Inmates Asking for Help

From a Reader:

Can you offer any suggestions for prison mail? In particular, I got one recently from a guy in VA, says he is innocent, had a lousy trial atty and now needs help on appeal.

I cannot help, but I'd like to at least point him to a helpful/useful source.

Everyone I know gets these letters from time to time. They are sad or angry or desperate. Often, the inmate is unhappy with the finding of facts and will lay the facts out "as they actually happened." Other times he is upset because he cannot understand why his lawyer would not put his Aunt on the stand to testify that she heard Joanne tell Mary that he didn't do it. Or he is certain that if his attorney had just located "Slim" his alibi would have stood up. The universal characteristic in each of them is that the assertion that the defense attorney screwed up or just didn't try.

The temptation here is to blow all of these off as bogus, the stories concocted by men with too much time on their hands who have had years to try to come up with the perfect story with which they now think they could win their cases. And I'm sure many, if not most, of them are. But how can you know? You cannot. What then can you do?

First look to see where the inmate is being held. If it's a jail you must act quickly. He may still be within the time frame for the direct appeal needed to preserve everything else. Call someone in that jurisdiction. If you don't know anyone try the VACDL or even call the local clerks office to get a name. Somebody needs to get the notice of appeal in place and the judge will appoint counsel for an appeal. A local attorney should be able to accomplish all of that.

If the inmate is in a prison the odds are that it is too late to do much. At least in my region, DOC doesn't pick up inmates until it is too late for a direct appeal or the appeals are exhausted. If there was no direct appeal then there is no habeus. Assuming a direct appeal, from its end the inmate has 1 year to file a habeus. Most of the prison letters I get are from men who have already sat out five years of their sentences and decided that they shouldn't sit out the next 10 because they are innocent. True or not it's simply too late.

However, assuming that the inmate wrote you as soon as his direct appeal was finished he does have the habeus available. The problem you will run into here is that Virginia will not pay to appoint a lawyer for a habeus. Therefore, many lawyers cannot take them; researching the issues, ordering the transcripts, making trips across the Commonwealth to the prison all build up to make the cost prohibitive for guys like me to do this sort of thing pro bono publico. Heck, even if Virginia did make court appointments for habeuses the cost of doing this sort of case would surely heavily outweigh the pay one would receive under Virginia's fee caps. Yet other lawyers will not take habeuses because they are political hot potatoes. Many (probably most) habeuses are based upon an ineffective assistance of counsel claim and that's just not a way to make yourself popular with the local bar.

If the inmate is not within the time period available for a habeus his last resort is a Writ of Actual Innocence (assuming he pled not guilty). However, I would be hesitant to write and tell an inmate this because "[o]nly one such writ based upon such conviction may be filed by a petitioner." If he, or the jailhouse lawyer, files one of these before actual proof of innocence has been developed or files it in the wrong manner he loses it forever. 4 years later when irrefutable evidence comes to light proving his innocence he is up the creek without a paddle. Virginia appellate courts are nothing if not consistent in their strict adherence to proper procedure.

Recommendation: For both of the last two my recommendation is to send a copy of this questionnaire to the inmate with a stamped envelope that is addressed to

Innocence Project of the National Capital Region
American University, Washington College of Law
4801 Massachusetts Ave., NW
Washington, DC 20016

Make sure that you include that envelope so he doesn't mail it back to you.

I'd also send a letter which clearly says you cannot represent him but that this sort of problem is what The Innocence Project specializes in and that they are the people he should be writing to.

It's the best solution I've been able to come up with. I realize the Innocence Project has limited resources but they've got to be greater than mine. As well, I'm confident that they have a greater ability to separate the wheat from the chaff. Whereas my experiential bias might lead me to be more cynical about some of the claims in these letters, the people associated with the Innocence Project would, I presume, have more of a bias in favor of these folks and choose to alot resources to help those whom I might not.