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1 P r i s o n B r e a k Correctional Liability Update November 2013 Susan E. Coleman is a partner at the law firm of Burke, Williams & Sorensen, where she specializes in law enforcement defense, including correctional litigation. Ms. Coleman has 19 years of litigation experience. She is an associate of the American Board of Trial Advocates (ABOTA) with over 30 civil jury trials throughout California. scoleman@bwslaw.com direct: Breaking the Chain: Problems with Chain(s) of Custody By Susan E. Coleman A flawed chain of custody can result in the acquittal of a criminal. For example, in O.J. Simpson s double murder trial, Mark Fuhrman documented a bloody fingerprint on the gate but the fingerprint was not collected into evidence. Nicole Simpson s body was covered with a blanket from inside the house, contaminating the crime scene. Items were collected and put into bags together instead of stored separately; wet items were collected and bagged before they dried; and LAPD footprints outnumbered any potential perpetrators footprints. The defense dream team capitalized on these errors to obtain an unexpected acquittal. Similarly, a civil trial can be sabotaged if the chain of custody for critical evidence is flawed. More technical evidence, such as blood, DNA, urine, or fingerprints, requires a stricter chain of custody because its uniqueness relies on expert testing and interpretation and is not evident to the layperson or the naked eye. Additionally, samples of this type of evidence may be contaminated, affecting the test results. November 2013 Prison Break Page 1 Other evidence, such as photographs or diagrams, which can be authenticated at trial by testimony that the photo or diagram fairly and accurately represents the area and/or looks like the area as it was at the time of the incident, does not need to be as carefully maintained in order to be admitted. This type of evidence requires only a rational basis for finding that the evidence is what it is alleged to be, with the proponent only expected to take reasonable steps to preserve the evidence. While digital photos and video theoretically may be altered with a computer, courts will require affirmative proof of tampering and/or alteration in order to exclude it. If an evidence log for surveillance video is poorly maintained, with some movement of the video not being entered in the log, the video still will likely be allowed into evidence as long as someone testifies that it shows the area and/or events videotaped. However, although these discrepancies do not necessarily affect the admissibility of the evidence, they do affect its weight. To be effective at trial, a proper chain of custody is important in order to show that procedures were followed and that there is no chance the blood, fingerprint, ammunition casings, or other evidence is from another source or location. The moving party should always be prepared to demonstrate the security of its systems and show how it can confirm that the data has not been altered. If electronic data or physical data is transferred, it should be documented (each time) and those records must be well maintained to ensure their admissibility as business records. Additionally, it is optimal that the person authenticating the evidence is a competent and credible witness with knowledge of the chain of custody process. Common sense should also be exercised in maintaining the chain of custody. For example, if a tactical use of force or post-use of force interview is videotaped, only one person should operate the video

2 Burke, Williams & Sorensen, LLP offers the expertise, depth, breadth, and quality service you need in the area of Correctional Litigation through the specialized knowledge of our featured attorneys. camera unless some unforeseen emergency arises. If a lawsuit later occurs, the person who videotaped the incident or interview will be a witness at trial. This testimony loses effect if the videotape operator testifies that after a few minutes of taping, she passed the videocamera to another person. Not only will the second videocamera operator also potentially need to testify at trial, to authenticate that portion of the video, but the inmate and/or his attorney will argue that, during the camera switch, there was an unrecorded use of force. Further, when a camera swap occurs during a recording, the video shoot typically loses film quality, resulting in a Blair Witch -reminiscent blurry movement. Anything that can be used in court to help the jury make a decision on the issues involved is evidence. It is important to properly photograph, tag, collect, and maintain evidence so that it may be used in court to your advantage. If your department or institution has a policy on evidence collection and/or the chain of custody, learn it and follow it religiously. Any deviations from the policies and procedures will be used against you in court, to argue that you tampered with the chain of custody and thus sullied the evidence. After all, both criminal and civil suits should be decided on the merits, and not affected by arguments about the integrity of the evidence. Martin