Outtakes from the Josh Wall Vote

0908_h_WALL-300x160Parole Board Chair Josh Wall was confirmed to be a judge in Massachusetts yesterday. It was a 5-3 vote, certainly not an overwhelming sign of approval by the Governor’s Council, and certainly, for many of us—community activists, lawyers, families of parolees, incarcerated men and women, and educators— disappointing (see my columns below). Here are some of the things I heard councilors say, many of which were powerful and many, infuriating, and some, just plain wrong, as they told why they were or were not voting for Josh Wall. Included are also some details not reported in the press.

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It was interesting that Governor Patrick was there for this vote, in the antechamber outside his office where votes are held around a round table, crowded with onlookers, and in this case, reporters. In fact he made an entrance, as if this was a big deal. Usually it is the Lieutenant Governor, and Tim Murray, who resigned in 2013, and would have been a tiebreaker in any 4-4 vote. But the Governor does not vote, and who knows if he was showing up just to make sure all went well for his friend? Who knows if the reason he asked Oliver Cipollini to give the opening prayer was so that Cipollini might look good before the assembly after the Boston Herald article from that day? In that article, Howie Carr, intimated that since Cipollini was defeated in his reelection as councilor, he would get payback if he voted for Wall; he asked: “Now that the voters have spoken, are you looking for a soft landing in the hackerama?” There was also more about this on Fox news last night.

But it was business as usual, as Cipollini vigorously denied these allegations, exasperated and squirming in his chair—a new one Governor Patrick had just provided for him and fellow councilor Marilyn Devaney. The prayer he gave asked the Council to reflect on public safety and how the council plays its role in such. Hmmmmmm, I thought. That’s a prayer? Then before the usual order of business, there was the pledge of allegiance.

Two other judges before Wall were put forth to be voted on first, and Councilor Bob Jubinville, who had been vigorous in his disapproval of Wall, said ironically both times when it came up to approve the other judges, “I congratulate the Governor on his nominees, I didn’t hear one objection from any source, defense lawyer or prosecutor, about his character, his fairness, or his integrity on these nominees.”

Terrence Kennedy put forth Josh Wall to be judge. Christopher Iannella seconded. Thus everyone knew: two Yeses. The Governor then asked for comments.

The first to speak against him was Jubinville who said that what he heard in three days of hearings from Wall’s handling of all his work had convinced him to vote no. He cited Brady v Maryland as a decision on exculpatory evidence, the Willy David issues where Wall went behind the judge’s back to find out the criminal records of the jury leading to a trial in his favor, the patterns of Josh Wall’s behavior as a prosecutor including some attacks of him as racist, and as Parole Board chair, the overwhelming support against him. Someone must have suggested that this was a “conspiracy” because Jubinville said to suggest so was foolishness. He ended by citing the Carr newspaper report and saying that Wall does not have the temperament to be a superior court judge. His vote was No.

Next up was Jennie Caissie who said, “The opposition to this nominee is historic.” She said that it is not just the number of people who showed up but “the magnitude of opposition to this nominee.The spectrum of people who showed up cannot be understated.”  Again she noted that conspiracy theory that someone (Wall? the Governor?) had floated. Her concern included the Woodmans, victims who she believed when they talked about treatment from Josh Wall. She said she had been contacted by former colleagues from the Suffolk District Attorney’s office and one of them even used the word “God complex” in talking about Wall.

“I voted for Josh Wall twice,” Cassie said, but I think it takes a completely different set of skills to be a judge. “These are not disgruntled defendants or prisoner rights people,” but a variety of people “all drawing the same conclusion,” she said. She ended with probably the best quote of the day: We keep coming back to the word arrogance. And once you put a black robe on a person, they don’t become less arrogant.” Her vote was No.

