Abstract
In this reflection, James Bottomley shares his experience as a formerly barred attorney who is now incarcerated in a California state prison. Bottomley has practiced as a jailhouse lawyer for himself and other incarcerated people in recent years but is now retired from the practice of law.
Introduction
When I was in jail, depressed that my next destination was the California state prison system, I feared that there was no possible way to find any joy in prison. When I actually entered prison, however, I discovered that my fears had been unfounded. In fact, I found a great deal of joy and satisfaction by helping others with their legal problems. Successful results in legal actions against the government are rare. But when prisoners are doing hard time, it feels good to inspire some hope that they might, if all goes well, be released from prison so he can go back home to join his family and friends again.
To be able to help someone with this legal work in prison, it’s essential to know something about the law. Of course, the court’s denial of a writ of habeas corpus is disappointing to the prisoner-petitioner and me, the prisoner who prepared the writ. I had to walk a tightrope when discussing the writ with the petitioner in advance of preparing and filing it. If I was too pessimistic about the likely outcome, the petitioner would become depressed and drop the writ project. If I expressed optimism, the petitioner would become unrealistically hopeful. Then when the writ was denied—as most of them were—the petitioner was shocked and, in their opinion, I went from a miracle worker to incompetent chump. So, I had to be careful with the words I used. The question was always—as it is in so many circumstances in life—whether my internal disappointment upon learning of the denial was more for the petitioner or for myself. Did the failure deflate my self-confidence? How could it not? I’m not the kind of person who can treat this kind of thing like water off a duck’s back. Every time I saw or encountered the petitioner in the chow hall or on the yard, I felt humiliation and shame. I thought of the writ as my own, not theirs. I’d say to myself, “There’s the guy I screwed up the writ for.” But, ultimately, I found that it was a rewarding and interesting part of my life in prison.
I. Becoming a Writ Writer
There are two principal components of the law: procedural and substantive. I was weak on the area of criminal law, both in terms of procedure and substance. I had never practiced it in twenty-six years of legal practice. The last times I had studied criminal law were during my first year of law school and while studying for the California Bar Exam in the fall of 1974. The only familiarity I had with criminal procedure was its similarity in some ways to civil procedure. When I initially prepared writs for other prisoners, I had to constantly visit the prison’s law library to look up the law. On the first occasion that a fellow prisoner asked me to help him prepare a writ to file with the court, I came close to asking him, “What’s a writ?” To avoid serious embarrassment, however, I held my tongue and looked it up in the meager law library at Donovan State Prison before telling him I could help.
When I did, he asked, “What do you charge for doin’ writ?”
“Huh . . . oh, I don’t charge anything.” I decided that if I planned to do legal work in prison, I would do it for free. For the next twenty years in prison, I held firm to my vow: No matter how much time I had to spend on a case, I worked for free.
My most crucial dilemma was that I knew next to nothing about the substantive criminal law. I figured I could fake it and get by with criminal procedure, because it was similar to civil procedure, which I knew very well. I had been an attorney in California for twenty-six years and had practiced civil law exclusively, mainly specializing in real estate, construction, and business transactions. I handled roughly 50 percent litigation and 50 percent nonlitigation. I also did a fair amount of pro bono mediation between opposing parties. I continued practicing law until the day before my crime, which happened on February 15, 2000. Yet, during my twenty-six years of practice, I had never represented a client in a criminal case. So, when I began working on them in prison, it was wholly new territory for me.
After six months at Donovan as a “Reception” prisoner, I was transferred to the level four Enhanced Outpatient Program (EOP) [1] at Los Angeles County Prison in Lancaster, where I stayed for two and a half years. During that period, I did not work on anyone else’s legal case, because I did not attempt to engage in relationships with the inmates there and also because I was far too busy working on my own writ of habeas corpus. My appellate attorney informed me that my appeal had failed, and she refused to represent me on my writ. At that time, I couldn’t afford to hire a writs and appeals attorney to work on my case, so I decided to do the writ on my own. I buried myself in writ procedural and criminal law books, looking up the law on the issues I wanted to raise. After my trial concluded, I made a list of the mistakes I thought had been made at my trial: ineffective assistance of my trial attorney, jury misconduct, prosecutor misconduct, and judicial errors. That list was the foundation for the issues raised in my writ.
II. Memorable Writs
In August 2005, I was transferred back to Donovan to serve out my level three imprisonment. I was there until September 2013. During that period, my typewriter was busy with legal projects; I finished my own writ, which was typical for me in that it was exceedingly long and complex, and it raised more than ten major issues. I filed it with the court and waited. In the meantime, I worked on numerous projects for other people, some for guys I hardly knew. Win or lose, everyone seemed to be appreciative. I worked diligently on every project and was as competitive as when I was in private practice. Performing the work on prison time was challenging and required significant research into every issue, but it was rewarding.