Kosla is a senior associate who practiced for 4 years in Australia before moving to California in Martin has been defending law enforcement in civil rights cases since He served in the Royal Australian Artillery before becoming an attorney, and has black belts in karate and taekwondo. mkosla@bwslaw.com direct: The Country s Most Litigious Prisoner? By Martin Kosla In defending prison and jail employees throughout the state, we have seen our share of litigious inmates. We have defended multiple lawsuits filed by the same pro se inmates, and we ve even had to defend their attempts to add us as defendants to their complaints. We have also seen our share of frivolous lawsuits. These have ranged from inmates alleging that cows grazing outside the prison gave them serious nostril problems to inmates claiming they became constipated after having a roll of toilet paper thrown at them by correctional staff while they were sitting on the toilet. So far, we have not encountered a pro se prisoner like Jonathan Lee Riches. Riches has filed thousands of lawsuits during his 10 year prison sentence. The 35-year old was sentenced to federal in prison in the early 2000 s for fraud and conspiracy related to an identify-theft scheme. Riches claims that he has penned so many lawsuits that he has sustained arthritis in his fingers, numbness in his wrists and crooked fingers. Apparently, he receives around 25 pieces of mail per day from lawyers and courts, and from stalkers and fans. According to Riches, he flush[es] out more suits than a sewer. Indeed, Riches has filed lawsuits against hundreds of celebrities, presidents, athletes, video game manufactures and business people. His named-defendants have included Britney Spears, George W. Bush, quarterback Michael Vick, Bill Gates, Martha Stewart, and Wikileaks Julian Assange, just to name a few. Riches has also sued objects like the Eiffel Tower, the Holy Grail, the planet Pluto, and the margarine I Can t Believe It s Not Butter. November 2013 Prison Break Page 2 A few years ago, the Guinness Book of World Records apparently attempted to name Riches as the most litigious man. What did Riches do? He sued, of course. In that lawsuit, Riches alleged that Guinness sent him a letter congratulating him on having the world record for filing the most lawsuits in the history of mankind. The letter allegedly stated that Riches had filed more than 3,000 cases in federal court and over 2,500 cases in local and state courts. Riches sent Guinness numerous

3 letters informing them that he didn t want to be in the record book because Guinness got the facts wrong. Riches claims he has only filed around 4,000 lawsuits worldwide. He also accused Guinness of slander, claiming that they were calling him Johnny Sue-Nami and Sue-per-man. This allegedly hurt his feelings and violated his civil rights. The Washington District Court was not impressed. The court held that the bruising of Riches fragile ego did not constitute a federally redressable grievance. Because the case was just one more in a pattern of pleadings filed for no apparent reason, the court enjoined Riches from filing future lawsuits in that district. In April last year, Riches was released from federal prison and ordered to serve five years of parole in Pennsylvania s Eastern District. But his parole didn t stop Riches from filing at least one lawsuit. In June of last year, Riches sued Kanye West and Kim Kardashian for allegedly being terrorists and performing a concert at a terrorist training camp in the deep hills of West Virginia. Late last year, Riches turned to pranks. He drove to Connecticut and impersonated the uncle of the shooter from the Sandy Hook Elementary School massacre. Riches was arrested a few days later for violating his parole and remanded to the Chester County Prison in Pennsylvania. Now that Riches is back in prison, and can no longer pull pranks or make tweets (@johnnysuenami), only time will tell who (or what) he names next as a defendant. Kristina Doan Gruenberg is an associate at Burke. Prior to joining the firm, she served as a judicial law clerk in the District of Columbia, handling civil and criminal cases, including many inmate complaints. kgruenberg@bwslaw.com direct: November 2013 Prison Break Page 3 Shelving Prison Law Books for Digital Resources By Kristina Doan Gruenberg Prison law libraries have been highlighted in pop culture, from the movie Shawshank Redemption to the Netflix series Orange is the New Black. However, the images of rows of books may soon become obsolete, as many prisons are replacing books with computer databases in order to save money. California was one of the first states in which the courts addressed prison law libraries. In Gilmore v. State of California, inmates from San Quentin filed suit concerning their access to law books and the courts. In 1972, the court ordered an injunction requiring California to maintain a specified list of legal literature in its prisons to help inmates access the courts. Although the injunction ended in 2010, the California Department of Corrections & Rehabilitation implemented regulations which require each facility to maintain, at a minimum, the complete