This informational booklet (pry legal zine) contains
educational and instructional articles on Criminal law
and legal theory. Nothing within this booklet is meant
as legal advice; it is wholly meant for educational and
instructional use only. Students of lew should always
conduct their om research and should always check all
case citations. The author assumes no liability.

Written By:

D. Michael Salerno
P.O. Box 80033-412-224
‘Toledo chic 43608

‘A Pauper's Press Publication

First Printing: April 2010, 50 Copies
Second Printing
‘Third Printing:
Pourth Printing:

 

Please support your local ABC
and Books to prisoners outfit

‘The true teachers ate those who help us think for
ourselves’ Sarvepalli Rakhakrishnan
TABLE OF CONTENTS
From Theory To Conviction . . 2. . . . « 5
Three Laws And A Standard . . . . «se - 7
Insufficiency, Manifest Weight, and The
Presumption of Correctness

wee DO
Ineffective Trial counseh «2 2 2 2. 2. 1D
Pruit Of the Poisonous Tree . . . . . . . 13
‘The Plain View Exception. 2... 6. 215
To Object And Preserve . . . . 2. 2... 17
Access To The Courts . . . . . . . . . .19

Evidence of Bad Character. 2. . 2... 25

Sample Direct Appellate Brief
For Direct Appeal in ohio . 2 8
Cover Page
Table of Contents
Table of Contents
Statement Of Case/Facts
Assignments of Exror
No Pinal Judgment
Involuntary Plea
Void sentence
Ineffective Counsel

RREKRBRBBERR:
 
Criminal Law - Part One
From Theory to Conviction

In order to properly learn a discipline, we must
first understand its basic principles. Criminal Law is
no different. The fact that it is ‘criminal Lav’ and not
‘How to use a hammer’ should have no bearing on
learning. It's honestly not that hard to grasp, so
let's remove the stigma so we can see how criminal law
really works.

When someone is arrested the government begins
building a case. ‘This happens through collecting
"evidence." Evidence comes in many forms - not all are
important for this particular discussion, but may
include such things as statements, clothing, and
residue

‘The prosecuting attorney takes whatever evidence
there may be and creates a 'theory.' This is important
to understand. Regardless of the type or amount of
evidence, it is the prosecutor's job to prosecute those
believed to have conmitted'a crime. Though there is a
presumption of innocence (‘Innocent until proven
guilty"). the prosecutor believes the person arrested is

ty.

Now, the prosecutor makes up a theory. He makes it
up. This is fiction, like John saul or Stephen King
would write - fiction, falsehood, a tale, a story. He
makes up a story that he thinks will convince a jury or
Judge to convict the accused person.

‘The defense attorney is also said to have a theory.
This is true for all defendants, including those who
assert innocence of the charge. It is understandable
that a person guilty of the offense charged would make
wine best story possible in an attempt to win the
trial.

Why, though, is it considered a mere defense ‘theory
when the defendant states he or she is innocent? why
isn't the defendant considered by the court to be
innocent until the government's ‘theory’ proves
guilt?

‘This is due to the amount of information available to
support a defendant's plea of innocence. If the

 
Gefendant is innocent but does not trust the defense
counsel, not much information is going to be given to
the attorney to form the defense . In this scenario,
the defense counselor would need to write some fiction
as well, based on his client's assertion of innocence.
Another reason it is a defense ‘theory’ would be doe to
the lack of evidence supporting the defendant's story.
This could be due to destruction or withholding of
evidence, or maybe it is undiscoverable for some reason.

‘The Proceedings at a criminal trial are said to be
adversarial. this means that two sides come to the

to present their side of the story. ‘the stories
Presented can only be termed ‘theories at this point
because the jury, or judge if it is a bench trial, has
not yet decided who to believe. the story that is
believed by the trier of fact (judge or jury) is then
called ‘truth’ even if it is not representative of what
really happened.

The judgment of the court is considered a ‘common
jaw! ‘ruling. Common law means a judicially-created
statute, right, or opinion.

Some refer to the judgments of courts as ‘legal
fiction.’ this is due to the case being decided upon
theories, or fiction.

‘The books in the law libraries containing court cases
are termed 'case books' because case law (judgments from
courts) are shown in them. All those cases are common
law.

Because a criminal trial is based upon made up
stories judged upon a believability scale, it is
imperative that we be able to think as clearly as
Possible. It is therefore necessary to remove our
emotions from the case. Colossal errors occur in life
due to emotions acting without benefit of intellect. In
order to confront the government's fictionalized story,
you must remove your emotions, think clearly, and pay
attention. You can visit your emotions some other time.
they are part of you and aren't going anyvhere.

If you understood what you just read, stay tuned for
discussions on common jaw v. statutory law vs.
constitutional law, standards of review, and more.

 
Criminal Law - Part Two
‘Three Laws and a Standard

Common Law is made up of judicially (judge or
court) created rules, laws and orders. The opinions of
all cciminal cases are considered Common Law. Common
Law that has not been reversed for being
unconstitutional may find its way into becoming a court
tule, such as a cule of evidence or criminal procedure.

Statutory law is comprised of statutes. State laws
are listed (codified) as statutes and are usually
catalogued by a numbering system. For example, in Ohio
one of the state law statutes listing the crime of
murder is found in Ohio Revised Code § 2903.02. this
statute is a law that shows the elements of the offense
or, put another way, the items the government MUST
Prove for the accused to be found guilty of violating
the statute. Generally, statutes are laws passed by
the legislatures of the several states, each of which
consist of House of representatives and a Senate. Once
each has agreed on what the law should contain, they
vote on it and, if it passes, the bill becomes law and
a statute is born. Statutory law came into being in an
attempt to bring substance and consistency to the
common law.

Both common law and statutory law must be in
harmony with constitutional law, which is supposed to
be the ‘law of the land.' the Constitution, though, is
open to interpretation and application of law by the
various courts. As court justices change so may the
interpretation of the constitution. Common law and
statutory law are tested for constitutionality through
court actions, which might be brought forward as an
appeal or styled as one of the many forms of ‘writs!
available to petitioners. For instance, an argument
could be presented asserting the negative common law,
or statute, is unconstitutional. If the reviewing
court agrees, the law is changed to comport (agree)
with constitutional standards, as interpreted by the
court at that time.

‘These three types of law - common, constitutional
and statutory - are used when challenging a conviction
as together they create various standards of review.

 
‘The specific standard of review tells the reviewing
court what to look for and what conmon law(s) the
standard is based upon. when challenging a court
ruling it is important to know what the standards of
review are for your claims of constitutional violation.
I£ a constitutional claim is a chocolate chip cookie,
the argument, then, would be that the evidence either
does, or does not, contain the ingredients for the
chocolate chip cookie.

A claim of ‘insufficient evidence’ is a claim based
on ‘legal insufficiency,' which means the government
failed to prove the accused guilty of the cl
offense as it is defined by the ‘elements’ in the
statute that was alleged to have been violated.

