"Listen, I know what you're saying,” I said. “And I can't force you to testify if there’s a new trial. I mean, I could subpoena you, but I can't force you to tell the truth. I get a sense that if there is a new trial, and I do subpoena you, that you're going to lie on the stand, just because you’re terrified. I get that. But I have to do what I have to do. What I was hired to do. I mean, I met both Jamel and his mother - these are two completely lost souls. I simply cannot stand by and let that kid languish in prison. He needs to live a normal life just like everybody else. He needs to be able to experience the joy of having his own children, a home of his own, a job of his own, a wife of his own. He needs to be able to have dinners with his mother, and help her when she's old. He needs to be able to take his future kids to Disneyland and to the beach on weekends. He needs to have a full life. He does not deserve to be in prison. And that's all I know. I know you're telling me that if I go forward with this case that my life might be in danger. So be it. I have to do what I know is right. Otherwise, I don't think I could sleep at night. I could not look at myself in the mirror again.”
By this time, Felicity was wringing the Kleenex in her hands. “I understand. I felt it was my duty to tell you, to warn you, what you're getting into. And, it's also my duty to tell you that, as I said before, you're not the only one whose life will be in danger if this goes too far. It’s going to be mine, and Jamel’s.”
I took a deep breath. "I hate to say it, because I know that what I'm going to do is going to affect your life. But, as I said before. So be it."
Chapter 12
Two weeks later, I got into court, which was an evidentiary hearing for my writ of habeas corpus. Jamel was there in the courtroom with me, because he was out on the writ. Of course, he was probably going to have to go back to prison after the hearing, unless, by some miracle, the judge decided to go ahead and overturn the conviction right then and there. However, I was bracing for him to deny the application for the writ completely. And, barring that, the best I could hope for would be to have the entire case reversed and remanded, at which point I would have to get ready for Jamel's trial.
Jim Stack was there too. He was the indispensable witness that I was going to call to show what happened to Jamel.
"Dog, what do you think is going to happen today?” Jamel asked me nervously. He was still in his prison garb, although he was not shackled. But he was being guarded very closely.
"Well, as I told you before, I'm going to have Mr. Stack testify on why it was he did what he did. After that, it's up to the judge. It’s the best I can do.”
The appellate judge was named Judge Warner. He was the District Court Judge there in Los Angeles County. The prosecutor was the same prosecutor who tried the case – his name was Matthew Howard. He was a cocky son of a bitch - I had heard about his reputation from some of the attorneys I spoke with. I couldn't stand the sight of him. I had to wonder if maybe Matthew was in on the whole case, anyways.
The judge called the case to order, and he asked me to go ahead and make my argument.
I stood up, and introduced myself, and went through the caselaw that I found on the issue of ineffective assistance of counsel, and also on the issue of not having any people of color on the jury.
“I’d like to object to any kind of argument about the makeup of the jury,” Matthew said to the judge. “The record shows that the defense counsel did not object to the makeup of the jury in front of the trial court, therefore the issue was forever waived. It was not preserved for an appeal.”
"Your Honor, I understand that there was no objection to the makeup of the jury. However, in light of the fact that the Supreme Court has ruled in numerous cases that not having members of one's own race on a jury can be a violation of an individual's constitutional rights, I believe it is such an important matter that even if there was no objection on the record, this court should still consider it. Bear in mind that the Supreme Court cases which have dealt with this have dealt specifically with the matter of an individual's specific race, but in this case, there was not one person of color on the jury. Everybody was white on this jury. I would think that such an egregious example of violating my client’s constitutional rights should shock the conscience.”
"Be that as it may," Matthew said. “It was not preserved.”
