Post by Admin on May 28, 2007 14:03:31 GMT -5
STAUGHTON AND ALICE LYND
Attorneys-at-Law
1694 Timbers Court
Niles, OH 44446-3941
Phone 330.652.9635
Fax 330.652.0171
E-Mail SALYND@aol.com
May 24, 2005
Historian and Attorney Challenges Supreme Court Fact-Finding in the Case of Leader of 1993 Lucasville Uprising Sentenced to Death
Staughton Lynd, a lawyer and historian who lives in Niles, near Youngstown, has sent an "Open Letter" to Ohio Supreme Court Justice Paul Pfeifer, challenging Justice Pfeifer's fact-finding in the case of State v. Skatzes.
The letter of protest arises from the opinion Justice Pfeifer authored in State v. Skatzes (2004), 104 Ohio St.3d 195, decided Dec. 8, 2004, and from the column entitled "The Lucasville Prison Riot" that Justice Pfeifer caused to be circulated for publication on May 18, 2005. The column, like the opinion, concerns itself almost entirely with the alleged role of prisoner George Skatzes in the April 1993 disturbance.
Lynd concludes that in State v. Skatzes the Ohio Supreme Court has produced a factual narrative that: 1. relies on the testimony of jailhouse informants, with no apparent attempt to assess the truth of the facts asserted by these inherently unreliable witnesses; 2. does not cite to the record; 3. contains disputed material facts that go to the guilt or innocence of George Skatzes with respect to all three murders for which he was convicted.
The unpersuasive fact-finding of the Court in this case is equally apparent in its decisions about other Lucasville prisoners sentenced to death (Robb, Sanders, Lamar), Lynd writes.
Before becoming an attorney, Lynd taught American history at Spelman College, Atlanta and Yale University, and was a candidate for president of the American Historical Association. He is a member of the Society of Friends, or Quakers.
In 2004 Temple University Press published Lynd's book, Lucasville: The Untold Story Of A Prison Uprising, available at Barnes & Noble stores throughout the state. He has arranged for a copy to be mailed to Justice Pfeifer.
Lynd urges Ohioans of all descriptions to join in calling for a moratorium on executions in Ohio while the disputed material facts in this and other capital cases are further examined.
AN OPEN LETTER TO OHIO SUPREME COURT JUSTICE PAUL PFEIFER
STAUGHTON AND ALICE LYND
Attorneys-at-Law
1694 Timbers Court
Niles, OH 44446-3941
May 24, 2005
Justice Paul E. Pfeifer
Supreme Court of Ohio
Dear Justice Pfeifer:
Let me introduce myself. I am an attorney licensed to practice in state and federal courts in Ohio. I am also an historian: I taught American history at Spelman College, Atlanta and Yale University, and have been a candidate for president of the American Historical Association. Finally, I am a member of the Society of Friends, or Quakers.
In 2004 Temple University Press published my book, Lucasville: The Untold Story Of A Prison Uprising, based on eight years of research. I have arranged for a copy to be mailed to you.
This is a letter of protest arising from the opinion you authored in State v. Skatzes (2004), 104 Ohio St.3d 195 (hereafter, the Opinion), and also from the column entitled "The Lucasville Prison Riot" (hereafter, the Column) that you circulated for publication on May 18, 2005. The Column, like the Opinion, concerns itself almost entirely with the alleged role of prisoner George Skatzes in the April 1993 disturbance.
I do not intend this communication as an attack and do not wish to harm you in any way. On the contrary, please understand this lengthy critique as a plea for your attention to serious flaws in Ohio's death penalty decisions. I believe that you are one of the more fair-minded state court judges in deciding capital cases. I believe that, for whatever reason, your opinions concerning Skatzes represent a departure from this norm. What I write may help to explain why State Rep. Shirley Smith, other legislators, and a significant section of the Ohio bar, seek a moratorium on executions in Ohio so that the way we make these life and death decisions can be more carefully considered.
Reliance on "snitch" testimony, central to the Lucasville convictions because of the absence of physical evidence, is one among many reasons for a moratorium.
Because you have caused your views to be distributed to the media, I feel compelled to do the same.
