CLERK, U.S COURT OF APPEALS FOR THE NINTH CIRCUIT
P.O. BOX 193939
SAN FRANCISCO, CA 94119-3939
Ivan Kilgore v. Jeff Macomber
Case No. 14-70613
It’s a fact, eighty percent or better of those charged with a crime are indigent and thus represented by a Public Defender. Given the poor quality of this representation, the accused often enter the courtroom with a rope already around their neck. Here, the jury waits, mean-mugging as if a mob anticipating a lynching. Needless to say, when faced with an overzealous prosecutor, the accused is more likely to suffer conviction. Despite innocence or guilt, many know this and often settle or are coerced by their Public Defenders to take the deal. Thus, it’s no mystery as to how the prosecutor is able to bolster a conviction rate of ninety-eight percent. Nor is it a mystery of how or why, once arrested, the presumption of guilt is strong. With such a high conviction rate, it becomes an effective propaganda tool bestowing the prosecutor with a near perfect image for bringing the bad guy to court. Thus, there’s little a juror will question, assuming that the accused must be guilty otherwise he would not have been charged with a crime.
For those of us who refuse to surrender and take stance against the tyranny of this state apparatus, we literally become a one-man show left to our own devices. Here, our street savvy seldom produces results. What ability we prided ourselves on as ruffians, goons, and the lot of other ‘hood stars, is reduced to a puppet in this arena. The exceptions are few. Yet there are those who are true defenders of self—those who adapt, get wit’ the business, and come to grips with the rules of the Game at hand. This presses one to educate and litigate for himself, and navigate the political arena within the four corners of the courtroom. What is the first rule of the Game? Justice hinges upon manipulation. Thus, anything goes.
Here, we must keep in mind the law is sinuously devised by hypocrites with the intent of keeping it fluid so as they can demand of its favor where and when needed. This being the case, the late John Africa would poignantly state before a Philadelphia jury:
Everything in the courtroom is designed by the system for the economics of the system. There’s nothing within it that one has not been made to be dependent on, including the officers of the court. You can’t defend yourself. You’ve got to depend on lawyers. The Bar Association is an industry that their not about to give up. Anybody who knows the principle of self has the means to protect self. The lawyer is not there to protect you. Rather, preserve the system of manipulation and its laws that feed him. Nonetheless, they will tell you that you must have a lawyer because that lawyer is part of the industry.
The point Africa has placed in context is this:
The average lawyer will not challenge the system. For he has been conditioned to play by the rules as they have been put to him.
To this end, Thoreau aptly stated:
He well deserves to be called, as he has been called, the Defender of the Constitution. There are really no blows to be given by him but defensive ones. He is not a leader, but a follower. His leaders are the men of . “I have never made an effort,” he says, “and never propose to make an effort; I have countenanced an effort, and never mean to countenance an effort, to disturb the arrangement as originally made by which the Constitution gives to slavery, he says, “Because it was a part of the original compact,—let it stand.” Notwithstanding his special acuteness and ability, he is unable to take a fact out of its merely political relations, and behold it as it lies absolutely to be disposed of by the intellect.
In the same respect that Thoreau’s writings have served to illustrate a lawyer’s complicity with yesterday’s system, so too today’s. For this remains a wicked system. And like any system, the components (i.e., the officers of the court, the legislative counsels, etc.) are conditioned for upholding the Constitution—that is, to hold in place the reigns of power that the law wields over society.
Here, I do not necessarily mean to blackball all attorneys as sell-outs. There are those who have been held in contempt of the system, lost their license to practice law, etc., because they came to despise it. Armed with the insight of its inner-workings, these are the ones that fight fire with fire and fight hard for their clients. But trust, they are rare and difficult to find. It’s like looking for a needle in a haystack. They are the few and usually the most expensive. So often, more times than not, it’s best to represent yourself. Because if that Public Defender jumps in the ring as your contender against the State, it’s going to be a first round TKO—with the title going to the state and the punishment to the defendant every time. To illustrate, I provide the following narrative stemming from my 2003 murder trial.
