Great News From The States And In Kharkiv
Wow, it's been almost two weeks since my last Blog entry! So much has happened I hardly know where to begin.
I guess the first thing should be the great news about Ed's last argument in LA and his work in Kharkiv. On Friday we woke up to find an email from John Grele (who is working with Ed on the Frierson case - the other lawyer, Gwen Freeman, petitioned the court to withdraw from the case early last spring when she disagreed with Ed's approach to the case - the court has not yet acted on her petition but she has de facto withdrawn and has not participated since- she even wrote Frierson telling him that she was no longer on the case) with the news that the 3 judge panel of the 9th Circuit that heard Ed's argument on June 2nd (we had delayed our departure to Ukraine so that Ed could appear to make this argument) had granted relief on the penalty and remanded the case to the District Court to impose a sentence of life without possibility of parole rather than the death penalty!! This was really great news. Ed really put his heart and soul into this case and he (not to mention Lavell Frierson) would have been devastated if the court had denied relief. It was funny to read an article in the L.A. Times about the opinion and to see Gwen Freeman, Lavell's "current" lawyer quoted as being "thrilled" with the result. I, of course, wanted to immediately send her an email asking whether, in view of the result, she now wanted back on the case - or asking her, as Frierson's "current lawyer" to please send Ed a copy of the opinion (Ed of course heard nothing from her), but Ed, who is better than I at putting such petty emotional outbursts aside, forbade it. Now the question is whether to petition for en banc review of the denial of relief on the "special circumstances" findings of the jury - it's the finding of special circumstances that requires a sentence of either life without possibility of parole or death. Without the special circumstances, Frierson could qualify for a life sentence, which means he could have the hope that one day he might be paroled. He's been on death row for over 25 years - the longest time of any inmate - and by all accounts he is a model prisoner. But there hasn't been a parole for a murder in California in about a million years (except in the case of abused wives killing their abusive husbands, I think). Anyway, that will be up to Frierson, but Ed is pretty sure that Lavell will want him to petition the court for en banc review. If the court grants the petition (a very big if) Ed will have to argue it, and then, if they reverse and grant relief, and the government wants to retry these issues, I'm sure Ed will feel that he will have to represent Frierson in the trial. The case involved the most outrageous incompetency of counsel - it was really unbelievable. When the court questioned the State's Assistant Attorney General about this, his response was "Well, I'm sure that if Frierson was represented by a lawyer like Mr. Rucker, the result might very well have been different"!!!! In any case, Ed will never be able to abandon this guy now - this has been going on for over 10 years. Frierson is about the unluckiest guy I ever heard of - he was beaten mercilessly as a child, had brain damage, personality disorders, and is bordering on retarded. His first lawyer was incompetent(conviction overturned), his second was too (conviction overturned again), and then a THIRD incompetent counsel (this is when Ed got involved - after the third conviction)!!!!! Not only that, the Federal judge who asked Ed to take this Habeas case, who Ed was sure would have granted some relief on the penalty phase, died soon thereafter, and the case bounced around for years, going from one judge to another. The only break Frierson ever got was when the court appointed Ed and he agreed to take the case. I must say, his arguments were really good. I knew he was a really good trial lawyer - I didn't know if he'd be as good an appellate advocate - the skills are quite different - but he was. I was very impressed, and he actually persuaded me of his position (I hadn't been so sure before) when I heard him in the 9th Circuit.
