Greetings & Good Hello. Let’s get a little fanciful and talk about attorney/client communication in the United States – this is a pretty typical story. Let’s start with the Hollywood version – the client, dressed in prison garb, sits in a room across from the attorney. They are safe – no-one is recording anything, the client can speak freely – the attorney is the one person they can trust, the one person on their side. The attorney tells the client the latest developments, the two conspire, information is exchanged and perhaps the attorney learns the new key fact that will be the key to blowing the case wide open.
This Hollywood story preserves the myth as the court and our propaganda prefer to portray it – the attorney acting in some fiduciary role relative to the client, earnestly pursuing the interests of the client – one of two adversaries faced off in a courtroom battle. There is some truth to this – definitely. The two sides, the prosecution and the defense, are adversarially pitched – what is incorrect is the involvement of the defendant or whether the case or the common sense of the matter are involved in any way. So let’s paint a different picture of two adversaries pitched in a mediated, high-stakes game – let’s say poker.
Imagine now two players facing off at a poker table, one is the prosecutor and the other is the defense counsel. In this case the judge is the dealer – the arbiter of events. So far this fits pretty well – but there are many kinds of poker, 5-card stud, Texas hold-em etc. In criminal matters the state has an advantage and we will represent that by letting the prosecution call the game. It is the judge’s house, but the prosecution brings the cards and picks the game. We trust the prosecution to bring an honest deck, but we can challenge that assumption if we need to. Now, this is how the defendant plays against the prosecution. The careful reader will notice that the defendant is not present at the table.
The whole proceedings take many rounds, so, as the games begin we step back and notice a big burly presence guarding defense counsel. This is a U.S. Marshal who is watching over something strapped to the back of defense counsel, facing away from the table. Upon closer inspection this is a swaddled adult totally incapacitated, wearing earmuffs and sunglasses – this is the defendant. From time to time people from the audience are allowed to exchange information with the swaddled adult and from time to time the defense counsel twists his head and has a brief exchange with the character on his back. This is how the defendant coordinates their participation in the proceedings which govern their future.
If this sounds absurd, consider that I have approximately 5 hours per month to speak with my attorney. This is approximately 1.25 hours per 168 hour week. The remainder of that week is spent in isolation, with occasional phone calls to foreign countries. People in those foreign countries monitor court activity and let me know what I have been up to in court, how the judge has reacted, and how the prosecution has responded. Then, when my weekly hour comes around, I discuss the events with my attorney and then wait to see what I do in response. I never know what I will do because it is not me that does it, it is my attorney, who is impersonating me because he is my “representation” – and is therefore entitled, as a matter of law, to do as he wishes, in my name, without my consent. I have given him an implied consent, under duress, because I have no effective choice other than to become immediately and completely aware of all court procedures, sans any resources to support myself.
Now imagine that the defendant and the prosecutor know something about the deck. Perhaps they know it is missing the 7 and 9 of clubs and the 4, 5, 6 of hearts. Not much, but it is something. Now imagine that you are trying to “assist” your defense counsel, who considers himself an expert and therefore does not require your help, using only hints brought to you by the audience, who may not even know which game the prosecution selected. The defense counsel, acting in their interests and wanting to “make the court look good” tries to minimize your involvement. Your audience helpers try to feed you information, but are softly blocked and hassled by the marshal – although they usually manage to get a message through. Now you need to try to use this information to figure out not only what the prosecution’s hand is, but what your own counsel’s goal is and what the particular game is. You have to do this by periodically whispering over your counsel’s shoulder once a week. This is typical of the attorney/client relationship – not just mine, but must of ours.
The excuses for this behavior are enormous and voluminous. I wish we could record our meetings. I have tried, but my attorneys refuse to allow themselves to be recorded, and it is now clear to me why. It is clear to me because I take notes, even though I am sitting alone in a room, fully handcuffed and ankle-chained, in front of a video monitor. Despite the facility’s efforts to make attorney visits difficult and unproductive, I take notes. These notes reveal the extent to which your own attorney simply lies to you to try to manipulate your behavior. Why bother telling the truth to someone isolated and locked in a cage, because it’s not like we can go “look it up” later. And without recordings or accountability an attorney can just deny they said something – which is what they do most often when I read their words back to them.
But why lie? Why not just tell the truth? Why not fight? The answer is quite simple – it is considered “good form” to help the feds maintain their high conviction rate, after all, don’t we want to live in a world where arrest = guilt? Wouldn’t it suck if our jails were filled with innocent people? In this increasingly chaotic world, we need and desire the crispness of crystalline morality – we do not want shades of grey in our legal system, we do not want humanity in all its gory imperfection. We want vengeance and righteousness! So the defense counsel and prosecutor work together to stage a little play using the deck at hand, and it is best if the defendant is not involved.
This system has evolved in a culture of extreme racial and economic bias. Not to put too fine a point on it, but do whites commit crimes? By the looks of the prison population you might get the feeling that being black was a pre-condition to most federal crimes, but then the occasional white or hispanic shows up. All of us have stories similar to my own – the inadequacies of the defense system appears color blind. In fact, one story I heard, while writing this, involved a defendant transitioning from state to federal court. For eight months he had heard his attorney make a weekly status report about meetings with the prosecution and the prosecution’s intransigence. Once the case transitioned, the defendant learned that, for eight months, there was no prosecutor assigned to the case at all. Defense counsel had simply been lying to placate the defendant in anticipation of the state-to-federal transition. Another inmate has been locked down for 10 months and has yet to see his indictment. He simply can not get a clear picture of what, exactly, is going on. He is on his fourth lawyer. Yet another fellow is on his third lawyer; he is fighting a potential 50 year sentence by researching case law and bringing it to his lawyer, one after another. He is now down to about 15 years, but this is due to his efforts, not his attorney’s.
