The Change Agent

by Damon West

Pro se is a Latin term meaning “for oneself” or “on one’s behalf.” A pro se writ of habeas corpus is a legal challenge by an individual without legal representation. The writ can either be filed by the prisoner or by someone else on behalf of the prisoner.

  “How is it even legal for someone who isn’t a lawyer to write a writ of habeas corpus for another person?” I asked.

  Winston smirked. Then it dawned on me. “This is intentional, isn’t it? All the state needs to do to kill a writ in court is to show the law or the rules were not properly presented in the grounds raised.” Procedural error was as good a reason as any to defeat an otherwise sound legal challenge. What better way to guarantee there will be errors than to let a bunch of jailhouse attorneys crank these things out by the dozens? The courts didn’t want to see professionally written writs.

  Given the reality in front of me, and the enormity of my task, I figured my chances for success were slim at best. On the rare occasion a pro se litigant overturned a case, it usually dealt with an extreme abuse of constitutional rights and a grossly incompetent lawyer representing that person during their trial. Given these two qualifications, I felt a little better about my chances because I had both.

  Winston and I stayed in the law library at least eight hours that day. I learned a lot about citing cases, researching them and sheparding them. I took notes furiously. Toward the end of our session, Winston indicated we were through for the day. I was exhausted mentally.

  “Did you manage to find out the threshold of proof you must present to be successful?” he asked.

  “I think so. It appears a writ of habeas corpus is predicated upon ineffective assistance of counsel,” I said. “This means you must prove that your trial counsel did not adequately represent you during your trial, that because of counsel’s errors, incompetence, or both, you were denied your Sixth Amendment right to counsel guaranteed by the Constitution.”

  “How do you prove ineffective assistance of counsel?” he prodded.

  I read from my notes. “‘To prove ineffective assistance of counsel, you must show two things: 1) deficient performance by counsel (errors); and, 2) that but for counsel’s errors, the results of the trial would have been different. This is known as the two-pronged Strickland Test, from Strickland v. Washington, the 1984 Supreme Court case, which is the controlling authority. Proving the first prong of Strickland is easy, as every counsel makes mistakes; the second prong, not so much.’”

  “Now, tell me your thoughts on the second prong of Strickland.”

  Without hesitation, I said that proving my counsel’s errors were so egregious that the end result of my trial would have been different, despite the substantial evidence of my guilt—and there was plenty of proof of my guilt—is an extremely high burden. “But, Mr. Winston, I have facts and law on my side. My lawyer probably shouldn’t have been practicing law.”

  His smile faded, and he looked off in the distance, as if he was somewhere else. “You must have more than the facts and the law on your side, West,” he whispered. “You must also have the imaginations and compassions of the jurists weighing this decision. A high burden, all the way around.”

  “Mr. Winston, where did you go just now? Did I say something wrong?”

  He snapped out of it, looked me in the eyes, and began telling me a little about his own case. He killed a guy, but claimed it was self-defense, not murder. There was a witness who lied and an old, senile lawyer, who talked about his past military career more than his client’s case. That sounded eerily similar to my case, and I wondered for a second if my lawyer, Ed Sigel, was practicing in Galveston before he represented me.

  He finished up by apologizing for dumping all that on me. “You didn’t come here to hear about my case, you came to prepare for yours. It’s difficult some days to deal with this burden because I know I am innocent of my crime. And yes, I know everyone says they’re innocent. I tried to fight my case in this same law library years ago. My writ failed. The truth is, I have never seen a single inmate win one. A winning pro se writ is like a unicorn. They don’t exist.”

  I considered all he had said, and asked, “What the hell is the law library here for if no one ever wins?”

  “By law, they have to provide you access to the courts, and it gives people hope. Every man who comes down here working on his case or someone else’s is one less man the administration has to worry about giving them problems. It’s like a giant babysitter.”

  That made perfect sense. The law library was no different than the TVs in the day room or prayer sessions in the chapel. Keeping inmates busy and giving them hope was smart crowd control policy.

  He stared hard at me. “You possess a unique enough skill set for this. I feel confident that once you go through your trial transcripts and pick out the errors, you will have little difficulty forming your grounds. I’m excited to see what you produce, West. You don’t need me anymore. You’ve picked up the idea about the writ better than most of the men in here. Be that first pro se victory for us.”

  For the next two months, I spent eight hours a day in the law library. It was grueling work, mainly because it was all so foreign to me. Still, getting out of my comfort zone had become second nature after living in this environment for four years. I discovered I was capable of doing some pretty incredible things when my back was against the wall and my life was on the line. Despite all the failures of the thousands who came before me, I truly believed I could be the one to win a pro se writ. Without that belief in myself, I do not think I could have completed such a mentally taxing exercise. I did not do it alone, though.

  This quickly became a family project. Everyone chipped in. Brandon and Grayson paid for my trial transcripts, which were not cheap. In order for my writ to look professional, my mother agreed to type out all of my handwritten pages of this one hundred-plus page legal document. My father, being a journalist all his life, edited and proofed the pages as my mother typed.

  Going through my transcripts brought back a lot of memories (and guilt) from my trial. Aside from the human drama, there were the legal errors. Most cases have them. Mine was loaded with them.

