Innocence Doesn’t Matter

This is not a diatribe against the legal system’s disdain for the question of its victims’ innocence. Not that I couldn’t write such a diatribe. I’d start with Herrera v. Collins, which decided that it was OK for a government to murder a convict even if there was solid evidence of that person’s innocence. This is, instead, an explanation of what might seem to some a curious omission.

I did not claim my innocence in the posts about my prosecution. I merely discussed why my prosecution was a travesty. I’ve been working on another post in which I will discuss the evidence that my prosecution was based on but, again, I won’t claim my innocence.

Justice is not merely a matter of punishing those who happen to be guilty, it is a process of determining guilt or innocence by applying principles of reasoning to facts. When a government obtains a conviction by violating its own rules, or the rules of reason and morality, that conviction is wrong even if the accused is in fact guilty.

That said, I will use this opportunity to say: I did not sexually assault the alleged victim.

image.jpg

Criminal Judges and Justices, Redux

In Criminal Judges and Judges, I described how my federal defender forced me to plead guilty and how the courts allowed him to get away with it. In A Criminal Prosecutor and Public Defender, I described how the defense and government attorneys, both federal employees, conspired to get me to plead guilty to kidnapping—even though they knew that there had been no kidnapping. I ended the latter with, “but my habeas proceedings were, possibly, worse.” Here’s what I meant.

To be guilty of violating the kidnapping statute, I had to “take” the alleged victim, “hold” her for some purpose, and transport her interstate. However, according to the court that ruled on my habeas petition,

Mr. Wells acknowledged that he made untrue representations to the victim in order to induce her to come to his house [this is a taking by inveiglement], that he did so to satisfy a plan or need of his own rather than to counsel or treat her [this is a purpose], and that he transported her from Connecticut to New Jersey [this is interstate transport] knowing it was against the law. Nothing more was required to ensure that Mr. Wells’s guilty plea was knowing and voluntary and was supported by an adequate factual basis. [p. 22 of the district court’s ruling]

It’s easy to see that the facts don’t equate to a kidnapping. A kidnapping requires the victim to be held and the facts don’t contain a holding. My plea should never have been accepted in the first place and, when I challenged it in my habeas corpus proceedings, it should have been set aside. However, the court didn’t see it that way.

A “holding” under § 1201(a)(1) implies an intent to restrain the victim’s movements contrary to her wishes. Chatwin v. United States, 326 U.S. 455, 460 (1946). In other words, a victim is “held” or detained when the defendant transports her without her consent. See United States v. McGrady, 191 F.2d 829 (7th Cir. 1951) (noting that the holding element of the statute can be achieved by mental as well as physical means); United States v. Lewis, 662 F.2d 1087, 1088 (4th Cir. 1981); United States v. McBryar, 553 F.2d 433, 434 (5th Cir. 1977). Where, as here, kidnapping is accomplished by inveigling, the “holding” is implicit in the kidnapping and transporting, since inveigling necessarily contemplates that the victim’s apparent consent was in fact obtained by deception. Cf. United States v. Sanford, 169 F.2d 71, 72 (8th Cir. 1948) (inveigling victim to eventually rob him implied that he had not given consent, although it appeared he had); United States v. Boone, 959 F.2d 1550, 1557 (11th Cir. 1992) (noting that an inveigled person cannot validly consent to be transported because the willingness to be transported is the result of the defendant’s deception). [p. 20-21]

The court misrepresented Chatwin. Chatwin said that a holding is an intentional restraint of a victim against his will, not “[a holding] implies an intent to restrain the victim’s movements contrary to her wishes.” That is, a holding requires an actual restraint, and an actual desire to be not restrained. (In fact, Chatwin concluded that the alleged victim in that case could not have been held because, first, she was persuaded that she ought to cohabit with her alleged kidnapper and, second, because she was free to come and go at will.) Moreover, Chatwin did not discuss the transport element at all, much less how lack of consent might interact with interstate transport to produce a holding.

