There comes a day in every criminal case when police and prosecutors presume there is nothing left for a prisoner to do except serve out the remainder of his sentence.
A jury, unconvinced by his protestations of innocence, has convicted him. Appellate courts have long since rejected arguments that a new trial is warranted based upon claims that his legal rights were violated. Finally, all of the due process to which a defendant is entitled has been exhausted.
Barring the remote possibility that he will receive a pardon or be granted executive clemency, there is no way for this prisoner to escape the clutches of criminal justice.
But that doesn’t mean he will not try.
In every correctional facility there are small cohorts of prisoners busily devising legalistic schemes to secure their liberty illegitimately.
I have seen such men at work time and again over my 25 years in confinement. They are cunning and unscrupulous.
Even at such a belated stage of the criminal justice process, these prisoners believe that compromising witnesses is a realistic post-conviction remedy.
Of course, this is sheer fantasy.
Still, this delusion makes them willing to do damn near anything to obtain perjured affidavits from former witnesses recanting their trial testimony. Then, these prisoners can file legal briefs arguing that this “newly discovered evidence” justifies reversing their convictions and sentences.
I am not revealing a big secret.
In fact, as far back as the Great Depression, the Washington Supreme Court proclaimed, “The untrustworthy character of recanting testimony is well known by those experienced in the trial of criminal cases, and when such evidence is offered, it calls for a rigid scrutiny.”
Given this “rigid scrutiny,” I have yet to see a court hoodwinked by such a scheme. Nevertheless, countless prisoners continue laboring to present manufactured evidence in a pro se legal brief.
Bribes, extortion, manipulation—all are employed to try and obtain a new trial.
One classic method that I have seen utilized repeatedly to get such evidence I refer to as “Granting Immunity.” Its success rests upon the foolishness of witnesses who continue to live lives of crime after they assist the government in sending someone up the creek.
All too often prisoners were sold out by accomplices whom the government rewarded by allowing them to remain free. At other times, the testimony of a prisoner’s criminal associates contributed to his loss of liberty.
Fortunately for prisoners who wish to try their hand at beating the system, the snitches who testified against them are likely to end up in the penitentiary for their own criminal misdeeds.
This is the point at which “immunity” can be granted by either the prisoner who was testified against or his confederates.
The offer is simple: Sign an affidavit claiming to have lied on the witness stand in exchange for not having their corporation with authorities disclosed. Alternatively, suffer ass-whippings and harassment for the rest of their confinement and be shunted to the bottom of the prison hierarchy.
Needless to say, signing a pre-typed affidavit to ensure one’s skeletons stay closeted is the prudent thing to do under these circumstances.
Indeed, were guards to search the legal boxes of prisoners throughout the correctional facility where I am confined, I can guarantee that numerous affidavits signed under duress would be unearthed amongst the documents.
Yet even after all of the efforts to obtain this bogus evidence, the justice system has erected legal barriers to foil the best efforts by the worst of us.
For instance, to obtain a new trial in the State of Washington based upon a witness recanting their testimony the evidence must be credible, it cannot simply be cumulative or impeaching, and, it must be compelling enough to convince a jurist that had the evidence been presented originally it would probably change the results of the trial.
The failure to meet any one of these (or other criteria) is a basis to deny a new trial. This highlights why such sophomoric plots to deceive the courts are doomed from the start.
I don’t want to give the impression that I am unsympathetic to these prisoners’ motive.
I do morally object to their actions.
However, when police are shielded from real accountability and prosecutors all too often can commit misconduct with impunity, I refuse to condemn prisoners who attempt to beat the system to obtain their liberty.
Ultimately, these cunning and unscrupulous prisoners are simply a funhouse-mirror reflection of those who are willing to subvert the law in their pursuit of justice.
Jeremiah Bourgeois is a regular contributor to TCR, and an inmate at Stafford Creek Corrections Center in Aberdeen, WA, where he is currently serving 25 years to life for a crime committed when he was 14. He will be eligible to go before the parole board in 2017. He welcomes comments from readers.