That man suspects God created and loves Shindola, even as he created and loves me.
Chapter Ten
JAILHOUSE LAWYER
EUREKA! THIS IS it, the eureka moment: I found it! The appellate court decision that will set me free. My knees go weak. My balls vibrate. Can this really be true? Am I reading these words, or am I hallucinating? Have I won the lottery, or am I dreaming?
I am standing in the law library at FCI Petersburg, a place where I have spent many hours in my now nearly seven-year-long study of the law, and I have just read the words that must by law nullify my twenty-five-year sentence. Words! Language. That which separates us from the other beasts of creation. Words imprisoned me. And words shall set me free. Listen to these words: coercive rather than punitive. Isn’t that beautiful? Isn’t the English language wonderful? Yes, it is. Especially when it will set you free.
Dear Judge Motley, bless your rotund black ass. There are those who will say that you did this on purpose, that you knew when you imposed my sentence—the ten years on the CCE, the kingpin, non-paroleable sentence, to run consecutively to the fifteen years I had already received in the District of Maine, for a total of twenty-five years—that when you uttered these words, “for the reason that it might convince you that cooperation with the government is in your best interest;” that when you enhanced your sentence not because of the seriousness of the crime, not to punish me for the massive amounts of illegal vegetable matter I possessed, imported, and distributed, no, but rather to convince me “that cooperation with the government is in your best interest;” that you knew what you were doing. And they might argue that, when you went on the record, which I now have and have read over and over again, that you deliberately said it again even more clearly: “Now, Mr. Stratton, if you decide to cooperate with the government in this matter, you have 120 days to apply to the court for reduction of your sentence, and the court will consider reducing your sentence based upon the nature and the extent of your cooperation with the government. So that in addition to the fifteen-year sentence you now have a sentence of ten years to follow that.” I heard you say those words, and some would believe, dear Judge, that you understood your sentence was illegal and that you did it knowingly, purposefully.
No, I don’t believe so. God bless Judge Motley. I love her dearly. But she is hardly an enlightened jurist. She is a wonderful woman, and I have come to revere her rulings—not for her wisdom, but for her ignorance of the finer points of the law. Or maybe it is not ignorance at all but contempt. As a black woman in America, having tried and succeeded as she has against the odds, she still knows somewhere deep in her soul that the law is a rough tool that can be used to hammer and hector the weak into submission as much as it is a fine scalpel that can cut to the quick and excise the malady. Perhaps after many years on the bench she has grown blasé, bored with the sheer volume of so many words spoken or written in so many court proceedings, so many defendants, lawyers, prosecutors, issues, and arguments. Crime! Overwhelmed by the persistence of crime and criminals. Perhaps she is simply tired. I did notice her dozing on the bench several times during my trial.
Whatever the case may be, the six months Judge Motley gave me for contempt of court was thrown out on my direct appeal. My attack on the conviction is based on the grounds that when Motley stripped me of my defense after she had given me permission to proceed with an affirmative defense theory, she made reversible error. I have a habeas corpus on that issue still pending in the lower courts. But with my direct appeal of the New York conviction having been denied, now at last it is time for me to file my Rule 35 Motion for Sentence Reduction, and to put Motley Crew on notice that she fucked up royally. Her sentence is illegal! It is coercive rather than punitive, enhanced to try to force me to cooperate, and courts have ruled that is not allowed.
Indeed, my particular sentencing aberration is even more clearly prohibited. It says it right here in the Federal Reporter, ruled in a case out of the Second Circuit Court of Appeals, the circuit with jurisdiction over appeals of rulings in Judge Motley’s court: “It is one thing to extend leniency to a defendant who is willing to cooperate with the government; it is quite another thing to administer additional punishment to a defendant who by his silence has committed no additional offense.” United States v. Bradford, 645 F.2d 115, 117 (2d Cir. 1981) (quoting United States v. Ramos, 572 F.2d 360, 363 n.2 (2d Cir. 1978)).”
