This informational booklet (DIY 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 law should always
conduct their own research and should alvays check all
case citations. The author assumes no liability.

written By:

D. Michael Salerno
P.0. Box 80033-412-224
Toledo Chio 43608

A Pauper’s Press Publication

Pirst Printing: April 2010, 50 Copies
Second Printing
Third Printing:
Pourth printing:

Please support your local Ac
and Books to prisoners cutfit

'The true teachers are those who help us think for
ovrselves' Sarvepalli Rakhakrishnan
TABLE OF CONTENTS
Three Laws And A Standard . . . . . . . .
Insufficiency, Manifest weight, and The

Presumption of Correctness . . . . . . 9
Ineffective Trial Counsel . . . . . . . . 11
Pruit Of the Poisonous Tree . . . . . . . .13
To Cbject And Preserve . . . . . . . . . 17
Access o The Courts . . . . . . . . . .19

Evidence Of Bad Character . . . . . . . . 25

sample Direct Appellate Brief
Por Direct Appeal in Ohio . . .25
Cover Fage
Table of Contents
Table Of Contents
Stateaent Of Case/Pacts
Assignments of Exror
No Pinal Judgment
Involuntary Plea
Void Sentence
Ineffective Counsel

ELherEEBYR"

?

37

Criminal Law - Part One
Prom Theory to Conviction

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

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 attormey 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 comnitted a crime. Though there is a

ion of innocence ('Innocent until proven
filty'), the prosecutor believes the person arrested is

lty.

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
\lpthbeltltfltyposaLbhinlnutt-ptmvinflle
trial.

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

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

defendant is imnocent 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
mot 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
lav' 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

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 anywhere.

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

Criminal Law - part Tvo
Three Laws and a Standard

Common Law is made up of judicially (judge or
court) created rules, laws and orders. The opinions of
all criminal cases are considered Common Law. Common
Lav that has not been reversed for being
unconstitutional may find its vay into becoming a court
rule, such as a rule 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 Chio Revised Code § 2903.02. This
statute is a law that shows the elements of the offense
or, put another vay, 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 comwon 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 reviev tells the revieving
court what to look for and what common 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.
If a constitutional claim is a chocolate chip cookie,
the argument, then, would be that the evidence either
does, or does mot, 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 charged
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
vhich 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.
7781 (1979): plore v. ihite, 120 S.ct. N2 (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 Lav - Part IIT
Insufficiency, Manifest Weight, and
The Presumption of Correctness

In a criminal 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
quilty of all elements, beyond a reasonable doubt, the
defendant is said to be 'legally guilty.' The claim of
tinsufficient evidence' is a question of legal guilt
and is, therefore, a question of lav 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 Fact (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
clain might be, ‘Appellant's first degree murder
conviction is against the manifest veight 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
flaved; 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 ve 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 vay and created such a manifest miscarriage of

JUsLALe LhGL LR LUNVICTION MUST be reversed and a new
telal ordered’ state v. Martin, 128 NE2d 7 (1958);
State v. otten, 515 NE2d 1009 (1986): State vy,
Thonpking, 678 NE2d 541 (1997); see also, Tiths. 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.
Presurption Of correctness does not apply when the
£inding of fact relies on facts 'not in evidence.'

The presumption of correctness was born from the
1670 trial of William Pemn and exists to ensure 'fair
trials' without government influence. Presumption of
correctness does not allow the government to reverse
the decision of the people who have judged an accused
‘not guilty,' effectively protecting against being
tried twice for the same crime, or 'double Jeopardy.’
The presurption 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 'Mhlfl of attainder,’ which is a
constitutionally-prohibited law that takes avay 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

-10-
Criminal Lav - 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 vhatever is on the lot at the time.
Could be a Chevette, Could be a Porsche. Heeeyl Look
at that beat up Ford... It's got a 460 under the hood
... 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 shon that ‘counsel's representation fell
below an objective standard Of reasonableness,'
wickline v. Mitchell, 319 F.3d 813, 819 (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
Gefendant's cause, 3) consult the defendant on
important developments during 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

-1 -
PIRST part may be: '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 what 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.'
Strickland, 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:

‘... (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 reviewing 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 £it 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.'

