Total exoneration

Palmore, Edward

Original

Transcript

The author is a native of Newark, New Jersey where he attended its public schools. He then earned a B.A. from the University of Houston [1972]. He served in the United States Army as an Air Defense Artillery officer [1972-1976] and while on active duty in Grafenwoehr, Germany he was matriculated into the Boston University Overseas Program earning an Ed.M in Human Resources. He was then matriculated in the doctoral program at Boston University earning an Ed.D. in Counseling Psychology in 1981. Dr. Edward Palmore has written more than forty books and many songs since his incarceration in the Department of Corrections in Georgia for almost eighteen years. At present he wishes to have his works published which deal with gang warfare, drug abuse, homophobia and many other issues relative to prison life in Georgia. TOTAL EXONERATION We evaluate the wonderment of an event in terms of its improbability: the occurrence of an event with it is unlikely to occur. We evaluate the magnitude of an event in terms of its probability to repeat itself. The events which I will describe in this narrative are indeed phenomenal in relationship to both their wonderment and their magnitude. Indeed, it would be more likely for me to pick the winning combination of numbers in the Powerball lottery on any given weekend than for these events which I will forthwith describe to occur. On 15 September, 1997 I was arrested in Hancock County, Georgia and on 16 July, 1996 convicted of one felony count and sentenced to twenty years of confinement in the Georgia Department of Corrections. Legally with conviction I lost the presumption of innocence and the state acquired a presumption of correctness. Therewith, my goose was cooked. Yet, sixteen years and twenty-five complete days after the judge looked me dead in the eye and me me that I would be taken into custody by the sheriff and therewith remanded to the Department of Corrections something most improbable occurred: The historic courthouse in Sparta, Georgia burnt completely to the ground. The aged, red-orange brick structure with the famous signature cupola was no more. Certainly, it was a national treasure because General William Tecumseh Sherman in his haste to deliver Savannah as a Christmas present to President Abraham Lincoln did not swerve far enough south to burn this invaluable relic. However, on the eleventh day of August, 2014 some other folks accomplished what General Sherman in his haste couldn't do. But it still brings us back to the issue which will undoubtedly baffle statisticians: The probability of the courthouse burning down and the probability of every single record ever produced therein being destroyed in the conflagration. I didn't know that the courthouse had burned down until months after the embers had quieted, the debris had been swept away, and the ground had been leveled. I was in the chow hall of Coffee Correctional Facility in Nicholls, Georgia when another inmate, I was incarcerated with as a detainee, tugged at my shirt. My arms had been filled with books because I had just returned from the prison's legal library. And this joker, named Dearborn, who spoke in a robust Ebonics, persisted in calling my name over and over. "Yo," I said a bit annoyed. "You hear?" Dearborn asked. "Hear what?" I responded. "Dey done burnt da cou'thouse t' da ground," informed Dearborn. "An ol' Judge C. done took his own ass out the game!" "Why," I inquired. "'Cause, he was gettin' ol' 'n' didn't wanna go t' da nursin' home." "Why?" I inquired. "'Cause all dem peoples he done sent 'down da road' dey folks is now runnin' da nursin' home 'n' wouldn't treat Judge C. so kindly." That seemed plausible. The earthiness of his vernacular and the simplicity of his message made me laugh boisterously. Yet at that initial moment I could not fathom what grave implications that simple message had on my own future as a prisoner, as a writer and as an agent of change. Slowly but surely, I began to consider the prospect of having my case reopened, and in so doing, I wrote the clerk of court of Hancock County Superior Court. Her response served as a catalyst which compelled me to consider the implications of the courthouse burning more completely. The whole idea of the courthouse burning did not register with me for a while until a few weeks later. While I was working in the prison's legal library typing some notes from text for future reference. I was sitting at a typewriter next to this character named One-Eyed Jack who was having troubles operating a typewriter which had a rudimentary memory feature. We talked during the time I was helping him set margins and tabs about my case and I told him that my case initiated in Hancock County. Then he told me that he had just been transferred to Coffee Correctional Facility from Hancock State Prison and he had a few other inmates had state habeas proceedings