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Articles by Christopher Zoukis

Grand Juries: Gatekeepers to the Criminal Justice System

by Christopher Zoukis

On November 30, 2014, the St. Louis County Prosecuting Attorney's Office announced that Ferguson (MO) Police Officer Darren Wilson would not be indicted in connection with Wilson's fatal shooting of unarmed teenager Michael Brown on August 9, 2014. The failure of the grand jury to return an indictment was not a surprise to most observers, because the public perception is that prosecutors are loathe to indict police officers who kill, and because of the virtually unchecked power those prosecutors have over the grand jury process.

The Grand Jury Process

As many might recall from a high school civics class, the Framers of the United States Constitution included the Grand Jury clause in the Fifth Amendment: "[n]o person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury ...” These citizen bodies date back to the 1600s in American law, and often acted as a defense against the whims of the British monarchy, a protector of the colonists against oppression and despotism. In its intended form, the "Fifth Amendment's grand jury right serves a vital function ... as a check on prosecutorial power." See ...

Seventh Circuit Reverses Prisoner's Disciplinary Conviction

by Christopher Zoukis

The United States Court of Appeals for the Seventh Circuit has taken the unusual step of reversing a prison disciplinary board's finding that a prisoner was guilty of committing a prohibited act.

Timothy W. Austin was a prisoner at an Indiana prison when he was found guilty of attempting to traffic in tobacco. The entire body of evidence used against Austin at his disciplinary hearing was a grammatically flawed statement by "Ofc Spoon." In the statement, Spoon stated that while "shaking down the crawl spase [sic]" in which Austin was allegedly assigned to a work detail, he found Ziploc baggies with tobacco in them.

Austin provided uncontradicted testimony that he had only worked in the crawl space one day out of the four weeks he was assigned to the area. He also provided uncontradicted testimony that four other inmates were in the crawl space on the same day he was.

The prison disciplinary board found this to be sufficient evidence and convicted Austin. His punishment consisted of losing 60 days of good conduct time, being demoted to a lower credit class, being given 20 hours of extra duty, and being denied commissary privileges for 25 days ...

Scandals Rock Denver Sheriff's Department

by Christopher Zoukis

In a department that is riddled with scandals, so many that Sheriff Gary Wilson resigned on Monday, July 21, Denver Sheriff's Department Division Chief Elias Diggins was appointed in his place on a temporary basis.

Adding to Denver's woes, it was later revealed that Diggins has a criminal record.

There have been numerous incidents when Denver Sheriff's Department employees have been accused of misconduct.  Deputy Brad Lovingier was caught on video slamming a handcuffed inmate, Anthony Waller, into a wall al a court hearing without provocation.

In April 2013, Deputy Matthew Andrews assisted prisoner Felix Trujillo's escape from Denver's new jail.  Deputy Andrews let Trujillo wear his hat and coat to walk out of the building.

In another case, the second highest ranking member of the Department, Michael Than, was said to have stolen 1,288 copies of Turbo Tax software from several Target stores, reselling them for more than $60,000 on eBay.

In a suit filed by former prisoner Jamal Hunter, it was alleged that Hunter had been attacked by other prisoners who burned his genitals with scalding water, allegedly because officers failed to protect him from other prisoners; he ...

Eleventh Circuit Rejects Condemned Prisoner’s Challenge to Lethal Injection Drug

by Christopher Zoukis

On November 2, 2016, the Eleventh Circuit upheld a district court’s denial of death row prisoner Thomas D. Arthur’s challenge to the use of the drug midazolam in the lethal injection protocol used by the State of Alabama.

Arthur challenged midazolam as the first in a series of three drugs administered during executions. Midazolam took the place of pentobarbital as the initial drug, used to induce unconsciousness, when pentobarbital became unavailable due to restrictions imposed by the manufacturer. Arthur alleged the use of midazolam would violate the Eighth Amendment’s prohibition on cruel and unusual punishment because it created “a substantial risk of serious harm ... there is a high likelihood that midazolam will fail to render [him] insensate from the excruciatingly painful and agonizing effects of the second and third drugs.”

Applying recently-decided U.S. Supreme Court law, the Eleventh Circuit denied both Arthur’s facial challenge to the drug and his “as applied” challenge. In Glossip v. Gross, 135 S.Ct. 2726 (2015) [PLN, Feb. 2016, p.30], the Supreme Court held that in order to successfully challenge a method of execution, a prisoner must plead and prove: 1) that the proposed method presents ...

Epidemic of Suicides in California Women’s Prison

by Christopher Zoukis

Suicides at the California Institution for Women (CIW) in Chino have surged to alarming levels. Six prisoners have killed themselves within the past three years, according to Krissi Khokhobashvili, spokesperson for the California Department of Corrections and Rehabilitation (CDCR). In the same period, she added, there were 71 suicide attempts at CIW, one of two women’s prisons in the state.

In one recent case, Bong Sook Chavez, 56, committed suicide at CIW in November 2016. The San Pedro woman, who pleaded no contest to a voluntary manslaughter charge in the fatal stabbing of her 10-year-old daughter, was serving a 12-year sentence.

At the time of her sentencing the Los Angeles County District Attorney’s Office said she suffered from “significant mental health issues.” In addition to being suicidal, she was depressed and had been diagnosed with a brain tumor. The San Bernardino County Coroner’s Office reported she was found in her cell with a sheet around her neck.

According to the CDCR, there was just one suicide at CIW in the six-year period between 2006 and 2013. In fact, Matthew A. Lopes, a special master appointed by U.S. District Court Judge Lawrence Karlton, reported ...