“And, Your Honor," I began. "Another reason why I bring it up is because it shows that the counsel was ineffective. And, it's important that this court know about this particular point, because, as I’m sure your honor is aware, the test for whether or not the case should be overturned for ineffective assistance of counsel is two-pronged. The first prong is that the counsel was ineffective. And I need to show that with the testimony of the counsel in question, Jim Stack. The second prong is that the outcome would've been different if the counsel was not ineffective. In this case, because the counsel was ineffective, and he failed to object about the fact that the jury did not have a single black member, or a person of color on it, that is just one way that the outcome would have been different if the counsel was effective. I do believe it's important to bring the situation of the jury to light.”
"I will allow the argument about the makeup of the jury to enter the record, and I will consider it when I make my decision,” Judge Warner said. “You may proceed.”
Score one for me.
After I made my opening argument, and so did Matthew, it was time for me to call Jim Stack to take the stand.
“Can you please state your name for the record?" I said to him after he was sworn in.
"James Robert Stack,” he said.
"Now, we are in front of the Court of Appeals for Los Angeles County today on a writ of habeas corpus. We are here to present evidence to the court about an ineffective assistance of counsel claim. To that end, I would like to ask you a few questions.”
And then, for the next hour so, I broke him down. He was willing, and ready, to testify about what he did in that case, or what he did not do.
"Did you object to the makeup of the jury?” I asked him.
"No.”
"Were there any African-Americans who were available for jury duty for this case?”
"Yes. There were 30 different African-American men and women who were available for the jury duty. But none of them served because they were all stricken through peremptory challenges.”
"And did you object to every single one of them being stricken?”
"No.”
"And why did you not object to that?"
"I did not object to that, because, quite frankly, I did not even realize that there was not a single black member on the jury. Not until they were seated and I looked at them and realized what had happened.”
"And how did you not realize that all people of color were stricken?”
"I didn't realize it because I was not paying attention. And, quite frankly, I was wasted throughout the entire trial. I didn't even know what was going on half the time.”
At that, he told the judge the entire sad story about his addictions, about his father dying, and about how he was phoning it in throughout the trial. He told the judge about how he never knew what was going on around him, because he was just too drunk. And yet, he was able to fake it. He was able to fake it so that the judge never knew that he was drunk. But he was.
“And I notice on the record,” I began. “That there is not one objection from you anywhere during that trial. Can you tell the court why it was you never objected to anything?”
"I never objected to anything because I never really heard anything the prosecutor had to say. I was in my own little world, my own bubble. I was thinking about my father the entire time, and, as I said before, I was drunk the entire time.”
"And, you did not put on any evidence on behalf of Jamel, right?”
“Yes, that's right. When it came time for me to put on evidence, I did not do it. I didn't do it because I just wanted the trial to be over. It was the longest two weeks of my life. You have to understand,
my father's death hit me really hard. We weren’t close. Not at all. But, I've gone to therapy on this, and I realize that my father's death hit me so hard because I never got closure with him on the issues I had with him over my life. When he died, I realized I never would. All I could think about all through that trial was about all the things I should've said to my father that I didn't. And, when it came time for me to put on evidence, I just wanted the whole thing to be over with. I just wanted it to be over with.”
At that point, I went through all the ways he could have presented a defense for Jamel. I talked about why it was he did not present pictures of the woman's house, why he never made the point to the jury that Jamel was the one who called 911, so why would he call 911 if he’s the one who did it, and how would a street kid like Jamel be able to get onto the private property of a prominent actress like Felicity McDaniel? Most of all, he did not bother to call Jamel to the stand. Jamel would've been a very good witness. In fact, the whole story about Jamel finding Felicity after driving Uber never even made it to the jury. The prosecutor’s story about Jamel wandering in off the street and raping Felicity was allowed to stand. In short, the prosecutor’s entire case was allowed to stand, with no rebuttal. So, of course the jury found Jamel guilty.
The entire hearing took the better part of the day, and, although the prosecutor, Matthew, tried to cross-examine Jim, I knew by looking at the judge that he wasn’t having it.