The other good news is that it looks as if the agreement that was hammered out with the General on Friday September 1st will finally be signed tomorrow (Monday). When Ed, Arkadiy and Gennadiy met with the General and his lawyers on Saturday September 2nd (after they worked out the final language in the agreement with the lawyers on Friday September 1st), and the General asked them to observe the police stations to see if the work load would overwhelm the public defender office, the lawyer passed out copies of the final agreement to everyone. Well, as I reported, the agreement wasn't signed then, and a good thing too - because it turns out that it had somehow been revised and was not the same document that had been agreed to the night before!! To this day we don't know why it was changed, who changed it, or whether it was intentional or accidental - Ed of course would never have known, because the agreement is in Russian. Gennadiy discovered it a few days later!! Meanwhile from the date of the meeting until September 7th Ed was bugging everyone to arrange for the day at the police station to observe how the cases are handled and how many come in each day. It's just impossible to arrange meetings here (at least with this cast of characters) - someone will say "We should meet next week" and everyone agrees - but then instead of actually setting a time and day, they say "We will call Arakadiy on Monday to arrange a day" - then the calls are not made, Ed has to bug Arkadiy to call them, they try and call Arkadiy back and can't reach him, and on and on - finally a call is made and a day is arranged, but not the time - "We'll call you that morning and arrange a time"!!!! But finally, Ed did get to go to the police stations on Thursday, September 7th. I had left that morning with Belle for Kyiv - Ed stayed behind in the hope that he would be able to get to go to the police station, so I was very glad that it was finally arranged. But the visit was not very useful. It seems that the cops here have a quota of arrests for each month - as a result, the first two weeks of the month are pretty slow, and then they start hauling people in to make their quota (about 200 a month). Many of these people don't ultimately get charged with a crime (in 7 months this station detained 1200 people and charged 84 with crimes), but if all those detained are going to get PD lawyers, the PD's office will be overwhelmed the last two weeks of every month. Armed with this information, Ed was able to persuade the powers that be that the PD office should limit the cases to one district rather than two - if it turns out they don't have enough cases, they can always add a second district. And this solution seems to have satisfied the General.
In between calls to Arkadiy bugging him to set up the visit to the police stations, Ed was also bugging him to arrange a meeting with the General's lawyers to renegotiate the agreement and get back to where they were on September 1. This took forever!! But finally, finally, a meeting was arranged for last Friday (September 15) and everything was settled (again), with Ed getting everything he needed! No one ever asked what had happened to the agreement negotiated on September 1 (which stuns me - it's the first thing I would have tried to discuss), but I guess it doesn't matter - the fact is they now have an agreement that Ed thinks is great, and the General is going to sign it tomorrow at 11 (at least that's what's scheduled now - if their scheduling turns out to be anything like my apartment viewing schedules, that won't hold!). It took about 20 calls from Ed to Arkadiy to set this up, but all appears to be arranged. Once this happens the office can actually get going, and Ed will really have accomplished something here. Meanwhile of course Ed hasn't seen the final agreement - the General's lawyer emailed it to Arkadiy, but for some reason Arkadiy was unable to email it to Ed. It's too bad because Vicky, our friend and Ed's translator, was at our apartment and could have read it to Ed. She had come over to help me decipher the websites for the Kyiv internet and TV (it turns out that they just added an English language list of the packages and prices - I swear it wasn't there the day before - I'm getting 50 gigabytes a month on the internet and as many TV stations as you can get, including BBC Prime - all for $35 a month), and to go over my and Ed's "calling" card proofs to make sure that the addresses were correctly written in Ukrainian. But while we had tea and sweets (Vicky loves sweets), Ed and she talked about the criminal justice system here, who's who - who has influence, who doesn't (or as the Ukrainian's say "who can cut whose oxygen") - and other things that you can only get from experience - it's not in any Code or book. Vicky was able, for example, to explain why the provisions which allow a pledge of property to secure bail are never used here. She told us that in Ukraine it is better to officially be "poor" rather than "rich." She explained that in the U.S. it is easy to find out what a person owns - almost everything is "on the books," while in Ukraine no one wants to officially "own" anything, especially property. It is always owned by some distant relative, or friend, or cohort, or business "associate" with a side agreement in the desk drawer, or perhaps just the threat of a gun in the desk drawer!! But even more important, under the laws here it is virtually impossible to take away someone's principal residence, even if the person signs a paper agreeing to surrender the property under certain circumstances. So, if a detainee is really the beneficial owner of a house that his third cousin once removed lives in, and his third cousin once removed agrees to pledge the house as security for a bail bond, it will not be accepted as collateral because other laws prevent the taking of the house if the detainee skips town since it is the third cousin's principal residence. They do not have the concept of a mortgage for a principal residence, where the bank can take title to the house if you default in making the mortgage payments. They even avoid secured transactions for the purchase on credit of other property - like a refrigerator - because there is always a straw man (who owns absolutely nothing and has no relationship whatsoever to the real owner - just some homeless guy they pick up that day and use to make the purchase - standing between the real owner and the bank or other lender. It was really interesting. Ed said he learned more talking to her for one hour than he has learned from anyone else during his entire time here. It's too bad we didn't know about her from the beginning, and it's really too bad for that she didn't take that job in Kyiv. I will miss her.