‘The constitutional claim might look like: ‘The
government failed to produce sufficient substantial,
competent, reliable evidence on all elements of the
offense charged. '

For the reviewing court to determine whether
sufficient evidence exists to support the conviction,
it must look to the ‘recipe’ for sufficient evidence.
The recipe is the standard of review, which might read
something like: ‘The due process clause requires the
government to prove every element of the crime for
which a defendant is charged. Before a charge can be
submitted to a fact-finder (judge or jury) the
Prosecutor must have produced sufficient evidence from
which a reasonable fact-finder can find all elements of
the charge beyond a reasonable doubt. In re Winship,
90 S.Ct. 1068 (1970); Jackson v. Virginia, 99 S.ct.
2781 (1979): lore v. white, 121 S.ct. 712 (2001):
Sullivan v. Louisiana, 113 S.Ct. 2078 (1993)

“~~ Sufficiency of the Evidence speaks about Legal
Innocence or Guilt. Stay tuned for a discussion about
factual innocence. - sempre avanti -

 

 
Criminal Law - Part III
Insufficiency, Manifest Weight, and
‘The Presumption of Correctness

In a cciminal trial, the government MUST prove the
defendant guilty of ALL elements of the offense
charged. If, in the light most favorable to the
government, the offered evidence proves the accused
guilty of all elements, beyond a reasonable doubt, the
defendant is said to be ‘legally guilty.’ The claim of
‘insufficient evidence' is a question of legal guilt
and is, therefore, a question of law for both the state
and federal courts to resolve. If the government has
failed to prove guilt on all elements the accused must
be acquitted. See, In_re Winship, 90 S.ct. 1068
(1970). A person may be legally guilty but also be
found NoT guilty by the finder of Pact (jury or judge
at a bench trial) due to what is believed from the
evidence. This is called the state court 'finding of
fact.*

In case of conviction, a ‘manifest weight' of the
‘evidence claim challenges the finding of fact. The
claim might be, ‘Appellant's first degree murder
conviction is against the manifest weight of the
evidence and must be reversed must be reversed as a
‘manifest miscarriage of justice has occurred."

This is a claim that the factual determination is
flawed; it is a question of fact and may only be
brought in the state courts as the state court ‘trier-
of-fact' is deemed to be in the best position to make
decisions of fact regarding the evidence, including
whether or not a witness was credible. Generally, what
the finder of fact believes from the evidence will
remain as his verdict. Along with the claim we need to
know the Standard of Review which, for Ohio, might read
like, ‘In determining whether a verdict is against the
manifest weight of the evidence, the reviewing court
sits as the ‘thirteenth juror' and weighs the evidence
and all reasonable ‘inferences, considers the
credibility of witnesses and determines whether in
resolving conflicts in the evidence, the trier of fact
lost its way and created such a manifest miscarriage of

 
peyesce cual Lime Convection must be reversed and a new
trial ordered’ state v._Mattin, 128 NE2d 7 (1955);
State v. Otten, 515 NE2d 1009 (1986); state y,
Thompkins, 678 NE2d 541 (1997); see also, Tibbs v,
Florida, 102 S.ct. 2211 (1982). _

‘The reviewing court then would review the
Supporting argument along with all evidence and decide
whether to grant a new trial. It only takes one juror
to vote ‘not guilty’ ~ the reviewing court acts as an
UNdecided juror.

The state court finding of fact is presumed to be
correct. One way to challenge the presumption of
correctness is through the claim of conviction against
the manifest weight of the evidence, as above.
Presumption of correctness does not apply when the
finding of fact relies on facts ‘not in evidence.'

‘The presumption of correctness was born from the

the decision of the people who have judged an accused
inot guilty,' effectively protecting against being
tried twice for the same crime, or ‘double Jeopardy."
The presumption of correctness also does not allow a
constitutionally infirm conviction to stand when a
state court fact-finder has erred in convicting an
accused based upon faulty fact finding. In short, the
government cannot force a conviction, even if the
acquittal was against evidence: However, a conviction -
against the evidence must be reversed. ‘The presumption
of correctness is not to be used by the government to
keep a wrongfully-convicted person imprisoned.
Application of a presumption of correctness in that
manner creates a ‘bill of attainder,' which is a
constitutionally-prohibited law that takes away a
Person's rights or liberties without trial and
completely undermines the duty of the various courts’
Power of review.

Stay tuned... a discussion on ineffective trial

counsel is next.
Sempre avanti

 

-1lo-
Criminal Law - Part IV
Ineffective Trial counsel

Unfortunately, most of us are unable to choose our
vehicle for the road through criminal court matters.
We end up with whatever is on the lot at the time.
Gould be a Chevette, Could be a Porsche. Heeey! Look
at that beat up Ford... It's got a 460 under the hood
sss A sleeper, no one'll ever see it coming!
Regardless of the ‘model,’ no single attorney is an
all-knowing mass of legal knowledg i
Because the law changes each day.
influences, and the imperfection of human knowledge, we
must always carefully scrutinize conduct of the Defense
counselor.

‘Though the Defense counsel's performance is
presumed to be reasonable professional assistance, and
it must be shown that ‘counsel's representation fell
below an objective standard of reasonableness, '
Wickline v. Mitchell, 319 F.2d 613, 619 (6th Cir.
2003), possible mistakes are too numerous to list here.
Anything said to be trial strategy cannot be listed as
counselor mistake.

If you feel ‘there is a reasonable possibility
that, but for counsel's unprofessional ercors, the
result of the proceeding would have been different,'
Strickland, infra (below), the first thing to do is
make a list. Some things on your list might refer to
basic duties of Defense Counsel; the Court in
Strickland, infra, listed some basic defense counsel
duties: Defense Counsel must 1) practice loyalty and
avoid conflicts of interest, 2) advocate the
defendant's cause, 3) consult the defendant on
important developments ducing the course of the trial,
and 4) bring to bear such skill and knowledge as will
render the trial as a reliable adversarial testing
procedure. Now, write a short story for each item on
the list. This short story is the base of the argument
in support’ of your Constitutional claim.

The claim might be? Assistance of Appointed Trial
counsel was Ineffective.

‘One Standard of Review consists of two parts: the

 

 

-u-
 

FIRST part may bet 'In determining a claim of
ineffective assistance of counsel an appellant must
show that counsel's performance was deficient and that
deficiencies in performance prejudiced his defense.'
104 S.ct. 2052 (1984):
Woodford _v. Visciotti, 123 S.ct. 357 (2002). this
shows what is called the Strickland standard. You need
to show the attorney made mistakes (the deficiencies),
and them must show the mistakes harmed you - that
errors of counsel actually had an adverse effect on the
case (the prejudice). © Depending on vhat mistake
counsel made, ‘prejudice may be presumed if defense
counsel was absent, suspended during a period of
‘discovery,’ drunk, didn't ask questions or object, was
asleep, or other act rendering counsel ‘absent.’
a supra, at 692; Also, United states v.
Cronic, 466 US 648 (1984).

Now we look to the SECOND part of the Standard of
Review, which might read:

‘s+. (2002); If no single deficient performance
Claim amounts to prejudice, the reviewing court must
assess the cumulative impact of all deficient
Performance claims. Williams v. Taylor, 529 U.S. 362
(2000)+ Also e.g., Wiggins v. Smith, 123 S.Ct. 2527
(2003); Washington v. Smith, 219 F.3d 620, 634-35 (7th
Cir. 2000)."

The veviewing court has to look at each claimed
mistake, individually to see if he individual mistake
harmed you. If the court doesn't rule that any one
mistake, by itself, harmed you, then it must, under
this standard, take ALL the claimed mistakes together,
then see if together they were prejudicial. If one
snowflake falls on a roof, nothing happens. It's ONE
snowflake. But, if three feet of snow is on the roof
it may collapse under the weight.

The claim of Ineffectiveness of Counsel is sticky
as a reviewing court has a lot of room to fit counsel's
actions into ~ kind of like throwing a baseball into a
pool. with good argument and research their baseball
won't come close to making a splash.

