Retired-18
01-06-2005, 11:04 AM
Jail Staff to Inmate: Drop Your Appeal, and We'll Release You
Miriam Rozen
Texas Lawyer
12-20-2004
Charles Frazier had hoped to leave Dallas County's jail, the Lew Sterrett Justice Center, in time to share a Thanksgiving meal with his family.
A Dallas jury had convicted the 47-year-old in March 2004 of a state jail felony — specifically burglary of a building — and sentenced him to 16 months of incarceration. Following his conviction, Frazier filed an appeal, asserting that his trial was tainted by an "impermissibly suggestive" photo lineup shown to a witness who identified Frazier. But since Frazier, who had declared himself indigent, had posted no bond, he remained in custody at Sterrett, where he had been confined since jail officials booked him in on July 17, 2003.
In jail, Frazier began counting his days. He figured by Nov. 17, 2004 — exactly 16 months after his confinement began — he should be walking out a free man who had served his time.
But in early November, Frazier wasn't hearing anything about his release from jail administrators.
Frustrated, Frazier says he started writing internal queries to jail administrators to ask about his release. They didn't respond. Then in early December, Frazier filed a grievance complaining about the lack of response.
On Dec. 3, jail officials finally answered Frazier with a response that subsequently triggered an internal jail investigation; highlighted the risk that some 20 other Dallas county jail inmates annually may unnecessarily stay in jail longer than their sentences require; alarmed Frazier's appellate lawyer Deborah Farris and a state district judge, who has contacted Dallas County Commissioner John Wiley Price; and even prompted an out-of-town district attorney to suggest a need for reform legislation.
"The reason you are still here is because you have placed your case on appeal and we are awaiting information from the appeal court. You can take your case off appeal and then you will be release [sic]," reads the note the jail's Release Department sent to Frazier on Dec. 3.
Suggesting that Frazier must surrender his right to appeal to obtain his right to release, the note conflicts with numerous U.S. Supreme Court rulings, as well as a basic sense of fairness, says Williamson County District Attorney John Bradley, author of the book "Texas Sentencing" who served in 1995 during the 74th Texas Legislature as general counsel for the Senate Criminal Justice Committee, and in 1996 on the governor's Ad Hoc Committee to Rewrite the Code of Criminal Procedure. Specifically, the U.S. Supreme Court held in a 1969 case, North Carolina v. Pearce, that penalizing those who choose to exercise constitutional rights is unconstitutional.
Leslie Sweet, the legal adviser for the Dallas County Sheriff's Department, concedes a mistake happened.
"Our jailer that answered that shouldn't be giving legal advice. We've got that stopped now, and I'm investigating to see why it happened," says Sweet, who adds that he has initiated an internal investigation to uncover why Frazier received such a note and why the jail kept him confined beyond his sentence.
Frazier's court-appointed appellate lawyer Farris, a Dallas solo practitioner, remembers getting a call in early November from her client to find out when the jail should release him. She wasn't surprised to hear from a client who had kept track of his days. "They count; believe me, they count," she says about her incarcerated clients.
Farris says she called the jail and asked for Frazier's release. "I thought he would be out by Thanksgiving," Farris says.
She was surprised to receive his letter after that and even more surprised by the note — referred internally in the jail as a "kite" — that Frazier received from the Release Department, which Frazier included with his letter. "When I saw the kite, my mouth dropped open," Farris says.
The Release Department's blunt message didn't surprise Frazier, who keeps a stack of dog-eared papers about his case in a rumpled envelope stashed in an inside coat pocket. He claims it was common knowledge among state jail felons in the Dallas County jail that if an inmate dropped his appeal, he could get released faster.
Farris says she has heard other incarcerated clients mention such stories, but before she saw the kite in writing, she dismissed the notion as just "inmate talk."
Kite in hand, Farris went to 282nd District Judge Karen Greene of Dallas, who presided over Frazier's trial, to ask for her client's release. Greene says she contacted the jail. Sweet told her that he would investigate the matter. But the judge, given the fact that Frazier had already served his time, says she didn't want to wait for the outcome of Sweet's investigation.
On Dec. 9, after growing frustrated because jail officials weren't giving her clear answers about Frazier's predicament or the basis for the note, Greene ordered that the jail release him on a personal recognizance bond.
"I realized that there didn't seem to be a clear understanding of the sheriff's responsibilities," Greene says.
John Rolater, an assistant district attorney in the appellate division at the Dallas County District Attorney's Office, declines to comment.