I
First of all, I object to your public comment through your Column on a case that may yet return to the Ohio Supreme Court on appeal from a state post-conviction verdict, has not been finally adjudicated in the federal courts, and could be remanded for further proceedings in Ohio courts. Canon 3(A)(6) of the Code of Judicial Conduct adopted in 1972 by the American Bar Association states:
A judge should abstain from public comment about a pending or impending proceeding in any court . . . .
Similarly, Canon 3(B)(9) of the Ohio Code of Judicial Conduct, amended effective May 1, 1997, states:
While a proceeding is pending or impending in any court, a judge shall not make any public comment that might reasonably be expected to affect its outcome or impair its fairness . . . .
The Preamble to the Ohio Code makes clear that: "When the text uses 'shall' or 'shall not,' it is intended to impose binding obligations the violation of which can result in disciplinary action." The Commentary on subsection (B)(9) dispels any doubt as to the continuing relevance of its prohibition: "The requirement that judges abstain from any public comment regarding a pending or impending proceeding continues during any appellate process and until final disposition" (emphasis added).
In my opinion, what you say in your Column should indeed reasonably be expected to affect the outcome and impair the fairness of future court proceedings. You refer to the actions of prisoners including George Skatzes as "foul deeds." You characterize the uprising as "the worst humankind has to offer." As I will demonstrate below, a number of your factual assertions are inaccurate.
II
Statements of fact in the Opinion and the Column are offered without citation to the record. Many of these statements are false or misleading. Insofar as these statements occur in the State v. Skatzes Opinion, they are especially prejudicial because they constitute determinations of factual issues by a State court and, as such, must be presumed to be correct in any future habeas proceeding in federal court. The habeas petitioner, in this case Skatzes, would "have the burden of rebutting the presumption by clear and convincing evidence." 28 U.S.C. ƒu 2254(e)(1).
Paragraph 3: The Rebellion Begins
According to Paragraph 3 of the Supreme Court Opinion in State v. Skatzes: "On the evening before the riot, April 10, high-ranking members of the Aryan Brotherhood, including Jason Robb, Dewey Bocook, and Freddie Snyder, and the Muslims, including Sanders and James Were, met in the L block gym. Upon seeing this, inmate Robert Brookover knew 'there was something going on.' Robb told fellow Aryan Brotherhood member Roger Snodgrass to 'be on our toes tomorrow'."
The reader is left to infer that Skatzes might have approved the riot in advance, or at least might have known about it. The record refutes any such inference. The Opinion fails to mention what Prosecutor Daniel Hogan stated to Skatzes' jury in closing argument: "No one has ever raised the issue of whether Mr. Skatzes planned this riot. The State certainly never alleged that." Tr. at 6096. Inmate Kenneth Hazlett testified that Skatzes was in his cell, catty-corner across from Hazlett in L-6, when the riot began. Tr. at 4722. According to inmate Tom Hurst, the riot caught Skatzes by surprise. Neither he nor Skatzes understood what was going on. Tr. at 5003. Everyone wanted to know what was happening, but Skatzes had no more answers than the rest of the inmates. Tr. at 5019. These witnesses corroborated Skatzes' unrebutted testimony that no one told him that a riot was going to break out, and that he was in his cell writing a letter when the riot began. Tr. at 5311-12, 5314-15.
Moreover, the meeting alleged by the Opinion to have occurred on the evening of April 10 is not as clear in the record as the Opinion suggests. Brookover and Snodgrass were prisoners who turned State's evidence. The jury instructions approved by the Supreme Court in this case indicate that the testimony of such persons should be assessed with care. Indeed, after the Robb trial, the State made a special investigation that called Brookover's credibility into question. But the Opinion does not hesitate to credit the facts testified to by these inherently unreliable witnesses.
Furthermore, Snodgrass did not testify to any meeting between Aryans and Muslims on April 10. He recalled a so-called "walk-around meeting in the gym" between Snyder (AB), Hasan (Muslims), and Anthony Lavelle of the Black Gangster Disciples, but did not mention a date. He also remembered an occasion when Snyder and Hasan talked on the diet line in the chow hall "probably about three weeks, maybe two, prior to the riot itself." Tr. at 4357-59. Neither Brookover nor Snodgrass were able to overhear anything that was said in any of these alleged encounters.