  It all began with that bogus search warrant Judge Snipes signed. The thing had zero probable cause. Before the trial, an attempt was made to get the warrant thrown out. My original lawyer, Randall Cory, stuck it to Snipes in a bond-reduction hearing, but Snipes would not budge. To do so he would have had to rule against his own warrant and admit he knowingly violated my Fourth Amendment rights with an illegal search. Short of Snipes recusing himself, he should have allowed another judge to rule on our motion to suppress the warrant. But, he couldn’t do that because the entire case against me would have fallen apart. Everything in my case originated from that initial, illegal search.

  The search didn’t produce any stolen property. I kept all that in multiple storage units and at another apartment my partner in crime, Steven, and I had down the street. What the warrant did produce was my meth dealer, Tex, who was at my place when the SWAT team swooped in to take me down. Tex was their biggest piece of evidence because he knew where the second apartment was located. Faced with the possibility of going down with me, he made the wise choice of giving the authorities everything he knew.

  He took them to the second apartment. In it, over a million dollars of stolen property was recovered. The case went from being a big burglary bust to being one of the biggest in the history of the city of Dallas. Unfortunately for them, their entire case was married to evidence, in the form of Tex himself, obtained from an illegal search.

  The legal theory for this, I discovered, is called, “Fruit of the poisonous tree.” This biblical-sounding concept basically says that any evidence derived from an illegal search and seizure is tainted, and therefore inadmissible.

  This is one of those areas of post-conviction law where a person is guilty as hell, but because of massive constitutional errors, a fair trial
was not had. They got the right guy, because I did the crimes, but they are also beholden to follow the law. Their entire case was built on the shoddiest foundation of all. How in the hell did they mess up so completely?

  Researching case law was like reading one of those “choose your own adventure” books from my youth. One case would take you to another, then another, and so on. The law books were full of overturned cases because of this very thing. The precedent was there in both state and federal cases. All I had to do was make my case.

  Winston was there for me every step of the way. He allowed me to go back to his cell each evening and pepper him with questions about rules, procedures, and anything else that came to mind. I asked him where he learned so much about the law.

  “Same place you did, West,” he said. “In prison. I was a carpenter in my old life. Just because I worked with my hands doesn’t mean I don’t have a mind. I was faced with the same choice as you, to let one of these idiots control my fate or take charge and learn on my own. That’s why Tommy came to me about you. We’ve known each other for a long time.”

  My final product was a writ laying out six grounds on which I tried to prove ineffective assistance of counsel. My mother and I must have exchanged over one hundred phone calls and dozens of packages. I would send her my additions as I completed them, wait the requisite two to three days for them to get to her less than fifteen miles away, then call her to go over them. She would then send me what she typed through the mail. If I needed to tweak anything, I would call her back and simply refer to page number and paragraph. The system worked like a well-oiled machine. The amount of work my mom put in was breathtaking. I know I consumed her life for those two months, but she never complained.

  * * *

  Earlier this morning, my mother left for Dallas with her friend, Sherry Vital, an attorney, to hand-deliver my pro se writ and get it date-stamped by the court clerk. We decided on hand delivery instead of the mail because Dallas County had played pretty fast and loose with their applications of laws and my rights thus far. I didn’t want to mail in my writ and have it “get lost in the mail.”

  I hold no ill will against Dallas County’s prosecutors, Judge Snipes, or my lawyer. Had I not been out smoking meth, committing property crimes, making victims out of countless people, and occupying so many of their resources and tax dollars investigating my crimes, then there would be no reason for this writ of habeas corpus. Still, laws are there for the cops and the courts to follow, also. Just because you have the power to circumvent or break the rules does not mean you should.

  I can’t get the idea out of my head that there are so many errors in most cases, especially the cases of those who are indigent and minorities. Prison has been like a never-ending sociological experiment, like living in a giant petri dish. It works for me, because I arrived armed with a sociology degree, a curious mind, and plenty of paper on which to write. Later, I’ll devote some diary space to what I call the “multi-tiered” criminal justice system. Had I never come to prison, I wouldn’t have a clue what it’s all about. Now that I am a sober observer of the facts, I feel I can offer some valuable perspective to it all. Sometimes they lock up the right guy.

  CHAPTER 12

  Misery and Time

  IN 2004, UPTOWN DALLAS was one of the trendiest urban districts in the state of Texas. It was the model for gentrification in America.

  At this time in my life, I viewed Uptown as a platform to live a fantasy life of days-long partying with beautiful women, lots of drugs, and ever-flowing alcohol. What sold me on my future residence, the Post Uptown Village Apartment complex, was their pool. My mouth dropped the first time I saw it. At any hour of the day there were bikini-clad women lying out, and everyone was drunk. Hardly the basis for establishing residency in a new city, but my head was up my ass, and I was living deeply in my addiction.

  Moving back to Dallas was like a homecoming. I had been making repeated trips out there the entire time I lived in Austin. It was never difficult to find someone to party with. The cocaine scene in Dallas was pervasive. To accentuate my addiction, I became roommates with a fraternity brother, who also sold quite a bit of “the Devil’s dandruff” on the side.

