Remembering Howard Zinn

Howard Zinn was a people’s historian. From his dissertation at Columbia University, which Cornell University Press published for the American Historical Association, to his widely-acclaimed A People’s History of the United States, Zinn stimulated many to engage in critical thinking and question a dominant history of omission. Until his death on January 27, he wrote at length about the injustices of the legal system, in which discretion by prosecutors and judges rather than the rule of law results in the routinazation of arbitrary justice.

Zinn was revered and loved because his writings and personal example instructed others of the value of autonomous thought and analysis. He recognized and acknowledged the flaws inherent in narrative; in creating thought-provoking departures from the history books—never claiming to be objective or complete—he accomplished the greater feat of fostering individual inquiry and activism.

As is the case with many activists, encounters with state abuse of authority were formative in Zinn’s life. Before serving as a bombardier in World War II, as a teenager he attended a rally in Times Square and was hit and rendered unconscious when mounted police charged through the crowd. He wrote in “The Conspiracy of Law” (published in Robert Paul Wolff, ed., The Rule of Law, 1971) that the general public, “as it is bidden sternly to honor the law,” has been denied the history of how law enforcement officials themselves break the laws. He mentioned FBI wiretapping and numerous incidents in which local police engage in assault and battery and even homicide. In the same vein, in A People’s History, he wrote about jailhouse lawyer Mumia Abu-Jamal’s race and radicalism, and his ongoing criticism of the Philadelphia police as being instrumental in his conviction and sentence to death row.

In “The Conspiracy of Law,” he wrote that “We make a fetish of “obedience to law” (put more delicately by philosophers as the concept of “obligation”) without making it clear to all citizens of whom this obedience is demanded that government officials have an enormous range of choice in deciding who may and who may not violate the law. One person’s failure to honor the obligation is ignored, another’s is summarily punished.” Zinn served on the advisory committee of the Lynne Stewart Defense Committee when she was on trial on terrorism related charges stemming from her defense of terrorism defendant Sheik Omar Abdel-Rahman.

Whether it’s a people’s lawyer, or a people’s historian, the test is to understand the viewpoints and challenges of the people. We salute Howard Zinn, the ultimate people’s historian, for devoting a life to helping others to understand the masses that have been ignored for so long.

 

Jailhouse Lawyers: Prisoners Defending Prisoners v. the U.S.A.

Book Review
Jailhouse Lawyers: Prisoners Defending Prisoners v. the U.S.A.
by Mumia Abu-Jamal
City Light Books, San Francisco, CA 2009, 251 pages, $16.95

The following book review by Heidi Boghosian appears in the current edition of The Federal Lawyer, January 2010, Vol. 57, No. 1.

In prison, a hierarchy of dangerousness dictates which inmates receive discipline and retaliation from correction officials. If judged by how the rest of society treats them, the most dangerous would seem to include gang members, political prisoners, blacks, gays, and AIDS patients. In fact, however, the quiet bookworms who pour over legal cases and books are most frequently subjected to punitive retaliation. They are the jailhouse lawyers — little known by the American public, but respected and relied on by thousands of other inmates — and now the subject of a long-overdue book by perhaps the world’s best-known death row prisoner.

In the vernacular, the term “jailhouse lawyer” has a derogatory connotation. In Jailhouse Lawyers: Defending Prisoners v. the U.S.A., Mumia-Abu-Jamal demystifies the term, debunks the stereotypes and elevates these individuals to their rightful status as staunch defenders of the Constitution. From his unique vantage point (he has been incarcerated for more than a quarter of a century, most of that on death row) Abu-Jamal aptly humanizes the individuals toiling behind bars to bring cases against enormous institutional, societal and legal obstacles. In this, his sixth book, Abu-Jamal — a member of the literary group PEN — illuminates the often contrasting values motivating so-called street lawyers (such as private criminal defense attorneys and public defenders) and jailhouse lawyers, while he reveals the vagaries of a judicial system that too frequently decides cases not on their legal merits but on the basis of which judge or jury is picked.