Frazier, who works as a day laborer, says he now lives with his mother and he looks forward to spending Christmas with his family.
"My man is out; that was the bottom line for me," Farris says.
Unconstitutional?
Gary and Robert Udashen, criminal-defense lawyers and members of Dallas' Sorrels & Udashen, are concerned about the underlying practices at the jail that led to Frazier's overstay and the advice he received to drop his appeal. "The sheriff is violating the law if they are holding somebody that doesn't need to be held. I don't care what kind of authority they are relying upon," Gary Udashen says.
His brother, Robert Udashen, notes a 1979 5th U.S. Circuit Court of Appeals opinion, Robinson v. Beto, which held that a trial court violated a defendant's due-process rights when it denied the defendant credit for time served while his case was on appeal.
But DA Bradley says the specifics of Frazier's situation should draw attention to the bureaucratic gaps created when the Texas Legislature reformed the Texas Penal Code in the mid-1990s and created the new category of state jail felonies.
In 1993, the Legislature created the state jail felony as part of an effort to divert nonviolent, low-level property and drug offenders from state prisons and into county facilities such as community corrections centers, thereby reserving maximum-security prison beds for robbers, rapists and murderers. The relevant changes to Article 42.12 of the Code of Criminal Procedure became effective in September 1994. The punishment range for a state jail felony is 180 days to two years in state jail. But if the defendant has filed an appeal, that sentence is suspended, Bradley says, and the defendant has the right, if he has not posted bond, to remain in a county facility, where he would presumably have access to his appellate counsel.
For Dallas County jail officials — and other county officials statewide, Bradley says — a convicted state jail felon whose case is on appeal but who hasn't posted bond creates a bureaucratic fog, where responsibilities between the county jail and state prison officials are murky. As a result, Frazier's delayed release from Sterrett is not surprising, Bradley says.
"There is not real good communication between the jails and the prison when an appellate situation comes up," Bradley says.
Sweet confirms that in 2002 he instructed his staff about how to handle the prospective release of inmates who were convicted of state jail felonies and had appealed their convictions but hadn't posted bond. Specifically, Sweet confirms he advised the staff that those inmates were technically not serving a sentence, since he interpreted Texas law to mean that their sentences had been suspended until the appellate court ruled. Sweet did not furnish a copy of his memo to Texas Lawyer before presstime on Dec.16. He confirms, however, that he had instructed the jail staff not to release inmates convicted of state jail felonies whose cases were on appeal until a judge ordered the release or the appeal was dropped.
Meanwhile, Carl V. Reynolds, general counsel for the Texas Department of Criminal Justice, says state prison officials regularly calculate the time served for its inmates who have cases on appeal. But Reynolds notes the TDCJ does not receive any documents or paperwork about state jail felons incarcerated in a county facility while their cases are on appeal. Therefore, TDCJ does not calculate the time such inmates serve either.
"It's kind of a Catch-22," says Sgt. Patsie Dotsy, who serves as the Dallas County jail's coordinator with TDCJ and says she has followed Sweet's advice since he issued his memo in 2002.
Dotsy says she relies on the inmates themselves to keep track of their time served or on the inmate's friends and family members. She says jail administrators also conduct monthly audits during which they regularly tabulate the time inmates have been confined.
But when an inmate convicted of a state jail felony appeals his conviction, even if he has been confined for the period of his sentence, when he or she asks to be released, Dotsy says, that's not what happens automatically. Legal adviser Sweet told the jail staff to tell the inmate he has two options, Dotsy says: "The inmate should be advised that they can release their appeal or contact the court and seek a personal recognizance bond."
Dotsy says she doesn't remember an instance, other than Frazier's, when an inmate was confined beyond his sentence. "We have gotten real close some times," she says.
DA Bradley says that Dallas County jail Release Department officials in their note to Frazier told the inmate "a legal reality." But Bradley says, "to the extent that someone might interpret it that they were giving him advice," the jailer crossed a line they shouldn't have. "The courts have said you cannot condition exercising one legal right on the condition of surrendering another legal right," Bradley says.
As far as keeping Frazier too long, Bradley doesn't worry about that. "It doesn't sound to me that the county has done anything wrong," he says.
Instead, Bradley holds Texas lawmakers responsible for making changes to prevent such an occurrence in the future. "I see a need for a solution. The very simple solution to me is that the Legislature indicate to the jail that it can transfer to TDCJ a state jail felon, whose case is on appeal."
