Conjugal Visits, Statutes of Limitations and Fighting Fraud in Eden
I met Felipe Aguilar* at Salinas Valley State Prison. The prison sits deep in the valley made famous by John Steinbeck. It can feel like the Eden he describes, with dark, fertile earth and sloping hills green with winter rains. Salinas is only a hundred miles south of my home near San Francisco, but this is farmland, small isolated houses with abandoned farm equipment, small towns with taquerias. As I drove down to meet Felipe for the first time, I passed through Gilroy, the tiny, self-proclaimed Garlic Capital of the World and thought surely I must be there soon. After driving miles through fields filled with migrant workers hunched over rows of strawberries or artichokes or lettuce, I turned onto a long road leading to the prison. I arrived at a series of concrete boxes looming over acres of bare dirt.
I waited for an hour or so in the sterile waiting room. I sat in a molded fiberglass chair and watched the guard. He busied himself with checking badges, punching holes in new sheets for the visitor log, and hand writing the numbers of my driver’s license and State Bar card. The linoleum floor cracked and peeled; the metal detector only sometimes worked. The room reeked of disinfectant.
Finally my escort came to walk me from the waiting room to the main building where the inmates live. He was a thick guy, ruddy cheeks.
“What’s that building with that small patch of grass over there? The one with the play structure,” I asked him.
I like to question the guards. I’m fascinated by them. I have determined that most do not feel claustrophobic in the windowless buildings all day, iron gates slamming around them. They might not have dreamed of wearing that polyester uniform with the bulky bullet proof vest, the black leather holster with batons and guns so heavy and hot in the Salinas summer, but it’s a good job and steady work with good benefits is hard to find in the valley.
“That place? It’s for conjugal visits,” he replied without looking.
“Wow,” I mustered. It seemed strange that we deny people all the basic freedoms — where to live, what to do with your day, what to eat and basic luxuries like salt and pepper, trees, writing paper — but still provide the little love shacks with a trimmed lawn. Yet California has even extended family visits to same-sex partners and unmarried but “registered domestic partners.” “Family visits” have been proven to help inmates transition back to society when they are paroled. A family ties inmates to the outside world — the world outside the sterile dirt and concrete prison. It means a lot to know that your wife and kids will be there when you get out. But some people won’t ever get out.
“Oh sure, everyone gets ’em ‘cept the lifers,” he said.
Lifers like my new client Felipe. Sentenced to 25-years-to-life, he will see the Parole Board after 25 years and present his case for release. He has to convince the Board he’s not a current danger to society. But no matter how many AA classes, how much remorse, how clean their record in prison, most lifers are never released. The majority will spend five, 15, or 20 years more than their original sentence trying to convince the Board that the mistake made at age 16 — jumping into the car that night, selling that bag of dope for your cousin — can be redeemed.
I waited in a small room for Felipe. Five mismatched chairs crowded the space like braces in a pre-teen’s mouth. I squeezed around them and behind the little wooden table. I took out my yellow legal pad, the brightest thing in the room, and my pen. Felipe — looking young and handsome in his way, with black hair and wide, dark eyes, shuffled through the door. A bare gray chain around his waist connected his handcuffs to his ankles, also locked in cuffs. It reminded me of a dog’s choke chain, the way the guard controlled every slight move.
Felipe looked small. He looked much younger than his 32 years. Often prison doesn’t harden or age someone, but shelters them. The prison walls may have protected Felipe from a farm worker’s life. His skin was smooth and he wore his black hair back in a ponytail. He looked intelligent, bright, like a freshman at Berkeley, maybe out protesting the tuition increase. But instead of telling me about wealth inequalities and opportunistic capitalism he spoke softly about what happened to him.
“What I remember is my mother on the bedroom floor,” he said. “My father had come home drunk and no one was there to help her. I jumped in front of her and as he drew his arm back to swing I raised my hands up to fight him….I knew I had made a terrible mistake.”
Felipe told me he lowered his hands slowly to his sides. Still, his father beat him like never before.
“I hated him at a whole new level.”
