Passing the Bars
In defense of inmates, students in HLS's Prison Legal Assistance Project test their legal skills and their beliefs[Spring 2002]
1L Candace Morey is driving to one of Massachusetts' maximum- security prisons to represent the first client of her legal career. She's done everything she could to prepare. Yet she knows she's likely to lose--it almost seems to be expected. Her client has been accused of violating prison regulations. A correction officer will act as prosecutor, judge, and jury--and it's her client's word against those of the officer's staff.
This is the sort of uphill battle faced each year by HLS students in the Prison Legal Assistance Project (PLAP), who give their time to represent the state's indigent prisoners in disciplinary and parole hearings. But the HLS program drives home that even if students ultimately lose, they can still make their client's case, raise objections for an appeal, let prison officials know that somebody is watching.
In return, "PLAPpers" get real-world advocacy experience. PLAP is the only clinical volunteer organization at the School in which students represent prisoners, often serving as their last line of defense. (Inmates who can't pay for legal representation have no right to a court-appointed lawyer for these hearings.) The very freedom of inmates rides on parole hearings. And although disciplinary hearings may seem more routine, inmates can receive sanctions as serious as loss of credit toward early release or solitary confinement 23 hours a day.
An offshoot of the Harvard Defenders, PLAP came into being in the early '70s during a time of prison unrest. Student members initially assisted inmates with habeas corpus actions. But after an uprising at the state prison in Concord, in cooperation with the superintendent, PLAP students worked on-site at the prison to address inmate grievances. By the late '70s, PLAP had come to focus on parole hearings and disciplinary hearings, as it does today. According to supervising attorney John Fitzpatrick '87, who was an active member when he was a student, the organization is "uniquely democratic." He supervises all legal work and Pamela Cameron is the office's "nerve center," Fitzpatrick says. But the students, who often refer to PLAP as "free-spirited" and "nonhierarchical," do much of the training. PLAP's student board, on which all experienced members can serve, decides each year on the organization's priorities.
In the first semester of this school year, the PLAP membership includes 70 1Ls and 18 2Ls and 3Ls. Although the hope is that most of these students will want to represent prisoners, the only requirement for membership is one hour a week in the PLAP office. 2Ls and 3Ls hold office hours, teaming up with new students who answer calls and letters from prisoners and set up hearings.
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By mid-October the office is in full swing. On the wall there's a quote from Gandhi and a big sign warning students not to identify themselves as an inmate's attorney. There's a list of prisoners they are not to take calls from. There's a basket full of letters from inmates waiting to be answered. 3L Stephanie Denton, PLAP's executive board coordinator, has an inmate on the line. "Are you in the hole now?" she asks. He's out of the prison's isolation unit, but he says he's being charged for signing a form inappropriately: he wrote, "with warmest regards." Cameron, the program's administrative coordinator, has a question for Denton, and then it's on to a call from an inmate who has been given a disciplinary ticket over a television playing in his cell. He asks Denton a question. She tells him she's a Libra and suggests he request a continuance so someone can take his case. In the meantime the other lines are lighting up in the small office in Austin Hall. 1L Jonathan Goldin dives in, interrupting Denton with questions as needed.
Candace Morey has been reviewing the disciplinary hearing she has volunteered to take on: the case of Robert Parker (not his real name; at PLAP's request, the Bulletin has changed all inmates' names). Denton puts in a call to a prison officer about the case. Part of the students' mission this year is to improve their relationship with prison officials, and Denton asks the officer whether he remembers her. Of course he does, he says. He never forgets a pretty face. He tells her she should know that the prisoner in question is "a problem child." He's serving a 20-year sentence in MCI-Cedar Junction in Walpole and is accused of harboring a dangerous weapon and an escape tool. Morey says that she is a little nervous about the case. But she and Denton speak to Fitzpatrick, a defense attorney in Boston, and make plans to rent a car and go out to meet with the inmate the next day.
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This is Morey's second trip to Walpole. Her interview on the first trip went fine, although she says she was surprised the client was not behind Plexiglas, but sitting in a chair next to her and Denton. She was also surprised then to learn that she would be doing the talking at today's hearing. The Department of Correction allows only one student to speak at the proceeding, so although Denton is accompanying her (new students always pair up with a more experienced PLAPper for at least their first hearing), this will be Morey's case. As she navigates brisk traffic on 95 South, Morey goes over her strategy with Denton. "Anticipate the answers to your questions before you ask them," Denton tells her. "Don't leave [the reporting officer] any wiggle room. . . . If you don't get what you want, ask again, but don't get greedy."