pending there. As a result of this conversation I wrote the clerk of court again and the district attorney receiving a terse message telling me that the courthouse burned down and all the items therein perished with it. No records exists. There was nothing about my case preserved on microfiche or in cyberspace. Nothing had been archived as One-Eyed Jack speculated: "Man, dem white folks burnt down the cou'thouse," One-Eyed Jack surmised with a cracked smile. "Now, why would they do that?" I asked. "Because the Feds were investigatin' 'em. So dey had to burn down ev'rythang! Nothin' could survive!" "You lyin'," I managed. "No, check it out. Ain't nothin' remained," he reposted. "Not one red brick." "I did write post haste the courthouse clerk again and she told me nothing remained of my file except a letter I wrote a few months earlier with no copies of the original documents in existence nothing could be certified then I thought again about my case, after eighteen years the aftermath was all contingent upon the work of some arsonists running amok in the dead of the night with a multi galion red can of kerosene, some bottles and rags. Demolishing one of the most famous buildings in Georgia's history. Thus after this brief bantering with One-Eyed Jack, after the levity of the moment dissipated, I began considering the implications of the courthouse burning: No documents existed to explain how and why I was arrested. No documents existed to indicate that there was an indictment and that a grand jury was convened. No documents exists alluding to or recording any pretrial hearings. No extant documents survive which is a sine qua non to establishing the lawfulness of conviction and subsequent incarceration. Then this question emerges: Would I again enjoy a presumption of innocence which I previously enjoyed theoretically as a detainee? As I began considering those questions and weighing my options I considered: What does this mean for me and thousands of others convicted in Hancock County. Now there are not surviving documents which chronicles the government's actions in arresting me on 15 September 1997. There is no arrest warrants and no corresponding affidavits from arresting officers. The arresting officer would undoubtedly release his files to the local sheriff's department, yet the current sheriff maintains that all documents pertaining to my case were turned over to the Superior Court presumably before the fire. The arresting officer's original affidavit as to why he arrested me is no longer in existence. This document would presumably lay out the rationale - thus presenting a prima facie case against me no matter how solid, circumstantial or specious the evidence may be. In this case these documents would be crucial since the arresting officer entered the accused's domicile and seized evidence without a search warrant, without consent, without exigence and without probable cause. Certainly the burden of proof was on the state to prove that it had justification to enter my house in a manner not sanctioned by the Fourth Amendment. It is clear that while an unlawful search does not preclude neither prosecution nor invalidates a subsequent conviction, yet the Fourth Amendment provides a remedy: Suppression of illegally obtained evidence whether they be artifacts, whether statements or testimonial evidence. In my situation the police entered my domicile without giving a Miranda Warning. As the accused my rights should have been protected with three kinds of pre-trial proceedings which are constitutionally sanctioned by our Federal Supreme Court. From what I understand, a judicial determination of probably cause is required as a prerequisite to justification of restraint of liberty after one's arrest. Moreover, I was entitle to a Gerstein hearing prior to being detained without bond, especially since my arrest was not supported by warrant. In my case there were no preliminary proceedings. I did go to arraignment, however there is no record that such ever occurred. There are not documents existing alluding to any hearings which may have or should have been convened prior to trial. Indeed outside of arraignment I hadn't seen a judge except for on the seventh of January, 1998 when I was hustled before the court. I was at this time in police custody in Hancock County jail, and I was without an attorney. But the Court and the assistant district attorney asked me questions when I stood before them technically pro se. However, I was pro se not because I wished to litigate my own case without the benefit of an attorney, but because my initial attorney withdrew and no one made an inquiry in the county jail about successive counsel. Thus I was deprived of counsel during a critical state within a criminal prosecution. Interestingly, in Georgia the law makes provisions for a jailhouse census. While I was detained the sheriff should have, in accordance with the laws of