Paragraphs 4-5: The Early Hours of the Rebellion
In the Opinion's recital of events on the afternoon and evening of April 11, Skatzes is mentioned only in connection with the fact that a day or two later Aryan Brotherhood members moved into cell block L2 ("the Aryans, led by Jason Robb and Skatzes, controlled L2").
The Opinion reports, "Several corrections officers ('C.O.s'), including Robert Vallandingham, who was working in L1 that day, were taken hostage," but fails to mention that there was no testimony implicating George Skatzes in the taking of correctional officers as hostages on April 11, nor was he shown to have captured or locked up any prisoners.
The Opinion also states that "C.O.s Darrold Clark and Jeff Ratcliff . . . were confined for most of the riot in L2." It omits the testimony of prosecution witness Clark that, while under the control of Muslims in L6, he asked Skatzes to get him out. Skatzes left, came back and said, "You are going into my block," and took Clark to L2. Tr. at 2328-29. Clark himself testified that when he could not sleep he asked for George, that George got a mattress and laid down between him and the door, that is, between Clark and anyone who might come to harm him. Tr. at 2380-81; see also Tr. at 5152-53. According to prosecution witness Snodgrass, after Clark was transferred to L2 Skatzes
told him that he was going to do everything that he could to get him out of there. He told him that he didn't have nothing to worry about, that he wasn't going to let nothing happen to him, that he was safe. . . .
It came to where Clark would, when George was gone, Clark would be even more nervous and he would ask for George, where is George, where is George, I want to talk to George, and basically he wouldn't talk to no one else at times . . . .
Tr. at 4581.
Similarly, the Opinion says nothing about the fact that when Skatzes heard that Officer Ratcliff had been beaten by inmates, Skatzes came and got Ratcliff and took him to L2 also. Tr. at 5995A, 5999A-6000A. Skatzes removed the blindfold and some red tape from Ratcliff's eyes, took water, cotton balls and towels, and cleaned away a red substance that was burning Ratcliff's eyes. Tr. at 5145-46, 5199. Ratcliff testified, "f he wouldn't have come and got me, I probably wouldn't be here, I would probably be dead." Tr. at 6000A. Judge Mitchell surmised that the reason Skatzes was not sentenced to death for the aggravated murder of Officer Vallandingham was because of Officer Ratcliff's testimony. Opinion of the Trial Court at 5.
The Opinion is also silent about Skatzes' very substantial activity during the early hours of the rebellion in saving the lives of hostage correctional officers, as to which both prosecution and defense witnesses testified.
The first person whose life Skatzes helped to save was Correctional Officer Harold Fraley. After the takeover, prosecution witness Snodgrass testified, he saw Skatzes screaming to correctional officers on the other side of the gates that there was a correctional officer who needed to be evacuated. Skatzes was saying: "He's hurt. He needs help. We need to get him out of here before he dies. . . . I am goin' to take him to the back of L-8 and I will put him there and you all better come and get him." Snodgrass saw Skatzes pick the man up and take him to the stairwell at the back of L8. Tr. at 4379-80; see also Tr. at 5911-16. State personnel retrieved Correctional Officer Fraley from the L8 stairwell at 4:45 p.m. Stipulation, Tr. at 6058; Tr. at 1858.
Inmate Dwayne Johnson described the efforts he and Skatzes made to save the lives of other officers on the first night of the riot. Johnson, Skatzes and other prisoners arranged for officers Kemper and Schroeder to be carried out to the yard where they could be picked up. Johnson said Skatzes stayed until the last guard was released from a makeshift infirmary in the L3 dayroom. This was at some personal risk because, as Johnson testified, it required going behind the backs of the leaders of the riot to get the injured officers out. Tr. at 5939-48; see also Tr. at 1858-59, 6040.
Skatzes did what he could to insure the safety and well-being of the guards who remained on L side as hostages. Negotiation tapes reveal that Skatzes made rounds to be sure that the hostage officers were safe, delivered food and water, delivered medication to officers Buffington and Dotson, and even offered Officer Dotson his own blood pressure medication. Tr. at 4219-20, 5995A; Neg. Tape #4, Ex. 295 (Ex. 295A at 4-5); Neg. Tape #5, Ex. 296 (Ex. 296A at 21); Neg. Tape #12, Ex. 303 (Ex. 303A at 29). (Exhibit numbers in parentheses are transcripts.)
