Life of the Law: Jailhouse lawyers circumvent 'the Bar,' behind bars
In California, there are hundreds if not thousands of people practicing criminal law, though they’ve never passed a bar exam. They don’t wear suits. They don’t have secretaries. And they can’t bill for their time. They’re called Jailhouse Lawyers. They’re inmates who pursue the equivalent of a lawyer’s education and who work as lawyers from within prison walls.
“As a non-lawyer, you cannot pretend to be a lawyer for somebody else,” said Charles Carbone, a prisoners rights attorney based in San Francisco. “If you’re a free citizen, you gotta go to law school, pass the bar if you wanna pretend to be a lawyer. Except if you’re in prison. Jailhouse lawyers usually begin by investigating their own cases. That’s usually how most jailhouse lawyers cut their teeth. They dig into their case, usually reading volumes of cases, criminal cases.”
Carbone is one of the few lawyers outside of prison who will represent people behind bars pro bono, or for free, after they’ve been convicted.
“It is a professional and personal interest of mine. I take it very seriously in terms of the quality of representation that I provide,” says Carbone.
Carbone explains that in America, once you’ve been tried, convicted and sentenced to prison, at that point, you lose your right to an attorney who is provided by and paid for by the state. If you’re on death row, the state will still pay for an attorney to represent you for an appeal. But if you’re not on death row and you want to challenge your sentence, you have to come up with the money yourself to hire a private attorney.
“There are very few lawyers or firms that provide pro-bono parole appeal representation,” Carbone says, sitting in his second floor, bare brick office, “very, very few. You can count them on one hand. The number of cases brought every year by a pro bono attorney or firm. It’s very difficult if not impossible.”
So, Carbone adds, short of turning to people like him, prisoners have to teach themselves the law. And, he says, many do.
Reuben Ruiz Martinez is serving time at Pelican Bay, a “supermax prison” in the far north of California. I have to get through eleven locked doors and sally ports just to interview him.
Ruiz’s cell is about 6’ x 9’. There’s a fixed cement pad for a bed and it looks like it’s full of papers and books, at least from what I can see of it.
Walking up to his cell door, I introduce myself and explain to Ruiz that it is difficult to see him looking through the rust colored sheet of metal covering his cell door. Martinez is a middle-aged man with military style cropped hair, deep set brown eyes and a full, gentle mouth.
“I had no idea a legal world existed," says Martines. "I didn’t even know the law that I was charged with and convicted of. I was 17. I just turned 17 and I went into a liquor story to buy some beer. I was a kid. I thought, 'Hey, we can get away with it.’”
Today, Martinez says he is serving a life sentence without the possibility of parole: “It was a fight in a liquor store. We didn’t see no clerks around and we were going to try to run out with the beer, which you’ve probably heard as a beer run. In our attempt to do so we were confronted by the clerks of the store. They physically confronted us. We didn’t have no weapons. One of them had a baseball bat. Hit us with the baseball bat and in that fight, we took the bat and one of them subsequently got hit in the head with the bat and later died. Cause of death was a blow to the head.”
Martinez was convicted of felony murder. That’s when you’re out with someone and you commit a felony together. If anyone dies or is murdered, then you are responsible for that murder, even if you didn’t actually commit it.
“I had no concept of what felony murder was,” Martinez says. “Self defense is not a defense against the felony murder rule. Under normal circumstances, it was a much better likelihood I would have been convicted of voluntary manslaughter, and [I would have] done four to six years.”
Martinez says he understands that now, but didn’t 21 years ago when he was charged, convicted and sent to prison, “I was represented by a couple of different attorneys. I learned the arguments they were making were arguments that had been made in other instances and failed. I started to follow up on all the lawsuits, researching it I guess in a backwards fashion.”
Eventually, Martinez decided to file is own appeal.
“I started to look for ways to reintroduce claims of my own,” he says.
When I ask if he was successful, Martinez shakes his head, “No. Not on my behalf.”
He says he partly blames his failure to win his appeal on the bad access he has had to legal materials while he’s been locked up inside Pelican Bay.
“I rarely if ever go to the law library,” Martinez says, looking out at me through the small round holes of his cell door, “Most of the legal research I do is throughout the paging system. There’s forms which you could request in particular case law. If I submit a request to go the law library, it could take two to three months and that just doesn’t suffice to do the necessary research in whatever you’re doing.”
“There are people who are very well versed in the law,” Charles Carbone says, “inmates who are fairly well studied in the law. Pretty good at research and writing and legal drafting and then there are other inmates that are absolutely atrocious at it and the courts don’t receive it well. Their cases get denied. You really only get one bite at these apples. You don’t get three or four. You show up on your own. You present garbage. You often can’t revisit that later.”
