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American Judicature Society-Pro Se Inmates

American Judicature Society-Pro Se Inmates

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Published by: rabbi_josiah on Jul 09, 2008
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I. ISSUES FACING PRO SE INMATES
Inmates find it very difficult to proceed pro se, yet nevertheless, often do. Within the confines of the prison, their access to legalmaterials is rather limited. They often face an uphill battle with restrictive prison rules and regulations as well as trying to properlyfollow court rules. The United States constitution provides guarantees that protect inmates’ rights.
ACCESS TO THE COURTS
State officials cannot enact regulations that “abridge” or “impair” an inmate’s right of access to the courts. They cannot, for example,interfere with the right of inmates to file petitions in court. In the frequently cited case
Ex Parte Hull 
, the United States Supreme Courtstruck down a regulation that prohibited state prisoners from filing petitions for habeas corpus unless they were determined to be“properly drawn” by the parole board’s legal investigator.
.The Court determined that theregulation denied inmates’ access to the courts because the parole board determined which petitions would be filed. The
Hull 
casecontinues to be cited in reference to this right, most recently by the Court of Criminal Appeals of Oklahoma in 
.An inmate’s right of access to the courts also mandates that prisons provide inmates with adequate law libraries or adequateassistance from persons trained in the law, such as paralegals or law students. Until recently, the leading case concerning theadequacy of prison law libraries or legal assistance was
. Now, however, the leading case is
,which expanded
Bounds’ 
holding. In
Lewis
, an inmate claimed that hisprison’s law library and legal assistance program was inadequate and thus “abridged” or “impaired” his access to the courts. But theUnited States Supreme Court disagreed, holding that an inmate cannot bring a general challenge to the adequacy of a prison’s lawlibrary or the legal assistance program. Instead, an inmate must show that he has suffered “actual harm” to a legal claim thatinvolved his criminal conviction or the conditions of his incarceration and that the cause of the injury must be the method of access(i.e., the inadequacy of the law library or the legal assistance program).
.The
Lewis
case has been accepted and cited by several courts.
 
.
Lewis
wasmost recently relied on in 
, which applied the
Lewis
“actual harm” analysis to find that no systemwide inadequacies existed in the New York Department of Corrections’ prison law libraries. The
Benjamin
court found that only threeof the plaintiffs could meet the Lewis standard, and that this was an insufficient number to justify a finding of system wide inadequacy.Although an inmate’s right of access to the courts includes access to some combination of legal assistance, legal materials and/or alaw library, inmates do not have a constitutional right to engage in legal writing for other inmates. This means that an inmate’s right of access to the courts is specific to the inmate who is seeking to bring a claim before the court
.For example, an inmate cannot argue that his right of access to the courts was “abridged” or “impaired” becausehe was prohibited from assisting other inmates, or was prohibited from receiving help form other inmates.An inmate’s right of access to the courts must, at a minimum, be “meaningful” (i.e., allow the defendant an adequate opportunity topresent his claims fairly).
. However, this does not mean that courts are required to be morelenient when reviewing inmates’ petitions. A recent case held that inmates who neglect to follow formal court rules and procedureswhen they are readily available to them should not receive special consideration for review of their cases.
. In
Braun
, the court properly denied an inmate’s motion to file a supplement tohis brief-in-chief since the court rules clearly stated that all of his arguments must be filed in the brief-in-chief and the rules werereadily available to him.
 
RIGHT TO PROCEED PRO SE
At the trial court level, defendants in criminal cases have a constitutional right to proceed pro se, and counsel may not be imposed onthem over their objection.
. The United States Supreme Court recently examined whether 
 
Faretta
applies at the appellate level. In
, the Court held that thereis no constitutional right to self-representation on direct appeal from a criminal conviction. The Court makes clear though that statesmay recognize such a right under their own constitution.
. The Supreme Court granted certiorari because state and federalcourts have expressed conflicting views as to whether defendants in criminal cases have a right to proceed pro se at the appellatelevel. Prior to
Martinez 
, most courts held that there was no right to proceed pro se on appeal since the due process and equalprotection clauses of the Fourteenth Amendment did not require it. A few courts though, had extended the Sixth Amendment right of self-representation to state criminal appeals including: Indiana, Michigan, Texas, Arkansas, Pennsylvania, Louisiana, New Mexico,Oklahoma, the Eighth Circuit
.Two state cases have applied Martinez to determine individual appellants’ rights to represent themselves on appeal.
allowed an appellant to represent himself on appeal while interpreting the Florida stateconstitution as not granting a constitutional right of self-representation on appeal.
 