Georgia, maintained a census to alert the appropriate authorities of a detainee's status. So then the accused's constitutional right to counsel would be monitored and safeguarded. The Supreme Court in Culver (100 S.Ct, @1715) ruled that unless the accused receives the effective assistance of counsel there is a serious risk of Injury which infects the trial itself. The judge, of course, signed an order which remanded my person to the custody of the Georgia Department of Corrections, yet there is no documents which specify a rationale for such an action. In my case the judge strayed from neutrality over and over again! In my case the trial attorney and appeal attorney constructively denied me repeatedly the constitutionally guaranteed right of reasonable effective assistance of counsel. In Georgia raising the issue of ineffective assistance of counsel was resolved initially at the hearing of the Motion for a New Trial. I personally filed in a timely manner a Motion for a New Trial and the trial judge refused to hear the new trial motion just as he refused to hear the suppression motion before trial. Thus, he denied me access to court, due process and equal protection under the laws of the United States and the sovereign state of Georgia. Now there are extant documents form the original state habeas and the state appeals court rulings to support what I have alleged. Thus far in this narrative, the whole trial was a sham. The whole trial was a farce whose results could not be replicated had the correct legal procedures been followed and constitutional mandates observed. In my case the trial attorney properly transmitted to the Hancock County Clerk of Court a notice of appeal. The clerk did not forward such to the Georgia Court of Appeals. Thus I was forced to go through a habeas corpus proceeding in Calhoun County and the court ordered an out-of-time appeal. On this note, the burning of the courthouse was phenomenal and the destruction of all evidence therein sensational, yet there is strong evidence that the county clerk of court had always been sloppy and trifling when it came to adequately keeping records and generally tending to the ministerial functions of his office he held. All of this is now a matter of public record. I filed my first habeas in a case styled as Edward Palmore v. Danny Waters, Calhoun County Superior Court Case No.: 2000-v-111, and it was heard in August, 2000. The state's assistant attorney general stated: "Your Honor, may it please the court. This appears to be the petitioner's first state habeas challenging a July 16th, 1998 jury trial conviction in Hancock County for one count of cruelty to children for which he received a sentence of twenty years. Judge, after this conviction, the petitioner's counsel...timely filed a notice of appeal to the Superior Court of Hancock County, however the appeal was never transmitted up. Judge, I've contacted the clerk in this case and there was no explanation as to why the appeal was never sent up." Things were so bad in Hancock County that the "Criminal Docket - Superior Court Hancock County" sheet was not typewritten. Everything was handwritten and the penmanship was haphazard and illegible. Extant copies of the record shows that it was confused, incomplete, disorganized and jumbled, I stood up and stepped over to the machine One-Eyed Jack was using. All I could do was scratch my head and utter "out of the mouths of babes." His musings had been the impetus for more litigation and possibly for a major literary effort in the near future. "Dem folks burnt down the cou'thouse 'cause the Feds were closin' in on dem. The evidence would show that they been railroadin' nlggas since Hector was a pup," he quickly reasoned. "And you know what?" "What?" "I think they burnt down the cou'thouse 'cause ah some oth'r stuff," One-Eyed Jack surmised, "You do?" One-Eyed Jack added, "But one thing—" "What's that, One-Eyed Jack?" "Once the Feds roll up in that cou'thouse then they will dig and dig, and dig some mo'. Then they will find some hard evidence on 'em folks!" "Yes, I supposed so." I spoke while simultaneously pondering what this young man had just suggested. "Just press this key which says Reprint and this key which says Code at the same time and your document will be reprinted perfectly." Thus, I schooled One-Eyed Jack on how to use the memory function on this typewriter, "Man, it's not a word processor with an automatic Spell-check, so don't expect it to behave like one..." "¥o, mah nig, you a life saver!" exulted One-Eyed in chain gang lingo. Now with the burning of the courthouse which is now a matter of public record now the entire universe now there is not one scintilla of evidence which substantiates, rationalizes or legitimizes my incarceration. Yes, the judge signed a certifiable document which remands my body to prison, but where are the other essential constitutionally mandated documents and proofs of