and updated materials that were set forth in the Gilmore injunction. Prison law libraries then proliferated across the country after the Supreme Court case of Bounds v. Smith. In this landmark case from 1977, the Supreme Court held that: The fundamental constitutional right of access to the courts requires prison authorities to assist inmates in the preparation and filing of meaningful legal papers by providing prisoners with adequate law libraries or adequate assistance from persons trained in the law. Although most prisons opted for building law libraries over hiring individuals to help inmates with their law suits, neither option is inexpensive. Studies have indicated that initial start-up costs for law libraries run between $60,000 and $70,000 per library for a basic core collection of state and federal material. Moreover, there is the additional cost of updating the books each year, which could range from

4 Burke's Correctional Litigation Team routinely deals with the following issues: First Amendment Fourth Amendment claims of unlawful search and seizure Eighth Amendment excessive force and deliberate indifference to safety or medical needs Fourteenth Amendment due process Religious claims under the First Amendment and RLUIPA Section 1983 claims of all types Bivens claims Torts including negligence, wrongful death, assault and battery, conversion, Bane and Unruh Act claims Class action litigation Parole and probation issues Employment issues thousands to tens of thousands of dollars. Finally, many prison have had difficulty finding space to house these growing libraries, not to mention that for prisons with multiple facilities or yards, one law library is needed for each facility in order to accommodate the long list of inmates seeking access and to avoid transporting inmates from different yards and/or custody levels. This is where Westlaw and Lexis-Nexis, the two major online legal research companies, have entered the fray, making the pitch that they will help prisons comply with the law and provide cost savings. These companies both have various options for prisons, ranging from CD- ROMs with electronic information that can be uploaded onto computers, to touchscreen computer kiosks with restricted online access so that prisoners can access legal materials but not the internet. Both companies market the fact that their resources take up less space, are secure, and are cheaper to update than physical books. Thus far, this system has worked in some prisons. For example, at Kern Valley State Prison, the prison has computers loaded by Westlaw with cases, statutes, regulations, and other legal resources. Instead of requiring the librarian to find and photocopy pages from books, inmates are able to print out selected pages. Further, there is anecdotal evidence across the country that these digital resources are more cost effective. A western Pennsylvania county prison warden told city council officials that he expected to save $20,000 to $24,000 a year by providing inmates with computers for legal research. However, before jumping on the digital bandwagon, prisons should assess whether it will be cost effective for their particular institution. How much it costs to update legal resources can vary based on the size of the library, and therefore this may not be cost effective for smaller institutions. Further, institutions will need to make sure that their staff is trained to handle these online resources and have the resources to upkeep the computers. Finally, prisons should ensure that the plan that they are getting does not have any hidden fees. For example, institutions should ensure that the yearly fee for the online services is a flat fee rather than being based on the number of searches performed or the amount of time (which is how Westlaw and Nexis often charge law firms) or based on what types of resources are accessed. Fees based on a per-search or time basis could quickly add up, especially with litigious inmates who are not using their own funds to perform the searches or print jobs. November 2013 Prison Break Page 4 Finally, while many inmates would welcome this change, there will of course be other prisoners who complain. In 2011, an Ohio inmate, Dwayne Harris filed a lawsuit challenging the prison s decision to replace most of the legal law books with 7 computers that had Westlaw. Harris complaint stated that the prison was missing 14 important books, he was computer illiterate, and that 7 computers were not enough for all the prisoners to conduct legal research on. Although Harris suit was dismissed because he was declared a vexatious litigant and did not pay the filing fee, Harris was unlikely to win anyway because he could not show that he had suffered any actual harm from these purported problems. As the Supreme Court stated in Lewis v. Casey, an inmate does not have grounds to sue unless he can show the alleged deficiencies in the library specifically hampered his ability to present a violation of fundamental constitutional rights to the court. This standard to assess a claim of denial of access will apply regardless of whether the law library stays with books or embraces the computer age.