Eileen Duff managed to get facts wrong as she explained why she was voting Yes for Wall. She said that she had gone back and listened to tapes of the three-day hearing—this she said, is how she makes her decisions— and listened “to what the folks who came in said against Wall. And in listening to Patricia Garin’s testimony, I was really struck by two things.” Here is where Duff totally screwed up her understandings. She twisted Patty Garin’s words, absurdly saying Garin supported Cinelli’s release (Maybe she had said on paper he looked good at the time, Ms. Duff? Parole is a man-made system, Ms Duff, and there will be mistakes, see my article here. The whole Board voted to release him). Wall based new systems on his Cinelli clean-up, yes, because Patrick was under fire. But no, Ms. Duff, you don’t know this: “If the parole rules Josh Wall had in place today, Cinelli never would have happened.” And she obviously did not hold much weight in the repercussions of the system that has been put in place by Wall on many parolees: Lifers wait months for decisions; our lifer paroling rate has gone down and this is against public safety. It was pretty clear that Duff didn’t believe the White Paper on Parole which laid out Josh Wall’s disastrous record, or did she believe any of the facts about the seven month delays in hearings getting word to parolees. Her vote was a resounding ring of support for Wall but maybe as much for Patrick. He did wish her Happy Birthday at the end of the hearing.

Marilyn Devaney’s testimony went on and on and on, and frankly she sounded as if she had been coached. Of course it is possible that she managed to research and believe all of the glowing things witnesses said about Wall and to disbelieve all of the witnesses against him. Her big phrase of the day was “character assassination” of which she spoke on and on, accusing all those who testified against Wall of lying: Donald Perry, Jason Lydon, a law student — all lied. Since Wall also felt they lied, she seemed to be echoing his words. She also defended Wall on the accusation by esteemed attorney Willy Davis who felt Wall’s getting jury backgrounds was a win at all cost attitude. She said she was grateful for all those who contacted her in opposition and she tried to contact them back– but I tried and know of many others whose calls she did not return. She voted Yes. Cipollini voted Yes. 

Michael Albano had sent a letter in last week to the Governor indicating he could not support the nomination of Josh Wall. He did not give a speech.

It was amazing that a man who generated this much opposition–hearings that went on for weeks–after his nomination in July, stands as a superior court judge, confirmed in a bit less than a 2/3 vote, which is what a parolee in Massachusetts must get to be released. But whereas Wall feels unanimous decisions are good for the Parole Board, I am certain he was glad he didn’t have to have a unanimous decision here.

I would suggest letting your councilors know how you feel about their vote on Josh Wall. I, for one, will be working against my governor’s councilor (Duff) when her term comes up. It is important to follow some of these races because now there are many judges (13?) who still will need to be approved (or not) before the Governor leaves office.

The best news story is reporter David Boeri’s from WBUR http://jeantrounstine.com/wp-content/uploads/2014/10/news_1015_josh-wall-confirmed.mp3

But even that report doesn’t get into the impact this decision will have on our courts. Let’s hope for the sake of thousands of men and women who will come before him, that Josh Wall’s life from here on out tries to prove those who do not believe he will be a fair judge–wrong.

#ejpsymposium Day 2

Day 2 of the Education Justice Project symposium began with a session on the Politics & Ethics of Higher Education in Prison. The moderator of the panel was Earl Walker, an alum of EJP, and he said that higher education in prison truly is “the new civil rights movement.”

Erin Castro, up first, talked about working with scholars on the inside (pictured above with her students on the screen) and said that she presents her scholarship at national conferences and has a manuscript under review, an ms. completed with those same students. Nationally, she noted, we are not so advanced and said that only 6% of such potential scholars have access to post secondary education. But the surprise is, such education not only reduces recidivism, it is transformative education, per Paulo Freire. We cannot leave out the voices of the people inside.

After Erin, Ed Wiltse asked if prison education can return the university to core values? He said that from teaching behind bars with a mix of university and incarcerated students, the lessons he’s learned include: 1) who’s classroom, our classroom; 2) voice and authority means everyone’s 3) who’s text, our text. He then turned to Dewey: The community’s purpose is to educate and move forward.

James Kilgore (pictured above on the left) said his commitment to mass incarceration comes from his heart, and from being incarcerated as well as an educator. So when he began to cry, he moved us all. Then Wham: “I was an educator before I went to prison.” When he was in prison he wanted to teach other prisoners but the person who ran education in prison said only if you sit people in their race groups. He refused – this was a man who had been to South Africa and fought against Apartheid– so he said to that teacher, “I will get them to agree.” And the men did. From this and from his own amazing experience with EJP, he concluded: the movement of the oppressed must be lead by these who are oppressed.

