Thursday, February 26, 2015

Clemency Relief under Obama A Big Disappointment

BOP Clemency Program Off to Slow Start


By Derek Gilna


            Those of you who have communicated with me know that I like to call things like I see them, including discouraging people from filing something in court, “just to file something,”  when I don’t see it succeeding.  As you know, I am not an advocate of your wasting your hard-earned money or that of your friends and relatives.  I am still a firm believer that if you don’t file, you don’t get, but the facts have to line up correctly for you to win relief.

            So it is with some sadness that I share with you some of the things I have learned from speaking with some insiders, reading all publications on the subject, and speaking with people at the institutions, about the BOP Clemency Program.  It is shaping up to be a cruel disaster.

            So far, except for some window-dressing approvals, the pace and number of clemency approvals puts President Obama squarely LAST of all Presidents in the past fifty years for approvals.  And exactly NONE of those approvals came from the BOP application process.  All approvals have been classified as “safe” by several experts, granted for offenses committed decades ago, and given to people of advanced years who have already completed their sentences.

            Also, all of those who got relief had been recommended for the action through the DOJ’s Pardon Office, not exactly known for its expansive interpretation of clemency laws. The fear is that the career employees of the DOJ are running out the clock on the Obama administration, and frustrating the intent of the much-touted clemency program.  To succeed, you need someone to push your petition, and follow up on the process.  (Did you really think the BOP was going to do this?)

            That puts us back right where we were two years ago, when the only sentence relief was obtained from legal professionals wise in the ways not only of the courts and the law, but also the harsh realities of the BOP.  I and others like me are still here to examine your cases, free of charge, to see if you qualify for relief.  Do not be discouraged, and do not be frustrated.  Justice moves slowly, but it does move, if it is helped along.


113 McHenry #178, Buffalo Grove, IL  60089

(847) 878-0160

Tuesday, February 17, 2015

Federal Prosecutorial MIsconduct

Federal Prosecutors Misconduct Subject of new Federal Lawsuit


By Derek Gilna


            Congressional initiatives, such as the Smarter Sentencing bill, Sentencing Commission action, such as the two-level reduction for drug offenders, and Presidential pardons, under the authority of the executive’s clemency powers, have gotten most of the publicity, but what about the weak link in the chain, addressing the inappropriate, unethical activities of unscrupulous(or politically-motivated) local federal prosecutors?

            A writ of certiorari was recently filed to address an especially egregious example of prosecutorial misconduct in New Orleans regarding Brady (discovery) violations by federal prosecutors that contributed to many wrongful convictions.  Truvia v. Harry F. Connick, U.S Supreme Court, 2015. (See also Connick v. Thompson, 131 S. Ct. 1350 (2011), which I wrote about for Prison Legal News.)

            To be fair, Attorney General Holder and his designated successor have helped introduce and advance many needed reforms into the Department of Justice to get the local federal prosecutors to remove some of the obvious injustices.  Condemning the use of needless enhancements to garner guilty pleas (often from innocent people), as well as a reform of the pardon office, were positive developments.  However, Holder has not dared to address an often more serious problem prosecutorial misconduct.

            As federal case law currently stands, most federal prosecutors are shielded from the full effect of their misconduct.  I have reviewed hundreds, if not thousands of cases, and if there is one common thread running through their fact situations, it is the often subtle practice of federal prosecutors using the power of their position to frustrate diligent defense attorneys in performing their constitutionally-critical duties of properly defending their clients. (See the prosecution of Senator Ted Stevens, who was wrongfully prosecuted and convicted, and driven from office, but later exonerated.  His prosecutors remain unpunished.)

            Don’t misunderstand me.  There are many ethical prosecutors out there. They work hard for often modest pay, in relation to other attorneys.  However, the unchecked unethical behavior of some prosecutors, combined with the tremendous advantage in prosecutorial resources available to the federal government, combines to often mock the ideal of American judicial justice.  Judges often wink at all but the most obvious examples of prosecutorial abuse.

            Yes, diligent defense attorneys can often uncover these abuses, and take remedial action even after one has been convicted. However, even when the prosecutorial wrongdoing has been exposed, no action is taken against the offending prosecutor.  In fact, some of them even get promoted to federal judgeships! (I personally know of at least three instances of this, and no, I won’t name them here-yet.)

