Clemency

It’s been over a month since I submitted my request for clemency to the commanding General.

This clemency request is the final phase of my trial – a trial that started eleven months ago. I cannot start my appeals process until I hear back from the Generals’ office.

I got word yesterday that I had an attorney call scheduled for today. I figured I’d get word about my clemency and I did. It was hard to not get excited anticipating that phone call…at the prospect of clemency. I knew the odds of clemency were low…but I suppose I did get my hopes up a bit because I’m pretty bummed out.

The phone call only took about two minutes. I guess bad news doesn’t take that long. The General upheld my full sentence. I’ll be here for the next year at a minimum at which point I’ll be eligible for parole. The odds of getting parole are slightly better…but still not great.

This also means that my appeals process can start. Appeals can take years and to begin I essentially have to admit guilt. Can you wrap your mind around that? Here, let’s see if I can make it clear: I pleaded innocent and got a six year sentence when the judge found me guilty. If I would have pleaded guilty, I likely would have been kicked out of the Army and served a minimal amount of time behind bars – perhaps a few months. But I wanted to maintain my innocence – I am, after all, innocent (something you NEVER hear from a convict, right?). Now, if I want to get out of prison before my son graduates high school I’m going to have to admit guilt during my appeal process. I really wish someone would have explained all this to me before I saddled up my high horse. Lesson learned: when dealing with the law, one must thing strategically, not emotionally.

It’s hard to imagine being locked in a cell until you are. Consequently, its hard to fight it with the appropriate amount of vigor. It was also hard to imagine that the justice system would find me guilty, though if I would have looked at the statistics back then, I would have found I had a far greater chance of being convicted than acquitted. Even so, my prideful, naive self may have though the system would work in my case and I would be found innocent.

As they say…Pride goeth. Perhaps if I would have been able to let go of my pride before my trial, I wouldn’t be pissing in a modified water fountain these days.

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Welcome to the USDB. Now Strip, Lift & Spread

The Ford Explorer that the two Military Policemen rented from the Kansas City Airport was clean and still had that new car smell. I sat in the back seat next to the officer my brigade had assigned to escort me to prison, Major Black. Major Black was required to sit through my entire court martial and he was as unconvinced of my guilt as the other seventeen people in the courtroom who weren’t actively participating in the trial. He handed me his cell phone and allowed me to make a few calls as we made our way from the airport to Fort Leavenworth, Kansas.

When we arrived at Leavenworth, the first order of business was to determine why my confinement orders assigned me to the JRCF (Joint Regional Correctional Facility). The JRCF is for people with sentences of less than five years; mine was for six. This caused some confusion. The gate guard at the JRCF called his supervisor who told him I would not be confined there. A phone call to the USDB revealed I would be confined there and they were expecting my arrival.

The Old USDB facility, a.k.a. The Castle

The USDB is the summit of the US Military prison system. It houses military prisoners with sentences from five years to life and all military death row inmates. Its previous facility was known as “The Castle” of mild cinematic fame. Upon arrival, guards ushered me through the West Gate and into a search area. Two obese Military Police Privates came with me into the initial search room.

The search room had a single exit and a prominent red panic button mounted on the wall. The privates stood there breathing heavily. I wasn’t sure if they had asthma or if they were trying to intimidate me. One of them informed me “any sudden movement will be taken as an act of aggression and you will be put on the ground.” I had to smile at the thought of these two fat kids trying to wrangle me to the floor. I was equally sure that a) I stood no chance of survival if they managed to get me to the ground and put their weight on top of me, and b) that they had no chance of putting me on the ground until my handcuffs went back on.

The New USDB Facility, opened in 2002

I slowly removed my Army Service Uniform (ASU) jacket and handed it to one of the guards. I began unlacing my spit-shined jump boots while one of the guards removed my medals, rank insignia, parachutists badge, and awards from my jacket. It bothered me to watch my ten years of service being striped from my uniform by a kid who’d never set foot in a combat zone.

Someone accidentally hit the panic button and two more portly guards bounded to the rescue. When the false alarm was cleared, I finished undressing.

Once I was completely naked and the guards were reasonably confident I wasn’t smuggling contraband under my scrotum or between my ass cheeks, I was allowed to put my pants, collared shirt, and boots back on. They placed me in a body cuff which is like a weight lifting belt that connects to your handcuffs. They put ankle shackles over my boots that restricted my stride to a shuffle and moved me to a waiting room where I was told to look at a wall.

I stood there inspecting the wall for some time while someone processed my paperwork.Then the guards walked me a few hundred meters through an outdoor covered walkway and into a new building. Even though I couldn’t move faster than a slow shuffle, the exertion required to move me to the new building seemed to severely agitate my guards’ asthma. They kept wheezing at me to stare at the ground, which made me want to look around even more. I kept my head down, but was able to see a few general population inmates in my peripheral vision.