Fuck, yeah! Bloody wonderful! Right on, baby! … by his silence has committed no additional offense … The guy kept his mouth shut. How is that a crime? In what country? Not in America. Since when does silence merit additional punishment? It all seems so clear to me, and I knew it even as dear Motley uttered the words. It just took me years of working through the convoluted dialectic of legal lingo to find my way to this understanding: my sentence is illegal because it was enhanced to try to force me to cooperate with the government, and therefore it cannot stand.
I compose and promptly file my Rule 35 Motion for Sentence Reduction in Judge Motley’s court, and point out that her sentence is illegal on its face. Weeks go by with no response. Then, in her magisterial wisdom her Motleyness denies my motion with no written ruling, just a simple No. Fuck you, Stratton. Do the twenty-five years and shut the fuck up. (See, obviously she didn’t do it on purpose.) Okay, good. See ya’, Motley. You blundered yet again, and there is recourse. Now, thank you very much, I will take it higher. I will proceed to the upper reaches of jurisprudence, where the rulers supposedly know and even make the law.
Energized with unequivocal legal precedent, I sit down to draft the brief and appeal Judge Motley’s decision to the Second Circuit Court of Appeals. In my brief, I argue Judge Motley’s denial of my Rule 35 is in error on the grounds that her sentence is illegal because it was coercive rather than punitive, ah yes, and I state that I have a Fifth Amendment right not to implicate myself or anyone else. More weeks go by and I hear nothing. Then I get notice in the legal mail. I have been granted oral argument before the Second Circuit Court of Appeals.
Holy shit! Me, Dickhead Stratton, some lowly convict, hophead, unregenerate doper, I am going to be permitted to stand before a panel of esteemed jurists in the hallowed halls of the Court of Appeals for the Second Circuit in New York City, one of the most prestigious courts in the country, and argue my appeal?
Oh, no. This does not strike me as a good idea. As much as my inflated legal ego might enjoy the experience, I doubt it would be a wise move. I am not a member of their club. I am a confirmed and convicted outlaw. The judges might resent me playing in their sandbox. This is not about my career as a jailhouse lawyer; this is about winning. So instead I call Ivan Fisher, my co-counsel at trial, Mailer’s good friend, and ask him if he will enter an appearance and argue the appeal for me.
When I reach Ivan and ask him to argue the appeal, he’s amazed to hear that I got as far as having been granted oral argument. “What’s your issue?” he wants to know.
I explain it to him. “Never did sit right with me,” I say, “that Motley could give me more time for refusing to rat. She proved my defense. As I tried to argue to the jury before she shut me up, the whole New York prosecution really was all about trying to force me to cooperate with the government and implicate Norman. Motley’s sentence is clearly coercive rather than punitive.”
“That’s your issue? Hmmm …” Fisher reflects. “And you found case law to back it up?”
“I did, yes. Ample case law directly on point. Second Circuit case law.”
“Really? Richard, this is intriguing. Send me copies of your brief and the government’s response.”
I do, and Fisher agrees to argue the case. Time slows down as the date of the oral argument draws closer.
“WE WON!” FISHER yells over the phone when I reach him in his office on the evening of the day of oral argument.
“What? How do you know?” I ask. “Did they rule from the bench?” Highly unlikely. I’m dumbfounded. What’s he talking about? How could he kno
w this?
“No … no, they didn’t rule—yet. But I’m absolutely sure,” Fisher assures me. “There is no doubt in my mind. Listen, the judges didn’t even ask the government any questions. It was clear to them, given Motley’s statements on the record at sentencing, that the sentence is illegal. Their only question to me was: What is the remedy? Believe me, Richard. Go to sleep on it. Bet on it. We won. You won. You’re going home, boobie! ”
Now I have become excruciatingly aware of the passage of time. My days are solid masses of waiting punctuated by mail call, visits to the unit counselor’s office to see if I have any legal mail, and evening telephone calls to Fisher.
“We won, what the fuck, Ivan: where is the ruling? ”
And then I have it.
