during those lonely times that God drew me closer to Him, especially through His word and through prayer. I didn’t always get what I prayed for and sometimes God said no, but God was changing me and because of that I have been truly blessed.
Law Man: My Story of Robbing Banks, Winning Supreme Court Cases, and Finding Redemption Page 16