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Sunday March 17, 2002

Three Strikes: Real Justice?

By B. Cayenne Bird

Not many people know of the injustice of the three strikes case against Jerry Wayne Morgan. Holed up in a California prison for the past four years, he should be a free man. 

A warm-hearted volunteer brought the case to light and won Morgan a reversal in July 2001. But the story has been buried, and Morgan is still in jail, facing revived charges. 

Incumbent Attorney General Bill Lockyer can't show a three-strikes loss during an election year or his special-interest contributors might dry up. So another older man sits and waits. 

Morgan's case is the first known reversal of both the judgment and the sentence under the three strikes, passed by ballot initiative in 1994, which does not require all three strikes to be serious or violent acts. 

The Third Appellate Court ruled that Morgan received ineffective representation from his elderly lawyer, Elliot Burick. The California State Bar Web site shows that he has been disciplined as well in other cases. 

The appeals court also invalidated the first two strikes, which were based on a record from nearly 30 years ago in Arkansas, because laws in the two states differ. Morgan served just two years in Arkansas in the 1970s before the governor of Arkansas ordered him released. 

Morgan was 53 years old when sentenced to prison here on charges 

of spousal abuse, considered by the court his third strike. A charge of arson was dropped as part of a plea bargain. Morgan was sentenced to 25 years to life for an offense that normally would require a six-month sentence. 

Even a layman can see the injustice in using a three-strikes rule in this case. Morgan's record had been clean for 28 years. His case never even appeared before a jury. Morgan says he was conned into the plea bargain that was further manipulated by Shasta County District Attorney McGregor W. Scott. 

While Morgan was held in the Shasta County Jail during prosecution, he was taken out to the hospital, where he had major heart surgery. He was put back in the Shasta County Jail with no medication. He was near death and unable to really fight back. Morgan says he didn't have his glasses and couldn't read the plea bargain. The duress and threats were so great that he signed it anyway. 

Timely outside help

Union volunteer Janice Crumley had to fight just to get the case before the appeals court. 

S. Lynn Klein, an appellate lawyer assigned to the case, told Morgan that she could not find any issues on which they could appeal. After telling Morgan she would only be paid for 3.5 hours, she filed a brief giving the judges leave to do what they wanted with him. She essentially washed her hands of Morgan. 

He was allowed 30 days to file another brief to continue the case, a timeline later extended by the Third Appellate District. It was Crumley who got the extension and the brief filed. Without Crumley riding this case as a citizen volunteer, the documents would never have been filed, this reversal would not have happened and a retrial wouldn't be in progress today. 

Published, then deleted

The reversal of Morgan's case was published, which meant that it could be used as a precedent-setting example in other trials. Lockyer, fearing that other cases would be reversed if the news got out, took the case back to the Third Appellate District, trying to overturn the July 2001 ruling. The appeals court issued an even stronger opinion on Aug. 30, 2001. This was the first known time the Appellate Court has stood up to him. 

Lockyer then took the case to the California Supreme Court. That court turned him down, but it did agree to unpublish Morgan's case, striking it from the records. (It's legally called depublish.) Now, the case cannot be used as a precedent in deciding other cases. 

It's accurate to say that Lockyer is obsessed with keeping the three strikes law in place, regardless of the person's guilt or innocence. 

Two petty theft three-strikes cases, recently overturned at the federal level by the Ninth District Circuit Court, also failed at the appellate level. They, too, were unpublished. Why? 

Still more charges

Morgan has spent seven more months behind bars because Lockyer keeps filing for rehearings. The latest is a filing to recharge him with arson related to the electrical fire that started in their mobile home. That was the charge that was dropped in the plea bargain. 

Judge Wilson Curle agreed to give defense lawyer Jeffrey Gorder three weeks for an "arson investigator," who is usually a firefighter or police officer. Morgan maintains that he did not start any fire, and mobile homes like the one his family lived in are notoriously poorly built and can catch fire on their own. 

So now, Morgan needs a mobile-home-wiring expert witness and a better lawyer. Volunteer lawyers are overloaded, and his advocates have no money to donate to properly prepare for the trial. 

Morgan filed a motion on Feb. 5, begging for a new lawyer but Judge Curle denied the request. Conflict attorney Jeffrey Gorder is the attorney of record, but he almost never visits Morgan to sit down with him and go over the case. He talks at Morgan for a few minutes before each hearing. 

Worse, Morgan's first lawyer, Burick, is still being assigned public defender cases, even after this one was reversed on grounds of incompetence. Burick brings five cases or so forward every day Shasta County Court, five poor people who have no choice but him. He even conducted Morgan's bail hearing, on Jan. 14, which was very disturbing. 

Poor people aren't being served, they don't know how to complain and if they did, there's little hope our attorney general would be listening. 

The trials and tribulations of Jerry Morgan mirror our dysfunctional legal system. All opinions should be published. Unpublished opinions just give corrupt judges and unprincipled lawyers a method to turn the Bill of Rights into mere suggestions. 

Double jeopardy, assistance of counsel, due process, all our rights by law, aren't reality but a cruel hoax played upon the American people. We allow it. 

The author is volunteer director of United for No Injustice, Oppression or Neglect, or UNION, a statewide group based in Sacramento. Its Web site is www.1union1.com