-12-
Crininal Lav - Part V
Pruit of the Poisonous Tree

While standing on a hill ve watch as little michael
plays in his sandoox. The sandbox is under a nice
fruit tree that offers shade from the hot sun. A

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. Ee
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. When
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
danger..

Illegally obtained evidence is often used against
an accused. One of many vays this occurs is by the use
of evidence discovered when an item already seized is
further investigated. Let's say an accused is arvested
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. The 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 vithout 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

the tree still stands. down the tree and

£id of both the foutt avd v tree; else the shirt wouid
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
2alleged 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 varrant? Does the government
claim an exception to the Pourth 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 varrant
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
shich 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
Avendment, 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): Massish 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 -

-4 -
Criminal Law - Part VI
The Plain View Exception

The PFounding Fathers meant to protect Americans
from arbitrary, general searches which plagued the

lish through something called a Writ of Assistance:
Ehis weit alloved an officer to search howver ne
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 wrrant to search or
seize persons or things. Katz v. U.S., 389 U.S. 347,
357 (1967); Johnson v. U.S., 333 U.S. 10, 14 (1948).
The warcant must state with particularity what is to be
searched or seized, Marron v. U.S., 275 U.S. 192, 19%
(1927); coolidge v. U.S. 443, 467 (1971).

‘Thouig] 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. Chio, 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 must
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 immediately 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
unlavful exploratory search. See, Arizona v. Hicks
480 U.S. 321, 334 (1987).

T determine whether something is ‘'immediately
apparent! ve have a three-part test, U.S. v. McLevain,
310 F.3d 434, 441 (6th Cir. 2002): 1) a connection
between the item seized and the items particularized in
the warcant, 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 'imediate' or
'instantaneous sensory perception.' U.S. v. Garcia,
496 F.3d 495, 511 (6th cir. 2008).

In picks, 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 immediately apparent to be
incriminating evidence. No instantanecus 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 vhere 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 Cbject and
Preserve.

- Sempre avanti -

-16-
Criminal 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 Luce v. U.S., 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 were
discoverable only after trial, + 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
ansver the question calls for. Generally, the
objection would be the witness is incompetent to
ansver, the answer is immaterial/irvelevant, the
question calls for hearsay or an inadnissible response,
there vas 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, assuning 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
attomey may request the witness be labeled a 'hostile
witness;' in this case, leading questions are allowed.
Leading questions are also used during cross

-17-
exanination 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
ansver. ' Generally, these objections are for
unresponsiveness, an inadmissible opinion or hearsay.

4. If 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 is 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 objection' rule, see Turner v. Murray,
e e a7 (1988), failure ‘o object doring Eeisl
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 VIIT
Access The The Courts

It may be difficult or impossible to discover wnat
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.Chio
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. Lamm, 639 F.2d 559, 584 (0th Cir.
1980); wWade 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
lav library may be understaffed. Taylor, supra.
Regardless, prisoners are entitled to some form of
assistance when litigating constitutional claims.
Halters v. Thompson, 615 F.Supp 330, 336 (N.D.ILL
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.
Johnson 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. Ovens 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 -
Demallocy v. Cullen, 855 F.2d 442, 446~49 (7th Cir.
1588), ,Eam!—.sagmgngd_ prisoners who are denied physical
access to lav books may be entitled to free
photocopies. See Walters, supra at 340.

Courts have ~addressed 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, 1109-
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 prisoner is
being denied access to materials from the relevant
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. Pgerton v. Cockrell, 334 F.3d 433 (Sth cir.
2003): mlen-mnt v. Barly, 233 F.3d 1146 (9th cir
2000). An 'impediment' is whatever prevents a prisoner
from filing his petition. Duvlu v._Johnson, 158 £.3d
806, 811 (Sth clr. 1998); Woore v. Battaglia, 476 £.3d
504 (7th cir. 2007).