Stay tuned for a discussion on ‘Fruit of the
Poisonous Tree."

 

 

 

-.R-

 
Criminal Law - Part V
Pruit of the Poisonous Tree

While standing on a hill we watch as little michael
plays in his sandbox, ‘The sandbox is under a nice
fruit tree that offers shade from the hot sun, A
neighbor noticed that Michael eats fruit from the tree
while playing, which makes him ill. this happens time
and time again. ‘The neighbor decides to help. He
brings over a ladder and gathers all the fruit
available. ‘the neighbor, though, doesn't account for
Michael's young age. When hungry, Michael looks for
fruit. Seeing none he now gnaws on the bark of the
tree, which makes him just as ill as the fruit did.
Michael's mom takes him to the doctor once more. then
they return the neighbor speaks with her stating how he
tried to help by plucking the fruit from the tree. ‘The
boy's mom replies that the problem is not necessarily
the fruit but the tree itself. ‘The neighbor realizes
he should have cut down the tree itself. By attacking
the tree itself Michael would no longer have been in

er.

Illegally obtained evidence is often used against
an accused. One of many ways this occurs is by the use
of evidence discovered when an item already seized is
further investigated. Let's say an accused is arrested
and brought to the police station. Once there officers
seize only the suspect's shirt. Remaining clothing
items are seized later when a warrant may properly be
obtained based upon probable cause. ‘he seized shirt
is submitted for testing for the presence of gunshot
residue. A few molecules of the three elements
comprising GSR, Barium, Lead, and Antimony, are found
present on a sleeve.

‘At trial Defense counsel challenges the admission
of the alleged Gsr evidence. ‘The motion is denied and
the alleged evidence is allowed in to court. ‘The
counselor is merely plucking fruit when challenging the
GSR. ‘The relationship is causal - there would be no
fruit without the tree. There should also have been a
motion filed to suppress the ‘tree,' which is the
shirt, as there was no warrant. Gather the fruit and

 

-13-
the tree still stands. down the tree and

rid of both the fruit and’ tree; else the shirt would
remain in evidence, even if the GSR found upon it had
been suppressed.

In order to more fully protect the rights of an
accused in any criminal proceeding, each piece of
alleged evidence should be challenged. simply because
an investigative search is done on an item, causing
discovery of other alleged evidence, our attention
should not be distracted. Each piece should be
challenged. Look to the tree as well. How was it
seized? Was there a warrant? Does the government
claim an exception to the Fourth Amendment requirement
for seizing without a warrant?

In this example seizure was without a warrant or
Probable cause. The government, undoubtedly, will
Claim one of a vast array of exceptions to the warrant
requirement, such as plain view, inevitable discovery,
independent source, or good faith. Regardless,
evidence obtained illegally may not be introduced at
trial to prove quilt otherwise reversal is due.
Chapman v. California, 386 U.S. 18, 23-24 (1967). This
is part of the judicially created exclusionary Rule
which applies to state courts for Fourth amendment

violations through v. Ohio, 367 U.S. 643, 654-55
(1961), and to the ‘al government through Weeks v.
U.S., 232 U.S. 383, 398 (1914). ‘The rule also applies

 

to evidence obtained in violation of the Fifth
Amendment, Bram v. Alabama, 361 U.S. 199, 205 (1960),
and the sixth amendment as well. U.S. v. Wade, 388 U.S.
218, 237-39 (1967)? Massiah v. U.S., 377 U.S. 201, 206-
07 (1964).

By gathering the fruit and taking an axe to the
tree, the evidence is more properly challenged. stay
tuned for a discussion on the Plain View Exception.

- Sempre avanti ~

 

-14-
Criminal Law - Part VI
‘The Plain View Exception

‘The Founding Fathers meant to protect Americans

from arbitrary, general searches which plagued the
ish through something called a Writ of Assistance:

this weit allowed an officer to search hovever he
wished to find evidence of British tax law violations.
The Fourth Amendment to the United States Constitution
was to protect privacy against a blanket authority to
search through requirement of a warrant to search or
seize persons or ndgs. kate v. USs 389 U.S. 347,
357 (1967); Johnson v. U.S. 10, 14 (1948).
The varcant aust state With articulacity what is to be
searched or seized. Marron v. U.S., 275 U.S. 192, 196
(1927); Coolidge v. U.S. 443, 467 (1971).

[ce must, whenever practical, obtain
advance judicial approval of searches and seizures
through the warrant procedure, numerous exceptions to
this requirement have been created. ‘Terry v. Ohio, 392
U.S. 1, 20 (1968). One of the myriad of exceptions,
known as the 'Plain View' exception, was born by the
ruling in Coolidge, supra at 465.

In order for an item to be seized without a warrant
through the Plain View exception, certain criteria mst
be met: 1) the object seized must be in ‘plain view,’
2) the officer must be legally present where the object
can be plainly seen, 3) the incriminating nature of the
object must be inmediately apparent, and 4) the officer
must have a right of access to the object. Horton v.
California, 496 U.S. 128, 136-37 (1990).

Let's look specifically to the ‘immediately
apparent' requirement, which exists to protect against
a lawful particularized search from becoming an
unlawful exploratory search. See, Arizona v. Hicks
480 U.S. 321, 334 (1987).

determine whether something is Jimeatately
sxparent! we have a three-part test, U.S. v. McLevain,
310 F.34 434, 441 (6th Cir. 2002): 1)~a connection
between the item seized and the items particularized in
the warrant, 2) whether the appearance of the object
gives probable cause to believe the item is associated

  

 

 

-15-
with criminal activity, 3) whether ‘the executing
officers can, at the time of discovery of the object,
on the facts available to them, determine probable
cause of the object's incriminating nature.’ the
courts have stated an object's incriminating nature is
not immediately apparent if it ‘appears suspicious but
further investigation is required to establish probable
cause as to its association with criminal activity’ and
an officer must recognize the incriminating nature of
an object as a result of his ‘immediate’ or
‘instantaneous sensory perception.’ U.S. v. Garcia,
496 F.3d 495, 511 (6th cir. 2008).

In Hicks, supra, police viewed stereo equipment
with suspicion, but not probable cause, to believe it
was stolen. an officer moved the stereo to see serial
numbers, which he wrote down. ‘The court held that the
officer engaged in an investigatory search when moving
the stereo, thus, it was not inmediately apparent to be
incriminating evidence. No instantaneous sensory
perception means no plain view exception.

‘The remedy is said to be through the exclusionary
rule which mandates suppression of illegally seized
evidence. Mapp v. Ohio, 367 U.S. 643, 657 (1961).
‘This is a judicially created rule. The existence of a
rule does not mean it is consistently followed,
especially where federal review of Fourth Amendment.
claims arising from a state court conviction are
concerned. If relief is denied we must continue to
request review if ever the reality of liberty is to be
known to us.

Stay tuned for the next topic... To Object and
Preserve.

- Sempre avanti -

-16-
Cciminal Law - Part VII
To Object and Preserve

The government builds a story against the accused
through something called evidence. To help ensure an
effective defense each individual ‘piece! of evidence
must be challenged. Prior to and during trial,
anticipated evidence should be challenged - before the
evidence is actually offered, through a motion filed
‘in limine,' meaning on the threshold or at the
beginning. See [uce_v. US.) 469 U.S. 38, 40 n.2
(1984). “A motion to suppress is one example.

