I spoke to my appeal
lawyer this week on the phone, and he told me that several unusual
things occurred concerning the appeal he is pursuing on my behalf. As
I've explained here before, my attorneys filed an appeal without my
consent against my Federal death sentence. They claimed that I was
not competent enough to waive my appeal. The 9th Circuit
appeal court ordered a «retrospective» competency hearing to
determine if I was competent or not. The hearing took place in
January 2013 (two years ago), and after about a month of «expert»
testimony the judge eventually ruled that I was still competent
(affirming his original finding in 2008 when I opted to «waive» the
appeal).
My attorneys, of course,
appealed this new competency finding in the 9th Circuit,
and last month there was a hearing in San Francisco on their appeal.
Ten days after the hearing the three-judge panel issued their ruling:
denied. My attorney told me that he had never seen a 9th
Circuit ruling returned that quickly before, ever! (They usually take
at least 90 days to rule after a hearing.) He also said that the
ruling was unusually, and extremely short (only four pages long) and
that it did not address most of the issues he had raised in the
appeal. The ruling was also «unpublished» (i.e. Recorded in the
Federal law books) which is also very unusual for a «death penalty»
case because of their scarcity and importance (i.e. relevance to
other «death penalty» cases).
So, a lot of really
strange and unusual things seem to be happening all at once (though my
attorneys have told me many times that my whole case is strange and
unusual, so I'm not too sure about what's different now). My lawyer
told me on the phone that he thinks that the current strangeness is
some sort of «reflex» reaction to their last ruling for a
«retrospective» competency hearing, which was as «unusual» as it
gets in appellate court (such a hearing had never, ever, been ordered
before, so nobody even knew how it was supposed to work, and they
just more or less guessed their way through the whole thing and made
up the procedures as they went).
My attorney explained to
me that now he will request a «full court» hearing consisting of
all twelve 9th Circuit judges instead of just the
three-judge panel. He expects his request to also be quickly denied
(such requests are rarely ever granted). And because their ruling
explicitly denied my attorney's request to «reinstate» the appeal
(i.e. reverse my waiver of appeal), that means that at this point
there is no more appeal, and my death sentence is subject to resume
on schedule (whatever schedule that might be, I'm not sure). If
nothing else happens, I could (in theory?) be «released» (i.e.
«executed») by the end of this year. (I say, «in theory?» because
nobody seems to know how this all is supposed to work and are just
figuring it all out as they go --- at least nobody seems to be able
to tell me how it's supposed to work when I ask, and I have asked
several times, and the answer I get, if I get any answer at all,
usually starts out with, «I'm not sure, but I think...»)
My attorney says the next
step is to file a «2255», which is another type of appeal that
addresses non-trial issues (I think that's what he said, but I'm not
really sure at this point... all I heard for sure was «another type
of appeal»). I'm not real clear what a «2255» is, but I think it
is another way for my attorneys to request that the original appeal
be «reinstated», only this time based on «technical» arguments
instead of my «competency», like last time. And, I think that the
«technical» argument my attorneys are leaning on is the fact that I
eventually gave my attorneys my «consent» to proceed with the
appeal, but I did so long after the time-limit for filing an appeal
(see: "To: Whom It May Concern"). My attorney says it is extremely unlikely
that the appellate court will ultimately not allow the appeal to
proceed based on such a «technical reason, especially in a
death-penalty case. (He also suspects that at least part of the
reason the 9th Circuit moved so curtly with this most
recent ruling is because they too realize the same thing, that these
present proceedings are only delaying the eventual outcome, of the
appeal being reinstated on technical grounds.
I don't yet know if my
attorneys will file the 2255 with or without my involvement; that is,
whether or not I'll have to sign anything in order for them to do so.
And if I am asked to sign something I'm not sure if my conscience
will allow me to do so. It all depends on what exactly I am asked to
sign. If I am asked to sign something that essentially says that I
«agree» to an appeal proceeding, then I won't be able to sign in
good faith and likely won't. But, if it only says that I «consent»,
then it will be no different than what I have already agreed with in
my heart, and in that case I most likely will sign. I don't, of
course, see my «life» or «death» as important in this regard at
all; only whether or not I remain true to myself, and my principles.
(J.D. April 9, 2015)