It is bitterly offensive for a government to
convict people based upon mere theories, spun into
melodramatic fiction for courtroom display, and again
vhen 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

The 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 80l(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
inadnissible ID it vere being used to prove the matter
asserted, which is that a man vearing 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
knovledge 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,
'vhat does Sue have first-hand knowledge' of? Sue had
direct knowledge of what Bob knew. Bob told her that
he vatched 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 Statément 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 statewent, veracity (truthfulness), and other
factors often may only be tested through examination of
the actual person with direct knowledge. There are, as
with anything in ‘law,' numerous excéptions when
Bearsay may be used at ‘trial, such as: Dying
Declarations, FRE 804(B)2 ; Stdte of Mind FRE 803(3);
Business Records FRE _B03(6); Past Recorded
Recollections FRE 8 ; 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 rav = part X
Evidence of Bad Character

'Birds of a pesther Flock together.' 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
trouble; 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
- somecne based upon their prior actions or alleged
reputation. Introducing, or causing a witness to
: mention, an accused's prior conviction(s) is considered
‘bad character' evidence. Such judgment is prejudicial
as the jury is unable to objectively view circumstances
of the charged offense(s). See de. Cook v.
Bordenkircher, 602 F.2d 117, 120 (6th Cir. 1978).

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).
You can't put dung back in the donkey. once the
prosecution has shown the accused to have a ‘bad
+ character' it is difficult to impossible to remove the
idea of being a 'bad guy' from the mind. A prosecutor
must limit his coments to admissible evidence. _U.s.
Y. Cole, 755 F.2d 748 (llth Cir. 1985). Guilfy by
reputation is not the same as being found guilty
through ‘a showing of substantial, reliable, competent

evidence. U.S. v. ns, 345 F.3d 928, 94l (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: '[Clharacter 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 veigh
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); w v. Rees, 993 F.2d u7e, 1385-86 (9th
cir. 1993 .

The government 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. %tugz, 476 U.S. 683 (1966).
Comments and allegations of ill-repute meant to
emotionally charge one's thoughts are illega) tactics

often employed by the government. Use of bad character
evidence implicates Due Process, Lesko v. Quens, 881
F.2d 44, 51-52 (3rd Cir. 1989), and is a clain falling
under the umbrella of Prosecutor Misconduct. If the
's remarks vere improper and prejudicial, a
mistrial may be granted. U.S. v. Yarboroush, 852 F.2d
1522, Cert. Dm'd 109 S.Ct. 171 (9th cir. 1988).
Othervise, on appeal, the prosecutor's conduct must be
shown to have been improper, and when the trial is
vi.wnd as a whole, violated Due Process. See, Darden
wainwcight, 477 U.S. 168, 181 (1986); U.S. V.
Bwqux, 369 F.3d 516, 543 (6th Cir. 2004).
Stay tuned ... More discussions are on the vay...

- Sempre avanti -

Sample Brief on Direct Appeal

fol. is an example of how a Brief might
appear after it had been prepared for an Appellant in

te 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 would
be assigned to represent a defendant for the Direct
appeal, however, if you are not appointed an attorney
or if you for reason vish to do the appeal on your own,
Consult your Rules of Court to find out what is
required in your jurisdiction.

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

- to prisoners across the United States through our
". Brothers and Sisters at a few of the ABC Chapters and
Pree Books To Prisoners outifts. They are volunteers:
copies and postage are paid out of their own pockets.
So please don't hesitate to donate. You will be
helping them help others.

In The Couct of Appeals
~Your- Appellate district
~Your- County Ghio

Your name 1 Ct. of Appeals No.:
Appellant + Trial ct. No.:

ve 1

State of ohio

Appellee

!

