A Hearing Down the Rabbit Hole and Weird Postscript


Catch-22 (A Dell book)That’s the way things go when
you elevate mediocre people to positions of authority . . .

He was jeopardizing his traditional rights 
of freedom and independence by daring to exercise them

                                                                          

                                                    Joseph Heller, Catch-22


Two years ago this week I started a courtroom Odyssey that was a cross between Catch-22 and the more annoying parts of Waiting for Godot. I’ve written about it before, but not on the blog, and now it has suddenly, unexpectedly, become topical – as I’ll explain below.  For now, it went like this:

Connecticut violated my plea agreement in filing a detainer when I was in Federal custody costing me transfer to a camp and release to a halfway house in November 2008.   I filed a habeas complaint and went forward with a Federal action against Connecticut and more than a few of its employees on a host of Constitutional issues.

Waiting for Godot: A Tragicomedy in Two Acts
The habeas was already scheduled for a pre-trial hearing when I was picked up by Connecticut in February ’09 (at which time I should have been home for three months) and tossed into Hartford County Jail. I had that hearing in June 2009 – I was driven by van from Willard CI at 9:00 am directly to the Courthouse, went straight upstairs to a conference room, sat in a comfortable chair surrounded by representatives from the Chief State’s Attorney’s Office, the Attorney General’s Office, the Department of Corrections, a clerk, a judge ring-mastering the proceedings.It was quick and affirming – I had decent points, I was having a parole hearing in July, would undoubtedly get it and be told to report to Federal Probation, so, “catch you later, we will reschedule it for August just in case, but …….” The judge, Levine, leaned conspiratorially close and asked me to give my word as an attorney I would withdraw the matter when parole took care of matters. and that was it, back to the van, back to Willard C.I. in time for lunch.

Parole, of course, was a nightmare (‘You were where? Federal prison? How’d you get there?”), I stilled my outrage and frustration with thoughts of the August pre-trial, prepared for it with single-minded abandon . . . . . and the first inkling I was not in Kansas anymore came the day of the hearing when I was woken at 3:30 am to go and sit in a holding tank (I’ve written pretty graphic descriptions of truly horrific events, and I’ve written them from a first person perspective – i.e., Antietam, Marye’s Hill, The Wilderness – but I can not bring myself to describe what one of those holding cells was like.  You want to see for yourself, watch the last season of the Sopranos and the scene where Tony is in lockup.  Disgusting, yes – now multiply by 10) for the next two hours; taken by bus to Walker to sit in another holding cell for two hours, then the ice cream truck**, jammed and marinating in the August heat, to Rockville and yet another holding cell. No van this time, just the cold realities of being transported by the DOC and State Marshals, six hours to get where I got in twenty minutes the first time around.

  I was fourth on the docket sheet, had an attorney waiting, my wife was to attend as well (to see first hand if anything I have been relaying about the process had a basis in reality) . . . . it is customary to take the cases with attorneys first, a timed honored courtesy . . . . so my inklings become screaming alerts when I sat through lunch and deep into the afternoon dying on a cement bench, listening to jailhouse stories, thirsty, hungry, feeling my concentration ebbing away.Four in the afternoon, I go upstairs, achy, stomach growling, shuffle into the conference room, see my wife first, pretty, bright eyed, I get to sit next to her – as close as I’ve been since I left the Fed six months earlier, it only briefly crosses my mind this is the first time she has seen me manacled – my lawyer is to her left, we shake hands.  Levine says hello, seated he takes my hand, immediately squirts Purell and cleans up while I watch, feeling as significant as any rodent. His clerk is to his sanitized right, next to her a portly woman looking like the guidance counselor in an ’80s John Hughes film (Ferris Bueller meets Ali McBeal?) representing the Chief State’s Attorney’s Office; to her right an angular, pock-mock faced man poorly dressed in a blue blazer well on its way to turning gray, radiating hostility – the representative from Richard Blumenthal’s office.