The court asserted that, “In other words, a victim is ‘held’ or detained when the defendant transports her without her consent.” and then restated that as, “Where, as here, kidnapping is accomplished by inveigling, the ‘holding’ is implicit in the kidnapping and transporting, since inveigling necessarily contemplates that the victim’s apparent consent was in fact obtained by deception.” Although the court cited lots of cases, not one, from Chatwin on down, said anything even remotely like that. No court (other than this one) has ever allowed that merely inveigling someone across state lines could be a kidnapping. To the contrary, when courts have addressed the issue, such as in Chatwin and Boone, they have concluded explicitly that merely inveigling someone across a state line does not suffice for a kidnapping.

As I discussed in Criminal Judges and Judges, the court gave a similarly bogus justification for rejecting my claim that my lawyer’s failure to investigate required setting aside my guilty plea. I made many other claims, such as the claim that my lawyer failed to call to the court’s attention an error in the sentencing calculation that added almost two years to my prison term, which the court rejected on equally specious grounds. Either this judge of fifteen years experience was totally incompetent, impossible given her many other rulings on record, or she willfully twisted the law in order to deny a habeas petition that she knew the law required her to grant.

In order to appeal the denial of my habeas petition, I needed to get a certificate of appealability. To get one, I merely needed to show that reasonable jurists could debate the court’s ruling. That was easy to show for the claim I discussed here, as several courts have addressed the very same issue but came to diametrically opposed conclusions.

Well, the court refused to give me a certificate of appealability. No surprise there. The appeals court also did. Big surprise there. That, however, wasn’t the end.

When someone loses an appeal, he may ask the Supreme Court to review his case. Most of the time, the Supreme Court refuses to even look at it. However, once a habeas petitioner is denied a certificate of appealability by the lower courts, he has the option of applying to a Supreme Court justice for one. The justice must then actually look at the case and either grant or deny a certificate of appealability. In my case, I was clearly entitled to the certificate. However, Justice Ginsburg said no. Then I asked Justice Thomas, who handed my application off to the whole Supreme Court, which then said no.

In short, one district court judge, three appeals court judges, and at least five Supreme Court justices decided that they were above the law, so that they could preserve a conviction that they had to know was illegal. What happened to me had nothing to do with justice.

image.jpg

A Criminal Prosecutor and Public Defender

I posted an article commenting on the federal government’s refusal to free prisoners that it knew it had mistakenly imprisoned. But it’s possible for the government to do worse: It can imprison someone knowing that the crime he supposedly committed had not happened. The government did that to me.

As I said in Criminal Judges and Justices, I was accused of sexual assault and my lawyer coerced me into pleading guilty—but not to sexual assault. I pleaded guilty to kidnapping. However, the things I was alleged to have done did not violate the kidnapping statute.

The (relevant part of the) kidnapping statute (18 U.S.C. § 1201(a)(1)) says,

(a) Whoever unlawfully seizes, confines, inveigles, decoys, kidnaps, abducts, or carries away and holds for ransom or reward or otherwise any person, except in the case of a minor by the parent thereof, when- (1) the person is willfully transported in interstate or foreign commerce….shall be punished by imprisonment for any term of years or for life and, if the death of any person results, shall be punished by death or life imprisonment.

Criminal statutes are interpreted in terms of “elements”, which are the things that a person has to do to be convicted of violating the statute. For this particular statute, the person has to do three separate things. First, he must “seize[], confine[], inveigle[], decoy[], kidnap[], abduct[], or carr[y] away” the victim. Second, he must “hold[]” the victim “for ransom or reward or otherwise”. Third, he must “willfully transport[]” the victim “in interstate or foreign commerce”.

The alleged victim gave the authorities three different versions of what I allegedly did but they did have similar outlines. The relevant parts of the common outline are: I persuaded her to come to my home; she traveled to my home, crossing state lines; I sexually assaulted her at my home.

The first and third elements of the kidnapping statute are easily satisfied by the allegations; the persuasion is an inveigling and she traveled interstate. The second element requires that I have held her for some purpose. The alleged purpose is sexual assault—but the allegations contain no holding. Since the allegations did not contain all of the elements, I did not violate the kidnapping statute.