It takes the appellate court eight weeks to issue their ruling. A piece of paper with words on it. Here are the words that will set me free:
UNITED STATES of America, Appellee v. Richard Lowell STRATTON, a/k/a “Richard Lowell,” Appellant. No. 937, Docket 86-1504. Cite as 820 F.2d 562 (2d Cir. 1987). United States Court of Appeals, Second Circuit. Argued April 8, 1987. Decided June 5, 1987. “Following defendant’s conviction on drug-related charges and imposition of a ten-year sentence to run consecutively with the sentence previously entered on another conviction, defendant moved for a reduction of sentence. The United States District Court for the Southern District of New York, Constance Baker Motley, J., denied the motion, and defendant appealed. The Court of Appeals, Oakes, Circuit Judge, held that defendant’s sentence was impermissibly enhanced due to his failure to cooperate with the government.
“Sentence vacated, case remanded for resentencing in front of a different judge.”
Hallelujah! Praise God. Praise the law. Praise language: impermissibly enhanced due to his failure to cooperate with the government! Keeping my mouth shut shall set me free! How beautiful is that? How righteous. Talk about language—how about the beauty of silence? And the appellate court slapped good Motley down by taking the case away from her and ordering that I be sentenced by a new judge who will hopefully know what the fuck he or she is doing. Yeah, baby! Pink Rats rule: we’re pink because we don’t fink.
BACK ON THE Bureau of Punishment bus, headed for New York City: MCC, once the Criminal Hilton, now just another federal shithole. I’ve spent more time in this jail in the years I’ve been locked up than anywhere else. While still at Petersburg, as part of my ongoing efforts to beat this sentence down, I went before the parole board. The fifteen-year sentence I received in Maine was paroleable, so I petitioned the board to parole me from the fifteen-year sentence into the ten-year, non-paroleable sentence upon completion of the minimum five years, one-third of the fifteen-year term. And they did. They figured, why not? This convict isn’t going anywhere; he’s still got to do another ten years with no parole. That happened even as I attacked the illegality of the New York sentence. So, truth be told—and I am certainly not offering up this information to the new sentencing judge—I am already on parole from the Maine fifteen-year sentence and serving the New York non-paroleable ten-year sentence that has been declared illegal and vacated by the court of appeals.
This gets complicated. We have entered the arcane world of federal sentencing law. What’s the best that could happen? I could go in front of the new judge charged with the responsibility of resentencing me, he or she could rule in my favor, and I could walk out of the courtroom a free man. Fisher believes release is a distinct possibility. Much, he says, will depend on how the prosecutor, Stuart Little, responds. If the government still has a hard-on for me and Norman Mailer, and if the prosecutor still clings to some notion that I will give in and roll over, they could look for new ways to fuck me.
MY MOTHER COMES down for the hearing; the old man stays at home. Mary tells me that Emery is proud of the fact that his son chose not to become a stool pigeon and spend the next however many years being shunted around the country from courtroom to courtroom to testify against friends and enemies. Ah, the shame of it! I’d rather do the time. But what if Judge Motley had said twenty, thirty, forty years? How do you measure your integrity in years? How many years is my soul worth? My mental state? Stand me up in front of a firing squad. Fry my ass in the electric chair. Gas me. Slip me some lethal drug cocktail. Who cares? Emery? I miss the old man, but I wonder: Does he really give a shit about his son? The son he virtually ignored until I got into trouble? And me, will I now have children of my own, now that I may actually get out of prison while my dick still gets hard? And, if so, if I get out and have sons and daughters of my own, will I be a better father than Emery? Jesus Christ, help me, I hope so. Fathers and sons, it’s all such a mystery to me. I’m closer to Norman Mailer than I am to my own father. But I do love the old man, and I believe that in his own Yankee WASP way he loves me.
These are the kinds of ruminations that will keep a convict awake in his cell at night.
Interesting that the appellate court took the case away from Judge Motley. The circuit court judges assumed her Honor would not be unbiased in resentencing as my efforts, and their decision, make her appear ignorant. The new judge’s name is Thomas Griesa, pronounced gree-say. I, as is my habit, have renamed him Greasy. He’s a tough one to read. A graduate of Harvard University and Stanford Law School appointed to the federal bench by President Richard Nixon in 1972. The little research I did on Greasy tells me he’s considered to be a fair if not particularly diligent jurist.
