"Child Porn" Update 2: The Appeal

I got the DHO report on Friday, May 1^st. The DHO (Disciplinary Hearing Officer) practically came right out and said what I said he was thinking; that I am guilty, not for having unauthorized pictures, but for having unauthorized thoughts about otherwise authorized pictures. He wrote that although the pictures are not sexually explicit (or nude), he «believes it was inmate Duncan's intent to possess these photos for the sole purpose of stimulating his sexual desires and to arouse his sexual feelings». (Yes, that is an exact quote!) In other words, even though the pictures are authorized by policy, they are unauthorized for me because I am a sex offender with crimes against children. And he tries to rationalize this bias by using a policy for Federal SOMP institutions (Sex Offender Management Programs). But, he cites the policy out of context and tries to make it say something it doesn't say at all.

After I received his report I immediately put a request to use a «law library» computer, and I looked up the policy he tried using to justify punishing me for having «morally degrading» thoughts. This policy (or, B.O.P. «Program Statement») states very clearly and in several places, that special restrictions (such as not being allowed to have pictures of children) can only be applied at SOMP institutions, and even then only after a risk assessment evaluation by specifically trained SOMP psychology staff.

Needless to say, USP Terre Haute, where I am held prisoner on death row, is not a SOMP institution, and I have never been evaluated for or received notice of any kind of special restrictions.

The DHO conspicuously fails to acknowledge the fact that I provided him with a redacted copy of the letter that accompanied the picture that he says is child pornography (according to a definition that he misconstrues from Merriam-Webster dictionary while completely ignoring the Federally defined legal definition that I provided him a copy of at the hearing, which says clearly that the picture is not even questionably pornographic). The letter contains text (that I highlighted to make clear) which clearly references the pictures that were inclosed, the reason why they were enclosed (unsolicited), and the fact that no effort was made to conceal them in the letter. This letter proves that the pictures were inspected and authorized by the mail-room staff, and were in fact issued to me through regular channels (inmate mail). And yet, the DHO found me guilty of «prohibited act» #305, «Possession of anything not authorized... AND not issued through regular channels!»

I couldn't be anymore NOT GUILTY than if the picture was a publicity photo of the pope handed to me by God Himself! And yet, still the DHO imposed a sanction (punishment) far more severe than most inmates would get for fighting! A #305 isn't even considered a serious infraction, and normally wouldn't warrant more than 30 days loss of a single «privilege». I lost 120 days of several different «privileges»! And, if that weren't bad enough, the DHO fined me for $75, which just happened to be almost exactly how much money I had in my account at the time (i.e. he emptied my account).

It seems obvious that the DHO is going out of his way to severely punish me for having deviant thoughts about an innocent picture. This really shouldn't surprise me too much though, since it is perfectly consistent with the way I have been unfairly treated and systematically persecuted (outside of the law) as a «sex offender» since I was 16 years old and made a 14-year-old boy suck my dick (thinking he'd like it if he tried it, and certainly not thinking I was really hurting anyone). It is the kind of treatment that caused me to serve over 14 years in prison for a crime that the law clearly states should have warranted no more than four or five years. And it was this exact kind of injustice that ultimately fueled my rage and made me feel entitled to a little «justice» of my own after I finally did get out of prison (i.e. it fueled the emotional impetus that compelled me to rape and murder children – and I'm not making an excuse, I'm only stating a plain hard truth).

And, if you think that, «Well, you're in prison for life now, sicko! So it doesn't matter how unfairly they treat you this time!» That's exactly what they said (or thought) about Westley Allan Dodd. And they were right, Dodd never got out of prison again; they hanged him at Walla Walla State Penitentiary. But, I was there, in prison at Walla Walla when they hung him, and I did get out. And how do you think news of Dodd's unfair treatment effected me, and the choice I had to make about whether to «get even» or not? Especially in conjunction with all the unfair treatment I had received personally as a «sex offender»? As they say, what goes around comes around; and you can't stop something from coming around just by killing the person it went around to. The only way to stop it from coming around is to not make it go around!

