New and events of the Philadelphia Bar Asso.
Issue link: https://thephiladelphialawyer.epubxp.com/i/434516
the philadelphia lawyer Winter 2015 13 and his alleged co-conspirators, because no one was willing to inform how the deed was done; specifically, which prison personnel had been bribed to allow the "wannabe" dad (who had been celebrated in the press as "Sperm Boy" when word got out), to spill the beans as to exactly how the sowing of his seed had been accomplished. So, Little Louie found himself transferred from the Camp to the FCI. And that was only his second bad break. The worst was yet to come, resulting in his transfer from general population to administrative segregation. The incident that triggered that additional punishment was his alleged misuse of his telephone privileges. That disciplinary charge was based upon the translation of a statement Little Louie made to his own son on the prison telephone, all of which calls were overtly monitored. Speaking in Italian to his son about Louie's younger brother, who had refused to post bail for his own son, who apparently had fallen into drug use and was not attending to the family business, what Louie said, was translated as follows: "You tell my stupido brother, if I was there, I'd break his head with a two-by-four." That, according to the enthralled monitor, constituted a threat of violence, a violation of the institution's rules that got Louie transferred from his dorm in general population to administrative segregation. And that was when Lou's son, a pharmacist on Long Island, contacted me. Since Louie was serving a "new law" sentence – one imposed for an offense committed after Nov. 1, 1987 – there was no question of parole. Parole had been abolished, so the only avenue for relief was to institute some action against the Bureau of Prisons, which generally required embarking on a tedious course of successive stages of administrative review, with little likelihood of completing the required "exhaustion of administrative memories," before he completed service of his sentence. Administrative segregation entailed 23-hour days in a cell, with one hour in an individual yard, as well as suspension of visits and telephone privileges; in other words, in virtual solitary confinement. I was uncertain how to get quickest access to a forum in which we were likely to gain relief. Time was a factor, so I decided not to wait but proceed to do something to at least put the ball in play. So, I read the BOP disciplinary rules, and, as the Brits used to say, the penny dropped. Using bad language was not an offense for which an inmate could be sanctioned, unless directed at a corrections officer. The First Amendment, if not exactly flourishing behind prison walls, is still alive. So, cutting through the inflammatory reportage of Louie's language in the charging document (the "shot," in jailhouse argot) was the charge that he had threatened someone. But whom had he threatened? The evidence was clear that he hadn't actually been speaking to the person whom it could be said he threatened; but it was clear that he intended his threat to be conveyed to that person; so, if that was an offense, he was clearly guilty. That's when my law school education kicked in. I already had the answer; I had learned it 45 years earlier, on my first day, in my first class – Criminal Law 101. The answer was in the first case we ever studied, the first case in the "Cases in Criminal Law" textbook. Tuberville v. Savage, King's Bench Division, 1 Mod.Rep.3, 86 Eng. Rep. 684 (1669). Rather than risk reinventing the past through the prism of fallible memory, the relevant extracts from the administrative petition for relief I filed with the Bureau of Prisons read as follows: From a legal standpoint, the statement did not constitute a threat because Inmate did not manifest an intention to actually commit any harm and was in no position to do so. Other portions of his statement, and the circumstances in which made, negate any intent to inflict harm, and render the statement mere verbiage. Inmate's words, as referenced by the disciplinary hearing officer (DHO), were replete with expressions of subjunctive or hypothetical intent rather than actual intent. The DHO quotes Inmate as saying he "would" take certain action. In the context in which spoken, that was not an expression of the intent to inflict actual harm. The statement is reminiscent of the classic law school textbook case in which the defendant was charged with an assault because he said, "If it were not Assize time, I would run you through with my sword." The court held that the words spoken actually "unmade" the threat. Tuberville v. Savage, (1669), and acquitted the defendant. Several days later, I was shocked to receive a telephone call from counsel at the Northeast Regional office of the Bureau of Prisons, congratulating me on my research skills and pithy (he actually said "pithy," and he was not lisping) presentation of an argument based on so "venerable and hoary" (his words as well) precedent, which was sufficiently persuasive for his Using bad language was not an offense for which an inmate could be sanctioned, unless directed at a corrections officer. The First Amendment, if not exactly flourishing behind prison walls, is still alive. So, cutting through the inflammatory reportage of Louie's language in the charging document (the "shot," in jailhouse argot) was the charge that he had threatened someone.