Carl Walker said in some ways he felt incarcerated in higher education with a program called “college to careers.” An audience member responded to the racial segregation so enforced in prison by saying that educators need to turn to their students inside because, “We know how to navigate that space.”

In a session on peer instruction in the prison classroom, professor Jennifer Drew, mentioned that a Spanish language instruction program at BU was begun by Jose Duval, formerly incarcerated student, who spoke by phone at the conference from the Dominican Republic. One of the difficulties of being a peer tutor in the prison classroom is not being seen as a cop. But knowing the subject , he said, was not always as difficult as knowing how to convey the message. Then, Jennifer Drew, who used to run BU higher ed, was supposed to be the prof but she had students teach Spanish because they knew the language. An interesting moment for Jose was when some of the guys wanted him to tell them some of the answers on the test. But they eventually, were able to see that the tutors were serious.

Augie who was a peer instructor in an EJP carceral setting and was in an ESL program called Language Partners,  said it was initiated by a person behind bars. He felt that there was stress on his “free partners” who had to find online resources for them, because as peer teachers inside, they were not allowed resources available on the outside.  He read a paper by Elfuego Nunez who teaches, i.e. is a peer tutor, on the inside. Nunez said that he had a lot of desire to help men speak English because they wanted the power to talk to their doctors, read to their kids, and learn. For him, teaching was a honor, and while the work was voluntary and not eligible for good time, it was worth it.

The last session of the day that I went to was on Literature, and it included Sarah Higinbottom and Bill Taft from the Common Good program in Atlanta. Discussions of students gaining from making their own books, engaging in challenges such as Milton and Shakespeare are up my alley. I talked about the work I did at Framingham Women’s Prison, directing plays, showed a clip of Merchant of Venice and then poured my heart out about Changing Lives Through Literature. What a day.

#ejpsymposium first day

I have decided to write about the Education Justice Symposium which is taking place this weekend in Champaign Illinois. I will be tweeting chunks of the conference as we go along so you can get a sense of what folks from all over the country are talking about when they talk about higher Ed in prison.

From last night, here is Susan Burton from A New Way of Life who really has imaginative ideas about reentry because she began with experience. Here son was shot “accidentally” by a cop in LA and that led to years of drugs and alcohol and incarceration. But eventually she developed this program that has offered home to 750 women coming out of prison, A New Way of Life, featured here. Here she is:

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First speaker, Friday, October 10, is Rob Granite, a formerly incarcerated person, who told a moving story about watching a mother bird giving birth to babies. He saw a bird struggling after it fell out of the nest, and Rob never got to know what happened to him. He searched, wondered, discovered it had flown away. He tells the story because he identifies with building a nest inside of a precarious place. Rob said that often times, in prison, guys try to ignore that need but others get it. He said that you don’t really attach yourselves to people but he got attached to learning.

The Education Justice Program(EJP) promotes learning in a circle. The circle diffuses the power, he said, discussing his experience in prison with EJP. He has been out only weeks. Also said that in terms of those of us who teach behind bars: No way can the focus be to save people. Being conscious of what perspective a person brings to prison teaching is important. A person is the audience commented that “Everybody has a vibration rate,” and after years in a California prison realizes he needed to understand that and slow down his vibration rate.

Session Two: An incarcerated person from prison said that being an educator is activism. His words came to us through tape and audio. His name is Kemuyah and he feels he has had things withheld because of security. He said “I am unaware of any research” that goes against DOC, indicating that research and education should allowed to him. But it is. This makes it impossible for educational Justice to really exist. Most important info from him talks about how fraternization, punishment, fear, the prison reality that compromises the educational environment. “Educating incarcerated students is serious business.” And prison officials should not be able to use security to resist education or free exchange of ideas. Security must be detrimental I.e. Let’s take the shackles off educators.

When we were able to go into Danville Prison that evening, where papers were given to and by prisoners in the program. I quoted Angela Davis’s words to Kemuyah: “Prisons are an incubator of outdated ideologies,” I said, and asked him to comment on that in relationship to his paper and to all the barriers he had experienced. Isn’t that common, to be expected, I wondered? A discussion ensued where the most interesting comment came from another prisoner  who said that it was up to prisoners to open up those barriers and essentially be the change: “As citizens we need to update outdated measures.” It was an incredibly powerful moment that showed more than any other to me what EJP fostered in its program.