Attorneys-at-Law
1694 Timbers Court
Niles, OH 44446-3941
Phone 330.652.9635
Fax 330.652.0171
E-Mail SALYND@aol.com
May 24, 2005
Historian and Attorney Challenges Supreme Court Fact-Finding in the Case of Leader of 1993 Lucasville Uprising Sentenced to Death
Staughton Lynd, a lawyer and historian who lives in Niles, near Youngstown, has sent an "Open Letter" to Ohio Supreme Court Justice Paul Pfeifer, challenging Justice Pfeifer's fact-finding in the case of State v. Skatzes.
The letter of protest arises from the opinion Justice Pfeifer authored in State v. Skatzes (2004), 104 Ohio St.3d 195, decided Dec. 8, 2004, and from the column entitled "The Lucasville Prison Riot" that Justice Pfeifer caused to be circulated for publication on May 18, 2005. The column, like the opinion, concerns itself almost entirely with the alleged role of prisoner George Skatzes in the April 1993 disturbance.
Lynd concludes that in State v. Skatzes the Ohio Supreme Court has produced a factual narrative that: 1. relies on the testimony of jailhouse informants, with no apparent attempt to assess the truth of the facts asserted by these inherently unreliable witnesses; 2. does not cite to the record; 3. contains disputed material facts that go to the guilt or innocence of George Skatzes with respect to all three murders for which he was convicted.
The unpersuasive fact-finding of the Court in this case is equally apparent in its decisions about other Lucasville prisoners sentenced to death (Robb, Sanders, Lamar), Lynd writes.
Before becoming an attorney, Lynd taught American history at Spelman College, Atlanta and Yale University, and was a candidate for president of the American Historical Association. He is a member of the Society of Friends, or Quakers.
In 2004 Temple University Press published Lynd's book, Lucasville: The Untold Story Of A Prison Uprising, available at Barnes & Noble stores throughout the state. He has arranged for a copy to be mailed to Justice Pfeifer.
Lynd urges Ohioans of all descriptions to join in calling for a moratorium on executions in Ohio while the disputed material facts in this and other capital cases are further examined.
AN OPEN LETTER TO OHIO SUPREME COURT JUSTICE PAUL PFEIFER
STAUGHTON AND ALICE LYND
Attorneys-at-Law
1694 Timbers Court
Niles, OH 44446-3941
May 24, 2005
Justice Paul E. Pfeifer
Supreme Court of Ohio
Dear Justice Pfeifer:
Let me introduce myself. I am an attorney licensed to practice in state and federal courts in Ohio. I am also an historian: I taught American history at Spelman College, Atlanta and Yale University, and have been a candidate for president of the American Historical Association. Finally, I am a member of the Society of Friends, or Quakers.
In 2004 Temple University Press published my book, Lucasville: The Untold Story Of A Prison Uprising, based on eight years of research. I have arranged for a copy to be mailed to you.
This is a letter of protest arising from the opinion you authored in State v. Skatzes (2004), 104 Ohio St.3d 195 (hereafter, the Opinion), and also from the column entitled "The Lucasville Prison Riot" (hereafter, the Column) that you circulated for publication on May 18, 2005. The Column, like the Opinion, concerns itself almost entirely with the alleged role of prisoner George Skatzes in the April 1993 disturbance.
I do not intend this communication as an attack and do not wish to harm you in any way. On the contrary, please understand this lengthy critique as a plea for your attention to serious flaws in Ohio's death penalty decisions. I believe that you are one of the more fair-minded state court judges in deciding capital cases. I believe that, for whatever reason, your opinions concerning Skatzes represent a departure from this norm. What I write may help to explain why State Rep. Shirley Smith, other legislators, and a significant section of the Ohio bar, seek a moratorium on executions in Ohio so that the way we make these life and death decisions can be more carefully considered.
Reliance on "snitch" testimony, central to the Lucasville convictions because of the absence of physical evidence, is one among many reasons for a moratorium.
Because you have caused your views to be distributed to the media, I feel compelled to do the same.
