When Danny got back to court, the government verbally offered a plea agreement. He would plead guilty to whatever, and get a 10-year sentence. But Rachel’s conviction had not been reversed yet. Danny told them they would have to (a) stipulate to a summary reversal to speed up Rachel’s appeal (everyone knew her conviction had to be reversed, because his had been). And (b) that she be allowed to plead to a misdemeanor, for time served and no parole. The government said no.
Then a new player stepped into the story. Sean Kennedy, THE Federal Public Defender, asked the judge to appoint him as Danny’s advisory counsel. This wasn’t just any random lawyer. Kennedy heads the largest Federal Public Defenders office in the country, covering seven Southern California counties containing more than 19 million people, and employing more than 150 attorneys and hundreds of support staff, in three offices.
Even though Danny was representing himself, the court and prosecutors tried their best to ignore him. The government continually failed, “inadvertently,” according to them, to send him copies of dozens of documents they were required to serve on opposing counsel. Only Kennedy received them. Danny had the judge issue two orders to the government, requiring them to serve him copies of everything, but they continued to ignore him. When during an appearance just before Trial II he explained this, the judge only shrugged and said, “You need to work closer with Mr. Kennedy.”
Co-counsel Kennedy, meaning well, took over the whole case. Danny continued to be ignored by the government and was not allowed to have “witness visits” or confidential phone calls, or to send or receive sealed mail to or from potential witnesses. His requests for use of a word processor were denied, but sometimes he got to use a cheap typewriter (shared with the other 127 guests in his unit) and a copier that cost 29¼¢ per sheet. A few times a week he was allowed access to a law library equipped with old books. With copies so exorbitantly priced, nearly all of those books had been subject, over the decades, to “research by razor blade.”
Defense subpoenas for anyone outside the seven counties in the Central District of CA require a judge’s authorization. The prosecutor faces no such restrictions, but Judge Lew denied every defense request for issuance of “out of district” subpoenas. Kennedy requested an order to have two in-custody witnesses brought there for the trial. One of them was in the LA County jail, less than a mile away. Both were denied. The government refused to give Danny most of the “discovery” documents that are supposed to be provided to the defense. On two occasions, Kennedy went to the prosecutor’s office to view (but not copy) documents, and was given certain other documents only after signing an agreement that Danny would not be given copies. This situation was explained to the judge, who denied Danny’s motion to be provided with copies. Overall, by letting him serve as his own co-counsel, the court assigned him responsibility for the outcome, without his having a way to adequately prepare for trial.
The vast majority of the pre-trial motions filed by the defense were denied. Most of the motions filed by the government were granted. Danny had testified during Trial I. The government was permitted to pick certain questions and answers out of his Trial I cross-examination testimony and have them read to the jury. The defense was not allowed to have other questions and answers read – they were considered “hearsay” and thus inadmissible. Kennedy’s investigators spent hundreds of hours researching snitch Mike Kramer’s history. They located and interviewed potential witnesses in several states. Many attorneys from the public defender’s office worked with Danny, and dozens of motions were filed and heard.
In August 2008, the court granted the government’s Motion in Limine to Preclude Re-litigation of the Court’s Prior Pretrial Orders and Ruling under the Law of the Case Doctrine. Stay with me, please, because a couple of important points are here. First, faced with the necessity to cope with such a word salad nightmare as “Motion in Limine to Preclude Re-litigation of the Court’s Prior Pretrial Orders and Ruling under the Law of the Case Doctrine,” it is not surprising that many “guests” resign themselves to their fates and become docilely institutionalized, rather than undertake the monumental chore of self-defense. Just the title of that action illustrates how much intelligence and determination it takes to be a jailhouse lawyer.
The prosecution was saying, in effect, “We’ve heard this before, now shut up and move on.” The judge made the requested order. But Danny knew his law. Even if the court has refused to accept a legal argument once, it can be brought up again, if some newer, more recently decided case can be referenced as an example. The prosecution knows this too, of course, but the more motions they can slam the defense with, the more it complicates the process and slows everything down. Danny’s strategies were innovative. He filed a motion to have all of Kramer’s testimony thrown out, along with all the recordings of their conversations, on the grounds that he and Kramer were both ordained ministers of the Universal Life Church, so any communication between them fell under the “priest-penitent privilege.” Naturally, the court didn’t go for that one.