Why do prison officials consider jailhouse lawyers dangerous? Abu-Jamal explains:

Few people are better situated than jailhouse lawyers to observe the contradictions in society and, on occasion, to bring them forth into public view. For their services, for protecting the Constitution from violation, their institutional reward is often a bitter consignment to the depths of the hole. The reason is actually quite simple: unlike other groups in prisons, jailhouse lawyers … force prisons to change their formal rules and regulations, especially when they are illogical or downright silly, and for this administrators unleash their disciplinary arsenal with special vehemence.

Jailhouse lawyers advise and assist other inmates on a range of cases and levels — from seeking regress as to prison conditions to counseling others on routine matters — that often reach the U.S. Supreme Court. Many are self-taught or mentored by other jailhouse lawyers. The cases in Jailhouse Lawyers reveal the profound impact that these men and women have had on the legal system and on the lives of others. 

Abu-Jamal dedicates a chapter to street lawyers to put criticism of jailhouse lawyers into perspective. He writes, “Most lawyers today resemble the early [Clarence] Darrow, when he was a well-paid advocate of corporations, not the later Darrow, who took up the cases of social and political underdogs.” According to Abu-Jamal, street lawyers, unlike jailhouse lawyers, are officers of the court, and “even those among the most conscientious (like the ACLU), follow their training to acquiesce to, rather than to challenge, the imposition of repressive rules.”

Abu-Jamal’s jailhouse lawyers are clearly of the later Darrow ilk. Clarence Earl Gideon was a homeless 51-year-old with an eighth-grade education who was denied a lawyer when he was tried on charges of breaking and entering a pool hall. In 1962, he filed a writ of certiorari in the U.S. Supreme Court — handwritten with a pencil. A year later, in Gideon v. Wainwright, the Court ruled that the Sixth Amendment right to counsel applied to all criminal cases. Despite the victory, Abu-Jamal notes that “over forty years since Gideon became the ‘law of the land,’ hundreds, if not thousands, of people are still being held in jails and prisons without meaningful access to counsel. … In such a context, we can see why many men and women turn to those imprisoned with themselves to try to find some hope in a den of hopelessness.”

Many jailhouse lawyers have reputations as superior litigators; Richard Mayberry is one of them. He prevailed in Mayberry v. Pennsylvania, 400 U.S. 455 (1971), in which the Supreme Court held that, except when the judge acts instantly, when he or she charges a defendant with contempt of court, due process requires that the defendant be afforded a public trial before a different judge than the one who imposed the contempt charge. (Mayberry argued the case in the lower court but did not argue before the Supreme Court). Abu-Jamal recalls Mayberry’s first case in federal court, U.S. ex. Rel Mayberry v. Myers and Prasse, 225 F. Supp. 752 (E.D. Pa. 1963), in which he won the right to purchase law books, which were considered contraband in 1963, by mail. Abu-Jamal describes Mayberry as a “brilliant and imaginative litigator,” writing that “He is a member of no bar association, he claims no cachet from any school, and yet his work stands as a testament to one man’s power to resist, with intelligence.”

Abu-Jamal cites several other jailhouse lawyers of distinction, including former inmate Paul Wright, founder of Prison Legal News, a monthly award-winning publication providing educational materials for jailhouse lawyers around the country. Another jailhouse lawyer, Rahsaan Brooks-Bey, considers his best victory Brooks v. Andolina, 826 F.2d 1266 (3d Cir. 1987), which enjoined prison officials from punishing and retaliating against inmates for exercising their First Amendment rights. Martin Sostre filed and won several landmark cases, writes Abu-Jamal, including Sostre v. McGinnis, 442 F.2d 178, 189 (2d Cir. 1971), in which the Second Circuit ruled that Sostre, who now lives in Manhattan with his family, had “freedom from discriminatory punishment inflicted solely because of his beliefs, whether religious or secular.”

Abu-Jamal notes the stark contrast between the treatment of jailhouse lawyers and the deference to the lawyers who engage in flagrantly unethical conduct but are not sanctioned; the latter have included a lawyer who cited no legal authorities in his brief, lawyers who came to court with cocaine on their noses, and those “in the throes of a raging mental illness.”