It's amazing - Ed thought he was coming here to help train the lawyers and work with them on their cases! Hah!! They haven't had a single case yet - but meanwhile Ed has drafted and negotiated the all-important agreement with the police (requiring the police to tell the detainees they can have a lawyer appointed if they can't afford one, and also requiring them to call lawyers for those detainees who want representation before the police can begin their interviews), all the office forms (intake forms, proof of indigency forms, case file forms, etc.), and a whole series of motions designed to change the way the legal system operates here (concerning coerced confessions or illegal searches and seizures, for example). It's pretty clear to me that if Ed hadn't been here they wouldn't have gotten any of this done - he has a great combination of knowledge, experience, patience, diplomatic skill, good sense and a willingness to listen to others and learn about the differences between our system and culture and theirs - all of which were essential to his success. I'm extremely proud of him.
We went to the ballet on Friday night for another Swan Lake. Unfortunately, it was not up to the standard of the performance we saw here last June. Far from it. We left before the last act (the apotheosis) - Odette/Odile and Prince Albrecht just weren't very good, although the company itself wasn't bad. Oh well, we're leaving Kharkiv very soon anyway.
I'm way ahead of myself now - there's still the trip to Kyiv from September 7 to 12 to meet up with Jodi and her dad, and to finalize my apartment decision. I'm just waiting for Jodi to email me the photos (which I've seen on her snapfish album already) to post it. I've had many complaints about the lack of photos in my postings lately, and I certainly don't want to lose my following -- so get ready for a ton of them in the next Blog entry!!
I guess the first thing should be the great news about Ed's last argument in LA and his work in Kharkiv. On Friday we woke up to find an email from John Grele (who is working with Ed on the Frierson case - the other lawyer, Gwen Freeman, petitioned the court to withdraw from the case early last spring when she disagreed with Ed's approach to the case - the court has not yet acted on her petition but she has de facto withdrawn and has not participated since- she even wrote Frierson telling him that she was no longer on the case) with the news that the 3 judge panel of the 9th Circuit that heard Ed's argument on June 2nd (we had delayed our departure to Ukraine so that Ed could appear to make this argument) had granted relief on the penalty and remanded the case to the District Court to impose a sentence of life without possibility of parole rather than the death penalty!! This was really great news. Ed really put his heart and soul into this case and he (not to mention Lavell Frierson) would have been devastated if the court had denied relief. It was funny to read an article in the L.A. Times about the opinion and to see Gwen Freeman, Lavell's "current" lawyer quoted as being "thrilled" with the result. I, of course, wanted to immediately send her an email asking whether, in view of the result, she now wanted back on the case - or asking her, as Frierson's "current lawyer" to please send Ed a copy of the opinion (Ed of course heard nothing from her), but Ed, who is better than I at putting such petty emotional outbursts aside, forbade it. Now the question is whether to petition for en banc review of the denial of relief on the "special circumstances" findings of the jury - it's the finding of special circumstances that requires a sentence of either life without possibility of parole or death. Without the special circumstances, Frierson could qualify for a life sentence, which means he could have the hope that one day he might be paroled. He's been on death row for over 25 years - the longest time of any inmate - and by all accounts he is a model prisoner. But there hasn't been a parole for a murder in California in about a million years (except in the case of abused wives killing their abusive husbands, I think). Anyway, that will be up to Frierson, but Ed is pretty sure that Lavell will want him to petition the court for en banc review. If the court grants the petition (a very big if) Ed will have to argue it, and