            Federal prosecutors should be held accountable, as are all defense attorneys, for all questions of unethical behavior, to level the playing field, and make the term “American Justice,” more than just a bad punch line.  Federal prisons will be  much less-crowded places if that takes place.

Monday, February 9, 2015

Bureau of Justice Satistics Show Prison Health Care in Crisis

Bureau of Justice Study Statistics Show Depth of Prisoner Health Issues


by Derek Gilna


            A special report issued by the Bureau of Justice Statistics in February, 2015 documents what prison rights advocates have known for years, that “half of state and federal prisons and local jail inmates have serious chronic health problems." The study concluded that prisoners are nearly twice as likely to have either a chronic medical condition or an infectious disease.  Of course, the federal government does not point an incriminating finger at itself for not properly addressing those health concerns.

            These chronic conditions include cancer, high blood pressure, stroke-related problems, diabetes, heart-related problems, kidney-related problems, arthritis, asthma, and cirrhosis of the liver.  The study also states that "(t)wenty-one percent of prisoners and 14% of all jail inmates reported ever having an infectious disease, including tuberculosis, hepatitis B and C, and other sexually transmitted diseases (STDs)."

            The study also noted that America's prisoners are also getting older, and the jails and prisons are becoming inundated with individuals with serious, chronic health problems consistent with that demographic comes heart and liver disease..  Despite this fact, twenty percent of jails and prisons do not evaluate all prisoners upon their entry into the correctional system, which means that many health problems also go undiagnosed.  Prisoner rights advocates have long maintained and the study agrees that prisoners have high incidence of diabetes and liver problems, due to alcoholism or drug use.

            Also not dealt with by the study is one serious deficiency of correctional health care; if a member of the general public gets ill, he either goes to the doctor, a hospital, or calls an ambulance.  In any event, that individual is treated by caring, well-trained medical professionals.  If a prisoner falls ill, he must navigate the Byzantine system that prescribes Tylenol for serious medical complaints and does its best to delay, discourage, and  deny proper medical care.  Needless to say, the BJS statistics do not measure how many prisoners needless suffer or die because of this "deliberate indifference."  Unfortunately, from the emails and correspondence I get, the number is way too high.


Derek Gilna  113 McHenry #173, Buffalo Grove, IL  60089

Wednesday, February 4, 2015

White Collar United States Sentencing Commission Changes

  Newer, Lower Sentencing Commission Changes Published


By Derek Gilna


            The Sentencing Commission changes for 2015 are finally starting to come into focus.  As should be obvious, the Sentencing Commission has been the primary vehicle for change and reform of sentencing for the past several years, as Congress has struggled to properly address the issue.  As of now, here NO sentencing reform bills set for a vote in either house of Congress.

            According to the Sentencing Commission, changes will be proposed to the following sections: 4A1.2, relating to Computing Criminal History; 1B1.3, changing the factors for relevant conduct; a revision for the financial loss amounts (of great benefit to white-collar defendants; 3B1.2, reforming the mitigating role definition to provide for a reduction who people who perform “limited functions in criminal activity;” and an amendment to 2B1.1, revising certain sections of the fraud crimes.

 NONE of these changes are expected to increase any sentencing, only reduce them (There are, however, some technical increases for stock market fraud).  It is expected that these sentencing reductions will also be given retroactivity, as has occurred with past sentencing revisions.  The changes are up for public comment until March 15, 2015, at which time the Commission will vote on these changes and formally present them to Congress.  Congress has NEVER rejected any changes in sentencing proposed by the Commission.

While these changes still pending, we know that there are many other avenues for relief available to you, depending upon your factual circumstances.  You need a strong advocate for your rights.  This past week I was in Washington D.C. district court on a 2255 habeas case, where the client was granted an evidentiary hearing based upon my allegations of inadequate representation of counsel. The hearing was hotly contested and no decision has been given yet.

 I am strongly committed to all defendants, even those already convicted, to get justice based upon their attorney’s failure to properly represent them.  It is always an eye-opener to see how many defense attorneys seem to be more concerned about their relationship with the Government than their duty to their clients and end up providing constitutionally inadequate representation of counsel.

These and all such cases are difficult and very fact dependent. However, if you are interested in seeking experienced legal advice or legal services, your choice is clear. I am willing to go into battle for you, and if you are ready for the challenge, so am I.