So how did I get convicted of a kidnapping?

After my arrest, I was assigned a federal defender, Thomas Belsky. He didn’t get me bail (there is no evidence he tried) so I was stuck in prison with essentially no contact with the outside world. After I was softened up by four months of this, he told me I was going to lose at trial. This, I was ultimately told, would net me a 24 year prison term but pleading guilty would cut it to 12 years.

Belsky understood that I wasn’t likely to accept the plea, softening up or no. So, without telling me, he spoke to the prosecutor, Kari Dooley, and asked her if I might plead guilty to kidnapping. She replied,

I am writing, as promised, having fully considered your request that the government agree to resolve this matter through a plea of guilty to a charge of kidnapping. While I believe that there may be times when the circumstances of an Internet enticement/travel case also satisfies the legal elements of kidnaping (on an inveigle or decoy theory), I do not believe that this is such a case. Moreover, such a disposition does not, in the government’s view, appropriately reflect the true and full nature of your client’s conduct. [Letter from Dooley to Belsky, dated 10/1/2003]

Five days later, Belsky was still trying to get me to plead guilty to a sexual offense and had me dragged off to the courthouse to enter a plea. At the courthouse, he made a last ditch effort but it failed. After several go-rounds where he left the room to talk to Dooley and returned with new deals that still had me pleading guilty to a sexual offense but with slightly shorter sentences, he returned with a deal that had me pleading guilty to kidnapping, with a 6 year sentence. I would have rejected that too but he told me that I had actually kidnapped the girl!

When I was in prison, working on my habeas corpus petition, I had the “luxury” of way too much time on my hands. One way I spent that time was reading kidnapping cases. I read every last kidnapping case in LexisNexis, which means that I read every published opinion on the federal kidnapping statute (most of them twice, because I read them on paper before I had access to LexisNexis) and all of the unpublished opinions that LexisNexis had collected.

I saw no cases, not one, where someone had been convicted of kidnapping on a set of facts similar to my case. However, I did see several cases that either dealt with similar facts and said that those facts do not add up to kidnapping or dealt with different facts but which reasoned that facts like those in my case do not add up to kidnapping.

There’s no way that Dooley would have done the complete survey that I did. But she surely would have checked the standard references and those references include the same cases that told me that my alleged actions were not a kidnapping. That’s why she initially told Belsky that the facts of my case would not support a kidnapping charge.

So why did Dooley let me plead guilty to kidnapping? She could not have changed her mind about whether there was a kidnapping; the law is clear that there wasn’t. An examination of the evidence reveals why: No jury was going to believe the alleged victim and there was no other evidence of sexual assault. If Dooley wanted a conviction, she had to get me to plead guilty to something. So, even though she knew that I hadn’t kidnapped the girl, she agreed to let me plead guilty to kidnapping.

The federal courts have a safeguard that is supposed to prevent this sort of thing from happening. Before a judge can accept a guilty plea, he has to talk to the defendant and confirm that the defendant understands the elements of the offense. He must also get the defendant to admit to actions that correspond to the elements. Finally, he must verify that the defendant knows which actions correspond to which elements. That safeguard did not work in my case. Here’s what happened.

THE COURT: Now, Ms. Dooley, if you will please explain the elements of the offense, and by “elements,” Mr. Wells, I mean those facts the government has to prove, each one of them beyond a reasonable doubt, before the defendant could be convicted, if you decided not — Mr. Wells, not to change your plea, and instead go to trial.