As the summer wore on, the defense demanded that the government produce everything they had about the payments made to Kramer and the benefits he received from being a snitch, including contracts, plea agreements, and anything else that would impeach Kramer’s credibility. The ATF’s Operation Dequiallo, which was Mike Kramer’s “work,” generated at least 173 reports. Kramer made at least 113 recordings. The defense was only provided heavily redacted copies of about 20 of the reports, so marked up and crossed out as to be useless, and parts of about a dozen of the recordings. The judge denied repeated motions to obtain the rest of the sets, accepting the government’s statement that they were not relevant. After Trial II, Danny got a CD with all but about 5 of the 173 reports which, he says, “sure as hell would have been relevant.”
Meanwhile, Rachel’s conviction was finally reversed, and she pled guilty to one felony count and was sentenced to time served. The last in a long chain of incompetent attorneys neglected to ask for her to be released until sentencing, so she spent two more unnecessary months locked up. In July of 2008, after serving more than four and a half years, she was free. One of the conditions of her four years of parole was to have no contact with Danny. A few months later, right before Trial II began, the government subpoenaed Rachel as a witness. She was threatened with being sent back to prison on a parole violation if she refused to be sworn as a witness. She “sort of” testified, by answering all questions of any substance with “I don’t recall.”
Trial II started on September 23, 2008 and lasted four days. The jury convicted on all counts. Still, there were some fascinating and revelatory moments. With such a witness as ATF Agent John Ciccone, how could it be otherwise?
One of the Trial I prosecutors had been Assistant U.S. Attorney Rodrigo A. Castro-Silva. During Trial II, Ciccone outed Castro-Silva as the person who, in 2002, authorized Mike Kramer to own, possess, and carry firearms. (It is, of course, a federal crime for a convicted felon to do any of those things, and aside from his previous convictions, the ATF knew Kramer had committed the Garcia murder.) Ciccone also claimed that this very unorthodox waiver was documented by a written report. Although Danny continues to submit Freedom of Information Act requests for it, that document has never materialized. (One agency said they would need Kramer’s notarized permission. Danny argued that since he went into WITSEC and assumed a new identity, the old Kramer no longer exists and should be considered deceased, so his permission doesn’t matter.) To this day it’s a mystery. Did U.S. Attorney Castro-Silva really authorize a multi-convicted, habitually drunken, meth-addicted felon to own and carry firearms? Or did Agent Ciccone lie about this under oath?
Another high point was the government’s admission that, as of July 2008, they had given Kramer at least $417,000. It also came to light that Kramer hadn’t reported his nearly-half-million dollar windfall to the IRS. Some matters were routine. Among other things, the defense claimed there were chain-of-custody problems with some of the exhibits provided by agents Ciccone and Hamilton and the Drug Enforcement Agency’s chemist.
On the whole, Trial II was pretty discouraging. A DEA expert testified that the 11 grams of methamphetamine taken from the Fabricant home constituted distribution quantity. If the defense could prove the amount was not exorbitant for personal use, and therefore not meant to be sold, this would take away one of the counts against Danny. He wanted to show the jury a CD produced by the Hells Angels, in which he was wired on meth, to demonstrate that it was a reasonable amount for personal use. Kennedy vetoed it as a “terrible idea” and withheld the CD.
In litigation, silence is assumed to be agreement. Objections have to be made by a certain point, or the opportunity is lost. It’s like, “Speak now, or forever hold your peace.” Otherwise, any case could just drag on into infinity. Even though Trial II was theoretically a fresh start and a second chance, the court decided there were some things it was already too late to complain about. For instance, a “simple possession” instruction had been included for the Trial I jury, and was a choice on the Trial I verdict form for Count V, but was omitted this time. The government hadn’t sent Danny copies of the proposed jury instructions, nor the verdict forms they submitted to the court just before the trial. Danny did not see the jury instructions or verdict forms until the trial was nearly over. He then brought up the lack of the “simple possession” instruction and the verdict choice that was available to the Trial I jury, and was told by the judge to “Forget about Trial I.”
Despite the court’s previous order to exclude any kind of evidence about aliases, some was snuck in by the government and admitted as evidence in Trial II. Again, since nobody had objected at the time, it was too damn bad and their own damn fault. Danny was not allowed to be present for sidebar conferences in which, acting as his own counsel, he should have participated. He wasn’t allowed to testify during Trial II. The judge stated that Kennedy would have to ask questions, rather than allow Danny to just speak, under oath. The second jury heard about snitch Kramer’s part in the death of Cynthia Garcia, but Danny was precluded from showing the jury photos of her partially eaten body, as found in the desert.