Third Circuit Reverses Denial of Class Certification

by Christopher Zoukis

The Court of Appeals for the Third Circuit has resurrected a challenge to the constitutionality of 8 U.S.C. § 1226(c), the section of the Immigration and Nationality Act that requires mandatory detention of undocumented immigrants who have committed certain crimes.

The challenge was brought in 2012 by plaintiffs Garfield Gayle, Neville Sukhu and Sheldon Francois. On behalf of themselves and all similarly situated individuals, they alleged that the mandatory detention provision of § 1226(c) violated constitutional guarantees of procedural and substantive due process.

Years of litigation ensued, and the district court ultimately ruled for the plaintiffs on their individual claims – finding the mandatory detention provision did indeed violate due process – but against them on their request for class certification.

On appeal, the Third Circuit reversed each ruling. The individual claims were reversed because the plaintiffs had been released prior to the district court’s decision, rendering their constitutional challenge moot. As such, the lower court lacked jurisdiction to rule on the merits of their claims.

However, in reversing the denial of class certification, the Court of Appeals reinstated the constitutional challenge. The Court held that “class claims can breathe life into an otherwise moot case ...

BOP Education Program Revamp in Doubt as Chief is Sacked

by Christopher Zoukis

In its waning days, Obama administration officials announced plans to expand education efforts in federal prisons and to provide more direction and oversight to the programs previously run separately at each facility.

Former Attorney General Loretta Lynch announced in late November 2016 that for the first time, the Bureau of Prisons (BOP) had hired an education specialist as superintendent of a planned “semi-autonomous school system” within the BOP. Lynch prominently noted Amy Lopez, a veteran prison educator, was relocating from Texas to become the new point person for upgrading BOP educational programs.

Lopez was previously director of instruction for the large statewide educational school district Texas created for prisoners in the Texas Department of Criminal Justice, and had also held a number of other correctional education posts in Texas.

More background on outgoing DOJ officials’ plans for creating a new, more centralized BOP education system came in a January 9, 2017 memo from then-Deputy Attorney General Sally Yates. It noted research has found prisoners in educational programs are 43% less likely to be re-imprisoned than those not taking part in educational programs while incarcerated – meaning every dollar spent for prison education can bring savings four to five ...

Third Circuit Finds that Prisoners’ Verbal Grievances are Constitutionally Protected

by Christopher Zoukis

The Third Circuit Court of Appeals has held that a prisoner’s verbal grievance made to prison staff was protected speech under the First Amendment, and gave rise to a civil action when the prisoner faced retaliation for making a verbal complaint.

Charles Mack, incarcerated at the Federal Correctional Institution in Loretto, Pennsylvania, filed a lawsuit over anti-Muslim harassment at his prison work assignment in the commissary. According to his complaint, prison guards Doug Roberts and Samuel Veslosky discriminated against and harassed him because he was a Muslim, causing him to fear being harmed due to his religious beliefs.

Specifically, Mack alleged that Roberts slapped an “I LOVE BACON” sticker on his back, and in front of several prisoners Veslosky said, “there is no good Muslim, except a dead Muslim!” When Mack spoke to Jeff Stephens, the guards’ supervisor, about these incidents, he was told they would be looked into.

But Stephens did nothing and Mack was later fired from his commissary job for the pretextual reason that he was “caught bringing [commissary] slips in for inmates.”

Mack again complained to Stephens, who again said he’d look into it but did nothing. Mack also verbally complained ...

Summary Judgment in Favor of Alabama Prison Officials Reversed; Writ of Mandamus Denied

by Christopher Zoukis

On September 16, 2016, the Court of Civil Appeals of Alabama reversed an order by the Montgomery Circuit Court granting summary judgment in favor of state prison officials in a lawsuit filed by a state prisoner alleging constitutional violations.

Ronald D. Veteto claimed that he was forced to cell with fellow prisoner Anthony Merriweather at the St. Clair Correctional Facility, even though they were incompatible, and that Merriweather had engaged in a course of behavior designed to make Veteto change cells. Such behavior included “depriving Veteto of sleep, stealing his belongings, and, ultimately, physically assaulting him.”

Veteto further alleged that Merriweather had paid a fellow prisoner to stab him four times, calling him a “rat” – presumably because Veteto had reported Merriweather’s behavior to prison staff.

Veteto asserted claims against Merriweather for theft, conversion, assault and battery, nuisance and “willfulness and wantonness.” He also alleged that Warden Dewayne Estes and prison guards Kenneth Peters and Carla Graham had violated his constitutional rights to be free from cruel and unusual punishment and racial discrimination (Veteto is white, Merriweather is black), by failing to “protect him from Merriweather’s illegal and unconstitutional conduct.”

Defendants Merriweather, Estes, Peters and Graham ...

Iowa: Lawsuit Against Halfway House Over Attack by Resident Dismissed

by Christopher Zoukis

The Eighth Circuit of Appeals has upheld the dismissal of a lawsuit filed against an Iowa halfway house and several state officials over injuries caused by a halfway house resident.

Tamela Montgomery alleged that Angenaldo Bailey, who was staying at the Curt Forbes Residential Center in Ames, broke into her house and shot her three times. She also claimed that she had a protective order against Bailey, and local police and the halfway house were aware of the order.

According to Montgomery, police officials and staff at the center knew about the protective order because Bailey violated it multiple times on the same day he shot her. It was undisputed that Montgomery contacted the police to report the violations and even warned them that Bailey would try to kill her if the police questioned him but did not arrest him.

She was correct. After being questioned by police officers about the protective order violations, but not arrested, Bailey returned to Montgomery’s residence, shot her three times and then shot himself in the head.

Montgomery sued the City of Ames; several Ames police officers; the Curt Forbes Residential Center; John McPherson, the center’s manager; the State ...


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