He enters the courtroom in his robes and takes his place on the bench. He looks tired. No nonsense. Straight to business. He has no investment in this case.
“Mr. Fisher,” the judge says after a quick review of the paperwork, “I see where the Court of Appeals vacated Mr. Stratton’s sentence, and we are in my court to have a new sentence imposed.”
“That’s correct, your Honor.”
“It would appear,” the judge continues, “the original sentence was declared illegal and vacated because it was based on a failure by this defendant to cooperate with the government. Courts have determined it is impermissible to enhance a sentence based solely upon failure to cooperate.”
“Right again, Judge.”
Griesa nods. Nods again. So far so good. He looks at Stuart Little. “Is that the government’s position as well?”
“Yes, your Honor, but—”
“Wait,” the judge interrupts, “let me finish. Now, my question to you both—and to this defendant, since I see where the filings in this case were submitted pro se—my question to you all is this: What is to prevent me from imposing the same sentence, that is, the ten-year term to run consecutively to the fifteen-year term; or, alternately, what is to prevent me from imposing a twenty-five year sentence—or an even longer sentence—and basing it not on Mr. Stratton’s failure to cooperate but instead on the large volume of illegal drugs Mr. Stratton was convicted of having imported and distributed? Do you see what I’m saying? Because in my review of the case, I see where Mr. Stratton was convicted under the continuing criminal enterprise statute—a very serious offense—of having been the organizer and manager of a sophisticated and lucrative longstanding criminal organization that imported massive amounts of drugs into the United States.”
What? No, no, no, I’m thinking in a panic, this is all wrong. Not me! A bunch of hippies. Freaks. Hippie mafia outlaws. Kids fucking around with some weed and a little hash … Please, Judge … More time! No, God, no. This is not supposed to happen. This is not why we are here. That would be a major fuck-up. If I were to go back to prison with a twenty-five-year, non-paroleable sentence or even more time, that would be the exact opposite outcome of what I set out to accomplish. We are here to have my sentence corrected, not to have it enhanced.
Even Ivan Fisher seems momentarily jarred from his grasp of the proceedings. “Ah, no, Judge. With all due respect,” he says, “I do not think that is the intent of the appellate court decision. That would call for a finding other than what the district court determined at the orig
inal sentencing, after hearing all of the evidence and imposing a minimum ten-year sentence.”
“Hmmm … What is the government’s position?” Griesa inquires.
Stuart Little says, “Under the circumstances, Judge we would need to research the issue.”
“Yes, I think you’re right. I’m not sure myself that what I have suggested would be permissible. I am going to adjourn and ask you both to brief me on your findings. And then we will set a new date for the resentencing.”
My mother and I hug as deputy marshals escort me from the courtroom. “I’ll come visit,” she says.
“This is not at all what I expected,” I say to her and to Ivan Fisher.
“No, it’s not,” Fisher agrees. “And I don’t think … well, I don’t know. You better get your butt to the law library and research the issue. By the way, the assistant US attorney told me that he is aware that you have been paroled from the fifteen-year sentence into the ten-year sentence, and he intends to notice the Court of this. So you better be prepared to answer that issue as well. You’ve got to do the work on this, Richard. You brought us this far.”
Damn … That did not go at all as planned. More time? Shit! Where did Griesa come up with that idea? I win an appeal and get more time. No, that’s not right. It can’t be. I must not come out of this worse than I was going in. And that is precisely the rationale that will protect me. Fisher brought it up: Judge Motley, after hearing all of the evidence and after listening to my allocution, set her sentence at the minimum of ten years on the CCE. This new judge is not being asked by the appellate court to resentence me based on the evidence presented at trial. He wasn’t the trial judge. No, he is only being asked to address the illegality of running the two sentences consecutively “for the reason” that I refused to cooperate. Nothing else. He is not charged with, nor given the responsibility of, redetermining how much time I should get. He is empowered only to address the illegality of the sentencing based on an impermissible finding.
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