I was also impressed earlier in the day by Haneed Shakur, a former student who told us the impact on himself in taking the program where he was in school in prison from 8:30am to 2:30pm. He said education gave him power; and he learned to write. He began reacting to quotes that made sense to him: Ghandi, Martin Luther King Etc. and these he  was exposed to first by a teacher when he was in Cook County Jail. Most crucial for him about EJP is that he never felt like an incarcerated person but always was treated as a student.

EJP also presented Barbara Lawrence who was a former prosecutor and police officer—not your average combination to become an activist. She teaches CJ students and said “We are talking about cops, courts, and corrections.”  The standard low level criminal pursued by cops, in the so-called War on Drugs, she gradually got to know was false. But financial incentive to arrest and only arresting people of color did exist. She uses the Michelle Alexander discussion to point out why police do not go to rich neighborhoods to get drug users there. When she questioned things, she was transferred. Ultimately she became a prosecutor and hated the fact that she didn’t believe in some of the laws that she had to convict people of breaking. Then she became a public defender and now teaches in a community and Justice program at Guillford College. She left us asking us to think about what is going on in all aspects of this system. And lie Susan Burton, the night before said that the next big fight will be against police brutality.

Today, I’ll leave  you with the words of Michael Brawn, another student from EJP who said “Humanities-based education can help us to be better men.” It wasn’t until freedom was taken away that he realized the freedom in education.” While there is a weekend of resistance in Ferguson Missouri, where the name “Michael Brown” resonated for me as I looked at so many of the men of color who live at Danville, it was almost appalling to think they were safer growing up with an EJP education than to grow up on the streets.

Why Josh Wall Should Not Be Judge, Part II

Tom Tyler, whose PhD is from Yale, in his book Why People Follow the Law and in his groundbreaking and well-received scientific research, indicates that the manner in which litigants are treated by judges is the single most important factor in their adherence to the law.

That is a fascinating bit of information when you consider what the Massachusetts Governor’s Council must decide next week on Wednesday, October 8, at 12 noon, when they vote on whether or not Parole Board Chair Josh Wall will or will not take up the gavel. His judge creds were praised by a few more attorneys who came to testify for him on this second day, standing by his ability to give people a fair shake. But this was a day where his Parole Board behavior was also mightily challenged.

Judgeship

“I saw myself as a public servant,” Josh Wall said Wednesday, September 24, speaking about why he accepted the position of Prole Board Chair. “And therefore [I] considered it my duty to say, yes, if the Governor of Massachusetts says, as he did, that we have a problem with public safety and you can help.” Wall told this to members of the Governor’s Council at the second day-long controversial hearing. “Let’s parole the right people who are likely to succeed,” the governor told him, and Wall, admitting he knew nothing about parole when he came on, said he adopted the Governor’s philosophy, although he did not exactly mention what that was besides that sound bite. My sense has always been, at the time, it was “Don’t Make Any Mistakes.”

While it was never crystal clear if he took the Chair position because his real goal was to become a superior court judge, Wall certainly went to work to make no mistakes. The result was parole rates declined substantially and some felt this was against everything we know that indicates good policy and public safety. Wall holds that he has “reformed” the Board, in part, because of his commitment to fairness and equity. He feels he has regained public confidence in parole. Wall declared that recidivism is down for parolees and that the Board has redrafted every policy about parole supervision. As an example, he said was “murderers now get more supervision than shoplifters.”

Of course, he did not say that since he took over, parolees can be violated for a litany of technical infractions that are sending people back to prison needlessly. As I wrote in Boston Magazine” studies have demonstrated that enforcing graduated sanctions if parolees violate their [parole] terms works better than returning them to prison.” Wall didn’t mention the long delays getting decisions to parolees or the intimidation that has caused many parolees not to speak out against him or come anywhere near these  hearings before the Governor’s Council. They fear retribution. But Wall will face questions from the Governors Councilors on Friday, October 3, at 10:30am when they resume for Part 3.