Jailhouse lawyers were dealt a profound setback with passage of the Prison Litigation Reform Act of 1996 (PLRA). Proponents of the legislation argued that litigation by inmates should be curtailed because of their tendency to bring frivolous lawsuits. Abu-Jamal points out the untruth of highly publicized reports of inmates suing over the kind of peanut butter they were given or the color of their towels. The lack of truth in these stories was reported in Prison Legal News in an article by Chief Judge Jon O. Newman of the Second Circuit, outlining his reply to a letter in the New York Times from the attorneys general of four states. (Jon O. Newman, Not All Prisoner Lawsuits Are Frivolous, Prison Legal News, Apr. 1996 at 6.)  Judge Newman contrasted the allegations about the prisoners’ suits with the facts of the cases and showed how the attorneys general used lies and misrepresentations to support their arguments. In a telling indictment against the PLRA, Abu-Jamal writes that, if the events of Abu Ghraib prison had occurred in an American penal institution, victims would not be eligible for damages under the PLRA, because the PLRA prohibits recovery for psychological or mental harm or injury.

In spite of the PLRA, jailhouse lawyers continue to work against the odds to help others and to challenge unconstitutional laws. Abu-Jamal tells of Running Bear, who assisted in overturning three death sentences (one of them his own):

He describes “hearing a kid yell up to me that the PA Supreme Court just overturned his capital case based on a brief I wrote” as one of his most treasured memories of his jailhouse lawyering career. “Saving someone’
life via pen and paper is a rewarding and unforgettable experience.”

Running Bear’s words, “rewarding and unforgettable,” may also be used to describe Jailhouse Lawyers. It is a testament to the character of many jailhouse lawyers, who, when treated with disdain or worse, quietly persist in reading, analyzing, writing, and fighting to do what is right — doing justice.

 

A regrettable but still preliminary ruling in Mumia’s case

Today, the US Supreme Court summarily vacated a Third Circuit ruling that the jury in Mumia Abu-Jamal’s case was improperly led to believe that factors that mitigated against a sentence of death had to be found by a unanimous jury.  In all capital cases, a jury must be unanimous as to whether aggravating factors outweigh mitigating factors — and only aggravating factors that the jury unanimously agrees exist can be considered — but each individual juror is free to consider and weigh all mitigating factors she believes exist, regardless of whether other jurors see the same or different mitigating factors.

Last week the Supreme Court decided the capital case of Smith v. Spisak, finding that the Spisak jury instructions did not violate the case of Mills v. Maryland.  The law, even before Mills, was that any juror (even if alone in her opinion) could consider and weigh a mitigator that he/she found by a preponderance.  Mills involved jury instructions that raised a possibility that jurors would not understand this and think they could only consider a mitigator they found unanimously.  Today, without further instruction, the Court returned Mumia’s case to the Third Circuit to have it reconsidered in light of their decision in Spisak.

Mumia’s instructions and verdict sheet (which are DIFFERENT from those in Spisak) are especially violative of Mills.

In March 2008, the Third Circuit Court affirmed Federal District Court Judge William Yohn’s 2001 decision overturning Abu-Jamal’s death sentence.  (The co-authors of this blog wrote an amicus brief in that case.)  Citing precedent in the 1988 Mills decision, Yohn had ruled that sentencing forms used by jurors and instructions by presiding Judge Albert Sabo to the jury were potentially confusing. Jurors could have mistakenly believed that they had to unanimously agree on any mitigating circumstances.

Mumia’s original trial was a travesty and infected with racism.  Too many of the appeals since have revealed a system that is afraid to face its racist past and too willing to hide behind procedural and technical barriers.  Today, the Court continues to “tinker with the machinery of death” by making expectations for jury instructions still more byzantine, even in light of the prestigious American Law Institute’s decision to withdraw model code language relating to capital punishment based on their acknowledgment that decades of efforts to concoct a fair and non-arbitrary capital punishment system have utterly failed.

This latest reversal of Mumia’s limited appellate success is another sad day for criminal justice.  We can only hope that the Third Circuit will properly distinguish Spisak, and hold once again that the jury instructions were unconstitutional.

 

A Bare Desire to Harm

Reagan’s Attorney General Ed Meese has an OpEd in today’s NYT criticizing the Hon. Vaughn Walker’s handling of the federal lawsuit against Proposition 8, Perry v. Schwarzenegger.  He, like other supporters of this law, protests too much, and reveals the fear that this case will bring to light the true, hateful, and backwards motives of those who oppose state recognition of same-sex marriages.