Felipe was born in Mexico, several months after his father had left them for “opportunities” he thought he would find in the US. He visited the family in Mexico but after a few weeks he would disappear again, going off to drink or gamble, whatever he did to lose the money that Felipe and his family needed to eat. When Felipe’s mother moved her three young children to be with their father in the US, Felipe remembers overwhelming sadness. An alcoholic, his father often beat his mother. Felipe didn’t want to hear her screams, smell the rotten stink of alcohol on his father. When Felipe was 10, his older brother, the protector and provider of the family was sent to prison for a fight. Felipe became his mother’s protector.
“I hated my father and I lost interest in school. By 13 I had a whole new group of friends. They weren’t good guys but they were all I had. They all joined gangs.”
Just after he’d turned 16, Felipe got into a white, two-door Cordova that belonged to the uncle of one of Felipe’s gang friends. The uncle wanted to get back at the people who had shot up his car a few days earlier. With Felipe sitting in the passenger seat, the uncle drove across town where he slowed the car in front of convenience store, casually took out a rifle and shot into a crowd of rival gang members. A young man named Rene was killed. He was also 16-years-old and born in Mexico like Felipe.
Felipe’s father would never hit him again. He couldn’t; Felipe would spend the rest of his life in prison. Felipe was convicted of murder under an aiding and abetting theory. Even though he never fired a shot and was only 16 at the time of the shooting, Felipe was tried as an adult. At 18, he faced life in prison.
Felipe turned to his sister Rosa for help. She found Felipe a lawyer named Burns in the yellow pages. Paid him $5000 up front for the appeal. For three years Burns told Rosa the case was progressing. Several years later and still no real news from Burns, Felipe took on the case himself. A high-school drop-out, in custody since he was seventeen, Felipe spent years trying to get his trial transcripts, doing the legal research and writing a habeas corpus petition. Finally, he discovered that Burns had never done the most basic of appellate attorney tasks: filing the Notice of Appeal. He never ordered, received or reviewed the transcripts of the trial court proceedings. Burns never worked on the case, never hired an investigator and never contacted the main witness. The man was a fraud. When the State Bar found out that he had done the same thing to at least five other families, Burns was finally disbarred.
Still, the California and the federal district courts told Felipe, even with the fraud, his habeas petition was just too late. The law gave him a year after his conviction to file a habeas petition in federal court. This can be suspended sometimes but 14 years had passed since his conviction. At age 32, Felipe was 13 years late.
I argued to the Ninth Circuit Court of Appeal that they should give Felipe some flexibility on the timing because fraud caused the unusual delay. Justice required that a murder conviction, resulting in the life sentence of a juvenile, be reviewed by an appellate court. No judge had ever ensured the fairness or constitutionality of Felipe’s trial.
But I faced a formidable legal monster: the Statute of Limitations.
Every lawyer knows that statutes of limitations (commonly known as time limits) are technicalities and technicalities are as foundational to our justice system as single — origin, precision ground, pour-over coffee is to Silicon Valley — technicalities make the system go. Because they are easier to define than fairness and far cleaner to apply, technicalities often trump truth. Most people think it is the reverse — criminals get out “on a technicality.” But here, Felipe was denied a chance for freedom because of a technicality.
I lost in the Ninth Circuit and I was afraid to tell Felipe. Another lawyer had failed him. When I finally met with him, I found myself promising to ask the US Supreme Court to consider his case. We both knew it was pointless. He will spend the rest of his life in that concrete box in Salinas for having sat in the passenger seat of a white Cordova when he was sixteen.
Felipe and I talked. He told me his relationship with his father had improved over the years. But I knew prison would forever confine it to letters and sporadic visits across a linoleum table. They would never have the sheer number of minutes, the subtle communication and familial affection that makes forgiveness possible. I thought of the tidy cinder-block house in the center of the prison with its square of emerald lawn that I had seen when I first met Felipe. I realized that Felipe, in prison for life from the time he was seventeen, would never get a single conjugal visit. Felipe would never become a father himself.
*I’ve changed his name for this story.
