DOJ Lawyers Forced to Undergo Remedial Ethics Training

Judge Rips DOJ Lawyers for “Series of Misrepresentations,” Orders Ethics Training

 

By Derek Gilna

 

            In only the most recent instance of gross misconduct on the part of U.S. Department of Justice attorneys, but one that is noteworthy for the fact that it was actually punished severely, a Texas federal district court judge has blasted DOJ lawyers who he found deliberately misled him. Andrew S. Hanen, a judge of the Southern District at Brownsville, has ruled that these attorneys lied regarding the implementation of President Obama’s executive order to the Department of Homeland Security (DHS) known as the Deferred Action for Childhood Arrivals (DACA).  The action was before him on a consolidated lawsuit challenging that order filed by 26 state attorney generals.

               Hanen said in his opinion filed May 19, 2016, that the “unseemly and unprofessional conduct of these lawyers concealed the fact that Obama’s order was already being implemented when they already had knowledge that this was not the case.”

           Sfice it to say the Government’s attorneys effectively misled the Plaintiff States into foregoing a request for a temporary restraining order or an earlier injunction hearing. Further, these misrepresentations may have caused more damage in the intervening time period and may cause additional damage in the future. Counsel’s misrepresentations also misdirected the Court as to the timeline involved in the implementation of the 2014 DHS Directive, which included the amendments to the Deferred Action for Childhood Arrivals (“DACA”) program.suffice it to say the Government’s attorneys effectively misled the Plaintiff States into foregoing a request for a temporary restraining order or an earlier injunction hearing. Further, these misrepresentations may have caused more damage in the intervening time period and may cause additional damage in the future. Counsel’s misrepresentations also misdirected the Court as to the timeline involved in the implementation of the 2014 DHS Directive, which included the amendments to the Deferred Action for Childhood Arrivals (“DACA”) program.suffice it to say the Government’s attorneys effectively misled the Plaintiff States into foregoing a request for a temporary restraining order or an earlier injunction hearing. Further, these misrepresentations may have caused more damage in the intervening time period and may cause additional damage in the future. Counsel’s misrepresentations also misdirected the Court as to the timeline involved in the implementation of the 2014 DHS Directive, which included the amendments to the Deferred Action for Childhood Arrivals (“DACA”) program.uffice it to say,” he wrote, “ the Government’s attorneys effectively misled the Plaintiff States into foregoing a request for a temporary restraining order or an earlier injunction hearing…Opposing counsel and this Court were assured that no action would be taken implementing the 2014 DHS Directive until February 18,… despite the fact that in actuality the DHS had already granted or renewed over 100,000 modified DACA applications using the 2014 DHS Directive.”

            What bothered Judge Hanen the most was that, “Justice Department lawyers knew the true facts and misrepresented those facts to the …the 26 Plaintiff States, their lawyers and this Court on multiple occasions.”  He flatly rejected DOJ’s assertion that, “the reason its lawyers were not candid with the Court was that they either ‘lost focus on the fact’ or that somehow ‘the fact receded in memory or awareness.’”

            Sadly, the judge added, “there seems to be a lack of knowledge about or adherence to the duties of professional responsibility in the halls of the Justice Department… The Justice Department purports to represent all Americans—not

just those who are in favor of whatever actions the Department is seeking to prosecute or defend. The end result never justifies misconduct.” As a final sanction, he barred Justice Department lawyers from appearing in any state or federal court in the 26 states that challenged DACA until they complete a legal ethics court, and revoked the right of out of the state DOJ lawyers in Texas who engaged in the aforementioned misconduct.

 

Bureau of Prisons Medical Care?

Death by Indifference-Surviving BOP Medical Care

 

                        Remember the name Robert Gerald Knott.  He was a severely mentally-ill prisoner at the BOP Supermax at Florence, Colorado, who committed suicide on September 13, 2013.  His estate recently received a settlement of $175, 000 two weeks after suit was filed alleging violation of the Federal Tort Claims Act. Two weeks.

            Knott was only the most recent of extreme examples of the broken BOP medical system.  Although the Veteran’s Administration medical system has gotten most of the bad publicity in recent years, those who are familiar with both systems say that the BOP’s is much worse.

            There is a reason for that.  The BOP, like many government agencies, positively hates ANY publicity regarding its procedures, because the more you know, the more there is to dislike.  The BOP has many problems, and like all government agencies with problems, does its best to conceal them. They have trouble hiring competent staff.  That staff doesn’t understand proper medical procedures.  Even when you are belatedly taken to the free world for competent medical help, there is no follow-up at the institution, and you are often denied the specific medication that would help you.

