Nevada Jurisprudence and Prison Report
Vol. 2, No 4 “Veritas in Caritatis” Spring Issue 2012
THEME: “Audi alterum partem” - Listen to the other side!
“Voice of the Nevada Jurisprudence and Prison Report”
Statement of Purpose:
The NJPR Newsletter reports on current prison conditions, good and bad; more importantly it looks at and evaluates the legal processes and the substantive laws which are designed to keep men in prison: Pre-trial issues, probation and parole policy, sentencing structures, post-conviction law, and most important, the philosophy underlying policy in practice.
The purpose of the NJPR Website is to provide a repository of affidavits, declarations and grievances in Web-Dossiers organized by categories of intuitional behavior. Fundamentally, this is a whistleblowing organization trying to associate with other “transparency” projects at an intrastate, national and global level. We seek to identify patterns which can be utilized by the U.S. Department of Justice.
We invite any resident, and especially judicial officers of the Courts and government Administration to write letters to the NJPR.
Index to this Issue:
Section One: Conditions
1. The Retrogression of NNCC Court Access
2. Report on Parole and Probation Practices
Section TWO: Law, Equity and Policy
On Motions to Correct Illegal Sentences
Section Three: Art, Culture, Education and Religion
Poem: Inmate Gratitude by Terrence Sweeney
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Section One: Conditions
1) Law Library Closure at NNCC
About two years ago, the Administration threw out two thousand hardbound volumes of Supreme Court and Pacific Reporters, claiming the computer access would adequately replace the loss. The prison “saved” no money in the wanton destruction, but probably are losing money through the high cost of digital services through Mathew Bender & Company, Inc. On top of this are the exorbitant printing costs for the hundreds of thousands of pages to replace the pre-printed volumes that would have lasted a hundred years. What kind of moronic fiscal responsibility is that?
Now, in early August, the law library has shut its doors entirely. The prison clerks are not trained in the law and no arrangement for access to trained professionals has been made. Already, copies of personal criminal proceedings are being carried by PRISONER law clerk assistants, by hand from the units to the copy machine in the library and back. This has already caused problems because inmate petitioners cannot be present to supervise the copying of complex pleadings with many exhibits.
2) Report on Parole and Probation
Mike X. is over 60 years old. Some years back, during the course of the break up of his marriage and loss of a family business, he was arrested for sale of a small amount of drugs to an under-cover agent in Reno, Nevada. He pleaded guilty and was sentenced to drug court in lieu of prison. The expense of the alternative is borne by the convict to the extent that Mike, who was also without a car, was unable to meet his obligation. He absconded to California, where he had friends and a job waiting for him. He did well for a year or so then was injured and ended up in a convalescent hospital. He was taken custody by local law enforcement, taken to local jail and picked up by Nevada law enforcement and transferred back.
At his hearing, the District Attorney offered drug Court again, but John was in worse condition than before, so he refused and chose to serve his 2-5 year sentence in prison. The judge so ordered, and John, still injured, spent his first three or four months in the prison infirmary. He went to the main units for about three months, then had his first parole hearing.
His “parole plan” for the Parole Board Hearing was to go back to the convalescent home in California and/or to his friends there. He was approved for parole on this plan.
After the hearing, he was informed by his unit officer that they would not release him to California and the reason given was “they don’t do that anymore”. Eventually he was released to Safe Harbor Half-way House at 469 9th Street in Reno, Nevada.
The State, says John, pays the first three weeks of the program fees, and then the rest is up to the parolee. John had been given 29$ upon his release, and the program costs 650$ month. The program, according to John, offered three meals and a bed, and nothing else. Had he been able to stay on his sentence would have expired in January 2011. He was unable to get his disability payments reactivated within the three weeks he had his rent paid by the State of Nevada; the program began to ask for their money, and John was also bound to pay a 30$ per month Parole fee, and a 50$ drug evaluation fee for a psychoanalyst report. The program supplied the card of a professional analyst he was to have hired. John, having no income became overwhelmed and decided to turn himself into the parole officer assigned to his case and lie to the officer so he would get “violated” and taken back to prison.