MS. DOOLEY: Your Honor, if the case went to trial, the government would have to establish the elements that the defendant unlawfully took and held the victim against her will, through decoy or inveiglement; that the defendant did so for some purpose; and that the defendant willfully transported the victim in interstate commerce, [p.42-43 of the plea hearing transcript]

This is an incorrect statement of the elements. The elements (in summary) are: take, hold for a purpose, and transport interstate. Dooley’s summary is take and hold for a purpose and transport interstate. She conflated the taking and the holding.

and if I may, Your Honor, though the facts of this case do not make themselves readily — a kidnaping readily apparent, I’d like to expand a little bit on the elements, as the courts interpret those terms. [p. 43]

Well, the facts of this case do not make a kidnapping, period. But the real importance of Dooley’s statement is that it put the court on notice that it had to take special care to ensure that I understood how the facts related to the elements. Anyway, Dooley was given permission to expand, and expand she did, all the way to the top of page 45. However, I’ll skip the analysis, as it’s somewhat technical and would double the length of this post. The executive summary is that, though she talked a lot about holding, she nowhere explained the sort of holding that supposedly happened in my case. Anyway, onward….

THE COURT: All right. And, Mr. Wells, do you understand this charge?

THE DEFENDANT: Yes, I do.

THE COURT: Have you had an adequate opportunity to discuss the charge, and the kind of interpretation of the charge that Ms. Dooley has just spoken about, with Mr. Belsky?

THE DEFENDANT: Yes, I have.

THE COURT: Are there any questions that you want to ask either him or me about the crime that you’re charged with, or what elements the government would have to prove in order to show that you’re guilty of this crime?

THE DEFENDANT: No. [p. 45]

This seems reasonable but, in fact, it was judicial laziness. If an offense is legally simple, it’s often enough for the court to explain the elements (or have the prosecutor explain them on behalf of the court) and ask the defendant if he understands them. But this was a kidnapping charge and kidnapping by inveiglement is not legally simple. Moreover, Dooley had warned the court that this was a subtle case. The court really should have made sure that I understood the elements by asking me about them. Had it done so, it would have discovered that I had lied when I said that I understood them.

THE COURT: All right. Then at this time, I’m going to ask the prosecutor to summarize what it is that you did that makes you guilty of this charge, and also what evidence the government would use to prove you guilty, and I’m going to ask you, Mr. Wells, to listen carefully, because when she’s finished, I’m going to ask whether you agree with her version of what you did. Ms. Dooley? [p. 45]

Dooley then went on and gave her version of the facts. Had I agreed that her version was true, I’d have admitted to the facts that (supposedly) supported my guilty plea. But that’s not what happened.

THE COURT: Thank you.

MR. BELSKY: Your Honor, could I have one moment with Mr. Wells?

THE COURT: Yes.

(pause)

MR. BELSKY: Thank you, Your Honor.

(pause)

THE COURT: All right. Mr. Wells, I saw you listening to Ms. Dooley. Do you agree with her summary of what it is that you did?

THE DEFENDANT: Her summary does not describe what I recall was happening. [p. 52]

Belsky had not actually discussed the nature of this charge with me, beyond a little vague hand waving. Nor had he prepared me for this hearing; I had no idea what was expected of me beyond saying that I was guilty of the charge. Up to this point, I had told whatever lies I felt the occasion demanded but, because Belsky hadn’t prepared me, I did not know that I had to admit to specific facts or my plea would not be accepted.

Belsky knew that I was going to deny all of the sexual allegations; I had told him that I flatly refused to admit to any sexual misconduct. That being the alleged purpose of the kidnapping, the court could not have accepted my plea after such a denial. So, Belsky stepped in and told me that I couldn’t deny any details; my fuzzy denial was the result.

That should have prompted the court to ask me exactly what I agreed to and what I denied. But Belsky again piped up:

MR. BELSKY: Your Honor, Mr. Wells and I have discussed this in detail, and while we don’t dispute that that’s what the witnesses would say if they were called to testify, Mr. Wells does dispute the accuracy of the majority of some of the statements that were made. [p. 52]

(This was an outright lie. At no time did Belsky discuss the government’s case against me, except in generalities. Dooley’s summary was the first time I heard anything specific about what I was alleged to have done.)

That being said, he still believes and admits that there are facts that are sufficient to satisfy the elements of the offense, namely that he did indicate something to the young girl who — that was not true, and that that was an incentive, or induced her to come with him.