            Members of Congress, although generally careful to avoid slamming the agency, to avoid any blow-back that might show that Congress has been remiss in carrying out its sworn duties to properly manage those governmental bodies that it funds, (and in the case of the BOP, funds generously). However, even Congress is privately disgusted, and that disgust is shared by the US Sentencing Commission, who just inserted themselves into the Compassionate Release procedure, citing BOP inaction (read, “incompetence.”)

            How do you survive this harrowing process?  Document everything, file BP’s, email confirmation of promised treatment, tell anyone who cares to listen what is going on.  Consider filing a Federal Tort Claims Act, or a 1983 federal Civil Rights suit after the BP process is exhausted.  At the very least, you will not be passively waiting for medical treatment which will probably never come, or if it does come, will come too late.

            As to Robert Gerald Knott, after he was discovered, unresponsive, in his solitary confinement-cell, per BOP policy he was cuffed and shackled on his way to the morgue.

Two Sides to Benefit of New Prison Guard Law

Congress Passes "Eric Williams Correctional Officers Protection Act

 

by Derek Gilna

 

            The "Eric Williams Correctional Officers Protection Act,"  named after a deceased correctional officer killed by a prisoner at U.S. Penitentiary at Canaan, Pennsylvania, passed Congress by unanimous votes. The law provides authority for federal correctional officers to carry non-lethal pepper spray in both medium and higher security prisons.

            The job of correctional officers is certainly not easy, and guards are always outnumbered by prisoners, and there are other dangers for prison employees as well. The United States Department of Justice estimates that at least one-third of all federal prisoners suffer from some form of mental illness, and the BOP has received no awards from prisoner-rights advocates for enlightened treatment of those maladies.

            Representatives and Congressmen were both energetic and unanimous in their praise of the deceased guard, but hopefully they saved some of their energy for consideration of other important issues concerning prisoners: sentencing relief and reform of the broken Bureau of Prison health care and compassionate release programs. Congressional committees and the United States Sentencing Commission have both commented negatively on that agency's inability to properly administer medical care and the compassionate release program for sick, helpless prisoners who often find that even a short sentence of imprisonment can be a death sentence.

            Although the arming of prison guards with pepper spray may seem a great idea to Congressmen cocooned in the fortress-like U.S. Capitol Building, to the prisoner forced to eat  expired prison food, suffer substandard prison medical care, and endure the daily petty indignities of confinement, it does not seem like such a great idea. Prison guards safety depends less on armaments than on good management, fair treatment,  and mutual respect, which is often hard to get given the clear inability of the Bureau of Prisons to properly manage its facilities.

 

 

Supreme Court Makes Johnson Case Retroactive

Supreme Court Decision in Welch Case Makes Johnson Case Retroactive Nationwide

 

            Monday’s U.S. Supreme Court decision in the Welch case, which made the Johnson decision retroactive, is the decision that we have been waiting for to put the key in the lock for federal prisoners with ACCA residual clause issues.  As was predicted here not a month ago, the Supreme Court has held that the Johnson case announced a new substantive rule that has retroactive effect in cases on collateral review.

            In practical terms, this means that there is now no rush to file a Johnson case before the end of June, since the Supreme Court ruling takes precedence and must be applied by all federal courts across the nation.  We estimate that several thousand federal prisoners will qualify for relief under this new holding.

            In making the Johnson holding retroactive, the court noted in Welch, “a majority of this Court concluded that (previous decisions) did not bring sufficient clarity to the scope of the residual clause, noting that the federal courts remained mired in ‘pervasive disagreement’ over how the clause should be interpreted.”  We read that as a rebuke to the circuits who chose to ignore Johnson before today.

            Those of you who are currently represented by us may rest assured that we are examining all of our filings and pending filings to incorporate this new decision. However, if you have Johnson facts, or know someone who does, and wish to take advantage of this landmark case, please contact us immediately.

 

Federal Legal Center, Inc.

113 McHenry Rd. #173

Buffalo Grove, IL  60089

federalc@yahoo.com

 

 

BOP Acknowledges Crisis in Prisoner Medical Care

Bureau of Prisons Struggles to Provide Prison Medical Care, Says

Staffing of Medical Facilities Reaches “Crisis Level.”

 

Reprinted by Permission of Prison Legal News

 

            “BOP administrators have recently acknowledged that several factors, including an aging prison population, medical staffing gaps, and other problems have causing rising problems in providing timely and adequate medical care to prisoners.  This will come as no surprise to the chronically-ill individuals within the system who are subjected to the effects of that system.  It is also the reason for the new medical services ‘survey’ that inmates are now encouraged to fill out.