John’s assigned officer was not in when he arrived. The duty officer that day was assigned to talk to him. John informed her he had taken vicodin’s. She questioned him for about 5 minutes then had another officer came and cross-examined him. They did not drug test him. He was in County Jail in about 2 hours. He was there 2 months. His assigned Probation Officer, Ms Simon Tachi, came to see him to have him sign paperwork. John did not have his required “revocation hearing” until he was in prison for three weeks not while he was at County Jail.
At his Revocation Hearing, John fessed up to what he had done and they reinstated his parole and gave him until April 1 2010 to go back to them and supply them with a new “parole plan”. John is considering that it would be safer for him to spend the remainder of his sentence in prison, as he cannot thrive in the State of Nevada as he has no family, no friends, and no income. If he “expires” his sentence, he would be free from the Nevada system and could travel back to California. John is a professional grade graphic artist.
Section Two: Law and Equity
1) On Motions to Correct Illegal Sentences
Notes on the Use of Edwards for Governmental Evasion of Motions to Correct Illegal Sentences in the State of Nevada.
The Executive branch at local and central levels has convinced the judicial branch that the convicted and incarcerated citizens of the region cannot succeed in finding relief under the statutory “Motion to Correct an Illegal Sentence” (NRS 176.555) UNLESS “it is illegal for being at variance with the controlling sentencing statute” Edwards v. State.
This controlling principle is derived from non-9th Federal District case law. The prisoners at NNCC recently received copies of three non-9th District cases which are cited by the Edwards court to support its pro-government stance of preferential treatment of prosecuting attorney. We will discuss these three cases and show how the local executive lawyers of the government have hoodwinked the judicial branch, and constructed a law that magnifies its own power and vitiates the individual citizen.
This is done by omitting from judicial consciousness the entire law of the underlying cases, and presenting to them only those portions prejudicially favorable to the government. This reductive prevarication creates a sham appearance of the American claim to the rule of law and is a major contribution to prison over-population, because it is a “legal” weapon in the war-on-crime denial of the lower courts, who trusted the statist executive branch lawyers twisted cutting up at the case law to insure its own “victory” at the high cost of injustice to Z. and thousands of others.
Prince v. U.S., 432 A2d 720
Z. was denied his motion to correct his outrageously unfair sentence because it fell within the range of maximum penalty allowed for by legislated statute, as stated in Edwards above. The implied message is that there are NO OTHER CIRCUSTANCES which give the judge cause to change the sentence. This is a fabrication.
The government lawyers derived this legal standard of Nevada from Prince v. U.S., 432 A2d 720, which (the lawyers tell the court) says
“A sentence is a nullity if it is illegal for being at variance with the controlling sentencing statute”.
What the government forgets to tell its local judges is that Prince is a case of the government filing a motion to correct a sentence. The judge in this case departed downward, giving a lighter sentence than called for by the statutes. The government had to file the motion two times before the judge would get it right and impose the ten year sentence. This Prince court relies on Bozza v. U.S. 67sct 645 which points out that “an excessive [broken off]
The case of Z.
We are going to scaffold this discussion upon a live case that probably represents the situation of thousands of illegally sentenced men in the industrial justice system.
Z. was driving in Las Vegas and was typically profiled as a black suspect; he refused to stop for about 30 seconds, but never sped up past miles per hour. He was stopped and searched, which produced two small packets of personal use drugs, one cocaine, one heroin. Z claimed there was no “probable cause” and a public pretender file a motion, and the court colluded with the government to come up with a fabricated police-car computer-generated document that provided a false-positive “cause”.
The defendant was offered a penalty of about four years prison with good time considered. He exercised his constitution right to a trial and paid the jury trial penalty, and eventually got a sentence enhancement on the bifurcation of two charges out of the one act of drug possession and received sixty years. Then, being placed in one of the southern Nevada lock-down prisons where true access to the courts is denied systematically he became time-barred on his Habeus Corpus.
He has been attempting a Motion to Correct since 2011, was denied and now is attempting a Motion to Reconsider the sentence should be "corrected” as well.
Now since the Government's own stated aims are to seek justice in the abstract and not mere victory over its own citizens. It failed in its obligations to make concessions that excessive sentences can be requested by those convicted of them and the conditions under which this can occur. This failure of the government implies a hidden agenda of winning at all costs, as is if the adversarial system justifies the idea of equity and fairness inimical. So the question of how a prisoner convict can use this Motion to Correct Sentence begs to be answered.