As we’ve written before, Prop. 8 represents tyranny of the majority.  A duly recognized constitutional right was denied to a minority group based on a narrow majority vote.  Crude and politically motivated as it may be, the term “Prop. Hate” is accurate:  the proponents relied upon ignorance and bigotry.

Gen. Meese is now outraged that Judge Walker would bring this to light.  The trial that starts today should create a fascinating factual record, laying bare the motives and prejudices that underlie Prop. 8.  It is this collection of evidence that Gen. Meese writes to oppose.

Polls in the months leading up to the vote on Prop. 8 reflected an electorate that was unsure what to make of the newly recognized rights of LGBT couples.  The campaigning got uglier and uglier, and ultimately just over half of the voters chose fear and prejudice, and disapproval of LGBT rights.  The right-wing strategy had been successful.  Appealing to prejudice worked at the polls.

But in a constitutional system that values the rights of minorities, “Moral disapproval of this group, like a bare desire to harm the group, is an interest that is insufficient to satisfy rational basis review under the Equal Protection Clause.”  (Lawrence v. Texas, 539 U.S. 558, 582 (2003)).

A careful examination of the evidence will reveal the emptiness of the arguments against gay marriage, and the illegitimacy of their appeals to bigotry in any modern system of rights.

 

Another Mass Arrest Settlement

Congratulations yet again to Partnership for Civil Justice for successfully settling the class action lawsuit resulting from MPD’s mass arrest in Pershing Park in 2002!  This and its relation to another class action settlement are discussed in a City Paper article; and the latest settlement even received considerable coverage from the local Fox affiliate. 

The seemingly rapid-fire settlements of recent weeks belie a hard-fought legal battle over many years.  The government engaged in a pattern of denying that rights were violated, denying key facts, and even covering up essential information, some of which has finally come to public attention.  PCJ took on these cases and insisted on pursing the harder claims, representing people and causes that others turned away.  In the end, they were victorious and have secured record-breaking settlements as well as changes in policy manuals and other concessions that will benefit all protesters and friends of free speech. 

 

PLB is migrating…

We are in the process of migrating over to WordPress.  Please forgive any limited content or unsightlyness during this process.  Thank you!

For the moment, archives are still available here.

 

BoP Trying to Hide Death Row Inmates from Media

PLB co-editors Zachary Wolfe and Heidi Boghosian submitted this amicus curiae brief to the US Supreme Court last Wednesday urging the Court to accept review and reverse a recent 7th Circuit decision that upheld a Bureau of Prisons ban on in-person interviews between death row inmates and members of the press.

The National Lawyers Guild issued this release:

National Lawyers Guild Files Amicus Curiae Brief in Hammer v. John D. Ashcroft, et al.

New York–The National Lawyers Guild filed an amicus curiae (“friend of the court”) brief in the Supreme Court on November 27 in the case of Hammer v. John D. Ashcroft, et al., in support of death row inmates’ right to person-to-person meetings with reporters.

The Guild’s brief focuses on the fact that the current Bureau of Prison’s (BOP) proscription of in-person communication is inappropriately based on the anticipation that the speech will be offensive to government officials and the public discourse. The BOP’s interest in preserving security within the penal system does not permit it to censor speech absent a legitimate concern to justify the restriction of this fundamental right to free speech and free association.

The general public has a right to hear, through the media, first-hand accounts of current conditions in prison, whether they reveal unsafe and abusive behavior or simply the banal realities of life on death row and what brought them there. In-person communication also affords the wrongly accused a forum to proclaim their innocence. Lack of direct access to the media decreases the chance that claims of innocence will be heard and investigated.

The NLG brief argues that in Hammer v. Ashcroft, the Supreme Court has the opportunity to uphold the fundamental right to free speech and to afford transparency to the penal system’s workings by reversing a recent trend of curtailing inmate’s rights. The brief notes, “This Court’s past decisions granting deference to corrections officials are premised upon a limited judicial role in policymaking. But the wisdom of the Constitution in leaving policy decisions to the more democratically responsive branches is undermined if this Court does not uphold First Amendment principles that ensure an informed public, able to serve as a meaningful check on those branches and the danger of policymaking based on prejudice rather than facts.”