"Okay," Judge Warner said to Jim. Jim was still sitting on the stand, shaking. I had a feeling that he wasn't shaking because he was scared, but that he probably was going through some kind of delirium tremens. Jim had told me that he had not had a drink in three days, so it looked like he was going through some kind of withdrawal. "Here's what I'm going to do. I'm going to reverse this case. I have reviewed the record prior to this hearing, of course. And I find ample evidence that if the counsel for Jamel Jackson was at all effective, Mr. Jackson would not have been convicted. This case has more holes in it than Butch and Sundance after the Bolivian army got through with them. More holes in it than Sonny Corleone at the Causeway. So I find both prongs are present in this case – the counsel was ineffective, and the ineffectiveness of the counsel is what led to the conviction.
My heart started to pound. I didn’t dare hope for such a good outcome, but here it was. I looked over at Jamel, and squeezed his hand. He was crying.
The judge wasn’t finished. “I find it particularly egregious that you, Mr. Howard, were so cynical as to strike every single member of the jury who is of color. I'm sure that you didn't think that you could get away with it, yet you did, just because Mr. Stack was completely checked out. However, I can't believe that you would even deign to violate this young man's constitutional rights in that manner. Even if you could get away with it, which you did, it doesn't make it right. Quite frankly, while I'm not going to question the motivations of the police force, I don't know why this young kid was even arrested for raping Ms. McDaniel, and I certainly don't know why he was even charged. It seems pretty clear from the record that the State of California’s story that was given to the jury was, for lack of a better word, ridiculous. You presented evidence to the jury that a street kid could just wander onto the home of a prominent actress, scale her 10 foot tall wall surrounding her home, and then, once he's there, scale the 10 foot tall wall that led to her pool. Once again, if Mr. Stack was alive and well during the trial, he would never have let that pass. It seems pretty obvious to me from the record that the actual person who did this to Ms. McDaniel probably did it, and then called Uber, because he wanted somebody to take the fall. That was the reason why young Mr. Jackson was able to get on the compound in the first place, because the real perpetrator left the gate open for him. And also apparently left the gate open to the pool. Now, that's just speculation on my part, and perhaps it's improper, but these are all questions in the case that should have been brought out by Mr. Stack, but weren’t. And the reason why I am going into such length about what I think about this case is because I'm not going to remand it. If you want to retry this case, Mr. Howard, then you're going to have to refile it, and I hope you have a better basis for refiling the case the second time around. But I'm not going do your job for you. I'm hereby vacating the finding of Mr. Jackson's guilt.”
Oh my God. This was going better than I ever hoped that it would. When I took this case, I didn't dare believe that it would go this well. But obviously the judge saw what any blind man could see –my client got a raw deal, and he was not guilty, and the only reason why he was found guilty was because his attorney was asleep on the job.
“Thank you, Your Honor,” I said.
"I'm not through. Mr. Stack, are you still drinking?”
Jim shrank down in his chair. "Your Honor, I have not had a drink in three days.”
"That's not answering my question. You haven't had a drink in three days, so what? From what you told me on the stand, you are an alcoholic. And I know something about alcoholics, and they don't just quit drinking on their own. They need help. Are you going to Alcoholics Anonymous?”
"No, Your Honor, I'm not.”
"And why aren't you going to AA?”
“Because, Your Honor, I don't believe in a higher power. If I don't believe in a higher power, how am I supposed to get anything out of AA?”
"So, you think that just because you are an atheist that AA won't work for you, then?”
"Yes. That's what I believe. I've looked online about AA, and I realize that most of the 12 steps have to do with turning my life over to God, and I don't believe in God. So, I just don't think it will help me.”
"How about rehab? Have you thought about that?"
Jim shook his head. "No. I do not have the money to go to rehab.”