Such a challenge would not ordinarily warrant
appellate review unless facts supporting appeal vere
discoverable only after trial, 1 U.S. Mckenzie, 768
F.2d 602, 609 (Sth Cir. 1985), or an objection at trial
would have been futile.

The first line of defense at trial is through
raising an objection. Challenging evidence includes
objecting to witness examination: Common objections
are:

 

1. Objections to the substance of the question: the
attorney raising this objection is objecting to the
answer the question calls for. Generally, the
objection would be the witness is incompetent to
answer, the answer is immaterial/ircelevant, the
question calls for hearsay or an inadmissible response,
there was insufficient foundation for the question or
the question is beyond the scope of the direct
examination.

2. Objections to the question: the wording of a
question may be objected to for being argumentative,
misstating facts, assuming facts not in evidence, being
misleading/vague, calling for speculation, or for
leading. An attorney is not allowed to lead his own
witness. This is to help ensure the sought for
response is not suggested to the witness. The judge
has great discretion regarding leading of witnesses.
If a witness appears to be hostile to examination, the
attorney may request the witness be labeled a ‘hostile
witness;' in this case, leading questions are allowed.
Leading questions are also used during cross

 

 

-17-
examination to test witness credibility and statements
made during direct examination.

3. It can be difficult to take in everything
happening at trial - tone of voice, questions, body
language - and be able to object fast enough to stop
the witness from answering. If this happens, the
attorney must try to frame the objection as one 'to the
answer." Generally, these objections are for
unresponsiveness, an inadmissible opinion or hearsay.

4. I an objection is untimely made, say, during
the fourth day of trial for something occurring on the
second day, the issue is preserved for appeal, but only
for ‘plain error’ review. Plain-error is one that is
clear or obvious and affects the substantial rights of

the defendant. See, U.S. v. Olano, 507 U.S. 732-35
(1993), also, Johnson _v. U.S., 520 U.S. 461, 467
(1997).

5. Further, let's say you are at trial and feel
something should be objected to but you aren't exactly
sure why - can you object? Yes. would this objection
preserve some sort of issue for appeal? Yes. A non-
Specific objection ie preserved for plain-error reveiv.
See, U.S. v. Stewart, 306 F.3d 295, 312-13 (6th Cir.
2002).

Though it is seen as a requirement under the
‘contemporaneous objectign' rule, see ‘Turner v. Murray,
Ae Usd, 28, 37 (1506), failure to object during teial
doesn't necessarily preclude raising the issue on
appeal. This review would be limited to 'plain-error'
review. Plain error review may occur if rights were
not timely asserted, which is mere ‘forfeiture,’ but
may not occur if the right to review was ‘waived,’ see,
Olano, supra at 733.

A criminal trial is a serious matter regardless of
whether the potential sentence is 30 days or life
without parole. All evidence must be tested through
Objection. Doing so may save your life.

Stay tuned for a discussion on Access To the
courts.

- Sempre avanti -

 
Criminal Law - Part VIII
Access The The Courts

It may be difficult or impossible to discover what
duties prison administrators have to ensure a prisoner
has adequate and meaningful access to the courts,
because prisoners are at a tremendous disadvantage when
it comes to having access to legal material to study
and research the 'law.' ‘The Supreme Court has ruled
that prisoners have a ‘fundamental constitutional right
of access to the courts.’ Bounds v. Smith, 430 U.S.
817 (1977), and that the right is guaranteed through
the due process clauses of the Constitution. Procunier
v. Martinez, 416 U.S. 396 (1974). Yet, due to
unconstitutional prison policies, many state and
federal prisoners still suffer from lacking resources
or outright denial of assistance. Law libraries may be
inaccessible or may have unduly restrictive hours,
Taylor _v. Perini, 413 F.Supp. 189, 203, 205 (N.D.ohio
1976), and many do not provide adequate case books.
Gilmore _v. Lynch, 319 F.Supp. 105, 110-11 (N.D.cal.
1971), affirmed sub nom, Younger v. Gilmore, 404 U.S.
15 (1971); Ramos v. Lamn, 639 F.2d 559, 584 (10th cir.
1980); Wade _v. Kane, 448 F.Supp. 678, 684 (E.D.Pa
1978, affirmed 591 F.2d 1338 (3rd Cir. 1979).

Instructional, educational and research matter may
be unavailable for prisoners to learn how to prepare
and file challenges to a criminal conviction, or the
law library may be understaffed. ‘Taylor, supra.
Regardless, prisoners are entitled to sone form of
assistance when litigating constitutional claims.
Walters v. Thompson, 615 F.Supp 330, 336 (N.D.I11
1985); also, Knop v. Johnson, 977 F.2d 996 (6th Cir.
1992), and prisoners should be allowed to help each
other conduct research and prepare legal documents.
sJghnson_v. Avery, 393 U.S. 483 (1969).

Often, when a prisoner is placed in segregated
housing, access to personal legal material and a law
library is denied. Owens v. Maschner, 811 F.2d 1365,
1366 (10th Cir. 1987). An ‘exact cite’ case request
system, mandating use of exact citations to request
case law and other material, may be inadequate,

 

-19-
Demallory v. Cullen, 855 F.2d 442, 446-49 (7th cir.
Toue), and SeGEegaEeA prleoners vho are Gentes physical
access to law books may be entitles to free
Shotocoples. See walters, supra at 34

Courts "have adieessed financial inability of
prisoners to afford supplies and postage: ‘It is
indisputable that indigent inmates must be provided at
state expense with paper and pen to draft legal
documents, with notarial services to authenticate them,

and with stamps to mail them.’ Bounds, supra; Wade,
supra at 685, Smith v. Erickson, 884 F.2d 1108, 110%

11 (8th cir. 1989).

When a prisoner is housed in one state but
challenging an out-of-state conviction ‘adequate’
access must still be provided. ‘The fact that out of
state legal material is being sought is irrelevant; the
inquiry should be whether a particular
being denied access to materials from the Televant
jurisdiction that are necessary to challenge the
conviction. See Lehn v. Holmes, 364 F.3d 862 (7th Cir.
2004); Corgain v. Miller, 708 F.2d 1241 (5th cir.
1983). "Some courts have ruled that inadequate
libraries may, but do not necessarily, constitute a
state imposed impediment which would allow for tolling
(pausing) time limitations for filing habeas corpus
petitions. Byerton v. Cockrell, 334 F.3d 433 (Sth cir.
2003); Whalen-Hunt v. Early, 233 F.3d 1146 (9th cir
2000). “An ‘impediment’ is whatever prevents a prisoner
from filing his petition. Davis v. Johnson, 158 £.34
806, 811 (5th cir. 1998); moore v. Battaglia, 476 £.34
504 (7th cir. 2007).

Tt is bitterly offensive for a government to
convict people based upon mere theories, spun into
melodramatic fiction for courtroom display, and again
when it restricts a prisoner's access to the courts
after the fact. Such malicious action should not be
tolerated from a government that is supposed to be by
and for the people.

Stay tuned for a discussion on Hearsay.

 
Criminal Law - Part Ix
Hearsay

he first people to arrive in the Colonies set up
colonial courts. They used common law rules of
evidence derived from miscellaneous rules found
throughout the English courtrooms. ‘Today, those rules
are known as the rules of evidence which govern the use
and admission of evidence. In an attempt to ensure a
Defendant's rughts under the federal constitution are
not violated, the states model their respective rules
of evidence after the Federal Rules. Rules of Evidence
exclude Hearsay, unless one of many exceptions apply,
because use of un-cross~examined testimonial evidence
violates the Sixth Amendment's Confrontation Clause.
Exclusion of Hearsay is meant to better protect against
convictions gained upon unfair, false, or unsupported
accusations.