So, anyway, I wrote my appeal. I spent a week working on it in fact, and even consulted with my attorney during a special legal call about it. I made my appeal as concise and as clear as I could. I cited specific B.O.P. policies and Federal laws that the DHO distorted, ignored, and contradicted in his report. I also provided documented evidence of the facts that proved I had been explicitly authorized to have the picture. But, I left out any mention that the DHO makes a big deal out of the fact that I once mentioned, as an aside to another point, that I claimed to not be aroused by the picture. The only point I was trying to make when I said that was that it doesn't matter if I was aroused or not. If I am aroused by pictures of women's shoes, that doesn't make pictures of women's shoes «pornography». And in fact, I'm not aroused by the picture that was confiscated. Yes, she is a beautiful child, but she is far too «unchildlike» for my preference when it comes to children. I openly admit to being aroused by some pictures of children; but this is not one of them. And again, it doesn't matter if it is or isn't. It only matters whether or not the picture does or doesn't violate some law or B.O.P. policy; and it doesn't in either case! And as another aside from the issue at hand, I do not keep pictures of children that do arouse me in my cell, and never have. This picture was found in a folder I keep with drawing material, and not with any other pictures of children.

I decided to leave any mention of this out of my appeal because I did not want to engage in an argument over whether or not my thoughts are or aren't «authorized». I wanted to keep the argument focused on the fact that nothing I did (or had in my possession) was unauthorized.

After I finished preparing my appeal, and wrote it out as neatly as I could on two sheets of paper, I asked Mr. Shepherd, the Case Manager, to make copies for me (we are required to submit the appeal with four copies), which he does routinely for other prisoners and has done for me in the past. But, this time he refused.

Actually, Shepherd didn't refuse himself. The written request that I handed him asking for the copies was returned to me by Mr. Edwards, with a message written on it in Edward's handwriting that said I must obtain copies from the Education department, and no other information.

The problem was that the appeal has to be mailed and received at the Regional Office (in Kansas City, KS) within 20 days of receiving the DHO report. If Mr. Shepherd made copies for me like he was supposed to then I had plenty of time. But, getting copies from the Education department could take days, even weeks, that I simply didn't have. I suspect Mr. Edwards was well aware of this fact, and was attempting to prevent me from filing my appeal in a timely manner (which the Regional Office is notoriously strict about).

Luckily I had a copy-card (a pre-paid card that allows prisoners to use a copier in the «law library» room) that I had saved for just such an emergency. But, it only had eight copies left on it, and if done properly, the appeal would require about 12 copies (including a copy of the DHO report and evidence being submitted). But, I made it work by reducing several pages to side-by-side copies (two pages on one copy). Thus I managed to get the copies I needed and submit my appeal on time. (As it turned out, the Education department only accepts copy jobs once a week on Wednesdays during their unit «walk through», and on this particular week the «walk through» got cancelled, so there would have been no way for me to get the copies made before the appeal deadline if I had been forced to rely on that route as Mr. Edwards tried to make me do.

So, I got the appeal in the mail on May 14^th, and I later learned that it was received at the Regional Office on May 18^th, rejected on May 20^th because the copies were «illegible» (so they claimed – I could read them fine, and my eyes are bad) and because I'm only allowed (according to them, but not in the policy anywhere, I checked) a one-page attachment, not two. But, I received no notice at all about this rejection until June 3^rd.

So, I hastily re-wrote my appeal and reduced it to its core arguments and to one page (even though the DHO's report that I was trying to argue against was several typed pages long). In the meantime I had purchased a new copy-card, so this time I had no problem at least in making the required copies and re-submitting the «corrected» appeal (which had to be done within 10 days).

I mailed it out again on June 4^th, and received a notice on June 10^th that it had been received (and accepted this time) and that the response is due by July 8^th.