BRIEF OF APPELLANT -Your Name-

Your Name
Address and Number
city/state

PRO SE APPELLANT

—-- County Prosecutor

FOR APPELLEE

Date: / /

~Your Name - on tl

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. tockhart, 474 U.S. 52, 106 S.Ct. 366 (1985)7
State v. Baker, 2008 119 Ohio st.3d 197,
20080hi0 3330 . . . . . .+ . . . . 3
State v, Bezak, 868 NE2d 961 (2007) . . . . . 6
State v, Blade, 2007 WL 5323 . . . . . . . 7
State v. Broadnax, 2008 WL 1723675 . . . . . 6
. State v. Masterson, 2008 WL 4263442 . . . . .7
3
1
6

State v. Sarkozy, 117 Chio St.3d 86, 2008 Chio 509
State v, Simpkins, 884 NE2d 568 (2008) . . . .
State ex Rel. worcester v. Dennellon,
551 NE2d 183 (1990) . . . . .
strickland v. Washington, 466 U.S. 668,
104 S.Ct. 2052 (1984) . . . . . . . .8
Washington v. Smith, 219 £.3d 620,
©634~45 (thCir.2000) . . . . . . . 8
willians v. Taylor, 529 U.8. 362 (2000) . . . 8
woodferd v. Visciotti, 537 0.S. 19,
1238.Ct. 357 (2002) . . . . . . . . 8
4
2
6

c . .2

Crimfnal Rule 11 € . . . « + « « + o o
Criminal Rule 32C . . . .« . .« + . . .
RC.2967.28 &« & o o o o o o o o o .

5

-27-
TABLE OF CONTENTS

Table of Authorities i
Table of Contenta i
Statement of the Case and Facts 1
Assignuents of Error 2

1. NO PROPER OR FINALIZED JUDGMENT ENTRY
nmn!mammmnc.mpmm

WAS UNKNOWING AND INVOLUNTARY
III. THE SENTENCE IMPOSED IS VOID DHE TO NO EROPER

a

PRC NOTTFICATION 6
IV. INEFFECTIVE ASSISTANCE OF COUNSEL 7
conclusion . 9

Appendix
Entry overruling Motion to Appoint Counsel AL
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 A3,

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

entry Overruling Motion to Vacate Sentence

and to withdraw Plea 2
Signed 3-11-10, Entered 3-11-10

STATEMENT OF THE CASE AND PACTS

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

on —/—/ll, Appellant —— was arrested and
subsequently charged vith Disotderly conduct. 11 days
after being adnitted to the County Jail for the charge,
an indictment was returned charging two counts of
Special Pelony Murder, 1 Cent Weapons Under
Disability, ... etcetéta...

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

You should only mention what is relevant to the
appeal.

Trial 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 with his
Direct Appeal from that conviciton.

ASSIGNMENTS OF ERROR

‘I. NO PROPER OR PINALIZED JUDGMENT ENTRY OF
SENTENCE HAS BEEN ENTERED BY THE TRIAL COURT.

On June 9, 2005, Defendant-Appellagt —— appeared
and was sentenced by Judge —=—. Evidently, the court
Clerk 'entered’ the judgment that sqme day, 6-09-
05, as noted within' a square g at the upper
left portion of each of the two pages of the judgment
entcy. (appendix 1, 2). This ‘square’ lists a date
entered as 6-9-05, and. shows an 'Image' numbar as 678,
vith the second page showing a date of 6-9-05 and an
Inage nuaber of 679, .

At the opposite side of the form, at the top right
corner, appears a signature of trial judge —-—, and
below the. signature appears the date '6/14/05'.

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

ohio criminal rule 32(c) states:

A judgment of tion shall set forth the plea,

for

entitled ‘to be discharged, the court shall render
Jjudgment accordingly. The
judguent and the clerk shall enter it
A judgment is effective only when entered on
Joummal by the cleck.

0 be in compliance with thio Criminal Rule 32(c),
a judgment being entered by a clerk must be signed
the Judge betoreand. T . >

‘entered’ date boxes and dated judge's signatures. The
face of those documents, however, clearly show the date
of the judge's s ure occurring before the date of
the ‘entry’ date. (appendix 3, 4).

Judge —— dated and affixed his signature to the
two pages of the judgment entry of sentence on 6/14/05.