A definition for Hearsay is found within the
Federal Rules of Evidence (FRE): hearsay is 'a
statement, other than one made by the declarant while
testifying at the trial or hearing, offered in evidence
to prove the truth of the matter asserted.' FRE 801(c).

A statement offered to prove the matter asserted
within it. ‘This means the statement itself is being
used to prove what is said in the statement. Bob calls
Sue from a neighbor's house and tells her someone broke
into his house and that he is watching the burglar
leaving. Bob says the man is carrying a cash box and
wearing a purple jacket. Sue calls her friend and says
a man broke into “Bob's house and left while wearing a
purple jacket and carrying a cash box. Sue's statement
to her’ friend is Hearsay. Her testimony would be
inadmissible ID it were being used to prove the matter
asserted, which is that a man wearing a purple jacket
left Bob's house... Sue has no direct knowledge.
Sue's knowledge of the event is second hand - sue only
‘heard it said.'

Bob's statement is the only one that could be used
to prove that the man left the house, wore a purple
jacket and carried a cash box. Sue's statement cannot
be used for proving the man in the purple jacket left

 
Bob's house because Sue does NOT have first-hand
knowledge of it; her statement is based upon what she
heard said. In order to use Sue's statement ve must
look at it from a different angle and ask ourselves,
‘what does Sue have first-hand knowledge’ of? Sue had
direct knowledge of what Bdb knew. Bob told her that
he watched a male burglar leave his house while wearing
a purple jacket and carrying a cash box. Sue's
statement would be used to prove what Bob.knew and
would be admitted for that limited purpose only.

The Sixth Amendment to the U.S. Constitution
guarantees an opportunity to cross-examine all
testimonial evidence. Statements and: affidavits may be
testimonial: if so, they are inadmissible unless the
defense has the opportunity to effectively cross-
examine the person who allegedly has the first hand
knowledge. The veracity of the statement cannot be
tested through cross examining Hearsay; the person who
‘said it' is the one who is to be questioned on the
witness stand as body language, ‘motivation for making
the statement, veracity (truthfulness), ° arid other
factors often may only be tested through examiriation of
the actual person with ditect knowledge. ‘here are, as
with anything in ‘law,' numerous exceptions when
Hearsay may be used at ‘trial, such as: Dying
Declarations, FRE 804(B)2 ; State of Mind FRE 803(3);
Business Records FRE _803(6); Past Recorded
Recollections FRE & 3 and Excited utterances FRE
803(2), among ‘others.. Further, there is a Forfeiture
by wrongdoing exception which the statés have
historically misapplied. see Giles v. California, 128
S.Ct. 2678 (2008). Giles may apply to other exceptions
as well.

An alarmingly small percentage of people, including
judges and attorneys, understand Hearsay. Learning the
Tules of evidence will better ensure your research and
arguments are thorough. Stay tuned for a discussion on
Bad character Evidence.

- Sempre avanti -
Criminal raw ~ part x
Evidence of Bad character

‘Binds of a Feather Flock toyether.' this well-
used phrase encompasses the concept of ‘bad character
evidence' ~ you must be guilty if those around you are
guilty: You must be guilty if you had ever been in
troubles You deserve the reputation of your friends, or
the stereotype of your ethnicity or of your name if it
ends with a vowel. Use of ‘bad character evidence’ is

. effectively a Bill of Attainder, tainting or staining
someone based upon their prior actions or alleged
reputation. Introducing, or causing a witness to
: mention, an accused's prior conviction(s) is
‘bad character’ evidence. such judgment is prejudicial
as the jury is unable to objectively view circumstances
of the charged offense(s). See ie. Cook v.
Bordenkircher, 602 F.2d 117, 120 (6th Cir. 1978).
‘The Presumption of Innocence

 

guarantees
the use of evidence of bad character. Palko v. State
of Connecticut, 302 U.S. 319 (1937), overruled on other
Grounds by Benton v. land, 395 U.S. 784 (1969).
dou can't pue dung Back the donkey. Once the

comment: Ue
Ys Cole, 755 F.2d 748 (11th cir. 1985). Guilty by
veputation is not the same as being found guilty
through a showing of substantial, reliable, competent
evidence. U.S. v. nS, 345 F.3d 928, 941 (6th Cir.
2003); U.S. v. Morrison, 10 Fed.Appx. 275 (6th cir.
2001).

The advisory committee not to Federal Rule of
Evidence 404 b states: '{cJharacter evidence ... tends
to distract the trier of fact from the main question of
what actually happened on the particular occasion. It
subtly permits the trier of fact to reward the good man
and to punish the bad man because of their respective
characters despite what the evidence in the case shows
actually happened.

 

 

 
Use of Bad Character evidence '... is said to weigh
too much with the jury and to so over persuade them as
to prejudge one with a bad general record and deny him
a fair opportunity to defend against a particular
charge.' Michelson _v. U.S.; 335 U.S. 469, 475-76

(1948) v. Rees, 993 F.2d 1378 1385-86 (9th
cir. 1983)- :

‘the it poisons the well, against
established principles of American Jurisprudence, and
deprives the accused of a fair trial by focusing
attention on whether he/she is ‘bad’ rather than on
whether admissible evidence, and the belief of..the
trier of fact, support a conviction.on the underlying
charges. The accused is therefore denied ‘the right to
a fair opportunity to defend against the state's
accusations.' Chambers v. Mississippi, 410 U.S. 284
(1973); Crane v. 476 ws am 683 (1966).

Comments and allegations ‘ll-repute meant to
emotionally charge one's ‘nought = illegal tactics
often employed by the government. Use of bad character
evidence implicates Due Process, Lesko v. Qvens, 881
F.2d 44, 51-52 (3rd ae. 1989), and is a claim falling
under the umbrella of Prosecutor Misconduct. If the

's vemarks were improper and prejudicial, a
mistrial may be granted. U.S. v. Yarborough, 852 F.2d
1522, Cert. Dn'd 109 S.Ct. 171 (9th Cir. 1988).
Otherwise, on appeal, the prosecutor's conduct must be
shown to have been improper, and, when the trial is
viewed as a whole, violated Due Process. gee, Darden

Wainwright, 477 U.S. 168, 181 (1986); U.S. Vv,
Beverly, 369 F.3d 516, 543 (6th Cir. 2004).

Stay tuned ... More discussions are on the vay...

- Sempre avanti -

 
Sample Brief on pirect Appeal

The: following is an example of how a Brief might
appear after it had been prepared for an Appellant in

State of Ohio who is filing his/her first appeal
from a state court conviction. ‘This appeal follows a
trial court conviction, whether by trial or plea, and
is called a pirect Appeal. this appeal is heard in one
Of the state courts of appeal.

‘There are peripheral documents that must be
Prepared and filed prior to the Brief, such as a Notice
Of Appeal, docketing Statement, Praecipe, Motions for
Appointment of Counsel, Preparation of ‘Transcripts and
possibly others. Normally, an appellate attorney vould
be assigned to represent a defendant for the Direct

» however, if you are not appointed an. attorney
or if you for reason wish to do the appeal on your own,
Consult your Rules of court to find out what is
required in your jurisdiction.