But, that's not the only paperwork I have in the works. Because there is a good chance that I may end up having to take this mess to a Federal judge (i.e. If I cannot resolve it within the B.O.P.), I have also filed a formal complaint against the DHO himself for «unconstitutional conduct» (I) Or, at least I have been attempting to do so since shortly after the DHO hearing. My complaint has been rejected four times already; each time for an even more ridiculous reason.

The first time it was rejected because I had failed to provide a copy of the incident report that I was «appealing», even though I wrote in big letters across the top of the complaint, «THIS IS NOT AN APPEAL!» And this was around the time that Mr. Edwards was preventing me from being able to get copies made, so I re-submitted it with an explanation pointing out that it was not an appeal and therefor the incident report should not be required. I also explained that there was no way for me to obtain a copy of the incident report because my funds had been taken (unlawfully) by the DHO (so I couldn't buy a copy-card) and unit staff refused to make copies for me.

This was rejected again for the same reason. The rejection form said, «You still must submit a copy of the incident report.» It was as though whoever was processing my complaint wasn't even reading what I had written! I still had no way to make the required copy (a single page document that they could easily obtain anytime they wanted from Unit Team staff). And, the only incident report I had was the original copy, without any disposition information (such as the incident report number, which is assigned at the initial UDC hearing), which was given to me on the day that the picture was taken from my cell. So, I attached this to my complaint (without making a copy) and re-submitted it.

It was rejected this third time supposedly because it could only be submitted at the Regional level. «This is not an institutional level complaint» is what the rejection notice claimed. But, I anticipated this from the get-go, so I actually submitted the exact same complaint, by mail, to the Regional Office at the same time that I submitted it the first time at the institution level, and the Regional Office rejected the complaint (as I suspected they would) because there was no institution level attempt to resolve the issue. So, I submitted the complaint for the fourth time with a copy of the Regional rejection notice (I had since received some money on my account and the first thing I bought was some stamps and a copy-card, literally!).

But, even this was rejected for the most ludicrous reason yet. According to the latest rejection notice my complaint is «untimely» because it was initially submitted more than 20 days after I saw the DHO, which the notice claims was on «Feb 13». February 13^th was the date that the picture was found and confiscated. I did not see the DHO until April 15, which is the date that the complaint is about. So, I am re-submitting the complaint now for the fifth time, with a copy of the DHO report (which shows the date of the hearing) and a copy of my initial two-page appeal (as supporting evidence of the DHO's misconduct) along with it.

I'll post the responses I receive to my appeal and my complaint (if it ever gets accepted) in another update. But, for now I'd like to point out that the B.O.P. «Administrative Remedy Program» is clearly dysfunctional. Of the dozens of «remedy requests» I have made over the years only one has ever been accepted at the institutional level (and one more – this latest appeal – at the Regional level). All the rest were rejected (never processed) for reasons just as nonsensical as the ones above. I also kept re-submitting my complaints in the past, but eventually just threw my hands up in the air after I started getting rejection reasons that made no sense at all (like this last one). But, this time I can't just give up, because this injustice is severe enough to threaten my life (this «child porn» accusation could, and would, be used against me in court if I ever have another death sentence trial) and the honor of those I love. So, I will keep fighting, and keep re-submitting my appeals and my complaints, as long as necessary.

  [J.D. June 11, 2015]

 

Notes:

(I) In order to file a «Tort Claim» (law suit) in Federal court the plaintif must establish some kind of misconduct on the part of BO.P. staff. And, I must also prove that I have exhausted all institutional remedies. So, if I just filed a regular appeal, without also filing complaints against the DHO, then the BO.P. would move to have the Tort Claim dismissed since I could not show their misconduct. And, if I had waited until I received the DHO report before I filed the misconduct complaint then it would have been dismissed as «untimely». As I've said before, the System is designed to «protect and to serve» the ones who make the rules so they can break them whenever they want. Only rarely are they prevented from doing so, and when they are they make a big show out of it in order to convince people that they must «follow rules too». But, if you ask anyone who has ever been under the System's thumb, you'll find out the only reason for rules at all is to let the people who make the rules do whatever they want.