"So what's your plan? Because, until you get some kind of plan together, you're not going to be good for any client. You are a walking, talking, malpractice suit. I cannot, in good conscience, allow you to continue to practice law until you get your life together. Therefore, I'm going to have to report you to the bar on this case. The bar is probably going to force you to deal with your alcohol issues, one way or another. So, if you don't want to go to AA, and you can’t afford to go to rehab, I don't know what to tell you. What I can tell you is that when the bar receives my complaint against you, they will hold a proceeding to disbar you. I know that you have already been suspended for your alcohol issues, so you’re skating on thin ice as it is. I hate to say it, but you’ve fallen through the ice this time. You might be able to save your license, but only if you stop drinking, one way or another.”
"I understand.”
"Do you? Do you understand? Because I'll be honest with you. I've never received a case this egregious in front of me in my entire life. I have never received a case where the attorney just did nothing throughout the trial. Did not object to anything, did not put on any evidence, let the prosecutor’s story stand. Mr. Jackson would've been much better off if he just would've represented himself. I don't want to ever see another case like this again.”
At that, he banged his gavel, and then stormed off the bench.
I looked over Jamel, and he was still crying.
"Well, we did it.”
Matthew came over to me. "I wouldn’t be so happy. Listen, the judge might have reversed the case, but I can file new charges against your client. And I plan to. I plan to. Because somebody is going to have to pay for what happened to that poor girl.”
"Listen, you can do whatever you want to do, obviously,” I said. “I can't stop you. However, if you do try to refile the case, and you don't have any new evidence, just be prepared to fall flat on your face and be humiliated and embarrassed. Because I'll be taking Jamel's case. I'll be the one who's going to be trying it. I won’t let you get away with the same crap that Mr. Stack let you get away with, just because Mr. Stack was weak and drunk. Go ahead. You’ll be laughed out of court. You don't have anything, and you know it. You just heard Judge Warner tell you that
you had nothing."
I was infuriated. Here was his jackass, after the judge told him that he didn't have anything, told him that he was surprised that the case was ever filed in the first place, and he was wanting to try the case again? And the reason why he wanted to try the case again was because nobody else was available for him to charge, and somebody was going to have to pay? I couldn't believe my ears.
"Listen,” Matthew said. “And you listen good. I have a lot of pressure on me on this case. I have a lot of people coming down on me. And I have to make sure that it is wrapped up. So, if I have to try the case 100 times, and I get reversed 100 times, so be it. What is not going to happen is that this case is not going to drag on and on forever, without a suspect. You can't believe the kind of pressure that is coming down to make sure that somebody is put in prison for the rape of Felicity McDaniel. If you did know about that pressure, you would not question me.”
I was about ready to explode at that point. "I am going to question you. Because no matter what, I don't care what kind of pressure is on you to prosecute somebody who you have to know goddamn good and well is not good for the case, if you’re willing to see him in prison for the rest of his life – that is just plain evil. It's not your life that's on the line here. You aren’t the one who has a mother at home crying her eyes out every single night because she lost her one and only baby to the system. You aren’t the one who is going to have to spend the rest of his life in prison for something that somebody else clearly did. My client went through so much hardship these past few months. You would not believe the kind of things he saw in prison. The things he’s had to do. Do you know that he was knifed in the lunch room? He was jumped by three men who wanted to get a piece of him, because his name is so notorious, because he's associated with this case. He was the one who who was put into solitary, because he had to be put into protective custody, otherwise his life was going to continue to be in danger. If he would've died, would you really want that on your head? Would you really be able to look his mother in the eye and tell her that you did the right thing? Oh, you may look at Jamel, and you may see a kid who is disposable. After all, he's poor. He's black. You probably think in your mind that a kid like Jamel is somebody who could be thrown away, sacrificed so that the real culprit can go free. Well, I'm here to tell you that Jamel is not disposable. He is not a piece of trash. He is not your sacrifice. He is a living, breathing kid, with dreams just like everybody else. Hopes just like everybody else. He has a mother who loves him, just like everybody else. He deserves to have a life, and you cannot take that from him. So, as you say, you can try the case 100 times, and get reversed 100 times, and I will be on that case every goddamn time, holding you accountable.”
Wrongful Conviction Page 7