When we arrived at the Special Housing Unit (SHU – pronounced “shoe”) reception office, an NCO (non-commissioned officer) issued me a hygiene kit, shorts, socks, shower shoes and a t-shirt. I was taken to another changing room where I took off the remnants of my ASUs and donned prison-orange shorts and white t-shirt. When I was dressed, the reception NCO issued me a copy of the all-encompassing regulation for the USDB: The Manual for the Guidance of Inmates, Vol. I and II. He then asked me some basic demographic questions and warned me not to tell the other inmates anything about my charges.

After I completed initial processing, the guards escorted me to an interview room where a man dressed in civilian clothes greeted me and explained that he was a Military Police Investigator (MPI). He inquired about my gang affiliations and tattoos and asked if I knew anyone in the USDB. Once he discovered I’d been an officer, he asked if any of my Soldiers had been sent to this prison. He also told me that the inmates may try to “tax” me because I used to make officer pay. I believe the real purpose of the interview was to recruit me as a snitch. He asked some more leading questions and I remained non-committal.

After the interview/sales-pitch, the guards escorted me to the Reception Tier and into my new cell. While I was making my bunk on the top rack, my new roommate walked in and introduced himself.

An Absurd Conviction Rate?

During my second visit to Russ in prison he told me what seemed like an absurd statistic: that 98% of UCMJ Courts Martial result in convictions. I had a strong suspicion that was a prison lawyer talking and perhaps not based on facts. We talked about it for a while and then moved on to other topics, but when I got home, I did some research. It turns out, Russ’s statistic was a little off…but only by about 4% in 2010.

Click on the image for full source document, see pg. 22.

According to this document published by the US Court of Appeals for the Armed Services, 610 general Courts Martial in FY 2010 resulted in 572 convictions, which works out to a 93.7% conviction rate. I printed out this page and sent it to Russ in a letter.

Of course, my next question was: So what’s the conviction rate for civilian courts? Wikipedia says the US Federal Court conviction rate was “high” at 85% in 1992 and cites an article written by James Coughlan in 2000 which provides a few state conviction rates: “In recent years, the conviction rate has averaged approximately 84% in Texas, 82% in California, 72% in New York, 67% in North Carolina, and 59% in Florida.” But everyone knows Wikipedia is full of faulty information – so let’s look elsewhere.

According to a 2006 article in the Pittsburgh Tribune-Review, the federal courts conviction rate was about 90% for defendants who didn’t immediately plead guilty. “Between 2000 and 2005, 99 percent of the 435,000 federal criminal defendants prosecuted nationwide were convicted. The conviction rate was the same for the 2,130 criminal defendants prosecuted during that period in the Western District of Pennsylvania.”

A Texas attorney’s 2010 blogpost states, “From March 31, 2008-March 31, 2009, prosecutors had an 85% conviction rate at jury trials in federal court.” It seems to work in the attorney’s favor that the conviction rate is so high as it probably gins up interest in the work they do, but regardless of their motives, their numbers jive with the statistic cited by Wikipedia.

85% in Texas is high, but it’s still 9% lower than the UCMJ conviction rate. I’m no lawyer, so I can’t say for certain what variables account for such a discrepancy. On my third visit to Russ, we talked again about the conviction rate and my research into comparable civilian court conviction rates. Russ made what I thought was a pretty good point – yes, civilian courts convict at a lower rate than military ones, but it should be the other way around and by a significant percentage. See, in civilian courts, typically the prosecution will not continue to press charges unless they feel they have a preponderance of evidence and a good chance of a conviction, not so in a military court. Courts Martial convene whether the prosecution thinks they have enough evidence to convict or not. The unit commander is the one who decides to try a case, not a lawyer, and his motivation is usually couched in self-preservation rather than achieving a conviction. That is, a commander may a case to trial just so it doesn’t seem as though he is taking justice into his own hands, regardless of the evidence. Normally, I would say that’s a good thing – it should mean that a Soldier gets the benefit of a thorough review of the charges against him rather than being subjected to the arbitrary justice of a commander who may or may not be fair, but is definitely too busy to be bothered with the minutia of legal cases.

From Russ:

I have access to the same statistics that you printed out, just not as current. The 94% conviction rate in FY2010 is a decrease from FY2008, if I’m reading them correctly. Still, I wish I would have known the odds I was up against from the beginning. From what I can tell appeals offer a pretty slim chance of survival as well. That said, I’m keeping the faith.

I’m glad you guys live so close, it was awesome seeing you. Even if I did have to get strip searched afterwards…this place is nuts.