Early on I was represented by a former Contra Costa County prosecutor (they make for the best defense attorneys for obvious reasons). During the course of one of our client/attorney conferences, I made mention of the O.J. Simpson trial. I cannot recall the point I was attempting to make by bringing it up, but whatever it was my attorney quickly dismissed it and bought to my attention the fact that O.J.’s acquittal had had a devastating impact on the rights of Blacks. What he pointed out was the fact that the acquittal made it that much more difficult for a Black man to receive a fair trial in California. It didn’t take a rocket scientist to figure out that his comments rode the wave of utter disgust felt throughout white America, especially those who worked within circles of the criminal justice system. Here, the consensus was: A Black man for the first time in history (with exception of the “green-light” issued during the Civil War for Blacks to kill whites) had gotten away with killing two white people. This, undoubtedly, inflamed those long held beliefs that there were racial boundaries that, in the case of O.J. Simpson, had been crossed.
Having absorbed what my attorney had put to me, I would later note that during the four years I sat in Rita fighting my case, out of the hundreds of murder cases tried, only two cases resulted in the accused not being sentenced to life in prison (and this was/is happening all over the state—the nation!). From this I came away with the notion I desperately needed to come up with a plan “B” seeing how it was the California courts had, in response to O.J.’s acquittal, constructed a web as effective as the spider’s to the assure convictions of young Black men. This would be no easy task. For it required of me to come up with a plan that would allow for the system to entangle itself in its own web of deception. After months of deep contemplation it finally came to me after my attorney would withdraw from my case and I was appointed another who made no concession she was eager to dump me. From jump she made it clear: “You got away with murder in Oklahoma, but you’re not getting away with shit in California!” She would brazenly inform the court of this in a hearing I later requested, to no avail, to dismiss her from my case. There was no doubting her agenda or that of the court. Seemingly, they had it out to handle what the district attorney in Oklahoma could not achieve—putting me on the shelf for life!
Today, I spend a lot of time reflecting on the lessons my grandfather taught me in self-efficiency and how, somewhere, in the thick of this mess I had forgotten them. Here, I have to admit I was stuck on stupid believing the hype: “The one who acts as his own lawyer has a fool for a client.” Thus I stumbled and failed to take hold of the reins of my defense.
There were many rules I broke. For example, where in the previous Oklahoma trial I refused to discuss the particulars of the homicide or admit my involvement up until the last moment—which allowed an element of surprise and for me to mislead the Oklahoma prosecutor to believe that I was going to deny my involvement as the shooter, and thus he mistakenly prepared his case to prove otherwise; obviously to his disadvantage when I admitted I shot the victim in self-defense—in the Oakland case, however, I made the tragic mistake of not only informing my initial attorney (I was appointed three in all) of the particulars of the homicide at the outset of the case, but also mistakenly made these concessions during a non-contact visit over the phone. (Years later it was discovered and reported in the Oakland Tribune Newspaper that the Alameda county prosecutor’s office routinely listened in on client/attorney discussions) Thus, ruining any chance of surprise.
Yet and still, all was not lost. I had studied thousands, literally thousands of legal cases which dealt with the appellate process. Through such study I had come to understand what grounds made for a successful appeal. Realizing that I was being setup for the long haul—a life sentence—I frantically began to set in motion those aspects of post-trial defense which were necessary for review at the appellate level.
Mind you, most criminal defendants do not want to contemplate doing time, any time, especially L-I-F-E in prison. Yet where one is faced with the real possibility of doing time, any time, the Game plan is to reduce the time served by either taking a plea bargain, or in my case where there was no deal on the table—coming up with plan to obtain freedom in the 33rd.
So there I was with what many would rightfully consider a crackpot of an idea. Yet it was my only resort. Sure I was about to go to prison for what possibly would turn out to be a considerable amount of time. I had told my fiancée possibly ten years. But it was not going to be on the terms to which the court and my attorney had orchestrated. It was a bet, not a gamble according to the dictionary. It was a bet because I was risking much for a real possibility of getting my conviction overturned at some point of the appellate process. It was not a gamble because to gamble means to “risk much in the hope of great gain.” The distinction here is one that law Professor Steven Lubet explains in Lawyers’ Poker: “All gambling involves betting, but not every bet is a gamble. It all depends on how much control you have over the result and how much you are willing to trust your luck.” So at each court appearance I was able to muster a smile—my Game face, to which many found offensive. Nevertheless, walking in court each day with a plan gave me confidence enough to control those very aspects (e.g., inadequate counsel, bias, etc.) of the system which usually seal the fate of many criminal defendants.