There were two matters that I handled at Donovan which I remember distinctly. One was for an acquaintance I met while walking on the track. His name was John [2], and he intended to file a writ to challenge the jury’s finding of second-degree murder and his sentence of fifteen-years-to-life, seeking release or least a new trial. John had invited a man to go fishing, but while they were out in the harbor the boat’s engine froze, and they couldn’t move. The man became paranoid, jumped into the water with his clothes on, and began swimming toward the docks, but unfortunately drowned before he made it there. Because it was dark by then, John could not see what happened and assumed the man was fine. A few days later, the police charged John with murder, and the prosecutor alleged that he had intentionally caused the man to drown. It appeared to me that there was no evidence to support the prosecution’s theory, which seemed to be purely conjecture. The jury apparently believed it, and they found him guilty of second-degree murder.
After I did the necessary research and prepared the writ for John, it was filed with the San Diego County Superior Court, the same court in which my own writ was pending. Eventually, John’s writ was denied at all levels of the court. John’s case is a good example of the disappointment, even despair, of an inmate and his jailhouse lawyer when their writ is denied by all courts. His case was a perfect example of my philosophy of fair play versus the use of the power of the state to get the result that the servants of the state desired (police, prosecutor, and judges). I felt in hindsight—well after the events—that the state presented no evidence that John had (1) any malicious intent before the guy jumped off the boat, (2) forced him off the boat, or (3) had any duty to abandon his boat and swim in the dark in the direction of a couple of cries. A complete lack of evidence got John second degree murder. How would you feel if you were John? How would you feel if you were me, believing that I was a complete failure, that I had let him down, that it could and should have been a “slam dunk,” that if I had just worked harder on the writ I would have gotten him released?
I was transferred out of EOP at Donovan into the Correctional Clinical Case Management System program and moved into a different building. My new cellmate was Adam. [3] We hit it off from the start. We were both music enthusiasts. He wrote back and forth to a girlfriend in New Zealand. He collected information and maps about that country, and we spent countless hours going over that material. Adam talked about travelling there someday, and we shared fantasies of mountain climbing, sailing, fishing, surfing, and such. He gave me useful information about the yard we were on and prisons in general. We were pals and enjoyed the same kind of music. He had been an auto mechanic on the outside and was handy with electronic equipment. He fixed several items of mine. He was a good guy, mellow, and one of the best cellmates I’ve had.
Eventually, he told me about his legal case. He was a three-striker with a resulting twenty-five-to-life sentence. He conceded that his first two crimes were legitimate strikes. He called them “youthful, stupid indiscretions,” but said that nobody got hurt. The third strike was, in my opinion, pathetically weak. He had been convicted of receiving stolen property. As he explained the facts, they seemed almost convoluted. He had borrowed a truck from a friend to move some boxes but wasn’t aware that the friend had stolen its tag off of someone else’s license plate. Adam was stopped and arrested for being in possession of the truck, which included the stolen tag. The jury found him guilty and the judge “struck him out” with a sentence of twenty-five-years-to-life. That result didn’t seem fair to me. I confessed to Adam that when I was a free man, I had voted for the Three Strikes Law. After hearing Adam’s and other prisoners’ tales of woe about this cruel law’s draconian results, I changed my mind entirely.
I prepared and filed a writ of habeas corpus for Adam challenging his conviction under the Cruel and Unusual Punishment clauses of the federal and state constitutions. The courts all rejected my arguments, essentially holding that these provisions were not intended to affect sentences proscribed by propositions passed by the voters. Adam was incredibly disappointed, but he was later rescued by the California State Legislature’s amendment to the Three Strikes Law. [4] It required that the third strike be more than a soft crime, such as receiving stolen property. I helped to draft his application to the District Attorney’s office to be released from prison, which was ultimately granted.
I felt that the amendment to the Three Strikes Law was extremely fair, and I was very happy to see it pass. Actually, I felt that it corresponded with the original intent of the Three Strikes Law. I don’t think very many voters for that law anticipated what soon became of it—two-strike criminals were imprisoned for life for a petty crime, such as the crime that Adam committed. It was satisfying for me to see a longstanding wrong corrected at last. I became more up-to-date and informed on the Three Strikes Law. I discussed with a number of inmates the new amendment to the Three Strikes Law. The most draconian results I learned about over and over regarding Three Strikes were the formerly incarcerated people who, after being released from prison after serving their sentence for their second-strike crime, were having a tough time coping with life on the outside. Under the climate of abuse, fear, inability to obtain a job, addiction, and other challenges, these guys committed crimes that were labeled third strikes and the system buried them for twenty-five years to life in prison. I learned that many of them tried to be released under the amendment, but they were rejected by the District Attorney or judge. These guys were prisoners for life. Some were older but many were young guys who have no hope and nothing to look forward to.