The reality is very, very different from the Hollywood trope, or even the fantasy of common belief. Our legal system, like so many of our vaunted institutions, simply does not function “as seen on TV”. Our society does not work. My cellmate for several months used to laugh at me for commenting on this – he just found it funny and suggested that now I was getting a taste of life without white privilege. I think he is right – and, to make matters worse, I think this is the truth that grounds the sentiment that the next American civil war, the one presaged on the 6th of January, will be instigated by white men specifically seeking to hold on to their privilege. This would be a lot less clear to me if I weren’t smack in the middle of one end of an obvious race-weapon being consistently and widely deployed, at the national level, and largely supported by our population. As icing on the cake, my attorney referred to George Floyd as “that black guy who faked getting choked” – and me, I could only think, “well, he’s better than the last attorney, at least he is listening to me” – I had mentioned Floyd’s murder as one of the shocking events awaiting me when I was forced to travel to the U.S. in mid May of 2020, before receiving the fake ballot from the Trump campaign in an effort to trick me into corrupting my mail-in vote.
This fractured attorney/client relationship has manifested in many real ways in my specific case – here are a few examples:
1. I can not get evidence by mail: I have a PDF file which contains emails which describe me seeking a restraining order against my attacker, the person I am accused of harming. I can not have that mailed to me to review safely because it must be mailed by an attorney. My attorney is refusing to mail me the PDF, then some days he says he will but does not do it, etc. We are stalemated while my attorney keeps nudging me to just “take the plea” – as if he has an interest in me not getting the PDF. My battle to get this evidence, which the prosecutor also has, has been going on for over 9 months. The only obstacles are the defense attorney and the facility mail rules. If I can find an attorney willing to mail me that document, I can identify specific people and times and content in my favor. If I were not in detention, this would not be an issue – as it is, the court, my defense attorney, and the prosecution are effectively colluding to force me to take a plea.
2. I can not get records about my passport: For 9 months, I have been trying to track down information from the Department of State. The State Dept is the least truthful of the non law-enforcement agencies I have dealt with in my decades of battling the scourge that is the federal government. The State Department lies by habit and in a very particular way – they politely misdocument and misrepresent their actions, so as to throw up a smoke screen that blocks any but the most viciously persistent from obtaining information. Should I sign the plea agreement, then one of the stipulations in the boilerplate front matter blocks investigation into matters pertaining to the investigation, such as “what happened to my passport?” – was it revoked? was it concealed? Can I get a copy of it or get it returned? Thus, resolving these issues must occur before I sign my plea agreement, or I must plead without the agreement.
To date, my first attorney simply lied about my passport – repeatedly. He lied to me about looking into it, lied about progress and obstacles – just made up stories, while, in fact, doing nothing. My second attorney did better, he got a passport, but it was the wrong one – then he got confused about how to call an international phone number and then got confused about email. Eventually he got the prosecutor involved and, as of 24 hours ago, the FBI reported that it has been destroyed.
This is interesting because that passport is a significant reason for my detention – turns out the government was lying about that all along, but that is another issue. During all of this my daughter managed much better, in two weeks she accomplished what the attorneys could not accomplish in half a year, but the state department blocked her progress requiring me to sign release documents. These, of course, required us to find an attorney willing to send me mail, since my attorney’s pride was wounded. All along we attempted to reach out to my congressional representative, to see if she could help us resolve these questions – but her office refused to get involved because the case was ongoing. This is interesting because her office had already been involved in this case by providing false information in response to FOIA requests I had made, so, the correct statement is that Representative Hinson’s office will help the prosecution, but not the defendant, in obtaining neutral information about a case, such as the disposition of a passport.
All of the above drama does not indicate the presence of an attorney fighting for their client – it is an attorney dragged into action because they are unable to dominate and control a defendant – forcing them down a prosecutorially preferred course of action.
3. Understanding my legal situation: My attorneys have made a huge deal about what is and what is not “in scope” – this is given by the fact that they are the arbiters of my best interests, not me. For example, when I say to them that my priorities are (a) finding a path home, and (b) ensuring a correct and accurate record, they correct me and inform me that those are not, in fact, my priorities. My priorities are up to them and I have no further say in the matter – I am deadly serious about this. Matters of emigration, my ability to return to my domicile in Thailand and live with my family and community is not “in scope” and so there are no grounds for me to get legal assistance in asking how my decisions impact my ability to return home and re-unite with my life. Likewise, correcting errors and misrepresentations in the record, of which there are many, are not considered important to the court or relevant to my defense. As such they are “out of scope”, but, if I accept a plea I can cement my acceptance of those lies as truth – something I am not willing to do. My attorney has refused to discuss any procedural means of correcting the record – I am now on my own for that, but, of course, the facility denies me access to legal resources. As such I have to get creative and risk “political re-education” via “Rule 4246” as has been tried before. This, again, flies in the face of the Hollywood trope – my priorities are clear and they guide my decision making, however, they disempower my attorney’s ability to manipulate me into a course of action suitable to a tidy court performance.
This list could go on and on. And we are all in this situation. These issues are messy and complex – how much easier it is to believe in the fiction maintained by those professional poker players – that precise, clear court record!
Eric Charles Welton
Prisoner #94911
Columbus County Detention Center
March 19, 2024