Wall was again roundly criticized for his temperament and his behavior on the Board. And in an interesting moment Councilor Iannella said that anyone who wants Wall to recuse himself will get that privilege–if Mr. Wall becomes judge.

Parolee Donald Perry, the only parolee who testified in person against Wall, said he stood for those who were afraid to speak out. He told of his circus experience with Parole. He had served his time and had been living in the community on parole for many years. He was in his car and stopped because the person he had picked up hitch-hiking was carrying stolen property. When Perry was revoked for this supposed-crime about which he says he knew nothing and was found not guilty of in a court of law, he served an excessive 19 months. He mentioned how Wall had been interviewed by a crew filming his story, and he told them:”I don’t know what he[Perry] did but I know he did something,” Perry still wears a bracelet and has a curfew of 10:00 pm and said Wall is hypocritical and does not treat people fairly. “I don’t believe in double standards,” said Perry, and then playing on the horrendous 5 year setback that has become au courant during the Wall Board (used to be 2 year) he said, “So that in 5 years, if he has demonstrated he can treat people fairly, he should be renominated.”

Patti Garin, a criminal defense attorney and co-director of the Northeastern University Law School Prisoners Assistance Program, said that only 42 lifers have actually walked out the door in 3 1/2 years during Wall’s tenure as Board chair. And there are approximately 130 hearings a year, said Garin. That’s only 10.8% who have actually gotten through their required step-down programs to be on the street. The length of time waiting for a decision now is 7.5 months, and before the Wall board, it was 60 days. She mentioned what disrespect this seems to show for the people waiting and their families.

Joel Thompson, a Prisoner Legal Services attorney told a compelling story of how Wall had commented on a very difficult parolee. Wall said sarcastically, “What a proud day for this family,” meaning the family of the man seeking parole. “Very fine people.”

But it is not only the words, witnesses said, but the tone. Wall is nasty sometimes and when you read these words, you have to hear the tone with which they were spoken,

I testified how I had heard him demean witnesses who came to testify for their loved ones seeking parole. At a hearing for Luis Cosme’ in 2011, Wall spent an inordinate amount of time criticizing how the lawyer had been duped by Cosme’:
“Were you given the opportunity to plead guilty before the trial?
“The offer was to plead guilty to second-degree murder?”
“What were the arguments your lawyer tried to put forth?”
“What did you think when you heard your lawyer putting forth false arguments?”
“Did you ever tell your lawyer why don’t we go with some of the truth?”
“How do you think they [the victim’s family] felt when they had to listen to an
attempt to create lies for the jury?”
“Were there any family members sitting in the courtroom for this spectacle?”

These are the kinds of disrespect and disregard for the people who seek parole that Joel Thompson called “gratuitous comments.” They just don’t show respect. Reverend Jason Lydon also pointed out how demeaning Chairman Wall was at a hearing for Frank Soffen,a sick and elderly prisoner who will now die behind bars.

Over and over, one thing seemed to be clear: people who came to speak against Josh Wall had never opposed a judgeship. I wonder if any other hearing for someone nominated to be judge has taken twelve hours even before the councilors begin their questioning?

Stay tuned.

Why Josh Wall Should Not Be Judge, Part I

state-house1Photo from Dennis Hammer at Thinkstock

If you weren’t one of the hundred or so crowding into Room 157 at the Massachusetts State House on Wednesday, September 17, for the Governor’s Councilors hearing, and if you were not engaged in the discussion as to why Josh Wall should or should not become a superior court judge, you missed quite a show.

For more than six hours, supporters and those who oppose Wall’s judgeship took turns testifying in front of the eight member council. The Governor’s Council is the antiquated part-time body that is elected by the citizens of Massachusetts designed to primarily vote on the nominees of the governor for the Parole Board and the judiciary. A wonderful article by Chris Faraone in the former Boston Phoenix said these $25,000+ a year employees usually rubber stamp the nominees of the governor. But will the controversy over Wall’s nomination will be enough to change the status quo?

And what made this a show, you ask? Much of the Parole Board staff seemed to have taken vacation days to be in the room; Janis Smith, attorney for the Board, brought her parents. There was a DA and some judges, attorneys and a Board colleague—the current Parole Board chair did not miss a beat—and there was even a religious pastor, a crime victim, and a parolee testifying for him. He had every base covered as those “he asked to testify on his behalf” sang his praises. At one point, one of the Councilors said that they had received 60-65 letters in favor of Chairman Wall.