An officer reported finding a 30-inch wire in Parker's cell during a search. (Always say "allegedly found," Denton says.) The inmate had previously brought a civil suit against some of the guards, and he contends that the wire had been planted as part of retaliatory harassment. ("Never refer to him as the inmate," Denton counsels. She tells her to call him by name or say, "my client.")
They review the applicable sections in the Code of Massachusetts Regulations. Morey will argue that her client didn't place the wire in his cell, that the charges should be consolidated, that the burden of proof has not been met, and that the offenses should be reclassified from major to minor. Morey intends to argue that another prisoner might have hidden the wire.
As Morey takes the road to the prison, passing houses where American flags flap over pumpkins, Denton tells her not to bring up the civil suit until the end. "And don't forget to ask him directly, 'Did you put the wire in the cell? Were you planning to use it as an escape tool?'"
Morey says she's not used to this kind of questioning. Before law school she worked for two years for the Union of Concerned Scientists doing research and advocacy, and she has confidence in her public speaking abilities, but not in this aggressive, tactical way.
Denton checks in with the prison on her cell phone and reports back to Morey that they are looking forward to seeing her. Morey laughs: "They say that now."
The chalky white façade of the prison is almost cheerful in the sunlight, except for a curl of razor wire. Morey and Denton pass three men in blue jeans and sweatshirts, prisoners on work detail who wait for the next task. The women take off their jewelry and check it with their briefcases and coats in the lockers that line the front wall. The correction officers are friendly, although at first they don't want to let the students bring in the tape recorders they need to create an official record of the proceedings. Finally they relent, and Morey and Denton disappear behind the automatic metal door. The Bulletin was previously denied access to the hearing. The waiting room is quiet, except for the murmur of children waiting with their mothers and the light jangling of keys that marks the correction officers' every step.
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An hour later the students emerge. Morey looks discouraged. She was allowed only a few minutes to meet with Parker before the hearing. Although initially he wanted her to focus on his civil case, he ended up approving of her strategy. Morey says he seemed perfectly calm and asked her whether she was nervous.
A few weeks earlier, as part of the training for new students, PLAP staged a mock disciplinary hearing. Fitzpatrick played the hearing officer. The students laughed at the rapidity with which his objections piled one on top of another, at the exaggerated way he led the witness. It wasn't going to be that bad, a PLAP student later reassured; for educational purposes they were presenting the worst-case scenario. But based on Morey's account, it no longer seems like such an exaggeration. The hearing officer objected to most of her questions as irrelevant. She was not allowed to call witnesses she thought essential to their case. When the hearing officer was questioning the reporting officer, Parker himself spoke up and asked why he was sending the reporting officer signals telling him how to answer.
On the way back to HLS, the mood is somber. Fitzpatrick will review the hearing with Morey, but the students go over it themselves, wondering how it could have gone better for their client; it seems to be a given that the officer will rule against him. When asked if they believe he's innocent, Morey thinks for a moment. "It's a tough case," she says. "If [he] were guilty, that wire could do some damage." The two women debate the possibilities. But then they recall the way the hearing officer manipulated the proceeding and move on to a discussion of the appeal.
Former marine infantry officer Scott Smith, now a 1L, had lots of experience with disciplinary cases. Smith oversaw hearings for enlisted men and was used to "at least a modicum of decorum." But the first time he represented a client for PLAP, "it was pandemonium," a shouting match between his client, the hearing officer, and the reporting officer. "Ten or fifteen minutes of yelling back and forth," he says. And then, just when the student attorney thought he'd calmed things down, it started again. To Smith's surprise, he ended up winning for his client.
Smith hasn't won all the cases he's taken on, although he has at least been able to get sanctions reduced. He's already supervised another 1L doing a case for the first time. In January he has another disciplinary hearing and a parole recision hearing. Smith has also volunteered for the Harvard Defenders and for a veterans shelter in downtown Boston.
It's a lot, he says, especially as exams loom. But "when I'm not helping a community," Smith says, "I feel like something is lacking. I probably would have gone nuts had I not done PLAP."
According to Smith, he is far from a "bleeding-heart liberal." Many people in prison deserve to be there, he says, but everybody has a right to due process.
Experienced PLAPpers stress that students should only take cases they're comfortable with. Smith can't imagine a disciplinary hearing he wouldn't take on. "That's what being an advocate means," he says. "You have to wipe away what this person has done in the past or the way they act every day."
When he came to HLS, Smith thought he wanted to be a prosecutor. He's now planning on working in the Salem public defenders' office this summer and is interested in a career as a defense attorney.
"I enjoy advocating for clients, making arguments, going after witnesses. I enjoy winning," the former marine says. "It brings back that warrior spirit."