119 Ohio St.3d 197, 2008 Chio 3330.
This Court is respectfully urged to remand the
cause vhere the Defendant- Appellant vill appear for de

u.mus:mmummmummas
UNDER OHIO CRIMINAL RULE 11 C, THE PLEA WAS
UNKNOWING AND INVOLUNTARY

In w Alabama, 395 U.S. 238, 89 S.Ct. 1709
(1969), the Supreme Court.ruled ‘it vas error, plain on

nuwao:nn ,mmfiumfi’}mt:
accept petiticnert plea vithout rnat i
Mmp.m:x L:-m't{nfihmt and voluntary,'

Further, Mr. Justice Douglas, delivering the Opinion of
the Court, said the standard to ba used for deternining
vhether a.guilty plea is voluntarily made is the same
as the standard the Court used to determine
whether an accused ' voluntarily vaived the right to
counsel :
s+ The requirement that the prosecution spread on
the record the prerequisites of a valid vaiver is no
constitutional imnovation. In Cochran,
369 U.S. 506, 516, we dealt vith vaiver
of the right to counsel, a Sixth Amendment .right.
We held: 'Presming vaiver from a silent record is
imparmissible, 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 cr 1 11(C) states, in part:

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: o that the defendant is not
eligible for probation or for the imposition of
community control sanctions at the sentencing
hearing.
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 Rula 11

-32-
col —-- failed to make certain Mr. — had
an of the maximm penalty involved, thus
failing to determine whether Mr. —— vas voluntarily
agreeing to the possibility of being sentenced to the
statutory maximum penalty. The judge failed to advise
M, - that the maximm penalty involved includes a
statutory mandatory term of post release control (PRC)
for each of the charges involved, including the
possibility of serving

release, for any violation of the terms of PRC, which

one

B
i
5
i

M, —
life in prison. The maximm penalty, then, includes
™ot only the mandatory term of PRC
possibility of imprisonment for an additional 10
one half years. Nowhere does the judge mention PRC at
all. The court failed to discover whether Mr, —

vas

entering a voluntary plea to the charges such
maximum punishment sentencing terms.

In State v. Sarkozy, 117 Ohio St.3d 86, 2008 Ohio

509, the Ohio Supreme Court held (1) that if a trial
court fails during plea colloguy to advise a t
that the sentence will include a mandatory term of post
release control, the defendant may dispute the knowing,
intelligent, and voluntary nature of the plea either by
filing a motion to withdraw plea or upon direct appeal:
and (2) if the trial court fails during plea colloquy
to advise tha defendant that the sentence will include
a mandatory term of post release control, the court

-33-
III. THE SENTENCED IMPOSED IS VOID DUE 70 NO PROPER
PRC NOTIFICATION

O June 9. 2005, Defendant-appellant, Mr. ——- ,
appeared for sentencing before the -— County Common
pleas Court. Judge -— imposed an aggregate sentence
Of 21 years to life imprisonment for conviction, by
plea, on four charges. The sentence, however, is void
due to the court failing to impose post release control
properly for sentences imposed for each offense. State
V. Bezak, 868 NE2d 961 (2007).

In State v, Broadnax, 2008 WL 1723675, the Court
held, at ¥6:

In Bezak, the Chio Supreme Court concluded that when
a defendant is convicted of or pleads guilty to one
or more offenses and post release control is not
properly included in a sentence for a particular
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, 884 NE2d
568 (2008), stated a post release control error during
sentencing 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-hppellant -— was fond to be an
indigent person, as defined by Ohio lav, and a public
:1“:2;‘ appointed to represent him for alleged

lony .

object to imposition of court cost t. It is well
settled in Chio law that vhere an defendant
appears for sent and payment of court costs is

years to life up to a maximum of 30 and one half years
to 1ife, when PRC violation penalties would be factored
in. he additional 10 and one half years is due
statutory imprisonment for up to one half of
original sentence if terms of PRC are violated.

By failing to properly advise his client,

vas not an effective 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. — vas 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. PEill v. Lockhart, 474 U.S.
52, 106 S.Ct. 366 (1985).