,
cited
Martinez 
to refuse to allow an appellant to represent himself on appeal in a capital case.
 
,
recently addressed the intersection of a valid waiver of the right to counsel under 
Faretta
with the amount of participation by standby counsel that is sufficient to cure a defective waiver under 
.In
Martin
, the defendant, Martin, did not want to be represented by his court appointed attorney, Wolfe, and thetrial court gave him the alternatives of hiring a new attorney or proceeding pro se. After Martin chose to proceed pro se, the trial judgerecommended twice that he retain Wolfe, but did not engage him in a discourse to make him “aware of the dangers anddisadvantages of self-representation.”
Faretta
at 835. The court subsequently appointed Wolfe as standby counsel.On appeal, Martin argued that the trial court erred in allowing him to proceed pro se without determining that he had made a knowingand intelligent waiver of his Sixth Amendment right to counsel. The State argued that under 
McKaskle
, if standby counsel plays anactive role in the defense, such participation can cure a defective waiver. The
Martin
court found that
McKaskle
was not directly onpoint because that case did not address the level of participation necessary to cure a defective waiver.
Martin
at 452. However, the
Martin
court used a “control of litigation” standard derived from
McKaskle
to find that Wolfe did not interfere with Martin’s control over his defense and therefore Wolfe’s participation was insufficient to cure Martin’s defective waiver.
Martin
at 452.
PURSUING UNRELATED CIVIL ACTIONS
Inmates may file civil actions in court that are unrelated to the legality of their convictions. An inmate has a state constitutional right toinstitute and prosecute a civil action that seeks redress for an injury or damage to his personal property, or for the vindication of anyother legal right.
. However, this right is “qualified and restricted.”
 Inmateswho file civil actions unrelated to the legality of their convictions will not under usual circumstances be given the opportunity to appear in court to present their cases during their prison terms.
Whisnant 
held that trial courts should hold such matters in abeyance until theinmate is released from prison, unless an appropriate directive is issued requiring the inmate’s attendance.
While
Whisnant v. Byrd 
held that inmates had a constitutional right to institute and pursue civil litigation unrelated to the reason for their incarceration, and provided that a civil action brought by an inmate should be stayed until the inmate was released from prisonand could appear in court,
Sanjines v. Ortwein
narrowed the case.
Sanjines
overruled
Whisnant 
to the extent that
Whisnant 
providedfor a mandatory, automatic stay on civil actions brought by inmates, holding that under the specific facts in
Sanjines
, “an inmate whois the plaintiff in a legal malpractice case and who contemporaneously is the petitioner in a post-conviction matter involving the samefacts is not entitled to an automatic stay of the malpractice case until the outcome of the post-conviction matter.”
Sanjines
at 911.Recently, the Supreme Court of Tennessee provided clarity on the issues presented in
Whisnant 
and
Sanjines
. In
,the court overruled
Whisnant 
to the extent that the case may be interpreted to stand for theproposition that an incarcerated plaintiff has an absolute right to have civil proceedings stayed or held in abeyance until he or she isreleased from custody.
Logan
at *1.
Logan
delineated a factor driven analysis for trial courts to apply in using their discretion as towhether to grant a stay. Trial courts should “weigh the competing interests of the inmate’s ability to present proof and the burden onthe judicial system and the defendant in continuing the action.”
Logan
at *4. The
Logan
court included such factors as: 1) “whether the inmate will be released from prison and able to appear in court within a reasonable time from the filing of the suit,” 2) the “burdenon the court in maintaining a docket on which such claims will remain for an extended period,” and 3) “ the inconvenience andimpracticability of litigating a suit several years after its filing.”
Logan
at *5.
Logan
specifically addressed the concerns of inmates proceeding pro se on civil matters unrelated to the reason for their incarceration. Should a trial court grant a request for an abeyance,
Logan
stated that the trial court should “afford the prisoner sufficient time for filing briefs and motions and for conducting discovery.”
Logan
at *5. The court noted that these kinds of considerations are particularly important as regards pro se litigants.
 The court noted that when granting a request for anabeyance from a pro se inmate litigant, the trial court should waive timing requirements of the Rules of Civil Procedure and set atimetable that takes the special needs of the plaintiff into account.
 