There are many ways of writing a legal argunent and
varied ways to present that argument in an appeal
brief. the brief that follows builds on the principles
discussed and presented within the first two legal
‘zines' in this series: ‘How To Use The Law Library and
Weite Your Om Lav Work,' and ‘Ceiminal Law Forms.!
‘Those booklets, like this one, has been made available

+ te prisoners across the United states through our
". Brothers and sisters at a fev of the ABC Chapters and
Free Books To Prisoners outifts. ‘They are volunteers;
copies and postage are paid out of their om pockets.
So please don't hesitate to donate. You will be
helping them help others.

 

 

 

 
In The Court of appeals
~Your- Appellate district
Your= County ohio

 

Your name 3 Ct. of Appeals No.s
‘Appellant 2 Trial ct, No.:

ve

State of Ohio
Appellee

 

 

 

 

Date: / /

Your Name - Sign on the Tine-

 
‘TABLE OF AUTHORITIES

Boykin v. Alabama, 395 U.S. 238, 89 S.Ct. 1709. . 4
carnley v. Cochran, 369 U.S. 506, 516 (1969) . . . 4
Bill v. Lockhart, 474 U.S. 52, 106 S.ct. 366 (1985)7
State v. Baker, 2008 119 Ohio st.3d 197,

2008 Ohio 3330. . . . 2 ee ee
State v. Bezak, 868 NE2d 961 (2007). . . . «
State v. Blade, 2007 WL 5323. . . . 1. ~~
‘State v. Broadnax, 2008 WL 1723675 . . . . +

 

 

163 (1990) . . . 2 e

Steickland v. Washington, 466 U.S. 668,

104 S.Ct. 2052 (1984) . . 2 2 ww.
Washington v. Smith, 219 £.34 620,

634-45 (7th Cir. 2000) . . . . . 2. 8

Williams v. Taylor, 529 U.S. 362 (2000) . . . 8
Woodford v. Visciotti, 537 U.S. 19,

123 8.ct. 357 (20022). . 2. 2 2 ee 8B

4

2

6

 

Criminal RulellC . © 1 ee ee ee
Criminal Rule 32C 2. - se ee ee ee
RC. 2967.28 2 6 ew ee ee ee ee

 

-7-
‘TABLE OF CONTENTS
Table of Authorities i

‘Table of Contents ii
Statement of the Case and Facts 1
Assignments of Error 2

I. NO PROPER OR FINALIZED JUDGMENT ENTRY OF

WAS UNKNOWING AND PARY 4
III. THE SENTENCE IMPOSED IS VOID DUE TO NO EROPER
PRC NOTIFICATION 6
IV. INEFFECTIVE ASSISTANCE OF COUNSEL 7
Conclusion . 9
Appendix

Entry overruling Motion to Appoint Counsel aA
Signed 1-27-09, entered 1-27-09

Entry Overruling Motion to Withdraw Plea a2
signed 1-27-09, Entered 1-27-09 and 1-29-09
Judgment Entry: Sentence: Incarceration 3,4

signed 6-14-05, entered 6-9-05

entry Overruling Motion to Vacate Sentence

and to withdraw Plea aS
Signed 3-11-10, Entered 3-11-10

 
STATEMENT OF THE CASE AND PACTS

This section of the brief vould contain information
about what has occurred in the case thus far,

on —/—/Illl, Appellant ——- was arrested and
subsequently charged with Disorderly conduct. 11 days
after being admitted to the County Jail for the charge,
an was returned charging two counts of
Special Felony Murder, 1 Count Weapons Under
Disability, ... etcetéra...

Before trial two motions to suppress ——- evidence
vere filed and the court denied both - you would
mention these suppression motions IF your appeal claims
concern an issue about the motions, for instance, if
the motions wert denied and should not have been you
would mention them.

You should only mention what is relevant to the

appeal.

‘Teial began on —/—-/— with Judge — presiding.
After 27 days of testimony and 6 days of deliberation
the jury convicted mr. ——— of °

‘The Appellant how presents this court vith his
Direct Appeal from that conviciton.

 

 
ASSIGNMENTS OF ERROR

“I. NO PROPER OR FINALIZED JUDGMENT ENTRY OF
SENTENCE HAS BEEN ENTERED BY THE TRIAL, COURT.

On June 9, 2005, Defendant~ —
and was sentenced by Judge —=—-. Evidently, the Court
Clerk ‘entered’ the judgment that ‘same day, 6-09-
05, as noted within’ a square at upper

No other: courthouse or Clerk's office 'stamps' not
any other type or kind of ‘official' stampings nor
the two page judgment entry.

Journal by the clerk,
To be in compliance with hiv Criminal
@ judgment being entered by a clerk must be signed by
the judge beforehand. .
In Ohio, A Court speaks through

i
ex Rel. Worcester _v. Dennellon, 551 NE2d 183 (1990).
Here, we see the journal entry having a date of 6-9-
a

A+ judgment is effective only when: entered the
Rule

 

 
‘entered’ date boxes and dated judge's signatures, The
face of those documents, however, clearly show the date
of the ture ocourring before the date of

Judge"
the ‘entry’ date. a. argent 3r 4).
gudge --- dated and affixed his signature to the

 

cause where the Defendant- Appellant will appear for de
novo sentencing.
Ti. BECAUSE THE TRIAL COURT FAILED IN I7S DUTIES
UNDER OHIO CRIMINAL ROLE 11 C, THE PLEA WAS
UNKNOWING AND INVOLUNTARY

In ptt Alabama, 395 U.S. 238, 89 S.Ct. 1709

(1969), the Supreme Court. ruled ‘it was error, plain on

See, he eee for the tal ou Jae to
‘sg

showing® that it oe Laat igent and voluntary.

the Court, said the standard to be used for determining
whether a guilty plea is voluntarily made is the same
as the standard the Court used previously to determine
whether an accused voluntarily waived the right to
counsel:
+. ‘The requirement that the prosecution spread on
the record the prerequisites of a valid waiver is no
constitutional innovation. In Cochran,
369 0.8. 506, 516, we dealt with: waiver
Of the right to counsel, a Sixth amendment right.
We held: 'Preeuming waiver from a silent record is
impermissible. the record must show, or there must
be an allegation and evidence which show that an
accused was offered counsel but intelligently and
understandingly rejected the offer. anything less
is not waiver,*

io _Cri 1 Al(c) states, in part:

(2) In felony cases the court may refuse to
accept a plea of guilty or a plea of no contest, and
shall not accept a plea of guilty or no contest
without first addressing the defendant personally
and doing all of the following:

(a) Determining that the defendant is making the
Plea voluntarily, vith understanding of the nature
of the charges and of the maximum penalty involved,
and, if appl: that the defendant is not
eligible for probation or for the imposition of
fommund ty control sanctions at the Sentencing

 

Here, Appellant ---, appeared in open court on June
9+ 2005 for the purpose of changing his plea of not
guilty to a plea of guilty. During mandatory Rule 11

 

-32-
could cause him to serve up half of the original
Sentence in prison.
+ —— was sentenced to serve a term of 21 years to

Me
life in prison. ‘the maxima Penalty, then, includes
of

State _v. Sarkozy,
509, the Ohio Supreme Court held
court fails during plea colloquy t
that the sentence will include a mandatory tem of post

"

fails to comply with Criminal Rule 11, and the
reviewing court must vacate the plea and remand the

cause,

Therefore, this court is respectfully urged to
vacate the plea in this matter and remand the cause for
trial. .

