Appeal Update

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 9^th 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 9^th 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 9^th 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 The ruling was also «unpublished» (i.e. Recorded in the Federal law books) which is also very unusual for a «death penalty» case because of their scarcity and importance (i.e. relevance to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 9^th 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 9^th 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)