From there it is fast and furious . . . . the judge asks me to summarize my complaint . . . I begin, get twenty seconds in and am cut off . . . . I am peppered with questions that show only my lawyer and I have read the petition . . . . each of my answers is truncated with a new question or snide comments from the judge – someone, somewhere along the line, told him he was humorous and he took it to heart without getting a second opinion.

Finally, the judge asks me what I want, what I am asking for; I magnanimously state: “any solution which results in my going home and reporting to Federal Probation”, add that I will drop the habeas and Federal Civil Rights action – no one in the room blinks at the mention of the Federal suit despite the fact it has not been served yet.

The judge accepts that with aplomb – or total incomprehension, it was hard to tell by then – and asks the State’s representatives what they think:

Pock-mock: This isn’t my case; I’m just sitting in, not my call.

Guidance Counselor: Well, we’ve talked to his [original] lawyer and she says everything was fine, so, no, we won’t agree to anything.

Judge: Well, there you have it.

Me: [after appropriate pause to wait for him to continue] Have what?

Judge: [with same look one gives a puppy throwing up on one’s shoes] Well, now you drop it.

Me: No, I’m going to trial.

Judge: Well, that’s your right.

Me: Thank you —

Judge: But, I don’t see what good that would do.

Me: I am going to trial.

Judge: Well, you can, of course —-

Me: Thank you.

Judge: But, well, hey [he turns to the CSA woman – I do not remember her name, really- says, in the manner of a game show host saying “Tell him what he’s won, Johnny”] When can we schedule trial for?

CSA: [After mumbling, fake checking of calendar] Mid-February, Judge.

Judge: Mid- February [tone of one appalled by the pace of the judicial system], wow, well, now say Mr. Hicks wins, how long before you get to the Appellate Court – I’m assuming you would appeal –

CSA: Absolutely —

Judge: Then how long before the appeal goes through?

CSA: They’re taking a year to eighteen months.

Judge; [The tsk is inferred], And if you lose that, will you then retry Mr. Hicks on the original charges?

CSA: Of course.

Judge: How long will you need before trial.

CSA: At least eighteen months.

Judge: [Shaking head slowly] And Mr. Hicks will remain in prison throughout, correct?

CSA: Correct.

Judge: So, add ‘em up, what do we have?

Me: [Doing the math in my head] August, 2012.

Judge: August, 2012 [in wonder] . . . . . . . so, Mr. Hicks, when were you granted parole for?

Me: June, 2012.

Judge: Well, there you go . . . . [hands palms up, a ‘what-a-ya-gonna-do- the-system-sucks’ movement].

Me: Yeah, I’m going to trial anyway. [The Judge looks at me with suspicious fascination; the AG’s guy stares, reddening; the Guidance Counselor oozes the utter indifference that is at the core of every lawyer joke ever uttered].

Judge: [exasperation slipping through the ‘bon homme’ veneer] Look, you know that if you lose the retrial none of the time you served counts – you start over again and I’m sure the state will ask for more time – – –

CSA: Oh, we will, your honor.

Me: Doesn’t matter, parole in 2012 is meaningless to me, it —–

AG Guy: Fine, we can take it away . . . .

Me: What? [complete incredulity, it comes out of nowhere and the man is so incongruously angry it is stunning].

AG Guy: We can take it away — you don’t want it, we can cancel it, we —

Me: Fine, take it, it’s meaningless, three years to see my kids is a death sentence for me and . . . .

With that all hell broke loose . . . . AG Guy began yelling, “We’ll take it, we’ll take it,” (and thereby proving my point as to the arbitrary and capricious  nature of the Judicial Department) the judge leaned into me and stage whispered, “You’re only making it harder on yourself.”

“How?” I, quite reasonably, asked. When he had no answer, I quietly informed him, while AG Guy continued to yell, the Guidance Counselor checked her datebook, my lawyer sat in his self-induced trance, “Parole’s meaningless, and the State won’t be retrying me, I’ll stop it on double jeopardy – I served an extra twenty-four months in Federal prison based on the Connecticut charges and —-“

“Well, you may think so,” he interrupted with a smugness that would have gotten him stabbed to death twenty minutes into a prison term, “But —“

“I know so,” I averred, “I had —-“

“Well, I suppose it’s therapeutic for you to go forward with litigation,” Levine patronized  with efficiency.
“No, it’s not —–“Further discourse was interrupted by the escalating furor in the room – the overlapping conversations and yelling usually found only in a Robert Altman film had created a low roar. AG guy was red faced and had turned ‘we’ll take it back” into a mantra.