constitutionally required hearings which validated my arrest in the first instance? The most interesting thing that has occured during my eighteen lonely years of being uninterruptedly incarcerated is that since the eleventh of August of the previous year the accused has been held without any record whatsoever of a legal arrest without any record of being Mirandized when placed under arrest, without any physical evidence inculpatory or exculpatory scrutinized and examined by the state's forensic unit, without any affidavits offered by any witnesses for the state against the accused. Moreover, there is no record of an indictment outlining the elements of the offense. There are only the committal documents signed by the chief judge of the Ocmulgee Judicial Circuit who was the trial judge, which was forwarded to the Department of Corrections authorizing the Georgia Department of Corrections to hold my person for a specific period of time. Everything else was destroyed by fervent heat. Yet there is no certainty that all of these documents existed before the fire. Be aware, my friends, that even before that night last August, the clerk of court was negligent in carrying out his sworn duties and we have already looked at this relative to the notice of appeal. Some days later I "rolled up" on One-Eyed Jack. When I spotted him I could not help but notice that he was in the midst of an altercation in the middle of the chow hall. His mouth had apparently written a check that his body couldn't cash, so he was trying to extricate himself from out of a particularly sticky situation. Some sagacious security officer separated One-Eyed Jack from a combative assailant. Obviously without peripheral vision he was in a most precarious circumstance. Once he composed himself he found himself sitting at a table with me. "I admire you for diplomatically finessing your way out of something that could have been an ugly event," I said in half jest and half compliment. "Yeah, mah nig, a man has got to do," One-Eyed Jack philosophized, "whatever a man has got to do." We chuckled and decided mutually, albeit quietly, to drop the subject and move on. "Mah nig-" he began. "Yo," I responded. "I been thinkin'," One-Eyed continued. "'Bout what, mah nig?" I asked. "I been thinkin' that wit' the d'struction o' de cou'thouse, it's like you ain't ever really been arrested. 'Cause they ain't got no records that can even be duplicated. 'Cause that lady clerk o' cou't said ev'rythang's been burnt up. How do you duplicate something that's burnt up?" He summarized. "That's right," I said. "What else you got on yo' mind?" "What I'm suggestin' Ol' School, is: What if you got into an altercation and ended up like me wit' one eye?" he posited. By this time persons around us at various tables listened and jumped in. Someone yelled, "Then he would have join the freakshow—!" There was boisterous laughter, but One-Eyed Jack cut them off nicely. "If somethin' like that would happen who would be responsible? 'Cause you won't be no convict technically, 'cause they ain't, got no papers to prove you were ever accused of breaking the law," he said. "And what would happen if you got in a beef in the housin' unit and shanked a joker, or beat 'im into a coma wit' a lock in a sock? O' threw slush in his face and blinded him so that parts of his face dripped on to the concrete flo' would they charge you wit' aggravated assault when yo' ass shouldn't've been in prison no way?" Indeed One-Eyed Jack's questions were thought provoking and seminal. Out of the mouths of babes. In his own inelegant, inimitable fashion One-Eyed Jack was proposing some rather sophisticated hypotheses. The documents which are sine qua non to establishing a rationale for eighteen years of incarceration simply do not exist. "One-Eyed Jack, I ain't got no lawyer, but there's a hell of a lot of folks that can help me and advise me on what I should do. There's lots of people out there who would like to take this case because it is different. And there are a lot of law professors who would like to study this case and present it in their fancy moot courts because it is so unusual. "Yeah, mah nig," One-Eyed Jack solemnly expressed. "And while you lettin' the lawyer do his lawyerin' there's something you can do." "What's that," I asked. "Write a story of what you think may have happened and why dem folks really burnt down dat historic building. You ain't go nothin' but time, mah nig. Write it from yo' prison bunk!" "That's a very good idea, brother man. I with think along those lines. And possibly one day it might interest somebody," I said. The rotation warn over. The security officer announced that it was time for all inmates to return to their several housing units and stand for institutional count.

Author: Palmore, Edward

Author Location: Georgia

Date: October 23, 2016

Genre: Essay

Extent: 12 pages

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