5 Mitch Wrosch is an associate at Burke. He has four years of specialized experience in correctional litigation, with four civil jury trials. direct: Twelve Angry Men? A Primer on the Seventh Amendment Jury Requirements in Federal Court By Mitch Wrosch Many inmates who have lost a civil jury trial argue on appeal that their Seventh Amendment rights have been violated. Specifically, they allege that the federal trial judge erred in seating only six or seven jurors, instead of 10 and 12 jurors, and that they are entitled to a new trial. However, this argument is misguided and apparently stems from the inmates criminal jury trial experience in state court, where juries are more populated. The Seventh Amendment to the U.S. Constitution states: November 2013 Prison Break Page 5 In suits at common law, where the value in controversy shall exceed twenty dollars, the right of trial by jury shall be preserved, and no fact tried by a jury, shall be otherwise reexamined in any court of the United States, than according to the rules of the common law. Thus, the Seventh Amendment guarantees a jury in civil cases. Noticeably absent from the text of the Amendment is any mention of how many jurors are required. However, the apparent position of the inmates who argue this is that they are entitled to 12 jurors. In Williams v. Florida, 399 U.S. 78, 90 S. Ct. 1893, 26 L. Ed. 2d 446 (1970), the Supreme Court held that the Sixth Amendment does not guarantee a right to a jury of 12 persons in criminal cases. The Court did not address whether this conclusion should apply to civil cases as well under the Seventh Amendment. Two years later the Ninth Circuit Court of Appeals weighed in on the debate in the matter of Roland v. Colgrove, 456 F.2d 1379 (9th Cir. 1972). There, the Court was faced with deciding the constitutionality of a Montana federal court s local rule which held that six jurors will sit on civil trials in the court. In that case, the petitioner argued that he was entitled to a jury of 12, and that the local rule violated the Seventh Amendment. In denying the application for the writ, the Ninth Circuit held that the Supreme Court s ruling that the Sixth Amendment did not guarantee a right to a jury of 12 in a criminal case should apply with equal force to civil trials under the Seventh Amendment. The Roland decision was affirmed one year later by the Supreme Court in Golgrove v. Batton, 413 U.S. 149; 93 S. Ct. 2448; 37 L. Ed. 522 (1973). There, the Supreme Court specifically held: We conclude that a jury of six satisfies the Seventh Amendment s guarantee of trial by jury in civil cases. Colgrove, 413 U.S. 160; 93 S. Ct. 2454; 37 L. Ed This has since been memorialized in the Federal Rules of Civil Procedure, which state that A jury must begin with at least 6 and no more than 12 members. Fed. R. Civ. P. 48. In sum, although inmates may argue that their Seventh Amendment rights were violated by having less than 12 jurors, this argument is a losing one. In federal court, judges typically seat 7 or 8 jurors, so that the loss of a juror or two during trial does not result in a mistrial, so long as 6 remain to verdict. However, there are no alternates in federal court, so all sworn jurors must deliberate and render a unanimous verdict. It should be noted that the parties may stipulate to accept a verdict that is not unanimous, but at least 6 jurors must support the verdict; thus, for example, a vote for one side by 6 of 8 seated jurors would be sufficient if stipulated in advance, otherwise this vote count would result in a hung jury and mistrial because it is not unanimous.