Given the status of the law, even though the girl appeared to go willingly, given that Mr. Wells did say something false to her to induce her to go, that deception overrides the consent.

Furthermore, Mr. Wells did do this with the intent of having her come and be with him for a period of time, for something of his own purpose, and that obviously, he did transfer — travel in interstate commerce with this individual. [p. 53]

This has more than one problem. First, it’s legally meaningless. The court had to ask me to make the admissions; my lawyer was not allowed to make them on my behalf. Second, these “admissions” are not admissions in the relevant sense. It wasn’t enough to say, “I told some lies”; I had to admit to the lies I told. (This would have been difficult since I hadn’t lied to the girl and Belsky hadn’t warned me that I needed to invent some.) Third, these “facts” don’t add up to a kidnapping. Just as Dooley had done before she gave her “facts”, Belsky conflated the taking and the holding.

The court did know that it had to get me to make some admissions so,

THE COURT: All right. So, did you, Mr. Wells, beginning on October 25th, of 2002, first by computer, and then subsequently by the telephone, speak to the young woman who’s the victim in this matter, and by telling her some things that weren’t true, induce her to agree to come to your residence?

THE DEFENDANT: Yes. Yes, I did.

THE COURT: All right. And the purpose of doing that was to satisfy a plan ora need of your own rather than something to do with counseling or treating this girl?

THE DEFENDANT: yes.

THE COURT: All right. And in the course of doing that, you transported her from Connecticut to New Jersey through Pennsylvania?

THE DEFENDANT: Yes. [p. 53]

As you can see, the court let itself be led by the nose here. It followed the form (that required me to do the admitting) but ignored the substance (that required me to make specific admissions). Moreover, it didn’t ask me about the actual elements of kidnapping but rather the elements as Dooley and Belsky had fudged them.

The end result is that I got through the hearing without making the admissions I was required to make and without such admissions as I had made adding up to the crime of kidnapping. The court itself was fooled (or pretended to be fooled) into a mistaken understanding of the elements of kidnapping. The two lawyers worked actively to make all this happen. The court was, at least, lazy and failed to follow the law that required it to ensure that my guilty plea was legitimate.

This was bad enough but my habeas proceedings were, possibly, worse. Stay tuned….

image.jpg

Criminal Judges and Justices

Back in 2002, I was accused of sexual assault by a 15 year old girl. The US District Court of Connecticut assigned me a federal defender, Thomas Belsky. Belsky failed his professional responsibilities at almost every turn and thereby coerced me into entering a guilty plea. His criminal behavior put me in prison for just under nine years. However, this essay is not about him but about the courts, which allowed him to get away with his villainy.

When a defense lawyer fails to do his job, his victim may file a habeas corpus petition. (Actually, I filed something slightly different. However, I’m writing this essay for legal laymen, so I’m going to gloss over legal technicalities and skip over things that didn’t apply to my case.) If the court grants the petition, it has to, as much as possible, reset the criminal proceedings to just before where the lawyer failed. For example, if the lawyer advises his client to plead guilty where a competent lawyer might have advised him to go to trial, the guilty plea is set aside. The defendant gets to decide anew, hopefully with a competent lawyer’s help, whether to plead guilty or go to trial.

My habeas petition was really large because I detailed all the things that Belsky did wrong. In this essay, I will detail just one of the claims that required setting aside my guilty plea: Belsky did not investigate my case and thereby made my plea involuntary. To win on this claim, I had to allege in my petition and later prove in a hearing:

  • Belsky did not investigate my case.
  • No competent lawyer would have failed to investigate my case.
  • There was a reasonable probability that, had a competent lawyer investigated my case, he would have advised me that I had a good chance at trial.
  • Had I been so advised, I would have gone to trial.

Here’s what the district court had to say about this claim. The quotes are all from the court’s ruling.