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

-3 -
B. (2) Additionally, it is guestionable that any
reasonable advocate, in counsel, would advise a

plea would invite consecutive sentences, as if vieved
ummutmquuzozm-ynlymatmmg
on the other. The question-remains how any reascnable
advocate would advise a defendant to enter a plea of
guilt for such charges for a consecutive sentence.
As actions of the defense counselor fell below a
reasonable standard of professional assistance, this
Court is respectfully urged to set aside the conviction
and reaand foc triall

C. In determining a claim of ineffective assistance
of counsel, it must be shown that counsel's’ performance
vas deficient and that deficiencies in performance
prejudiced the defense. Strickland v, Washington, 466
u 688, 104 S.Ct. 2052 (1984); Woodford v. Visciotti,
.5. 19, 123 S.Ct. 357 (2002), It is submitted the
n:p-uam:, M. -——, has met this standard. If the
Court reaches a different conclusion, the Cowrt is
requested to assess the cumulative impact of all

deficient performance claims. Williams v. flor, 529
05 362 (20000, aiso, vashincton v SeiEh: 215" F. 30
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 bas occurred,
Defendant-Appellant — respectfully requests that the
Court reverse his conviction and remand for trial, or
Grant any and all other relief as is Geemed just.

Respectfully submitted,

Defendant-Appellant
nane - signature
Address

INDEX

Mccess tothe Courts , . . . . . L% . .19
Acizona v. Hicks, 480 U.S. 321 (1987) . .° .. .15
Benton v. Maryland, 395 U.S. 319 (1969).7% . . . .23
Bill of Attainder 2%. . . c.. .3

Blackburn v. Alabana, 361 U.S. 199 (1960)
Bounds v. Smith 430 U.S. 817 (1977).4. . . . . .19
Bram v. U.S., 168 U.S. 532 (1897)\ . . . . . . M
Chambers v. Mississippi, 410 U.S. 284 (1973)2%. . . 24
- Chapman v. California, 386 0.S, 18 (1967).¢ . . . .14
ook v. Bordenkircher, 602 F,2d 117 (6th Cir 1078)2%. 23

.~ Coolidge v. New Hampshire, 403 U.S. 443 (1971)25. . 15

- Corgain v. miller, 708 F.2d 1241 (Sth Cir, 1983)Lo. .20
Crane v. Kentucky, 476 U.S. 683 (1966).2"{ . . . .'24
Darden v. Wainwright, 477 U.S. 168 (1986) 2'i. . . .24
Davis v. Johnson, 158 F.3d 806 (Sth Cir. 1998).Z<2 . 20

. DeMallory v. Cullen, 855 P.2d 442 (7th Cir, 1988)2°. 20
Bgerton v. Cockrell, 334 F.3d 433 (Sth Cir. 2003)2°. 20
FPorfeiture by Wrongdoing . f e e e e e .22

Pruit of the Poisonous Tree . .o ..
Giles v. california, 128 S.ct. 2678 (2008) "7 -
Gilmore v. Lynch, 319 F.Supp. 189 (N.D. Cal. 1970)%" - 19
.> Great Welght of the Evidence - - + + » o o o <9

Bearsay, Defined . ) . . . . . . .
Bill v. Lockhart, 474 U.S. 52 (1985). -

* Horton v. California, 4¢ . 128 (1990)
In re. Winship, 90 S.Ct. 1068 (1970) - «O
Ineffective Trial Courisele « . . .« .
Insufficient Evidence . . . . . . .
Jackson v. Virginia, 99 s.ct. 2781 (1979)
Johnson v. Avery, 393 U.S. 483 (1969) ¥
Johnson v. U.S. 333 U.S. 10 (1948) 5. -

Johnson v. U.S., 520 U.S. 461 (1997) \”", .
Ratz v. U.S., 389 U.S. 347 (1967) )5 , . . . .,

Knop v. Johnson, 977 F.2d 996 (6th cir. 1992) 31. 19
Lehn v. Holmes, 364 F.3d 862 (7th Cir. 2004)%° . . 20
Lesko v. Ovens, 881 F.2d 44 (3rd Cir. 1989) ¢\ . . .24
Luce v. U.S.; 469 U.S. 38 (1984) 1 , . . . . . 17

Manifest Weight of the evidence . a9
Mapp v. Chio, 367 U.S. 643 (1961) 19 N6 ° 7 7 14,16
Marron v. U.S., 275 U.S. 192 (1927) 15 . . . . .