March 2003, the stage was set to begin trial. Having been afforded the unfortunate yet insightful experience of my prior Oklahoma trial, it was too obvious by the scant performance of my attorney that she was intent on sabotaging my chances for acquittal: She was misleading me on matters of law; she refused to investigate the validity of my prior conviction (I was unconstitutionally advised in the Oklahoma case to accept a four sentence and time served when the jury was compromised and made to appear to have reached a verdict after being hung over a week); she switched defense theories in mid-stream from self-defense to mistaken identity, and so on and so forth she trucked throughout the trial. Notably, she trucked the pre-trial motion to exclude the prior for impeachment purposes. She intentionally misquoted my proffered testimony.In the months leading up to trial I repeatedly informed her of my defense of reasonable self-defense—that I was shot at, that the Oakland Police Department had sold my car before the defense could substantiate this fact due to the bullet holes in my car, and that I shot back in self-defense…. She refused to raise the issue of destruction of evidence, and when she submitted the proffer it portrayed to the court a defense theory of imperfect self-defense—that I saw a gun, shot first only to question later the imminent danger.After having read the motion at the beginning of the hearing, I immediately noted the error and insisted that the proffer be corrected. Initially, she blew me off stating: “It’s irrelevant.” But as the hearing progressed, the proffer became the primary focus of the trial judge to admit evidence from the Oklahoma case. By that time I was on the verge of exploding and made it clear that she best straighten out this so-called mishap. It was too late! The ruling was forthcoming and adamantly so given the trial judge’s snide comment: “Anyone else have a plot they want to put on the record!” Of course, this comment was made after my attorney had attempted to acknowledge to the judge that the proffer was mistakenly written. Despite the prior not involving moral turpitude—I actually shot in a belief of the need for self-defense with no ill intent or malice—the misquoted proffer likened the Oakland defense with the prior defense and thus, as the trial judge jabbered: “Established a possible M.O.”
Here’s where the situation got even shadier. Thereafter, my attorney turned-up the deception in an attempt to seal the deal by discouraging me from taking the stand in my defense. Peep the technique. She again misadvises me as to the unlimited leeway that the prosecutor has to explore (before the jury—thus poisoning them) the particulars of my Oklahoma case. She goes to great extremes to emphasize to me that everything (i.e., alleged gang ties, drug dealing activities, my collecting of high powered assault rifles, etc.), despite its material value, was going to be admitted. When I suggested that she file a motion to determine the relevance of this other evidence, she cannonballed into her usual profane and irate self stating I was no “fucking lawyer” and “unless I wanted to spend the next ten years appealing a conviction,” I’d best get wit’ the program—not testify—and take her advice to change the defense to mistaken identity in the midst of trial.
Hindsight leads be to believe that the prosecution’s case was falling apart given her antics and the fact that—even with the damage that was done in presenting conflicting defense theories of self-defense and mistaken identity—it took the jury almost two days to render a verdict—Guilty!
In light of my attorney’s shifty performance, I had long since realized that I was going to be convicted no matter what defense I chose. It could have been Jesus standing before that jury and the outcome would have been the same. I was destine to be crucified because, as I later discovered, the victim’s family had ties with the court. She had assumed the role of surrogate prosecutor. My options? One, I could go forth with the initial defense of self-defense—to which she had trucked. Or two, I could go for the okey-doke, as crazy as it sounds, and use her eagerness and that of the court’s to dump me to trip them up in their own deception and possibly create some solid appellate grounds. There was, however, a hurdle or two to jump with the latter of these options.
If I did not testify, my right to appeal the trial judge’s unconstitutional ruling regarding the admission of the Oklahoma prior evidence would be forfeited. This was yet another aspect of law that my attorney was jaw-droopingly upset to know I was aware of. I’ll never forget the look on her face when I made this known to her. There was no questioning the fact that she did not have my interest at heart. So I set about preserving an adequate record for appellate review.
Generally, a criminal defendant can not effectively challenge issues of ineffective assistance of counsel (IAC, hereafter) or the court’s evidentiary rulings unless: 1.) The record of the trial proceedings disclose counsel’s tactical explanations for his or her actions or omissions; 2.) The defendant testifies under oath, thus affording the appellate court the opportunity to weigh the prejudicial impact of the admitted evidence. In most cases of IAC, the appellant (i.e., the defendant) petitions the appellate court for an evidentiary hearing with hopes that it will be granted so as to obtain counsel’s tactical explanations. Such petitions have about a one percent chance of being granted. Having foreseen this, I had a trick up my sleeve to get around these hurdles.