However, no surprise, considering the controversy that for weeks has surrounded this nominee, the Councilors have also received the same amount of letters opposing his ascent to judge. Many feel that he should not be rewarded for his poor performance on the Parole Board. As I wrote in Boston Magazine in July, 2013 about lifer hearings: “In 2010, a decision…took an average of only 1.4 months. In the first five months of [2013], that number was 10.4 months. Thirty-five of the 135 inmates who had a hearing in 2012 were still waiting for their decision at the end of…May [2013].” Also, out of 395 lifers who had hearings between Feb, 2011 and May, 2014, only 32 had actually been released on parole – for a parole release rate of 8.1%.  That is absolutely contrary to well-known data that says a higher rate of parole is a public safety tool.[1]

But the people who spoke against Wall’s nomination on Wednesday talked less about his performance on the Board and more about his temperament. Their point was that Josh Wall does not have the judicial juice.

Criminal defense attorney Willie Davis, a lawyer for more than 50 years, nailed the problem with this: “He has demonstrated an attitude of win at any and all costs.” That might not seem surprising for a prosecutor, but Davis explained how Wall sought to get criminal history backgrounds of jurors in the murder case Commonwealth v. Joseph Cousin when Davis was the defense attorney opposing Wall. This violated state law, he said, and Wall should have gone to the judge if he wanted such action to be taken. It was unethical. As reported by State House News, Davis said, “He [Wall] was looking for a reason to abort the trial before the verdict was rendered.” Some of the jurors had misstated their criminal history, and a mistrial was declared. Wall won—at any cost.

The Woodmans blamed Josh Wall for his insensitivity and dismissiveness. They said he was the main person they had contact with in DA Conley’s office after their son’s death. They lost their son to police brutality, said Cathleen Woodman, mother of David who died, but the police were never charged. “Being attacked by six police officers, lifted three or four feet in the air and slammed to the ground stopped his heart from beating. That was the cause of his death,” she said forcefully, holding back tears. At the hearing, she blamed the DA and Wall who told her that there were too many pages in the police report for them to have a copy. Conley said the young man’s death was a terrible loss, but the facts of the incident did not warrant charges against the officers involved and disputed her claims that Wall was the lead investigator.

“I thought he was supposed to be neutral, she said, dismayed during their meetings, and she added how disrespectful Wall was towards her, wondering at the time, “Could you not roll your eyes while we say something?”

Perhaps the most shocking testimony was the claim that Wall withheld evidence at a trial. The accusation about exculpatory evidence came from Attorney Rosemary Curran Scapicchio. She told how Wall sat on evidence when she was up against him in a trial . She said he had received information from another prisoner after a conviction, before an appeal was generated. Because, said Scapicchio, Wall sat on the evidence for many months, the man who actually confessed to the murder actually hung himself behind bars before he could be interviewed.  She said the judge in the case ruled that the five prisoners who knew about this were considered untrustworthy witnesses so they never were allowed to testify. The wrong man was never set free, and to this day, is behind bars. She accused Wall of deception.The hearing continues Wednesday, September 24, at 10:00am in Room 157.  And as one of the councilors said, it will continue to be rougher than Wall’s son’s football games. There will be more who speak for Chairman Wall and more who speak against him. He’ll say why he should be judge and the Councilors will question him. The vote most likely will be a week later.  But with all this controversy, it is clear that appearing before Josh Wall would feel precarious. Let’s hope the Governor’s Councilors will step out of their business as usual mode, step up to the plate, and recognize that this much outcry should not be ignored. Josh Wall should not be a judge in Massachusetts.



[1] See generally http://www.urban.org/UploadedPDF/411800_public_safety_first.pdf; http://www.justicepolicy.org/images/upload/09_05_REP_PruningPrisons_AC_PS.pdf; http://www.pewtrusts.org/en/about/news-room/press-releases/0001/01/01/one-in-31-us-adults-are-behind-bars-on-parole-or-probation; and http://www.justicepolicy.org/images/upload/10-06_FAC_ForImmediateRelease_PS-AC.pdf.