then, if they reverse and grant relief, and the government wants to retry these issues, I'm sure Ed will feel that he will have to represent Frierson in the trial. The case involved the most outrageous incompetency of counsel - it was really unbelievable. When the court questioned the State's Assistant Attorney General about this, his response was "Well, I'm sure that if Frierson was represented by a lawyer like Mr. Rucker, the result might very well have been different"!!!! In any case, Ed will never be able to abandon this guy now - this has been going on for over 10 years. Frierson is about the unluckiest guy I ever heard of - he was beaten mercilessly as a child, had brain damage, personality disorders, and is bordering on retarded. His first lawyer was incompetent(conviction overturned), his second was too (conviction overturned again), and then a THIRD incompetent counsel (this is when Ed got involved - after the third conviction)!!!!! Not only that, the Federal judge who asked Ed to take this Habeas case, who Ed was sure would have granted some relief on the penalty phase, died soon thereafter, and the case bounced around for years, going from one judge to another. The only break Frierson ever got was when the court appointed Ed and he agreed to take the case. I must say, his arguments were really good. I knew he was a really good trial lawyer - I didn't know if he'd be as good an appellate advocate - the skills are quite different - but he was. I was very impressed, and he actually persuaded me of his position (I hadn't been so sure before) when I heard him in the 9th Circuit.
The other good news is that it looks as if the agreement that was hammered out with the General on Friday September 1st will finally be signed tomorrow (Monday). When Ed, Arkadiy and Gennadiy met with the General and his lawyers on Saturday September 2nd (after they worked out the final language in the agreement with the lawyers on Friday September 1st), and the General asked them to observe the police stations to see if the work load would overwhelm the public defender office, the lawyer passed out copies of the final agreement to everyone. Well, as I reported, the agreement wasn't signed then, and a good thing too - because it turns out that it had somehow been revised and was not the same document that had been agreed to the night before!! To this day we don't know why it was changed, who changed it, or whether it was intentional or accidental - Ed of course would never have known, because the agreement is in Russian. Gennadiy discovered it a few days later!! Meanwhile from the date of the meeting until September 7th Ed was bugging everyone to arrange for the day at the police station to observe how the cases are handled and how many come in each day. It's just impossible to arrange meetings here (at least with this cast of characters) - someone will say "We should meet next week" and everyone agrees - but then instead of actually setting a time and day, they say "We will call Arakadiy on Monday to arrange a day" - then the calls are not made, Ed has to bug Arkadiy to call them, they try and call Arkadiy back and can't reach him, and on and on - finally a call is made and a day is arranged, but not the time - "We'll call you that morning and arrange a time"!!!! But finally, Ed did get to go to the police stations on Thursday, September 7th. I had left that morning with Belle for Kyiv - Ed stayed behind in the hope that he would be able to get to go to the police station, so I was very glad that it was finally arranged. But the visit was not very useful. It seems that the cops here have a quota of arrests for each month - as a result, the first two weeks of the month are pretty slow, and then they start hauling people in to make their quota (about 200 a month). Many of these people don't ultimately get charged with a crime (in 7 months this station detained 1200 people and charged 84 with crimes), but if all those detained are going to get PD lawyers, the PD's office will be overwhelmed the last two weeks of every month. Armed with this information, Ed was able to persuade the powers that be that the PD office should limit the cases to one district rather than two - if it turns out they don't have enough cases, they can always add a second district. And this solution seems to have satisfied the General.