It got ugly when I yelled back, “Take it,” and “Are you threatening me?” With that the judge spoke over everyone, addressing AG man, “I think what Attorney Hicks is saying . . . . .” AG man stopped mid-threat, visibly paled. The judge smiled wanly, a “you-really-ought-to-read-the-files-beforehand” smile, “Ah, you didn’t know Mr. Hicks is an attorney, did you?”

Dead silence in the room as we awaited the stricken Assistant Attorney General’s response. It lasted for a long moment before my vivacious wife, with impeccable timing, pen poised over notebook, said, “I’m sorry I never got your name.”

Stunned, deer in headlights expression replaced righteous indignation in less than a heartbeat.  He mumbled “Richard Bigger,” looked to the judge as if for confirmation.

“And what’s your phone number and email?” My wife persisted with the impish, yet innocent, look that first caused me to fall in love with her.

“I don’t have to tell you that,” Bigger spit out, clearly in self defense.

“Do you work for the State?” She continued, if a nod could be bleak, his was, “then, yeah, you do.”

He gave the phone number as petulantly as any twelve year old forced to write on the chalkboard, then he professed to not know his email address.

“You . . . .  don’t . . . .  . know . . . .  .  your own email address?” My wife’s warily incredulous response,”

“No.”

“Don’t you have a card?’ My wife went on, never one to let up when more squirming can be induced.

He reached into his pocket as if baby rattlers were in residence, handed a stained card to her with a look I would normally empathize with had I not been imagining him on a spit slow roasting over an open fire.

I left the room to exasperated looks, low murmuring . . . . . my wife walked with me through a mostly deserted court room, I was cuffed, shuffling, angry, bewildered, exhausted, mumbled goodbye, was taken back downstairs . . . . . . . seven hours later I was back in Willard, a story in itself but so ripe in conspiracy theories I am loathe to relate it at this point. . . . . . .

Two weeks later, my Federal complaint was served, the next day I received my first feeler about settling and going home. I reserve comment on that for the time being, except to cite Graham Greene’s adage that only someone exposed to the criminal justice system knows “the impossibility of explaining anything to a man with power.”

My wife could write volumes about her attempts to deal with Richard Blumenthal’s office concerning the behavior of his underling, suffice to say, they were not interested.

The interesting, in a sickly fascinating way, thing here is this: an old friend of mine contacted me, we had lunch a few times, started hanging out more frequently.  It comes out that he has a civil suit against the state regarding property rights, is in pre-trial negotiations . . .  in front of Levine.  He’s telling me stories about their meetings and I’m reliving this again, because everything Levine said to me he’s saying to my friend: “You’re only making it harder on yourself” (my personal favorite, true in my friend’s case only if Connecticut has a Gulag somewhere they’re sticking litigants in for the duration); “Shut up!” (to be fair, he says it to lawyers for both sides, too); the false camaraderie of “boy, does the system suck, huh?”.  Amazing. . . . . .
                            . . . . . just  thankful I’m hearing about it in a Starbuck’s in 2011.  After all, Levine told me I had no chance.
 

** Exactly what it sounds like: a squat, tinny, dark truck, split in two, bench running down the side, the roof about three and a half feet high so about 13 prisoners manacled together and in legs irons, have to step up, then crouch, grope, fall, trip, pull, yank, and certainly curse together to  sit, finally, shoulder to shoulder, hip to hip, knee to knee in a space intended for eight moderately large men, maximum. (By the way, if any further evidence on the obesity epidemic in the United States is required, I can certainly provide it.  I am 6’1″, weigh 190 and was dwarfed on every trip, chained with men whose beer bellies were bigger than me.

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