Injustice In Action

I would like to share some more of my experiences with Arizona's injustice system, again with the hope that it might help anyone who might become entangled in the nets of judicial bureaucracy.

When I first was able to view the police reports of my crime (after it had already been leaked to the media) I was completely flabbergasted at the assertion of some 60,000 images of a "dubious" nature. "Known or suspected images of illegal pornography" was the specific wording. A computer program had scanned the computer and external drive and this was the result of that scan.

I realized that there were duplicates of most of the images, as the search included all files that had been deleted for many months. I also realize that it included the vast majority of which were (while I'm not proud of them) of fully clothed or bathing suit images and not illegal.

I repeatedly and vociferously conveyed this to my attorney. She dismissed the objections as unimportant. When the judgment was made at the sentencing hearing, this factor led to an additional 2 1/2 years of prison time. My lawyer made a feeble statement about not relying on a computer to verify this claim.

Upon my initial appeal my new public defender also failed to raise this objection of mine and eventually my appeal for relief was denied for "no issues of factual objections".

Then, I petitioned the court of appeals, representing myself, and I was able to state my concerns and pointed out that this aggravating factor was not "proven beyond a reasonable doubt."

I just received notification that my appeal was denied. Though I really knew it was a long shot, I've come to have little faith or expectation in the justice system, but it still caused some angst, removing yet another layer of hope to an earlier release.

But what really bothers me was the statement as to the reason for my denial: " (the defendant) did not raise this argument below, instead implicitly acknowledging he had possessed tens of thousands of images. Accordingly, we do not address this argument further."

So my lawyers refusal to voice my concerns in court implied tacit agreement. This point cannot be raised on appeal as it was not raised in the trial court, though I repeatedly brought it to my attorney's attention. Even before the hearing she basically had written me off, and was suggesting that I appeal the decision. After the hearing, she again suggested I appeal and that this could be a valid point of appeal. One would think that, as an experienced attorney, she would know that in appealing a hearing, one is limited to the points that had been raised. I suspect that she didn't want to deal with and actually checking my assertion and wanted my case over and done with.

Of course, in retrospect, I should have been more proactive. I naively assumed that the attorney knew what she was doing. I must also point out that I was taken to the courthouse, in cuffs, after being awakened at 3:30 AM. I was not at my mental best, barely able to choke through the statement I had prepared. The prosecutors words and accusations barely penetrated my mental haze.

Would this issue have changed the outcome? I don't know, but I do know that my judge and prosecutor both have reputations of being severe. My public defender told me straight out that with 90% of the other judges I would have had a lighter sentence. Justice is determined by a roll of the dice it seems.

I'd also have the opportunity to raise this issue throughout the appeals process. While I have little hope remaining, I plan to continue to fight and take it to the next level. At least it's something to do.