I
First of all, I object to your public comment through your Column on a case that may yet return to the Ohio Supreme Court on appeal from a state post-conviction verdict, has not been finally adjudicated in the federal courts, and could be remanded for further proceedings in Ohio courts. Canon 3(A)(6) of the Code of Judicial Conduct adopted in 1972 by the American Bar Association states:
A judge should abstain from public comment about a pending or impending proceeding in any court . . . .
Similarly, Canon 3(B)(9) of the Ohio Code of Judicial Conduct, amended effective May 1, 1997, states:
While a proceeding is pending or impending in any court, a judge shall not make any public comment that might reasonably be expected to affect its outcome or impair its fairness . . . .
The Preamble to the Ohio Code makes clear that: "When the text uses 'shall' or 'shall not,' it is intended to impose binding obligations the violation of which can result in disciplinary action." The Commentary on subsection (B)(9) dispels any doubt as to the continuing relevance of its prohibition: "The requirement that judges abstain from any public comment regarding a pending or impending proceeding continues during any appellate process and until final disposition" (emphasis added).
In my opinion, what you say in your Column should indeed reasonably be expected to affect the outcome and impair the fairness of future court proceedings. You refer to the actions of prisoners including George Skatzes as "foul deeds." You characterize the uprising as "the worst humankind has to offer." As I will demonstrate below, a number of your factual assertions are inaccurate.
II
Statements of fact in the Opinion and the Column are offered without citation to the record. Many of these statements are false or misleading. Insofar as these statements occur in the State v. Skatzes Opinion, they are especially prejudicial because they constitute determinations of factual issues by a State court and, as such, must be presumed to be correct in any future habeas proceeding in federal court. The habeas petitioner, in this case Skatzes, would "have the burden of rebutting the presumption by clear and convincing evidence." 28 U.S.C. ƒu 2254(e)(1).
Paragraph 3: The Rebellion Begins
According to Paragraph 3 of the Supreme Court Opinion in State v. Skatzes: "On the evening before the riot, April 10, high-ranking members of the Aryan Brotherhood, including Jason Robb, Dewey Bocook, and Freddie Snyder, and the Muslims, including Sanders and James Were, met in the L block gym. Upon seeing this, inmate Robert Brookover knew 'there was something going on.' Robb told fellow Aryan Brotherhood member Roger Snodgrass to 'be on our toes tomorrow'."
The reader is left to infer that Skatzes might have approved the riot in advance, or at least might have known about it. The record refutes any such inference. The Opinion fails to mention what Prosecutor Daniel Hogan stated to Skatzes' jury in closing argument: "No one has ever raised the issue of whether Mr. Skatzes planned this riot. The State certainly never alleged that." Tr. at 6096. Inmate Kenneth Hazlett testified that Skatzes was in his cell, catty-corner across from Hazlett in L-6, when the riot began. Tr. at 4722. According to inmate Tom Hurst, the riot caught Skatzes by surprise. Neither he nor Skatzes understood what was going on. Tr. at 5003. Everyone wanted to know what was happening, but Skatzes had no more answers than the rest of the inmates. Tr. at 5019. These witnesses corroborated Skatzes' unrebutted testimony that no one told him that a riot was going to break out, and that he was in his cell writing a letter when the riot began. Tr. at 5311-12, 5314-15.
Moreover, the meeting alleged by the Opinion to have occurred on the evening of April 10 is not as clear in the record as the Opinion suggests. Brookover and Snodgrass were prisoners who turned State's evidence. The jury instructions approved by the Supreme Court in this case indicate that the testimony of such persons should be assessed with care. Indeed, after the Robb trial, the State made a special investigation that called Brookover's credibility into question. But the Opinion does not hesitate to credit the facts testified to by these inherently unreliable witnesses.
Furthermore, Snodgrass did not testify to any meeting between Aryans and Muslims on April 10. He recalled a so-called "walk-around meeting in the gym" between Snyder (AB), Hasan (Muslims), and Anthony Lavelle of the Black Gangster Disciples, but did not mention a date. He also remembered an occasion when Snyder and Hasan talked on the diet line in the chow hall "probably about three weeks, maybe two, prior to the riot itself." Tr. at 4357-59. Neither Brookover nor Snodgrass were able to overhear anything that was said in any of these alleged encounters.