Allen v. U.S. 495 A2d 1145 (D.C. App. 1985)
Another statist interpretation found in the Edwards case which is used to foreclose the Motion from effective use by citizens against the government is the argument that the Motion to Correct an Illegal Sentence can be only brought to fruition if the conviction is presumed to be valid, and that the court cannot entertain arguments of alleged errors in the proceedings prior to the imposition of the sentence. Only when the judge departs from the statutory perimeters can this motion be used—or so says the state. This Allen case builds on Heflin v. U.S. 79sct 451, Robinson v. U.S. 454 A 2d 810.
The third non-9th Circuit case which is the foundation of the repressive Edwards case is the Robinson case, cited above. Now, Robinson relies on U.S. v. Ramsey 655 F2d 398 (1981), which reveals two distinct kinds of illegal sentences: one in which is illegal on its face due to various reasons, and one which is the sentence is imposed in an illegal manner.
Nevada bureaucrats have weaved a public lie that motions to correct applies only when there is a defect in the imposition of statutorily correct sentence (either too much or too little punishment). But we’ve shown above a sentence is also illegal when there is no evidence to support a conviction and the judge fails to catch it. One example is the situation when the government “pyramids” sentences by sneaking in a conspiracy charge on top of the charge of consummating the conspired act—they should merge to one act. Or as in the case of Z, one act of possession of illegal drugs is punished as two acts even though there is no additional evidence to separate the act into two—like time, place or action.
The second way a sentence becomes illegal as described in the underlying Robinson case is the manner in which it is impose of which is a correction of a sentence made illegal by a government “pyramiding of penalties” by creating two counts of guilt for one act.
Now in Allen, the government does not pyramid, and they have proven two acts. But the case clearly defines a situation when a sentence can be illegal in other ways than just being statutorily incorrect. The Nevada Edwards case omits this discussion from the record and carefully redacts the Allen language to find words to fit its argument for statist domination over all the players in the “justice community”.
It is clear that judges themselves, and certainly not state-hired “defender” read the underlying case law to find the whole truth. It is a little know fact how the indigent and poor are routinely denied access to the non- Nevada and non-9th Circuit cases at the facility law libraries, and the Supreme Court will not supply such law except to the WEALTHY inmate who can pay. The rule which the underlying Allen case makes is that a sentence is illegal on its face when it creates two counts and two punishments from a single act, as in the case of Z…
This applies to Z because he was punished for exercising his rights to trial by not only sentencing him twice for one act, but he got a quantum leap of punishment by getting the “habitual criminal enhancement”, and received a potential death sentence of 60+ years! Remember, the government offered him years!
Now, the state of Nevada statute has a ritual procedure that must be met not just substantially but strictly. If the government indicts by Grand Jury and they decide to enhance, they must give a “notice” of such to the Grand Jury and defendant. If the government charges by information then seeks enhancement, the government must Amend the complaint. Not give “notice” to Grand jury, but Amend complaint.
The underlying Robinson case, the court establishes absolute strictness to this ritual. The dissent of Mack says it best:
“The commission of this procedural error can well result in the loss substantive right… since the legal requirement for imposition of a sentence was not met here… the court did not have authority to impose the [enhanced] sentence”.
Z. got a “notice”, not an amended complaint so his sentence is illegal for two reasons: double jeopardy and improper imposition of sentence both of which can be addressed under a Motion to Correct on Illegal Sentence.
However, one cannot see this in the case law of Edwards in Nevada. One has to read all the underlying case law to discover the oppressive violence by virtue of the Executive branch lawyers covering up the whole record, concealing the truth, duping the judges and publics, and reductively obscuring the parts of the rules of law which will diminish government power, and enhance the possibility of victory for citizens in the Anglo-American adversarial system.
Section Three: Art, Culture, Education and Religion
Each day you work an angel in my life
Perhaps one day you’ll save me from a knife.
Amid the ridicule you keep me safe from harm
When gangs attempt to try and break my arm
Ready you stand when needed by my side
Even solace you give the night I cried
Comfort when friends and family fell ill and died
Your presence gives no place for evil to hide.
Your days are never simple and always rough
Surrounded by things who try to huff and puff
Challenged by cons to see of your up to snuff
One hardly ever thinks to thank enough.
Often fools, they throw you one more curve
They try so hard to work your final nerve
They blame you first for sentences they serve
Let this be just a thanks that you deserve.