Next, Mr. Wells contends that counsel was ineffective in advising him to plead guilty without conducting an investigation, and thus claims that his guilty plea was not knowing and intelligent. [P. 15 of the district court’s ruling and I’ve omitted a footnote]

I had alleged that Belsky didn’t investigate, and the government didn’t deny my allegation. So, the court accepted that Belsky did no investigation and acknowledged that this is potentially grounds for setting aside my guilty plea.

According to Mr. Wells, if counsel had conducted an investigation of the victim, he might have obtained evidence showing that she lied, was mentally disturbed, manipulative, and had told three different stories about their encounter, [P. 15]

This is the court’s summary of what I alleged Belsky should have investigated. It’s rather incomplete, but never mind that.

and this information should have caused counsel to advise Mr. Wells that he had a ‘good chance’ at trial.

If counsel had given him such advice, Mr. Wells says he would have insisted on going to trial. [P. 15-16]

With this, the court completed its recognition that I had alleged sufficient facts to require vacating my guilty plea.

Putting aside the fact that this argument is, in essence, not about the scope of counsel’s investigation, but rather “a complaint about strategy cast in investigatory terms,” see Greiner v. Wells, 417 F.3d 305, 322 (2d Cir. 2005) (where petitioner’s “failure-to investigate” and “failure-to-introduce evidence” arguments are identical, they implicate trial strategy), and even assuming, arguendo, that counsel acted unreasonably by not undertaking an investigation, [P. 16 NB: The Wells case the court cites has nothing to do with me; the name is a coincidence]

Once the legal babble is stripped away, what the court said is that Belsky’s decision to do no investigation was one that a competent lawyer might have made. However, that simply is not the law. Barring extraordinary circumstances (none of which were even suggested in my case), a lawyer must investigate the case against his client.

Mr. Wells has failed to demonstrate that the investigation he describes would have uncovered sufficient exculpatory or favorable evidence that would have caused competent counsel to recommend against pleading guilty to kidnapping and go to trial on the three-count indictment. [P. 16 and the ruling goes on for three more pages detailing what I had failed to demonstrate]

To explain what’s wrong with this, I need to explain a little habeas arcana. To win on my claim, I had to allege and prove four things. Suppose that I had only alleged three of them. A hearing would have been pointless, since proving my three allegations would not have justified granting the petition. In a situation like that, a court is allowed to dispense with the hearing and deny the petition. To do this, the court must prove that the petitioner can’t win even if he proves all his allegations at a hearing.

The court didn’t give me a hearing, which means that it was obligated to do the proving. That is, the court was obligated to prove that no matter what an investigation turned up, competent counsel would have told me to plead guilty. I wasn’t obligated to prove anything. Yet, here the court is denying my petition because I hadn’t proven an allegation.

Any judge who deals with criminal cases knows that a defendant’s lawyer must investigate the case against his client. Any judge who deals with habeas corpus cases knows that he cannot dismiss a petition for failure to prove an allegation unless the petitioner has been given a hearing at which he has an opportunity to prove that allegation. This judge knew that Belsky had done wrong. She knew that she had not given me an opportunity to prove my case (she denied my request for a hearing later in that very same ruling).

A habeas petitioner doesn’t have the right to appeal the denial of his petition. He has to get a “certificate of appealability”. This judge refused to give me one, so I asked the appeals court for one. Getting a certificate of appealability should have been easy; all I had to show was that the ruling was debatable. It was more than debatable; it was clearly wrong.

The appeals court refused to give me the certificate of appealability, without giving a reason. The Supreme Court could not be bothered to hear my case.

This is intended to be an essay, not a book. I therefore haven’t discussed the numerous other claims in my habeas petition. However, the district court rejected them all, largely with equally spurious verbiage. The appeals court refused a certificate of appealability on all issues, giving no reason, and the Supreme Court wasn’t interested in any of them. Nor have I detailed how the Supreme Court itself violated the law when I asked it for a certificate of appealability (on another issue). If one puts all this together, what it adds up to is a judicial system made up of judges who only obey the law when it suits them. When it doesn’t, they pervert the law or hide behind procedures that allow them to ignore the law.

image.jpg