Massiah v. U.S., 377 U.S. 201 (1964) M . . ,
McKinney v. Rees, 993 F.2d 1378 (9th cir. 1993)C
Michelson v. U.S., 335 U.S. 469 (1948) ;v\, .
Moore v. Battaglia, 476 F.3d 504 (7th Clr. 2007
Objections at trial, generally . . . . . , . .17
Ovens v. Maschner, 811 F.2d 1365 (10th cir. 1987)," . 19
Palko v. State'of Connecticut, 302 U.S. 319 (19692~ 23
Plain Error Review . . . . . . . . . . . .18
Plain View Bxception . . . | . . . [ |
Procunier v. Martinez, 416 U.S. 396 (1974) . | |19
Bamos v. Lama, 639 F.2d 559 (10th cir. 1980) ¢, ." 19
Sixth Amendment . . . L . . . . . . . . .22
Smith v. Erickson, 884 P.2d 1108 (8th cir. 1989)7 . 20
State v. Martin, 128 NE2d 7 (1955) . 7. . . . .10
State v. otten, 515 NE2d 1009 (1986) .
State v. Thampkina, 678 Ngad 41 (1997) & o 0 1 (10
strickland v. Washington, 466 U.S. 668 (1984),% ." .
Sullivan v. Louisiana, 508 U.S, 275 (1993), % . | g
Taylor v. Pecini, 413 F.Supp. 189 (N.D.Ohio 19761)". 19
Terry v. Ohio, 392 U.S. 1 (1968), ',
Tibbs v. Florida, 102 S.Ct. 2211 (1982)
Turner v. Mucray, 476 U.S. 28 (1986) .\E, . o . .18
U.S. V. Beverly, 369 F.3d 516 (6th Cir. 2004)%" . | 24
U.S. v. Cole, 755 F.2d 748 (llth Cir. 1985)7,%
U.S. v. Cronic, 466 U.S. 648 (1984), . , .
U.S. V. Garcia, 496 F.3d 495 (6th Cir. 2008) 1
U.S. v. Jenkins, 345 F.3d 928 (6th Cir. 2003)1 7 | 23
V. Mckenzie, 768 P.2d 602 (Sth cir. 1985), ", °, 17
Mclevain, 310 P.3d 434 (6th cir, 2002))¢ . [ 15
Morrison, 10 Ped.Appx. 275 (6th cir. 2001)1%.23
U.S. v. Olano, 507 U.S. 732 (1993) .~ . . . . . .18

-3~
U.8. v, Mégm F.34 %é_slgh cir, 2002) .7 . . g
U.S. v. Wade, 388 U.8, 218 a1
0.8, v. Yarborough, 852 P.2d 1522 (9th Cle. 1988)1°. 34
Wade v. Rane, 448 F.8upp. 678 (E.D.Pa 1978 ,

ALE'd 591 P20 1338 (3ed Cir. 1979) WY . . . 19
Walters v. Thompson, 615 P.Supp 330 (N.D.I11 1985) > 19
¥ashington v. Smith, 219 F.3d 620 (7th cir. 2000) 12, 12
Weeks v. U.S. 232 U.s. 383 (1924) )4, , .
Whalen-unt v. Early, 233 F.34 1146 (Sth cir. 3000)t° 20
Wickline v. Mitchell, 319 F.3d 813 (6th Cir. 2003) v 11
Wggins v. Smith, 123 s.Ct. 2527 (2003). 13 . . . 12
Wlllampenn , ., ., . .. LT T 0 g0
Willians v. Taylor, 529 U.s. 362 (2000) JZ. . . .13
Woodford v. Visciotti, 123 s.ct. 357 (2002)./2 . .12
Weits of Assistance fe e e v LS

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

Spirit Lake Idaho 83869

www. idaho-observer . com
Otherwise, the Idaho Cbserver has no comnection to
this booklet.