Miriam Rozen
Texas Lawyer
12-20-2004
Charles Frazier had hoped to leave Dallas County's jail, the Lew Sterrett Justice Center, in time to share a Thanksgiving meal with his family.
A Dallas jury had convicted the 47-year-old in March 2004 of a state jail felony — specifically burglary of a building — and sentenced him to 16 months of incarceration. Following his conviction, Frazier filed an appeal, asserting that his trial was tainted by an "impermissibly suggestive" photo lineup shown to a witness who identified Frazier. But since Frazier, who had declared himself indigent, had posted no bond, he remained in custody at Sterrett, where he had been confined since jail officials booked him in on July 17, 2003.
In jail, Frazier began counting his days. He figured by Nov. 17, 2004 — exactly 16 months after his confinement began — he should be walking out a free man who had served his time.
But in early November, Frazier wasn't hearing anything about his release from jail administrators.
Frustrated, Frazier says he started writing internal queries to jail administrators to ask about his release. They didn't respond. Then in early December, Frazier filed a grievance complaining about the lack of response.
On Dec. 3, jail officials finally answered Frazier with a response that subsequently triggered an internal jail investigation; highlighted the risk that some 20 other Dallas county jail inmates annually may unnecessarily stay in jail longer than their sentences require; alarmed Frazier's appellate lawyer Deborah Farris and a state district judge, who has contacted Dallas County Commissioner John Wiley Price; and even prompted an out-of-town district attorney to suggest a need for reform legislation.
"The reason you are still here is because you have placed your case on appeal and we are awaiting information from the appeal court. You can take your case off appeal and then you will be release [sic]," reads the note the jail's Release Department sent to Frazier on Dec. 3.
Suggesting that Frazier must surrender his right to appeal to obtain his right to release, the note conflicts with numerous U.S. Supreme Court rulings, as well as a basic sense of fairness, says Williamson County District Attorney John Bradley, author of the book "Texas Sentencing" who served in 1995 during the 74th Texas Legislature as general counsel for the Senate Criminal Justice Committee, and in 1996 on the governor's Ad Hoc Committee to Rewrite the Code of Criminal Procedure. Specifically, the U.S. Supreme Court held in a 1969 case, North Carolina v. Pearce, that penalizing those who choose to exercise constitutional rights is unconstitutional.
Leslie Sweet, the legal adviser for the Dallas County Sheriff's Department, concedes a mistake happened.
"Our jailer that answered that shouldn't be giving legal advice. We've got that stopped now, and I'm investigating to see why it happened," says Sweet, who adds that he has initiated an internal investigation to uncover why Frazier received such a note and why the jail kept him confined beyond his sentence.
Frazier's court-appointed appellate lawyer Farris, a Dallas solo practitioner, remembers getting a call in early November from her client to find out when the jail should release him. She wasn't surprised to hear from a client who had kept track of his days. "They count; believe me, they count," she says about her incarcerated clients.
Farris says she called the jail and asked for Frazier's release. "I thought he would be out by Thanksgiving," Farris says.
She was surprised to receive his letter after that and even more surprised by the note — referred internally in the jail as a "kite" — that Frazier received from the Release Department, which Frazier included with his letter. "When I saw the kite, my mouth dropped open," Farris says.
The Release Department's blunt message didn't surprise Frazier, who keeps a stack of dog-eared papers about his case in a rumpled envelope stashed in an inside coat pocket. He claims it was common knowledge among state jail felons in the Dallas County jail that if an inmate dropped his appeal, he could get released faster.
Farris says she has heard other incarcerated clients mention such stories, but before she saw the kite in writing, she dismissed the notion as just "inmate talk."
Kite in hand, Farris went to 282nd District Judge Karen Greene of Dallas, who presided over Frazier's trial, to ask for her client's release. Greene says she contacted the jail. Sweet told her that he would investigate the matter. But the judge, given the fact that Frazier had already served his time, says she didn't want to wait for the outcome of Sweet's investigation.
On Dec. 9, after growing frustrated because jail officials weren't giving her clear answers about Frazier's predicament or the basis for the note, Greene ordered that the jail release him on a personal recognizance bond.
"I realized that there didn't seem to be a clear understanding of the sheriff's responsibilities," Greene says.
John Rolater, an assistant district attorney in the appellate division at the Dallas County District Attorney's Office, declines to comment.