II. JUDGES AND PRO SE LITIGANTS
TREATMENT OF PRO SE LITIGANTS
The Colorado Tenth Judicial District Commission on Judicial Performance recently issued a recommendation of “do not retain” for Judge Adele Anderson, a judge in Pueblo County. Anderson was one of two out of 83 judges who was not recommended for retention. The Commission’s decision was based on a survey conducted to evaluate Judge Anderson’s performance. Respondentsto the survey included members of law enforcement, attorneys, litigants, jurors, criminal defendants, courthouse personnel and crimevictims. One of the bases for the Commission’s decision was that some survey respondents noted Judge Anderson’s “demeaningand harsh treatment of individuals appearing in her court without legal counsel.” See the Commission’s recommendation athttp://www.cobar.org/judges/nov2000/10CNTYaanderson.htmThe California Commission on Judicial Performance publicly censured a judge for failing to respect the rights of pro se litigants.Inquiry Concerning Judge Fred L. Heene, Jr., No. 153, October 13, 1999. This seems to be the only case in which a judge has beendisciplined for the judge’s treatment of unrepresented individuals.The judge’s actions violated several canons of the code of judicial conduct, including: canon 1, “a judge shall uphold the integrity andindependence of the judiciary”; canon 2A: “a judge shall respect and comply with the law and shall act at all times in a manner thatpromotes public confidence in the integrity and impartiality of the judiciary”; and canon 3B: “a judge shall perform the duties of judicialoffice impartially and diligently.”In deciding whether to discipline the judge, the Commission noted that the judge’s nine incidents of improper treatment of unrepresented individuals in slightly less that two years were not isolated, unrelated incidents of misconduct, but “in every instance,[the] Judge failed to respect the rights of unrepresented individuals.”In Count one, the judge ordered a witness who was testifying at a preliminary hearing to be taken into custody because the witnesstestified that she had given the police information that was not true. The judge set bail in the amount of $25,000 and asked thatcharges be filed because “she has admitted to this court a crime.” The district attorney repeatedly told the judge that there were nocharges pending against the witness and that the district attorney’s office had not made a determination as to whether the witnesshad committed a crime. The judge eventually withdrew the order and let the witness go.In Count two, the judge imposed a fine and denied the defendant the right to cross-examine a police officer regarding a speedingviolation.In Count three, the judge ordered the defendant to sell his car in order to pay his fine for driving with an expired registration. The judge told the defendant to “make it happen,” and that at the next court date “either you have a sale that’s been registered with [the]DMV showing the car is gone, or we will give you some vacation time to think about it.” The defendant later returned to the judge’scourt and stated that he had sold his car and the judge dismissed the case after imposing $10 in court costs.In Count four, the judge questioned the defendant regarding the defendant’s failure to complete her community service hours withoutinforming the defendant that he was conducting a violation of probation hearing, nor advising the defendant of her rights in connectionwith a probation violation hearing. The judge remanded the defendant into custody and sentenced her to 44 days in the county jail.The defendant told the judge that she did not do the community service because she had been pregnant and was on bed rest. Whenthe defendant replied that she had not come into court to tell the court this, the judge remanded her into custody and said, “Okay.Good luck.” The defendant pleaded with the judge that she had a seven-day old baby at home, and the judge responded, “Ma’am,you should have thought about that a long time ago.”In Count five, the judge ordered a juror in contempt and remanded him when the juror was late to court without informing the juror thatthe judge was conducting a contempt hearing.In Count six, the judge sentenced a defendant to 20 days in the county jail in the absence of a plea of guilty, no contest, or convictionat trial, for failing to pay a traffic fine. The judge demanded, “$589 or 20 days in the county jail,” and then remanded the defendantinto custody.In Count seven, the judge denied the defendant’s request for a public defender telling the defendant he was “an able-bodied person”who could get a job. He also stated that “[t]here are a lot of jobs out there. I would suggest you go find one.” When the defendantlater appeared in court on a new felony charge stating that he had not worked for two months, the judge appointed the publicdefender on both cases.In Count eight, the judge reinstated and modified the terms of the defendant’s probation by adding 30 days to the jail sentence andremanding him without advising the defendant of his constitutional rights regarding revocation of probation (e.g., the rights to anattorney, a hearing, and to subpoena and examine witnesses).

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