In between calls to Arkadiy bugging him to set up the visit to the police stations, Ed was also bugging him to arrange a meeting with the General's lawyers to renegotiate the agreement and get back to where they were on September 1. This took forever!! But finally, finally, a meeting was arranged for last Friday (September 15) and everything was settled (again), with Ed getting everything he needed! No one ever asked what had happened to the agreement negotiated on September 1 (which stuns me - it's the first thing I would have tried to discuss), but I guess it doesn't matter - the fact is they now have an agreement that Ed thinks is great, and the General is going to sign it tomorrow at 11 (at least that's what's scheduled now - if their scheduling turns out to be anything like my apartment viewing schedules, that won't hold!). It took about 20 calls from Ed to Arkadiy to set this up, but all appears to be arranged. Once this happens the office can actually get going, and Ed will really have accomplished something here. Meanwhile of course Ed hasn't seen the final agreement - the General's lawyer emailed it to Arkadiy, but for some reason Arkadiy was unable to email it to Ed. It's too bad because Vicky, our friend and Ed's translator, was at our apartment and could have read it to Ed. She had come over to help me decipher the websites for the Kyiv internet and TV (it turns out that they just added an English language list of the packages and prices - I swear it wasn't there the day before - I'm getting 50 gigabytes a month on the internet and as many TV stations as you can get, including BBC Prime - all for $35 a month), and to go over my and Ed's "calling" card proofs to make sure that the addresses were correctly written in Ukrainian. But while we had tea and sweets (Vicky loves sweets), Ed and she talked about the criminal justice system here, who's who - who has influence, who doesn't (or as the Ukrainian's say "who can cut whose oxygen") - and other things that you can only get from experience - it's not in any Code or book. Vicky was able, for example, to explain why the provisions which allow a pledge of property to secure bail are never used here. She told us that in Ukraine it is better to officially be "poor" rather than "rich." She explained that in the U.S. it is easy to find out what a person owns - almost everything is "on the books," while in Ukraine no one wants to officially "own" anything, especially property. It is always owned by some distant relative, or friend, or cohort, or business "associate" with a side agreement in the desk drawer, or perhaps just the threat of a gun in the desk drawer!! But even more important, under the laws here it is virtually impossible to take away someone's principal residence, even if the person signs a paper agreeing to surrender the property under certain circumstances. So, if a detainee is really the beneficial owner of a house that his third cousin once removed lives in, and his third cousin once removed agrees to pledge the house as security for a bail bond, it will not be accepted as collateral because other laws prevent the taking of the house if the detainee skips town since it is the third cousin's principal residence. They do not have the concept of a mortgage for a principal residence, where the bank can take title to the house if you default in making the mortgage payments. They even avoid secured transactions for the purchase on credit of other property - like a refrigerator - because there is always a straw man (who owns absolutely nothing and has no relationship whatsoever to the real owner - just some homeless guy they pick up that day and use to make the purchase - standing between the real owner and the bank or other lender. It was really interesting. Ed said he learned more talking to her for one hour than he has learned from anyone else during his entire time here. It's too bad we didn't know about her from the beginning, and it's really too bad for that she didn't take that job in Kyiv. I will miss her.
It's amazing - Ed thought he was coming here to help train the lawyers and work with them on their cases! Hah!! They haven't had a single case yet - but meanwhile Ed has drafted and negotiated the all-important agreement with the police (requiring the police to tell the detainees they can have a lawyer appointed if they can't afford one, and also requiring them to call lawyers for those detainees who want representation before the police can begin their interviews), all the office forms (intake forms, proof of indigency forms, case file forms, etc.), and a whole series of motions designed to change the way the legal system operates here (concerning coerced confessions or illegal searches and seizures, for example). It's pretty clear to me that if Ed hadn't been here they wouldn't have gotten any of this done - he has a great combination of knowledge, experience, patience, diplomatic skill, good sense and a willingness to listen to others and learn about the differences between our system and culture and theirs - all of which were essential to his success. I'm extremely proud of him.
We went to the ballet on Friday night for another Swan Lake. Unfortunately, it was not up to the standard of the performance we saw here last June. Far from it. We left before the last act (the apotheosis) - Odette/Odile and Prince Albrecht just weren't very good, although the company itself wasn't bad. Oh well, we're leaving Kharkiv very soon anyway.
I'm way ahead of myself now - there's still the trip to Kyiv from September 7 to 12 to meet up with Jodi and her dad, and to finalize my apartment decision. I'm just waiting for Jodi to email me the photos (which I've seen on her snapfish album already) to post it. I've had many complaints about the lack of photos in my postings lately, and I certainly don't want to lose my following -- so get ready for a ton of them in the next Blog entry!!
posted by Susan Spivak at 10:55 AM
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