 

-33-
III. THE SENTENCED IMPOSED IS VOID. DUE 10 NO PROPER
PRC NOTIFICATION

Qn June 9. 2005, Defendant-Appellant, Mr. —-- ,
appeared for sentencing before the --- County Cgmmon
pleas Court. Judge -—- imposed an aggregate sentence
of 21 years to life imprisonment for conviction, by
plea, on four charges. ‘The sentence, hovaver, is void
due to the court failing to impose post release control
Beoperly for sentences imposed for each offense. state
V. Bezak, 868 NB2d 96) (2007).

In State v. Broadnax, 2008 WL 1723675, the Court
held, at 16:

In Bezak, the Ohio Supreme Court concluded that when

lar

Offense, the sentence for that offense is void, and

the sentence must be vacated and the matter remanded
to the trial court for resentencing.

Further, the Court, in State v. Simpkins, 684 NE2d

568 (2008), stated a post release control error during

requires de novo sentencing. Here, the

Court failed to notify Mr. -— of the term of post

release control mandated for each section of the

Revised Code he was convicted of violating. Instead,

the Court,.used catch-all phrasing:

This court is respectfully urged to vacate the
sentence and remand for de novo sentencing.

 
‘IV. INEFFECTIVE ASSISTANCE OF COUNSEL

‘A. Defendant=Appellant --- was fond to be an
indigent person, as defined by ohio lav, and a public
Gefender was appointed to represent him for. alleged
serving seetencing, the appointed lor fai

Dur: e inted counselor failed to
object to imposition of court cost. - Tt is well
settled in Ohio law that where an indigent defendant
appears for sentencing and payment of court costs is
made part of the sentence, the trial court vill set
aside payment of said costs upon objection of the
Gefense, and failure of trial counsel to request such
waiver id ineffective assistance of counsel. State v.
testerson, 2008 WL 4263442, state v. Blade, 2007 WL

 

by the court, would be for a term of imprisonment of 21
years to life. At no time did counsel inform the
Appellant the sentence was, in reality, a minimum of 21
years to life up to a maximum of 30 and one half years
to life, when Pc violation penalties would be factored
in, ‘the additional 10 and one half years is due to
statutory imprisonment for up to one half of the
original sentence if terms of PRC are violated.

By failing to Properly advise his client, the

was not an efféctive advocate. the counselor

advised the Defendant to enter a change of plea from
not guilty to a plea of guilty. Counselor's actions
were unreasonable and. mr. —— was prejudiced by this
deficient performance. Had counsel been an effective
advocate and had his performance been reasonable, Mr. -
— would not have entered a plea of guilty and would
have proceeded with trial. Hill v. Lockhart, 474 U.S.
52, 106 S.Ct. 366 (1985).

is Court is respectfully urged to set aside the
conviction and remand for trial.

 

 

-35-
B. (2) Additionally, it. 4s questionable that any
reasonable advocate, in counsel, would advise a

reasonable standard of professional assistance, this
Court is respectfully oie to set aside the conviction
and remand for trial.

C. In determining a claim of ineffective assistance
of counsel, it must be shown that counsel's performance
was deficient and that deficiencies in performance
prejudiced the defense. Strickland v. Washington, 466
3 688, 104 S.Ct. 2052 (1984); Woodford v. Visciotti,
8. 19, 123 $.ct. 357 (2002). It is submitted the
seein Mc. ---, has met this standard. If the

Teaches a different conclusion, the Court is
requested to assess the cumulative impact of all

deficient performance claims. Williams v. flor, 529
Or5. 362 (2000) also, Washington ¥- Salty 215" P33

620, 634-35 (7th Cir. 2000).
It is respectfully urged that this Court vacate the
conviction and remand for trial.

 

 

 

CONCLUSION

as constitutional and reversible error has occurred,

Defendant-appellant —— respectfully requests that the

Court reverse his conviction and remand for trial, or
Grant any and all other relief as is deemed just.
Respectfully subnitted,

Defendant~appellant
name - signature

 
INDEX
Recess to the Courts, . . . 2 1 68. 19
Arizona v. Hicks, 480 U.S. 321 (1987). 2 wt. 1S
Bad Character Evidence. . . . . we eas + 623
Benton v. Maryland, 395 U.S. 319 (1969).7% 2°. 123
Bill of Attainder 2.0. 6. ew ed
Blackburn v. Alabama, 361 U.S. 199 (1960)
Bounds v. Smith 430 U.S, 617 (1977)./7. . 2. 2. 219
Bram v. U.S.» 168 U.S. 532 (1897). . eww
Chambers v. Mississippi, 410 U.S. 284 (1973)Z".. . . 24
- Chapman v. California, 386 U.S. 18 (1967)... 1. 14
ook v. Bordenkireher, 602 F.24 117 (6th cir 1978)2*. 23

.- Coolidge v. New Hampshire, 403 U.S. 443 (1971).5. . 15

i

inv. Miller, 708 F.2d 1241 (5th Cir, 1983).7°.. .20
Crane v. Kentucky, 476 U.S. 683 (1966).t-{ 2... 24
Darden v. Wainwright, 477 U.S. 168 (1986) 2‘... .24
Davis v. Johnson, 158 F.3d 806 (Sth Cir. 1998).2<2 |. 20
_ Dakallory v. Cullen, 855 P.23 442 (7th Cir. 1988)2¢. 20
Egerton v. Cockrell, 334 P.34 433 (Sth cir. 2003)2>. 20
Forfeiture by Wrongdoing.. . . ee
. Fourth

    

Tree ee eee

Giles v. California, 128 8.ct. 2678 (2008)? » -
Gilmore v. Lynch, 319 F.Supp. 189 (N.D. Cal. 1970)!” - 19
-* Great Weight of the Evidence - - - - + + + « +9

     
  

Hearsay, Defined » SL. . ee ee

Bill v. Lockhart, 474 U. 32 (1985)- +

:-Horton v. California, 496 U.S. 128 (1990)
In re. Winship, 90 S.Ct. 1068 (1970) - +
Ineffective Trial Courisele - + + +
Insufficient Evidence. + + - + + +
Jackson v. Virginia, 99 8.Ct. 2781 (1979)
Johnson v. Avery, 393 U.S. 483 (1969)
Johnson v. U.S. 333 U.S. 10 (19489 -S +

  

 

 

-37-
Johnson v. U.S., 520 U.S. 461 (1997
Katz v. U.S., 389 U.S. 347 (1967) 6»...
nop v. Johnson, 977 F.2d 996 (6th cit. 1992) }4
Taw Library 7... ww we ee Gg

Lehn v. Holmes, 364 P.34 862° (7th Gir. 2004) 27 .
Lesko v. Ovens, 881 F.2d 44 (3rd Cir. 1989) ¢\
Luce v. U.S. 469 U.S. 38 (1984)\7 . 2. we
Manifest Weight of the evidence , ee ee
Mapp v. Ohio, 367 u.S. 643 (1961) }° No." |”

Marron v. U.S., 275 U.S. 192 (1927)/5 . . .
Massiah v. U-S., 377 U.S. 201 (1964) 1.
McKinney v. Rees, 993 F.2d 1378 (9th Cir. 1993)2
Michelson v. U.S., 335 U.S. 469 (1948) VU,

