It has happened. Many times, and to many others. But this time it is You. You are the defendant in a criminal trial. The prosecutor urges you to plead guilty. When you refuse, he threatens to "throw the book at you." You continue to refuse, knowing you did not violate any law. And the prosecutor does as threatened, piling on other charges.
You are indicted by a grand jury. No surprise to legal scholars. More than forty years ago William J. Campbell, former chief judge of the federal court in northern Illinois said, "Any Prosecutor, can indict anybody, before any grand jury, for almost anything." It is more true today than it was in the 1970s.
You are about to learn that your faith in the jury system is based on ignorance. Thomas Jefferson said it centuries ago: "A Prosecutor who alleges enough wrongdoing will always get a conviction--the jury assumes, the defendant must have done something."
The Prosecutor brings witnesses who testify against you. They are lying but you have no way to prove this. Your lawyer does not present a defense. He does not tell the jury that there is no law, state or federal, for the crime with which you are charged.
You are found guilty not only of violating a nonexistent law but also all the piled-on charges. Because you refuse to express remorse for these acts, you are sentenced to a long prison term.
Rapists and drug dealers do not get sentences as long as the one bestowed on you.
Your lawyer files an appeal. Once again, he does not argue that you were convicted of violating a nonexistent law. Since this is same lawyer who defended you at trial, he does not criticize anything he did or did not do on your behalf. Several years pass while you wait, in prison, for the court to rule on your appeal. You lose the appeal.
You have one last chance: a motion to vacate the conviction. Because that motion is considered a civil suit, prisoners--regardless of how indigent they may be--are not entitled to the services of a public defender. Either you do this pro se--learning law as fast as you can--or you pay a lawyer. Your family rallies and hires a good lawyer. He files the motion to vacate the conviction.
The new lawyer files his brief, arguing that it is a Constitutional violation to convict you for a nonexistent law and, if such law existed, it would be state law since the federal government has no authority over state-regulated business. In other words, the federal court did not have jurisdiction to hear the case, even if you had violated an existing state law.
If your lawyer is right, then federal prosecutors erred, completely, by indicting and prosecuting you. Then they committed ethical violations by bringing as witnesses people who perjured themselves in order to avoid jail sentences for their own crimes. But prosecutors are notorious for defending their convictions (even when DNA evidences show they were wrong). Their reply brief essentially claims that your lawyer's argument is hogwash.
You have been in prison for five years. Now you must wait for the judge who sentenced you to rule on your motion to vacate.
You wait six months. Ten months. Fourteen months. Two years. You are innocent, but you cannot get the court to pay attention to you or your lawyer. Your lawyer informs you there is nothing in the rules for federal courts that requires them to attend to motions to vacate within a specific time. Yes, it is possible your motion will be ignored for many more years--until you have served the entire sentence.
The U.S. Supreme Court said that if a prisoner makes a proper showing of "actual innocence," the failure to hear his claims would constitute "miscarriage of justice," Sawyer v. Whitley, 112 S. Ct. 2514, 2518-19 (1992). But many courts look at their heavy case loads and the backlog, and remind themselves that prisoners were found guilty and do not deserve the court's limited time. Prisoners can wait. Two years? Three years? Thirteen years? That, too, has happened.
(Photo taken in 2003, shortly before Steve Keller was incarcerated.)
This is the situation that bedevils Steve Keller and his family. Keller is serving a ten year sentence after being convicted of a nonexistent law. The judge, Karl S. Forester, referred Keller's motion to vacate to a magistrate, a routine procedure in the eastern district of Kentucky. The motion is buried at the bottom of a pile of similar motions.
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