The brief was authored by Professor Zachary Wolfe of the George Washington University and NLG Executive Director Heidi Boghosian.

The National Lawyers Guild was founded in 1937 and is the oldest and largest public interest/human rights bar organization in the United States. Its headquarters are in New York and it has chapters in every state.

 

Tireless Civil Rights Lawyer Sent to Prison

Tragic news today that people’s lawyer Lynne Stewart’s conviction has been upheld by the Second Circuit, which further revoked her bail and sent the case back to the trial judge with orders to consider an even harsher sentence.

Lynne was caught up in post-9/11 hysteria, as the first person charged directly under the PATRIOT Act. Those “material support of terrorist organizations” charges were later thrown out, but other charges went to trial and she was convicted. At the very worst, Lynne is accused of being in the room when an interpreter talked politics with her client and of issuing a press release stating her client’s position on an international ceasefire agreement. For that, she was sentenced to 28 months.

Lynne has a long history of civil rights activism and supporting progressive causes. She also is a true believer in a strong defense bar, so that everyone will receive zealous representation. Thus, she represented Sheikh Omar Abdel Rahmen, and sought to keep his imprisonment and bases for appeal in the spotlight even as so many condemned him and the government issued gag orders. It is these gag orders that she is accused of helping to circumvent.

Whether she technically violated gag orders is neither here nor there. Lynne is a fierce advocate for her clients and a lifelong friend of the left. Ashcroft personally gloated about her arrest, at a time when “you are either with us [read: the Bush Administration] or you are the the terrorist” was the law of the land. A lawyer should never be forced to help keep her client’s imprisonment out of public discussion.

She is a fighter for the least among us, for unpopular causes, and for the powerless. Locking her up makes us all less free.

 

Domestic Surveillance of Protesters Exposed

In a hard-fought settlement, the Partnership for Civil Justice exposed a police operation that illegally detained protesters for the purpose of gathering intelligence on their acts of dissent against war and corporate power. After denying the operation for years, irrefutable documents came to light and the government agreed to settle the matter for $450,000, as reported in the Washington Post article today.

 

Report from G-20 Protests

National Lawyers Guild Legal Observers and representatives from its national office traveled from around the country to Pittsburgh to monitor first-hand the government’s response to the popular uprising against the G-20’s policies, with particular attention to law enforcement’s treatment of protesters.
As we toured the downtown area on Tuesday and Wednesday, we saw signs that most businesses were planning to close on Thursday and Friday due to a fear of violence. Police had erected tall metal barricades in the zone surrounding the Lawrence Convention Center. Some shops were already boarded up, creating the effect of a town readying for a hurricane or other natural disaster. We spoke with several business owners; bitter over the loss of two days’ worth of business, many spoke with palpable anger and clear disdain for protesters — well before protests were actually underway, and based only on the fear created by the media and police.
We must have resembled the iconic protesters, for when we entered one small, local bar to get a bite to eat, we were ignored by the three bartenders standing inches away. Seeing no other patrons, and with no other establishments open, we waited for about ten minutes before receiving menus. Only after we praised them for the good food and beer did they warm up and engage in patron/bartender banter. The owner regaled us with stories of protesters allegedly urinating in the soap dishes of the neighboring restaurant, the truth of which we doubted but that added to the drama of the day. As the Guild has seen before other National Special Security events, in the months leading up to the G-20, most news accounts mentioned the words “violent” or “anarchists” in referencing protesters. We watched local newscasts in which the anchorpersons shook their heads and editorialized about troublemaking protesters. And we saw firsthand the effect of such repetitive, one-sided journalism that ignores the systemic problem of police using increasingly severe military force on civilians.
A few days later, as we left Pittsburgh we ran into several students who had been assaulted by police officers as they were trying to enter campus buildings. Only then did we see the kind of surprised disbelief among those who have had their first encounter of police abuse of authority.
Ultimately, the police deployed an extraordinary array of weapons against protesters, including tear gas and untested LRAD technology. On this score, my further observations ran in a University of Pittsburgh School of Law publication; and the Pittsburgh Post-Gazette printed an interesting series of accounts from a variety of people who experienced law enforcement’s overreaction. Our friend, fellow Guild member, and CCR director Bill Quigley also offered an important account and analysis.