Thanks to my extensive legal research I had stumbled across a late 1980s case authority—People v. Fosselman. In short, Fosselman gave precedent to non-statutory due process violations being valid grounds for a motion for new trial hearing at the trial stage, not the appellate stage. This includes, but is not limited to, claims of IAC. Again and again, I was misadvised by my attorney that I could not do this. Even the trial judge chimed in in agreement with her. There was no denying it—it was me against the world. Yet I persisted with my argument and prevailed. I convincingly argued to the trial judge that the law, as set forth by Fosselman, mandated a hearing be held at this juncture of the trial proceedings. Thus the trial judge, after doing some face-saving backpedaling and admitting I was correct, was forced to appoint separate counsel and hear the matter.
Sure I wasn’t going to get any action at this point. After all, the judge was eager to extract vengeance for the decease’s family. Yet this was not the point of requesting this hearing. Realizing that my chances at the appellate stage were slim, next to none, in obtaining an evidentiary hearing, I rode Fosselman as if a bronco. In doing so, the subsequent hearing would afford me the opportunity—an opportunity that my trial attorney had attempted to swindle me of—to establish an adequate record for review for the appellate court to consider my claims of IAC and the trial court’s unconstitutional evidentiary ruling. Not only did I testify at this hearing—thus preserving an adequate record of my anticipated trial testimony, but so too was my trial attorney made to take the stand to explain her tactical decisions.
After extensive efforts were taken to better my chances on appeal, I was confident I would prevail at the first stage. But little did I realize the California Court of Appeals, my trial judge and court-appointed appellate attorney had a few tricks up their sleeve as well.
Presiding over my trial was the Honorable Judge Kenneth Kingsbury. He was a clean-cut version of a many rednecks I had known in the backwoods of Oklahoma. His face had all the jolliness of ole St. Nick, though he was no bearer of gifts, despite the usual small talk we had prior to the arrival of my trial attorney and the prosecutor.
These little talks often would be peppered with legal advice to which he would say in no certain terms he was “legally barred from doing.” Looking back on these little secessions, I would like to believe in all honesty he was trying to help me because it was just too obvious that my trial attorney wasn’t. I guess my persistent willingness to challenge him and my attorney impressed him at times and pissed him off at other times. The whole thing with his admitting my prior, for example, we would go back-and-forth, as if cats and dogs, arguing: “Let the appellate court deal with it… This court admitted the evidence for purposes of credibility…” So you did not admit it pursuant to Evidence Code §1101(b)? “No!” was his final say. It must have been unnerving to have a defendant before the court who actually knew a little something about the process—whereas the majority get the wool pulled over their eyes. So when I spoke he listened. Often, to his dismay, he would double-back and check the issues I’d raise; all the while doing everything in his power not to express panic. But even with my prior trial experience, I still got bamboozled.
“APPELLANT WAS DENIED FAIR AND INDEPENDENT APPELLATE REVIEW BECAUSE THE PRO TEM JUSTICE WHO WROTE THE COURT OF APPEAL’S OPINION IS A SUPERIOR COURT JUDGE FROM THE SAME COUNTY AS THE TRIAL JUDGE WHOSE DECISION WAS BEING REVIEWED”—was the caption of the fourth argument made in my petition for review to the California Supreme Court after the Court of Appeals had denied my appeal on grounds that did not accurately reflect the record of proceedings in the trial court. I had been blindsided by none other than Kingsbury’s colleague and fellow judge, Thomas Reardon. What occurred could only be explained with the actual argument submitted to the California Supreme Court:
This is an Alameda County case. The trial judge was Alameda County Judge Kingsbury. The Court of Appeal opinion was written by a pro tem justice, Judge Thomas Reardon, who is also an Alameda County Superior Court judge. Judges Kingsbury and Reardon regularly sit in the same Alameda County main courthouse at 1225 Fallon Street, Oakland… There are approximately one dozen Alameda County Superior Court judges in that building.Appellant’s motion to recuse Judge Reardon on this basis was denied.Judge/Justice pro tem Reardon should not have been allowed to rule on this appeal, let alone write the opinion, because it is inappropriate, and gives the appearance of bias and undue deference, for one Superior Court judge to review at the Court of Appeal the actions of another Superior Court judge from the same court in the same building. Such assignment fails to provide for sufficient independence between the trial court function and the appellate function.In May 2001 an Ad Hoc Task Force established by the Judicial Council submitted a report called “Report to Appellate Process Task Force on the Superior Court Appellate Divisions” That committee examined the problem “that the appearance of impartial appellate justice at the Superior Court level is seriously threatened in