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3L David Yosifon says the hardest thing about being a member of PLAP is feeling he is never doing enough. He had completed several disciplinary hearings by his second year, when he took on Albert Michaels' case. Twenty-five years into a life sentence, Michaels was accused of attacking another inmate. Yosifon says there was no evidence to support these allegations, and he was able to track down witnesses whose testimony supported the idea of a plot to attack his client. When Michaels was found guilty and given two years in isolation in the Department Disciplinary Unit of the prison, Yosifon was horrified.
"It's cruel by any standard to keep a human being in those conditions, and to think that [he] was going to spend two years there was just devastating to him and to me," Yosifon says. They appealed; he hadn't been allowed to introduce important evidence or pursue avenues of cross-examination. He also objected to a report in which the investigating officer tried to introduce his opinion about Yosifon's client as fact. "To our great surprise and delight," says Yosifon, "the appeal was accepted and the judgment vacated, and a new trial was ordered."
By the time Yosifon did the second hearing last June, he "focused very heavily on the burden of proof that was theirs, and that they didn't have anything to satisfy it." They dropped the assault charge and other charges, and gave Michaels a suspended sentence for fighting. Yosifon says he believes his client did not attack the other inmate, but he also believes such assumptions are irrelevant to his role as an advocate.
Supervising attorney Fitzpatrick says of Yosifon's efforts: "He was persistent like a Saint Bernard. He just kept showing up at the prison door."
Yosifon says of his work for PLAP that it's precisely showing up at the prison door that has been so powerful. Seeing a world, hidden away, where "men are kept in cages" is a sobering reminder of why he came to HLS in the first place--to understand the law and "the avenues it provides for social change."
"Every time I go into the prison, the waiting rooms are filled with family members who have not given up," he says. "I think that's very inspiring, but it's also incredibly sad to see the anguish."
Yosifon says one of the reasons that representing inmates in disciplinary hearings is important is that "it makes a statement to inmates and to their families that they matter, that they're entitled to [due] process, and that there are people who care about that entitlement and who care about them."
When 3L Nick Bath was two years old, a man in central Massachusetts was locked in the trunk of his own car and burned to death. Two stepbrothers, 17 and 25, were arrested, and they pleaded out to second-degree murder. Twenty-three years later, when Bath had finished graduate work in music and started at HLS, the younger of the two brothers, Peter MacKay, came up for parole, and Bath wanted to represent him. Now in his third year, Bath is still representing MacKay.
Bath says, "It's a sobering feeling, but a good feeling, to have someone lean on you, to have someone depend on you."
MacKay first came up for parole in 1997 and was represented by PLAP member Sarah Teachout '98. Parole was denied. When Bath represented MacKay at his next hearing in April 2000 with the help of Lisa Kavanaugh '00, again the parole board's answer was no. But Bath did convince the board to review MacKay's case this year rather than waiting the usual three years between parole hearings.
In a parole hearing, much of the student attorney's work involves building a relationship with the client, interviewing family members, and researching and writing a memorandum about why the inmate is a good candidate for release. Bath says working on the memo is like writing a biography: "You do the best with the historical narrative you have."
Although at disciplinary hearings, students often don't know what got their client into prison in the first place, in parole hearings it's a crucial part of the story. In addition to wanting a plan for how the inmate will function once released, Bath explains that the parole board "basically rehashes the crime to ascertain whether the inmate has fully grasped his responsibility." Bath's client has been denied parole in the past, he says, in part because the board questioned his story.
According to Bath, MacKay says that 23 years ago he only opened and closed the trunk as his brother stowed the man who had given them a ride, and whom his brother had gotten into a fight with and knocked out. Bath's client says the car then got stuck on a dirt road, so he removed the gas cap to stop the engine from overheating. He says he then ran away, and his brother lit the car on fire and left the man to burn to death.
Bath says his client "has done a terrible thing," but he believes MacKay has become a responsible person, and that "the purposes of his institutionalization have been served."
As MacKay's third hearing approaches, Bath knows his client's best chance of getting out is telling the whole truth, and he will continue to encourage him to try to fill in some of the gaps in his story.
Yet Bath questions "the degree to which one can really get from someone else the truth about something that happened over 20 years ago." He wonders how much his client can remember and to what extent he has forgotten parts of the story that are too painful to think about. "Does that mean we should unearth and break apart his construct?" Bath asks. "I'm not sure. I'm not sure that helps him be a better citizen."
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The semester is nearly over by the time Morey hears the results of the hearing she did almost a month ago. The major charges were dropped. The sanctions were two weeks' loss of TV, radio, canteen, and phone. As Morey is typing up the appeal, she says sheĞis surprised at how well it turned out. She's about to go home to upstate New York for the holidays, but before that she will be driving to MCI-Concord to prepare for another disciplinary hearing, this time on her own.