6 Ulysses Aguayo is an associate at Burke, Williams & Sorensen, where he works in correctional litigation and law enforcement defense. He graduated from Loyola Law School in spring Prior to joining Burke, he served as a judicial extern to the Honorable S. James Otero, of the Central District of California. uaguayo@bwslaw.com direct: At Burke, the broad range of our areas of expertise mirrors California's own vitality, with respected, proven practices in: Education Law Labor & Employment Litigation Public Law Real Estate & Business Law Changes in California Law Affecting LWOP Sentences for Youth By Ulysses Aguayo In 2012, the California legislature enacted Senate Bill 9, a bill authored by Senator Leland Yee of San Francisco. Under SB 9, juvenile offenders sentenced to life without the possibility of parole (LWOP) can seek a hearing to reduce their sentences to an indefinite term of 25 years to life, with the possibility of parole. SB 9 was enacted after a string of Supreme Court cases which banned LWOP for minors in some situations. For example, in Graham v. Florida, the Supreme Court prohibited states from sentencing juvenile offenders to LWOP for nonhomicidal crimes (such as rape). In Jackson v. Hobbs and Miller v. Alabama, the Supreme Court barred states from imposing mandatory LWOP sentences for juvenile offenders even those that commit murder. Many organizations opposed SB 9, voicing general concerns that the new law requires a low standard for eligibility, and dangerous criminals would thus be released. The reality is that SB 9 only creates an opportunity for resentencing which, if obtained, will primarily affect an LWOP-sentenced juvenile s possibility of going before a parole board. In addition, SB 9 has a high standard for eligibility because inmates are heavily scrutinized for factors that tend to show or disprove their rehabilitation, such as their disciplinary history. And although there is a concern that dangerous criminals will be released under SB 9, the bill only applies to a very small portion of the prison population as of early 2013, around 300 state prisoners were serving LWOP sentences received as juveniles. Below are some things people should know about SB 9. First, resentencing hearings are difficult to obtain and require numerous criteria to be met. For instance, only those sentenced to LWOP for crimes committed while under the age of 18 can petition for a hearing. And of those inmates, only those who have served at least 15 years of their original sentence can petition for a resentencing hearing. In addition, an inmate s petition must include a statement of remorse and a description of the inmate s work toward rehabilitation. This will prove difficult because the inmate s prison history will be heavily scrutinized by the courts; and often times, inmates join disruptive groups or prison gangs and/or rack up numerous disciplinary violations, both of which disprove efforts to rehabilitate. Moreover, if an inmate s petition is denied, the earliest he can try again is after serving 20 years of the original sentence. The next opportunity is at 24 years, and the final opportunity to petition for a resentencing hearing may occur after the offender has served 25 years of his sentence. November 2013 Prison Break Page 6 Second, resentencing hearings do not ensure the inmates will be released. Even if a court believes the statements in an inmate s petition, it still must hold a resentencing hearing to determine whether to recall the LWOP sentence and re-sentence the inmate. In conducting the hearing and making a decision, courts have broad discretion. One option is for a court to leave an inmate s original sentence undisturbed. Alternatively, if the court recalls an inmate s LWOP sentence, the rules governing resentencing still provide for fairly lengthy prison terms. For example, even when a court recalls an LWOP sentence, it must instead impose a sentence of 25 years to life, with the possibility of parole. This means the inmate could still remain in prison for the rest of his life,

7 depending on his behavior in prison and how his rehabilitative efforts are viewed by the parole board. Finally, courts can consider other criteria during resentencing hearings, but must identify those considerations on the record. An example of how that discretion might apply is where the victim, or the victim s family, participates in the resentencing hearing; and the judge scrutinizes the offender s body language in search for signs of remorse. The effect of SB 9 will be to further inundate prison Litigation Coordinators and library staff. Prisons are already overwhelmed with record numbers of subpoenas and habeas petitions because of California s passage of Proposition 36 (modifying the Three Strikes law). Nevertheless, prisons should expect an increase in inmates requesting Priority Library User Status and library resources to work on their petitions for resentencing hearings under SB 9. It is important that prisons prepare for such an increase in order to avoid civil liability, since prisoners have a constitutional right of access to the courts under Lewis v. Casey, which in effect grants them library time and resources. We'd Appreciate Your Feedback! If you would like to see any specific topics addressed in future issues, please let us know. Also, if you know other people who would be interested in reading this newsletter, let us know and we'll add them to the distribution list! Law Offices Throughout California 444 South Flower Street Suite 2400 Los Angeles CA November 2013 Prison Break Page 7