And that, Carbone says, is the problem for Reuben Martinez and thousands of other inmates trying to appeal their convictions. If the judge says the appeal doesn’t have merit, that’s it. The inmates can’t file another appeal based on the same challenge. He says prison law libraries are supposed to help inmates get that one bite at the legal apple.
“Most of the law libraries inside prison are filled with old law books that have been torn up and are very difficult to use," says Carbone. "They have very little resources and sometimes that effects the quality of the work. Sometimes, miraculously, it doesn’t.”
Under California law, all inmates in state prisons are supposed to get at least four hours a week of access to a prison law library. Obviously, that’s not been working out so well for Reuben Martinez who says he waits two to three months to get inside the law library at Pelican Bay.
San Quentin State prison just outside San Francisco is supposed to have the best law library in the whole state. One Tuesday morning, San Quentin’s Public Information Officer, Sargent Gabe Walters, agrees to show off the library. As we get closer to the front door, we see more than a dozen other inmates standing outside. They’re holding worn file folders stuffed with papers and booklets.
“It’s locked again,” says Juan Haines, one of the inmates standing outside the locked library door. “They cut the hours.”
The public information officer is a little embarrassed: “I didn’t know it was closed."
A few days later, the law library is open. A man in prison blues stands at a small window, asking an inmate who is working as a library clerk for documents, “Can I get a copy of this, front and back?"
“One copy of this?” the clerk asks.
“Thank you,” the inmate requesting the documents responds.
The law library may be new, but it’s cramped. Prisoners sit, huddled at small round tables taking notes and pouring over legal documents.
Lequan Hayes says he’s been coming to the law library, “for the last ten years that I’ve been incarcerated – they discovered that my sentence was an error.”
Recently, a judge found in Hayes favor and overturned his case on appeal. Now, because of a writ that Hayes wrote on appeal, he’s going home.
“We begin to read our own cases. We come to the library. We ask others for advice. We rely on one another. We begin to get an understanding of the law. I think it’s very important to know some law. I’m more than willing to help as much as I possibly can,” says Hayes.
But before Hayes gets out of prison, he’s trying to help as many of his fellow inmates as possible with their legal documents. He is what is called a jail house lawyer, and prisoners’ rights attorney Charles Carbone says as such, his status is enshrined in law: “As a non lawyer you can’t pretend be to a lawyer for somebody else. If you’re a free citizen, you gotta go to law school and pass The Bar if you wanna pretend to be a lawyer. Except if you’re in prison. The odd exception in prison is that you can act as someone else’s lawyer, not just representing yourself. And that’s perfectly legal as long as you’re in prison. With one caveat. You gotta get permission from the prison in order to do that and you can’t charge any money for it.”
The most successful jail house lawyers get themselves and fellow inmates freed. But then what? As a jail house lawyer, Hector Oropeza was able to help a lot of people tell their story. Today he sits at the kitchen table in his new apartment just south of San Francisco. Thirty years ago, Oropeza was sent to prison for murder. But while he was in prison, he wrote his own appeal and got himself out.
“Whatever the truth is,” Oropeza, a dark, muscular man in his mid fifties says, “You got the D.A.’s truth. You got the defense truth. You got The Truth that comes in the middle of it.”
Oropeza says it wasn’t easy to articulate that truth. He says when he first went to prison, it was all about sitting in his cell and doing time. Then one day, an attorney slipped him a legal self-help book. He says he devoured it.
“I’m not just a guy in a box,” Oropeza says. “I’m a guy in a box educating myself.”
Over time, Oropeza says the book changed his life. Not just because it helped with his own case. He says he also learned how to represent other inmates: “By doing jail house lawyer work, you give somebody the opportunity to tell their truth. What they believe happened. And hopefully win and go home.”
Oropeza says he got 12 of his fellow inmates out of prison on parole. But now that he’s on the outside, he legally can’t represent anyone and he says, the guys who are still locked up, have no one else: “I left a hundred cases pending somewhere. You come out here and they don’t give you a car. They give you $200 and that’s gone the first day.”
Now on the outside of the prison walls, Oropeza can’t practice the law without being admitted to The Bar. With a felony conviction on his record, that’s highly unlikely.
“I need to get paid,” Oropeza says. “I need to pay my bills. It’s sad because they want more. They want more from you. I know they want the education, the degree. They don’t understand. They don’t see the experience. All that hands-on experience that you get, you know how to deal with people. It’s hard. The experience should count for something.”
Eventually, Oropeza says he would like to go to college and get an education that would prepare him for a law degree. But that’s expensive. For now he’s getting part time work wherever he can: “It would be nice to get some formal training. Once I get that, I know I could compete with these guys.”
By ‘these guys’, Oropeza means lawyers, just lawyers. No ‘jail house’ attached.