many counties because of (1) negative perceptions associated with ‘peer review’ (i.e., judges on the appellate division of the Superior Court reviewing decisions by their colleagues in the same Superior Court)…” The committee cited a Law Revision Commission report with the following warning: “The primary concern with appellate jurisdiction within the unified court is the problem of conflicts of interest arising in peer view. A judge should not be in the position of having to reverse a judge of equal rank. There may be a collegiality or deference on the court that will destroy the independent judgment necessary for a fair review.”Because Judge/Justice pro tem Reardon sits in the same court and same building as trial judge Kingsbury, this situation presented the identical problem identified by the Appellate Process Task Force, namely, “the problem of conflicts of interest arising in peer review. A judge should not be in the position of having to reverse a judge of equal rank. There may be a collegiality or deference on the court that will destroy the independent judgment necessary for a fair review.”California Code of Judicial Ethics, Canon 2, states “A judge shall avoid impropriety and the appearance of impropriety in all of the judge’s activities.” California Code of Judicial Ethics, Canon 3(E)(4)(c) provides that an appellate justice should disqualify himself if “the circumstances are such that a reasonable person aware of the facts would doubt the judge’s ability to be impartial.”A decision by a biased judge violates the due process clause of the 5th and 14th Amendments. Tumey v. Ohio (1927) 273 U.S. 510.Accordingly, review is warrant because the independence of appellate review was compromised here.
There was no question as to why Judge Reardon was appointed to decide and write what would be a compromised opinion to deny my appeal. Again, Judge Kingsbury had made an unconstitutional ruling by admitting evidence from my prior Oklahoma trial. Seeing the obvious violation and prejudice this ruling caused in my trial, Judge Reardon would attempt to salvage what very well could have been a blotch on Kingsbury’s political career. For in the world of judicial politics such a blatant and unconstitutional ruling can literally tarnish a judge’s reputation as fair and impartial. Moreover, Kingsbury himself being a pro tem justice and having opined and partook in a many appellate decisions, obviously had ambitions of joining the highly profitable ranks of the California Court of Appeals. Every day the justices of this court issue rulings that cater to the business interests of some of the nation’s largest corporations. The implication being, they are in a position to benefit substantially from the “kickbacks” attached to their rulings. These ambitions would have not only been jeopardized by a favorable ruling on my appeal, but would also have had a domino effect causing more damage and scrutiny to all the decisions Judge Kingsbury had previously decided. The controversy this would have caused we are all too familiar with. Remember all the fuss made when President Obama appointed Justice Sonia Sotomayo? She had one such blunder on her record. Thus Judge Reardon would step in to contort Kingsbury’s evidentiary ruling so as to give it constitutional validity.
Close to two years would elapse only to have my hopes of winning my appeal at the first stage doused with evidentiary fabrications which danced around the unconstitutional ruling (and Kingsbury’s transcribed dictation that the prior evidence “WAS NOT ADMITTED PURSUANT TO CAL. EVIDENCE CODE SECTION 1101, SUBDIVISON (b)) as if it were a chameleon not bound by law and could change colors given the weather, or in my case—the sake of a judge’s political career. The unpublished opinion issued by Judge Reardon would read in part: “… the trial court [i.e., Judge Kingsbury] did not abuse its discretion in concluding that the Oklahoma evidence WAS ADMISSIBLE PURSUANT TO EVIDENCE CODE SECTION 1101, SUBDIVISION (b)….” Here the actions taken by Judge Reardon reflect the kind of thinking once expressed in the opinion of U.S. Supreme Court Chief Justice Robert Taney who declared in 1857: “A black man has no right that a white man is bound to respect.”
* * *
While the foregoing tyranny is unlikely to concern my reader, it is this type of apathy that allows America’s criminal justice system to shit on those so-called constitutional assurances set forth by the U.S. Constitution that safeguard American citizens from the tyrannical devices of the State. Here, the injustice I have outlined above is one that Tocqueville cautions Americans to take heed of because…
no citizen is so obscure that it is not very dangerous to allow him to be oppressed; no private rights are so unimportant that they can be surrendered with impunity to the caprices of a government. The reason is plain: if the private right of an individual is violated at a time when the human mind is fully impressed with the importance and the sanctity of such rights, the injury done is confined to the individual whose right is infringed; but to violate such a right at the present day is deeply to corrupt the manners of the nation and to put the whole community in jeopardy, because the very notion of this kind of right constantly tends among us to be impaired and lost.
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