In Trial II, co-counsel did things Danny didn’t want, and declined to do things Danny wanted, and in general, completely took over. But the official view of such hybrid representation is, “in for a penny, in for a pound.” In other words, it’s all or nothing. If co-counsel is accepted, the pro se defendant is expected to shrug philosophically and be okay with anything and everything. In a later ruling, the government also maintained that no matter what the co-counsel did or did not do during the preparation and conduct of the trial, there’s no way the defendant’s rights were interfered with. This is because the defendant is in jail, and a convict by definition doesn’t have any rights. Only the penal institution has rights.(2)
Almost immediately after Trial II, Danny filed motions for a judgment of acquittal and a new trial. Nearly a year later, the court said no to that. In mid-December of 2009, he filed a motion to re-open the issue of the constitutional validity of his earlier drug convictions. During a hearing prior to the sentencing in Trial I, he had used the government’s own documents to show that he had not received the constitutionally required warnings about “the dangers and disadvantages of self-representation. He wanted to re-argue the issue, but not surprisingly, this was denied.
Co-counsel Kennedy argued that the “dangers and disadvantages” admonitions prior to Trial II were likewise insufficient. The government kept insisting that Danny knew he was facing a life sentence. Perhaps so, but not not a mandatory life sentence. Big difference. At any rate, that dog didn’t hunt. Furthermore, the court also decided that a life sentence, the mandatory minimum, did not constitute cruel and unusual punishment, for the reason that others have been treated just as bad. Really. (3)
A week before Christmas 2009, sentencing was held, and the 60-year-old former Hells Angel was again sentenced to imprisonment for life. Danny asked if he could serve the sentence on weekends. The court’s paperwork says, “Defendant’s verbal request to serve sentence on weekends is denied.” Danny says, “The judge looked stunned. After a minute or so of silence, he came out with a line that probably got a lot of laughs in the judges’ lounge that afternoon – ‘Well, I guess you can serve part of it on weekends, and the rest on weekdays.’”
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Footnote #1 from Reversal and Trial II
The Court of Appeals put it this way:
“For cross examination to be effective, a defendant must be allowed to adequately explore a witness’s motives and biases. When dealing with an informant, a defendant is entitled to let the jury know how much the witness has to gain by testifying for the government… Here, defendant claims, and the government does not dispute, that Kramer faced a life sentence or the death penalty, and that his penalty was reduced to mere probation because of his cooperation. The jury was not informed of this, nor was the defendant allowed to question Kramer about the details of his crime which, by their horrific nature, would have alerted the jury that the witness would suffer extremely serious consequences if he did not testify for the government… Kramer’s testimony that defendant sold methamphetamine rather than marijuana was largely uncorroborated. The error was therefor not harmless beyond a reasonable doubt. REVERSED and REMANDED.” (U.S. v. Fabricant, 240 Fed.Appx 244 [or] 2007 U.S. APP LEXIS 21874)
Footnote #2 from Reversal and Trial II
(((Gov PDF March 2012 Answering Brief)))
The Sixth Amendment demands that a pro se defendant who is incarcerated be afforded reasonable access to law books, witnesses, and other tools to prepare a defense. United States v. Sarno, 73 F.3d 1470, 1491 (9th Cir. 1995). The right of access is not unlimited, but must be balanced against the legitimate security needs or resource constraints of the prison. Prison officials may adopt a regulation that impinges on a defendant’s constitutional right if “the regulation . . . is reasonably related to legitimate penological interests.” Turner v. Safley, 482 U.S. 78, 89 (1987).
Footnote #3 from Reversal and Trial II
from Gov PDF March 2012 Answering Brief
Defendant’s Life Without Parole Sentence Was Not Cruel and Unusual Punishment Under the Eighth Amendment Because Defendant’s Sentence is Not Grossly Disproportional to the Offenses of Conviction
The Court has repeatedly emphasized that “federal courts should be reluctant to review
legislatively mandated terms of imprisonment,” and that successful challenges to the proportionality of particular sentences should be “exceedingly rare.”
In the “rare case”in which the threshold comparison “leads to an inference of gross disproportionality,” the reviewing court compares the defendant’s sentence with sentences received by other offenders in the same jurisdiction, and with sentences for the same crime in other jurisdictions. Id. The Supreme Court’s cases make clear that a finding of “gross disproportionality” is an exceedingly high bar.
See Ewing, 538 U.S. at 28-30 (affirming sentence of 25 years to life under three strikes law for theft of three golf clubs);Harmelin, 501 U.S. at 961, 996 (affirming life in prison without the possibility of parole for possession of 672 grams of cocaine by first time offender); Hutto v. Davis, 454 U.S. 370, 370-73 (1982) (no constitutional error in two consecutive terms of 20 years in prison for distributing nine ounces of marijuana).
Fast and Furious, and Fabricant 