Before helping Adam with his criminal case, I prepared a different kind of writ for him. He had repeatedly made efforts over the years to receive treatment from the prison medical department for Hepatitis C that he had contracted while getting a prison tattoo. The only assumption I made about Adam’s Hepatitis C case was that the prison should be required them to treat him but that our writ would probably fail because (1) we were going against a massive, well-oiled machine called the Medical Department of the California Department of Corrections and Rehabilitation (CDCR); and (2) Adam’s case would likely set a very expensive precedent in that CDCR would be required to treat all Hepatitis C patients whom the prison system had previously denied treatment, further incentivizing them to win this case.
The medical staff was refusing to treat Adam on the trumped-up ground that his infection was too high. He pointed out to them that in previous examinations, they had told him he couldn’t be treated because it was too low. He filed a 602 form, [5] but it was rejected at all levels.[6] He had no alternative but to file a writ to force the prison medical staff to treat him.
This was a new legal area for me, so I had to research in the library for good cases supporting a prison’s legal duty to treat an ill prisoner. I was quite anxious that this writ be successful, since Adam’s life could be at stake. It worked. The judge returned a strongly worded opinion in Adam’s favor, and the prison finally treated Adam for Hepatitis C. Untreated stage four Hepatitis C was a major problem approximately twelve years ago from what Adam told me. He was involved in a sort of Hepatitis C hotline, which kept him in contact with many people living with Hepatitis C. If they were at stage four (even though the last time the prison tested them, they might have been at stage two), the prisons were refusing to treat them. The treatments were very expensive back during that era. Adam predicted that the ruling that I brought about would help those prisoners to overcome their illnesses too. Adam was in contact with an attorney and the administration for the federal government, which had taken over the California prisons medical departments, who worked with him to enforce the judge’s ruling.
Conclusion
When I was transferred to San Quentin State Prison in 2013, I had twelve years until my parole hearing. I figured San Quentin would be my final stop, and I decided to slow down on my prison legal work. My own writ had been denied by each court, and the California Supreme Court—my last chance at success—rejected my arguments without comment. My only input on the writ had been time, and like Bob Dylan sang, “When you got nothing, you got nothing to lose.”[7] Fortunately, instead of the courts, I got help from the California Legislature through the Elder Law, which requires the state to provide a parole hearing for me by the end of 2022.[8] I hold out hope, at almost seventy-three, that I can be released before I die. It could be seen as a race between death and freedom.
I’ve handled about six legal cases since arriving at San Quentin. Those have dwindled since the pandemic arrived, but there are still plenty of inmates here doing this valuable work. So, I’m mostly retired from my “career” as a jailhouse lawyer. That has left me more time to pursue my second career as a writer, take college courses, and participate in groups. Even though I’ve hung up my law books, I’ll always maintain an active interest in legal matters. It’s been a big part of my life, even in prison.
[1]. The Enhanced Outpatient Program (EOP) is both a program and a designation for an inmate under the prison system’s classification system. An EOP inmate is one with a recognized mental illness. Mine was bipolar disorder, but eventually I graduated to the Correctional Clinical Case Management System (by taking psych meds and some-getting talk therapy from a psychologist and intern). An EOP’s mental illness is presumably not as serious as a defendant who pleas or is found not guilty by reason of insanity. Most members are GP for General Population. There is also PC for Protective Custody.
[2]. This is a pseudonym.
[3]. This is a pseudonym.
[4]. See Three Strikes Basics, Stan. L. Sch., https://law.stanford.edu/three-strikes-project/three-strikes-basics [https://perma.cc/9PBP-XU9D].
[5]. This refers to California Department of Corrections and Rehabilitation Form 602–1, for inmate/parolee appeals.
[6]. When the prison takes action to the detriment of the inmate—either by denying or not acting on a request or taking affirmative action against him, such as disciplinary measures—the affected inmate may file a 602 form with the prison, which is supposed to follow (but often doesn’t) a predetermined procedure for deciding the issue. The 602 result can be appealed to Sacramento, but it’s been my experience that Sacramento merely rubber stamps the local decision. Jailhouse lawyers are often requested to assist the complaining inmate with preparation of the 602 or appeal. See generally Prison Advocacy Network, How to File 602 & 602HC Appeals: Request Actions or Release Due to COVID-19 (2020), https://www.prisoneradvocacynetwork.org/uploads/1/2/9/6/129656843/2020.04.20_version_pan_guide_to
_administrative_appeals_for_covid-19__long_version_.pdf [https://perma.cc/SW2C-MXA2].
[7]. Like a Rolling Stone: When You Got Nothing, You Got Nothing to Lose, Bob Dylan (Nov. 16, 2011), https://www.bobdylan.com/quote/like-a-rolling-stone-when-you-got-nothing-you-got-nothing-to-lose [https://perma.cc/MAL4-VMXX].
[8]. See Assemb. 1448, 2017 Leg., 2017–2018 Sess. (Cal. 2017).
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