Frazier, who works as a day laborer, says he now lives with his mother and he looks forward to spending Christmas with his family.
"My man is out; that was the bottom line for me," Farris says.
Unconstitutional?
Gary and Robert Udashen, criminal-defense lawyers and members of Dallas' Sorrels & Udashen, are concerned about the underlying practices at the jail that led to Frazier's overstay and the advice he received to drop his appeal. "The sheriff is violating the law if they are holding somebody that doesn't need to be held. I don't care what kind of authority they are relying upon," Gary Udashen says.
His brother, Robert Udashen, notes a 1979 5th U.S. Circuit Court of Appeals opinion, Robinson v. Beto, which held that a trial court violated a defendant's due-process rights when it denied the defendant credit for time served while his case was on appeal.
But DA Bradley says the specifics of Frazier's situation should draw attention to the bureaucratic gaps created when the Texas Legislature reformed the Texas Penal Code in the mid-1990s and created the new category of state jail felonies.
In 1993, the Legislature created the state jail felony as part of an effort to divert nonviolent, low-level property and drug offenders from state prisons and into county facilities such as community corrections centers, thereby reserving maximum-security prison beds for robbers, rapists and murderers. The relevant changes to Article 42.12 of the Code of Criminal Procedure became effective in September 1994. The punishment range for a state jail felony is 180 days to two years in state jail. But if the defendant has filed an appeal, that sentence is suspended, Bradley says, and the defendant has the right, if he has not posted bond, to remain in a county facility, where he would presumably have access to his appellate counsel.
For Dallas County jail officials — and other county officials statewide, Bradley says — a convicted state jail felon whose case is on appeal but who hasn't posted bond creates a bureaucratic fog, where responsibilities between the county jail and state prison officials are murky. As a result, Frazier's delayed release from Sterrett is not surprising, Bradley says.
"There is not real good communication between the jails and the prison when an appellate situation comes up," Bradley says.
Sweet confirms that in 2002 he instructed his staff about how to handle the prospective release of inmates who were convicted of state jail felonies and had appealed their convictions but hadn't posted bond. Specifically, Sweet confirms he advised the staff that those inmates were technically not serving a sentence, since he interpreted Texas law to mean that their sentences had been suspended until the appellate court ruled. Sweet did not furnish a copy of his memo to Texas Lawyer before presstime on Dec.16. He confirms, however, that he had instructed the jail staff not to release inmates convicted of state jail felonies whose cases were on appeal until a judge ordered the release or the appeal was dropped.
Meanwhile, Carl V. Reynolds, general counsel for the Texas Department of Criminal Justice, says state prison officials regularly calculate the time served for its inmates who have cases on appeal. But Reynolds notes the TDCJ does not receive any documents or paperwork about state jail felons incarcerated in a county facility while their cases are on appeal. Therefore, TDCJ does not calculate the time such inmates serve either.
"It's kind of a Catch-22," says Sgt. Patsie Dotsy, who serves as the Dallas County jail's coordinator with TDCJ and says she has followed Sweet's advice since he issued his memo in 2002.
Dotsy says she relies on the inmates themselves to keep track of their time served or on the inmate's friends and family members. She says jail administrators also conduct monthly audits during which they regularly tabulate the time inmates have been confined.
But when an inmate convicted of a state jail felony appeals his conviction, even if he has been confined for the period of his sentence, when he or she asks to be released, Dotsy says, that's not what happens automatically. Legal adviser Sweet told the jail staff to tell the inmate he has two options, Dotsy says: "The inmate should be advised that they can release their appeal or contact the court and seek a personal recognizance bond."
Dotsy says she doesn't remember an instance, other than Frazier's, when an inmate was confined beyond his sentence. "We have gotten real close some times," she says.
DA Bradley says that Dallas County jail Release Department officials in their note to Frazier told the inmate "a legal reality." But Bradley says, "to the extent that someone might interpret it that they were giving him advice," the jailer crossed a line they shouldn't have. "The courts have said you cannot condition exercising one legal right on the condition of surrendering another legal right," Bradley says.
As far as keeping Frazier too long, Bradley doesn't worry about that. "It doesn't sound to me that the county has done anything wrong," he says.
Instead, Bradley holds Texas lawmakers responsible for making changes to prevent such an occurrence in the future. "I see a need for a solution. The very simple solution to me is that the Legislature indicate to the jail that it can transfer to TDCJ a state jail felon, whose case is on appeal."