            According to USA Today, ‘Physicians are paid at least 55% more in the private sector, while dentists are paid at least 112% more outside the system…the government has been increasingly unable to compete with the private sector for medical professionals…’ In other words, this in essence means that the BOP is only able to hire those who are unemployable elsewhere, for whatever reason.

            In one Region of the BOP, there are three physicians on staff, and two of those are in that Region’s Metropolitan Correctional Center, who allegedly provide medical care to tens of thousands of inmates in that Region.  Of course, in today’s medical community, PA’s supply medical care, but PA’s are not trained or intended to act in the place of physicians.

            This explains the recent upsurge of prisoner federal civil rights suits and federal tort claims actions specifically targeting those individuals and institutions responsible for the continuing problem by prisoners who are becoming increasingly more sophisticated in retaining medical records and other evidence.  Once targeted by these suits, prison administrators and medical personnel can no longer say that they are not aware of the problem. Many prisoners feel that without such legal action, that their medical issues and requests for compassionate release would continue to be ignored.

            This upsurge in litigation and complaints has caught the attention of Congressional oversight offices, as well as the DOJ’s Inspector General, and in all probability was the catalyst for the newest prisoner survey. The BOP has indicated that it needs to develop a ‘strategic plan’ to resolve the problem.”

 

Federal Legal Center, Inc.

113 McHenry Rd., #173

Buffalo Grove, IL  60089

federallc@yahoo.com

           

 

Update on Proposed Federal Habeas Corpus Action Changes

Changes Planned to 1983 Prisoner Lawsuit Format A Welcome Development

 

 

            The Washington University Law Review has published a study that they propose to forward to Congress to change the primary litigation component by which prisoners can sue for violations of their civil rights by prison authorities.  Commonly known as 1983 actions, the study notes that in 2015, “inmates filed nearly 27,000 civil rights actions in federal court.”

            Unfortunately, this form was “based upon a model first developed in the 1970’s,” the report continued, and can be “confusing to people not familiar with the law and can diminish their chances of winning a lawsuit,” according to Richard Frankel of Drexel University Kline School of Law and Alistair Newbern of Vanderbilt University Law School.

            The recommended changes would include not requiring a plaintiff to bring up his litigation history, removing language that encourages the plaintiff to “briefly” state the facts, replacing it with a provision asking for as much detail as possible, and eliminating the portion of the form that asks prisoners to state the legal grounds of their claim.

            There are enough hurdles to life in prison without having clear yet another one to get relief for a civil rights violation.  Unfortunately, prison libraries have drastically curtailed or eliminated legal research resources, and the authors of the study feel that this is unfair and should be changed also.

            Once again, we are available for such actions, as well as many other prisoner relief petitions, should you wish to pursue them. We encourage you to visit us at federallc@yahoo.com for further information.  Thank you.

 

Federal Legal Services, Inc.

A not-for-profit corporation

113 McHenry #173

Buffalo Grove, IL 60089

           

Senate Sentence Relief Bill Advances Closer to Passage

Newest Draft of Senate Bill 2123 Amended in Committee, Advances

 

by Derek Gilna

 

            Many of you have been inquiring whether the facts of your case would qualify you for relief under the new Senate or House bills. Of course, as I have told many of you individually,  there are many hurdles to clear before these bills become law, so it is important to not focus too much on the current language in the proposed legislation.  That having been said, a few changes were made in committee this past week that at least gives us some clues as to what the final bill will look like.

            First, there has been more emphasis regarding extra good time for programming in this version, with 5 extra days given for 30 days of successful programming.  People currently incarcerated for some narrowly defined violent crimes, and with more than a 15 year sentence for fraud or other white collar offenders are excluded. The RDAP program is mandated to ensure that everyone eligible can enter the program early enough to get the full year of credit. The BOP has a time limit to put together a plan for these programs and is subject to annual reviews by Congress to check its progress, because I suspect  Congress is aware of past BOP failures on RDAP and other sentence-reducing programs. For the first time, the BOP will have to do risk assessments to determine offenders' suitability for early release.

            Secondly, compassionate release requirements are now spelled out in the statute, rather than merely left to BOP rule-making.  Obviously, Congress doesn't trust the BOP to properly implement this program either.

            Finally, there are some significant reductions for drug offenders. Crimes that had MMs of 20 years are now 15 years; it is possible to petition under 3553a for retroactive relief. In the case of a non-violent drug offense previously calling for a 10-year MM, that is reduced to 5. People who received no relief under the Fair Sentencing Act can now petition the court for relief. Additionally, for the first time, it appears that  3552a petitioner must be brought to court and have an opportunity to present his case.

 

Federal Legal Center, Inc.

Derek A. Gilna, Director

113 McHenry, #173

Buffalo Grove, IL  60089

dgilna1948@yahoo.com