-39 -
The following is a draft for a proposed newsletter
submission. This wvas never finished and was not
submitted but it seems fitting for this space...

Why don't you see vhat's going on? It is all
choresgraphed " appeasemant, mis-direction, and
brainwashing. The moment someone enters a prison
reception center it is ever present. The law libraty
isn't spoken of and playing cards abound. ' Chess
hoacds "o "the. lfe, | vadio listeners and television
wvatchera cutnusber book readers, the recreation yard is
open but again, no mention of he law library.

Keep ‘em happy. Give them something to do. Just
keep them busy. Don't advertise anything about the law
library. No. If they see the 'law' is accéssible and
that they are able to learn, quickly, the vays of the
Brethren Of The Bar, well, nothing good could come of
that. MNope, they'll all start filing papecvork. Can't
have that. Some will vin nev trials, lower sentences
oc release. Release?! 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 this illustration
it doesn't matter what the motion ia for'as long as it
is Not “frivolous. ' If even half the prison population
in any state all Filed only one motion the system would
have to stand up and recognize the messes for the
intelligent, worthy beings they are. o

If every prisoner filed ope motion the legislature
would, iltimately, have to restructure laws, judges
would need to “reduce sentences and cu would
not be able to file charges against people unless
absolute evidence of guilt existed. None Of that could
happén due to 'the influx’ of motions necessifating the
court's attention for correction of tha abuses wrought
upon defendants. Court cases won by prisoner litigants
would create new laws and would overturn illegal
statutes. One motion could free the otherwise cast-
aside, lost-soul who was told to die in prison.

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

prisoner growth to stagnate. nothing is being learned.
no beoks are being read. Self-reflection is non-
existent. hovever, the prisoner got along socially at
time of arrest is how, then, the prisoner will get
along socially upon release; even if imprisoned for
twenty years. How can this be? Why no social growth?
You mean tG tell me a Pifty Year old who secved 30
years may think and act as if he vere still the 20 year
h

Gld he was when arrested? This sad occurvence happens
for too often.

lay down the cards and turn off the television.
Pick up a book and go to the law library. Don't

to
person balonging to one of the class 1es.
allow £ to be described as a label: realize the
potential within you, Learn, grow, live.

I'm hopeful sowething within this collection of
writings has been helpful. I wish you well on your
Journey.

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

-4 -
About The Author

D. M. salerno was convicted, in Michigan, of first
degree pre meditated murder hased upon the false
testimony of an Chio jail inmte, Thomas J. Huff, who
vas in jail with salerno for only 11 days: Muff vas
sentenced to serve 14 months in prison for Praud and
vas released the morning after he lied in court,
Salerno vas 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 vas convicted of in
Michigan,

Be is challenging the wrongful conviction with
limited to no access to Michigan state lav material and
and he has no outside support.

Mr. Salerno has written a fev 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 Cutfits. Salerno has also been
published over a dozen times in the Idaho Observer
newspaper.

As of April 2010, Salerno may be contacted at:

D. Michael salerno
PO Box 80033 $412-224
Toledo OChio 43608

wwv.freesalerno.com

-42-

T you are lucky enough to have an outside
contact vho is able to do some reseavch for you, the
followiny web sites may be useful:
victinsoflav.net
Jusgevatch..org
knowyoureaurts. con
judicialaccountability.org
abovethelav.com
Jav.com
avvo. om

* chacha.com

Findlav.2om
ejury.com
laumall.com
allysucancead. con

This tegal zine, Criminal Law Concepts, is meant
be a companion to the other legal booklets:1)
use_ Library And Weite Your own |
Criminal taw Porms, and 3) Case Citator. ~

38

no

)

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

a3 -