Moore v. Battaglia, 476 F.3d 504 (7th cir. 2007;
Objections at trial, generally, . . . . . 17
Owens v. Waschner, 611 P.24 1365 (loth cir.” 1987), > 19
Palko v. State'of Connecticut, 302 U.S. 319 (196927 23
Plain Error Review. . 2. 1 1. 1 eee 2 18
Plain View Exception.» . . ww eS
Procunier v. Martinez, 416 U.S. 396 (1974) {%. | | 19
Ramos v. Lamm, 639 F.2d 559 (10th Cir. 1980) .\°." .” 19
Sixth Amendment... fw ww ew ee 22
Smith v. Ecickson, 884 F.2d 1108 (8th cir. i989): 20
State v. Martin, 128 NE2d 7 (1955). J”... 10
State v. Otten, 515 NE2d 1009 (1986) . . +10
State v. thompkins, 678 NE2d 541 (1997) © <= 2 2 10
Strickland v. Washington, 466 U-S. 668 (1984), .” .” 12
Sullivan v. Louisiana, 508 U.S. 275 (1993), @ | 0
Taylor v. Perini, 413 F.Supp. 189 (N.D.Ohio 1976)". 19

 

   

 

 

 

erry v. Ohio, 392 U.s. 1 (1968),'. . 2. 15
Tibbs v. Florida, 102 s.ct. 2211 (1982), +. 20
Turner v. Murray, 476 U.S. 28 (1986) .. +18

 

U.S. V. Beverly, 369 F.34 516 (6th cir. 2004) | 24
U.S. v. Cole, 755 F.2d 748 (11th Cir. 1985)7,>
U.S. v. Cronic, 466 U.S. 648 (1964), i.
U.S. v. Garcia, 496 F.3d 495 (6th Cir.” 2008) }:

V. Jenkins, 345 F.3d 928 (6th Cir. 2003). | 23
V. McKenzie, 768 F.2d 602 (Sth Cir. 1985),\", ", 17
Nclavain, 310 F.3d 434 (6th cir, 2002))° © | 15
U.S. v. Morrison, 10 Ped.Appx. 275 (6th Cir. 2001};1 23
U.S. v. Olano, 507 U.S. 732 (1993) .". . . . . 18

  

     

-38-
U.S. ve Pree a P38 2a eth cir, 2002) .7 . «ag
U.S. v. Wade, 388 U.S, 218 Mee eg ee 14
0.8. v. Yarborough, 852 P.2d 1522°(9th Che. 1988)1°" 34
Wade v. Rane, 448 F.Supp. 678 (E.D.Pa 1978 ,

Afe'd S91 F.2d 1338 (3ed Cir. 1979) 4... a9
Walters v. Thompson, 615 F.Supp 330 (N.D.I11 i985) “19
Washington v. Smith, 219 F.34 620 (7th cir. 2000)'2 12
Weeks v. U.S. 232 U.S. 383 (1914) 14. , |, 514
Whalen-tunt v. Early, 233 F.3d 1146 (Sth cir. 3000)2° 29
Wickline v. Mitchell, 319 F.34 813 (6th Cir. 2003) v 11
Wiggins v. smith, 123 S.ct. 2527 (2003).1%. . . 12
William Penn, oe eee ww ee ee 10
Willians v, Taylor, 529 u.8.°362 (2000) ‘12. 2 2 1 ap
Woodford v. Vieciotti, 123 8.ct. 357 (2002)./2. 2 1 42
Weits of Assistance

 

 

eee ee eee ee

See also, Page 27 for a list of cases mentioned within
the Sample Direct Appeal Brief, Pp. 27-36.

entitled, ‘Behind the razorvire' on page each
For prisoners, there is a discounted subscription
and, they also send FOUR new stamps
or embossed envelopes for each monthly issue.
‘The Idaho
PO Box 457
Spirit Lake Idaho 83869
www. idaho-observer.com

Otherwise, the Idaho Observer has no connection to
this booklet.

- 39 -
‘The following is a draft for a proposed newsletter
submission. This was never finished and was not

ubmitted but it seems fitting for this space.

Why don't you see what's going on? It is all
choreographed appeasement, —mis-direction, —_and
brainwashing. The moment someone enters a prison
veception center it is ever present. The law Ubrazy
isn't spoken of and yet playing cards abound.
boards to the left, radio listeners and ont television
watchera outnumber book readers, ‘the recreation yard is
open but again, no mention of he law library.

a usy bons sdvartoe anythirg about the Tay
keep them busy. Don't adi ing tl
library. No. If they see the ‘law’ is accessible’ and
that they are able to learn, quickly, the ways of the
Brethren Of The Bar, well, nothing good could come of

 

or release. Rélease?! oh... Can't Have that. Not at
all, What would the government do with all the prison
staff if people in prison actually filed something and
had sentences reduced or reversed?

Think of the ramifications of each prisoner filing
just one simple motion. For sake of thia illustration
it doesn't inatter what. ‘the motion ia for‘ ‘as long as it

 

not be able to file charges against people unless
absolute evidence of guilt existed. None of that could
happen dué to ‘the influx’ of motions necessitating the
court's attention for correction of the abuses wrought
upon defendants. Court cases won by prisoner litigants
would create new lavs and would overturn illegal
statutes. One motion could free the otherwise cast-
aside, lost-soul who was told to die in prison.

Hearts, Spades, Dominoes, Chess, and the all time

 

-40-
Reeping prisoners focused card games allows
peisoner growth to stagnate. rething 1s being learned.
no books are being read. self-reflection is non-
existent. however, the prisoner got along socially at
time of arrest is how, then, the prisoner will get
along socially upon release; even if imprisoned for

potential within you. Learn, grow, live.

I'm hopeful something within this collection of
weitings has been helpful. 1 vish you well on your
journey.

Sempre avanti — Alvays forvard
April 2010
D.M.Salerno

 

-41-
‘About The Author

D. M. Salerno was convicted, in Michigan, of firet
degree pre meditated murder based upon the false
testimony of an Ohio jail inmate, thomas J. Huff, who
was in jail with salerno for only 11 days; muff vas
sentenced to serve 14 months in prison fer Fraud and
was released the morning after he lied in court,
Salerno was sentenced to serve Life without Parole,

Salerno is also serving a 22 year to life sentence,
in Ohio, for the self defense killing of the man
responsible for the murder he was convicted of in
Michigan.

He is challenging the wrongful conviction vith
limited to no access to Michigan state law material and
and he has no outaide support.

Me. Salerno has written a few legal booklets and
other informative Zines which have been distributed to
Prisoners free of charge through a few ABC chapters and
Free Books to Prisoners Outfits. Salerno has also been
Published ever a dozen times in the Idaho Observer
Rewspaper.

As of April 2010, Salerno may be contacted at:

 

 

 
T£ you are lucky enough to have an outside
contact who is able to do some research for you, the
following web sites may be useful:
victimsoflaw.net
juigewatch.org

knowyourcourts.con
judictalaccountabi Lity.org
abovethelaw.com

lav.com

avyo.rom

~ chacha.com

find).av.com
ejury.con
Jawmall.com
allyoucancead.com
supremecourt .gov
ca6.uscourts.gov

   

 

This (egal Zine, Criminal Law concepts,
companion to the other legal booklets:1)

Library And Weite Your own

Cciminal taw Forms, and 3) case Citator.

 

 

 

Other fine informative Zines ( short for magazine)
are available from your local ABC. A Zine is a Do It
Yourself edukational tool and there are Zines on every
teoic imaginable.

= 43 -