Paragraphs 4-5: The Early Hours of the Rebellion
In the Opinion's recital of events on the afternoon and evening of April 11, Skatzes is mentioned only in connection with the fact that a day or two later Aryan Brotherhood members moved into cell block L2 ("the Aryans, led by Jason Robb and Skatzes, controlled L2").
The Opinion reports, "Several corrections officers ('C.O.s'), including Robert Vallandingham, who was working in L1 that day, were taken hostage," but fails to mention that there was no testimony implicating George Skatzes in the taking of correctional officers as hostages on April 11, nor was he shown to have captured or locked up any prisoners.
The Opinion also states that "C.O.s Darrold Clark and Jeff Ratcliff . . . were confined for most of the riot in L2." It omits the testimony of prosecution witness Clark that, while under the control of Muslims in L6, he asked Skatzes to get him out. Skatzes left, came back and said, "You are going into my block," and took Clark to L2. Tr. at 2328-29. Clark himself testified that when he could not sleep he asked for George, that George got a mattress and laid down between him and the door, that is, between Clark and anyone who might come to harm him. Tr. at 2380-81; see also Tr. at 5152-53. According to prosecution witness Snodgrass, after Clark was transferred to L2 Skatzes
told him that he was going to do everything that he could to get him out of there. He told him that he didn't have nothing to worry about, that he wasn't going to let nothing happen to him, that he was safe. . . .
It came to where Clark would, when George was gone, Clark would be even more nervous and he would ask for George, where is George, where is George, I want to talk to George, and basically he wouldn't talk to no one else at times . . . .
Tr. at 4581.
Similarly, the Opinion says nothing about the fact that when Skatzes heard that Officer Ratcliff had been beaten by inmates, Skatzes came and got Ratcliff and took him to L2 also. Tr. at 5995A, 5999A-6000A. Skatzes removed the blindfold and some red tape from Ratcliff's eyes, took water, cotton balls and towels, and cleaned away a red substance that was burning Ratcliff's eyes. Tr. at 5145-46, 5199. Ratcliff testified, "f he wouldn't have come and got me, I probably wouldn't be here, I would probably be dead." Tr. at 6000A. Judge Mitchell surmised that the reason Skatzes was not sentenced to death for the aggravated murder of Officer Vallandingham was because of Officer Ratcliff's testimony. Opinion of the Trial Court at 5.
The Opinion is also silent about Skatzes' very substantial activity during the early hours of the rebellion in saving the lives of hostage correctional officers, as to which both prosecution and defense witnesses testified.
The first person whose life Skatzes helped to save was Correctional Officer Harold Fraley. After the takeover, prosecution witness Snodgrass testified, he saw Skatzes screaming to correctional officers on the other side of the gates that there was a correctional officer who needed to be evacuated. Skatzes was saying: "He's hurt. He needs help. We need to get him out of here before he dies. . . . I am goin' to take him to the back of L-8 and I will put him there and you all better come and get him." Snodgrass saw Skatzes pick the man up and take him to the stairwell at the back of L8. Tr. at 4379-80; see also Tr. at 5911-16. State personnel retrieved Correctional Officer Fraley from the L8 stairwell at 4:45 p.m. Stipulation, Tr. at 6058; Tr. at 1858.
Inmate Dwayne Johnson described the efforts he and Skatzes made to save the lives of other officers on the first night of the riot. Johnson, Skatzes and other prisoners arranged for officers Kemper and Schroeder to be carried out to the yard where they could be picked up. Johnson said Skatzes stayed until the last guard was released from a makeshift infirmary in the L3 dayroom. This was at some personal risk because, as Johnson testified, it required going behind the backs of the leaders of the riot to get the injured officers out. Tr. at 5939-48; see also Tr. at 1858-59, 6040.
Skatzes did what he could to insure the safety and well-being of the guards who remained on L side as hostages. Negotiation tapes reveal that Skatzes made rounds to be sure that the hostage officers were safe, delivered food and water, delivered medication to officers Buffington and Dotson, and even offered Officer Dotson his own blood pressure medication. Tr. at 4219-20, 5995A; Neg. Tape #4, Ex. 295 (Ex. 295A at 4-5); Neg. Tape #5, Ex. 296 (Ex. 296A at 21); Neg. Tape #12, Ex. 303 (Ex. 303A at 29). (Exhibit numbers in parentheses are transcripts.)