  Our Uptown apartment was host to many late nights that bled into dawn. I often watched the sun come up as neighbors readied themselves and their families for work. Such scenes always made me feel disgusted with myself, but not enough to do anything about it.

  I functioned on a diet of cocaine to give me energy, and booze or weed to take off the edge. To me, and those partying around me, this was normal and fun. I also dabbled in other drugs, but I primarily kept my eyes and ears open for the coke crowd. There were certain spots where a party and women could always be found. Candle Room and Hotel ZaZa were two. The real parties were the ones that occurred after hours, in the homes and condos of the very wealthy of Uptown, Highland Park, and University Park. It was at these parties that I got my first peek into the buildings (and their security) that would eventually become my targets in the Uptown burglaries I committed years later.

  One of my old buddies with whom I hooked up immediately was Rankin Fulbright, III. Rankin was now a big-time defense attorney with a reputation for being the go-to guy for DWI cases. He had married, and was living in Plano, a suburb of Dallas. Rankin would drink but he never touched drugs. He was a friend who often found the time to network and hang out after work hours.

  A favorite spot of ours was an Uptown watering hole called Primo’s. This bar was always hopping with women, which was right up my alley. One evening at Primo’s, and I can’t remember if it was in 2004 or 2005, Rankin invited me out to a more solemn type of get-together. His buddy and former groomsman Mike Snipes was mourning the passing of his father. I had met Snipes on Rankin’s yacht a few times in the late ’90s when Snipes was a federal prosecutor. I always gave him the salutation of colonel when around him. Our paths didn’t cross often, and the meetings were unexceptional. Snipes never said much to me.

  That evening at Primo’s was unexceptional as well. I bought a round of drinks for Snipes, Rankin, and the rest of us, then bounced on to an evening of vices. It was the last time I saw Mike Snipes outside of a courtroom.

  My job at UBS began immediately upon my arrival in Dallas. First and foremost, my duty was to study for the Series 7 exam. This is the test the Securities and Exchange Commission requires you to pass to become a licensed stockbroker. It is full of rules, regulations, scenarios, and understanding of the various investment instruments traded daily on the many world exchanges. Having never taken more than a finance class in college, most of this stuff was completely new to me. But hey, what the hell? I liked challenges.

  The building that housed UBS was perfectly located at Northwest Highway and the Tollway, in Park Cities. It had a parking garage, a sixth-floor view of Dallas, and immaculately groomed grounds. I couldn’t imagine a better work environment. The area was about as wealthy an enclave as there was in Texas. Surrounded by material excess, I was completely consumed and entranced with the thoughts of making money above all else. Everything I worshipped—money, sex, drugs–awaited me each day. It was heaven to the spiritually and morally bankrupt.

  UBS was a great organization to work for. The atmosphere, although highly competitive, was very family-focused. Everyone was friendly, and most were professional. Early on, I learned to stay away from the topic of politics, my go-to area of expertise, because most in finance leaned toward the right.

  I soon found many of my younger peers in the brokerage world dabbled in the fast-paced lifestyle to which I was so accustomed.

  My days were filled with the world of finance. Having a potential multimillion-dollar book of business, with my mega-wealthy donor lists from political fundraising, gave me incentive to buckle down on my training. I tried to keep my donor list to myself. No one needed to know what I was sitting on. All I had to do was pass the Series 7 exam, and
the world was mine. Or so I thought. I learned that training to be a broker, while at the same time maintaining my ever-increasing addiction to drugs, alcohol, and an extremely unhealthy lifestyle, was a candle burning at both ends in a race to the middle. Sleep was elusive. Cocaine was my main companion.

  Training to be a broker taught me a lot about financial instruments. There are stocks, bonds, annuities, mutual funds, currency markets, puts, stays, calls, and a whole host of other ways to play the market. Rules, regulations, taxation and real estate investment trusts were all part of the study materials for the Series 7. Some stuff was easy to absorb. Other elements, not so much.

  Commodities interested me. Things like oil, platinum, gold, silver, wheat and corn. You could buy these goods by the barrels, ounces, bushels or bundles. I asked lots of questions regarding commodities, and I found out that not all brokers dabbled in them. Many clients, it turns out, liked the stock market itself.

  It was at this juncture in my life that I would learn about two commodities not traded on the stock exchange.

  That first commodity is misery.

  Whenever you run out of misery, all you have to do is ask for more and you can have all you want. On top of that, it’s free. Misery is the commodity which is always waiting for you. Ask, and you shall receive. One day during my lunch break, I discovered a cache of misery awaiting me in the parking garage of that bank building.

  At this point in my training, my job was starting to suffer tremendously. Cocaine, booze, and women were no longer a weekend excursion. Frequently, I would steal off to the parking garage to take naps in my vehicle. It was the only way I could balance it all. Apparently, this did not go unnoticed. Another broker, James, confronted me about it.

  “Dude,” he said, “the markets open and close all around the world, with or without you.” He strongly advised I get a handle on my life, warning me that they’d fire me for missing work. People’s money couldn’t move around the markets if their broker wasn’t there to place their orders.