IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT
OF GEORGIA
ATLANTA DIVISION
MICHAEL HAROLD CHAPEL, GDC 845840 )
)
Petitioner )
PRISONER
)
28 U.S.C. § 2254
v. )
)
HUGH SMITH, Warden ) CIVIL
ACTION NO.
Georgia State Prison ) 1:03-CV-2655-CAP
)
Respondent )
Comes now Michael
H. Chapel and moves this Honorable Court to grant equity to him as a Prisoner-Pro Se Petitioner in this action that will allow him to approach
the efficiencies of those afforded Respondent and opposing counsel for those
reasons as outlined in the following paragraphs.
HISTORICAL PERSPECTIVE
Since the founding of the United States and
the establishment of its Constitution in the latter Eighteenth Century the
Prisoner-Pro Se Petitioner
enjoyed a rough parity in efficiencies as compared to opposing counsel
representing Warden/Respondents in these actions. Both litigants were restricted
to pencils and paper and to law libraries that were hot in the summer cold in
the winter and a quality of content that could not be guaranteed. In the latter
half of the Twentieth Century however, with the advent of computers and the
many amenities of the modern office, that parity began to disappear until today
it is almost non-existent.
Modern
day attorneys who oppose Prisoner-Pro Se Petitioners sit
comfortably in air-conditioned offices where the wealth of the entire body of
legal and other knowledge can be seamlessly summoned with only a few keystrokes
on their computers and with instant communication with the world using mail,
Email, telephones, fax mail and other forms of computer communication. The
modern day attorney has the luxury of face-to-face meetings with any and
everyone and a staff to take care of routine tasks. Finally, these attorneys
have modern day advantages unimagined in the past such as sending helicopters
long distances to pick-up necessary witnesses[1].
The
Prisoner-Pro Se Petitioner on the
other hand is often confined to an uncomfortable cell for 23-24 hours a day, as
is this Petitioner, with stringent controls on the amount of paper he may
retain in his cell and is allowed only rare visits to the law library. Between
these rare law library visits, the Prisoner-Pro
Se
Petitioner may or not be allowed to request cases from the law library, in this
institution 10 per week, and such requests are only infrequently honored.
Prisoner communication with the world is restricted to only mail and
infrequent, unscheduled and very expensive access to a telephone that usually
is reserved for family. Finally, the Prisoner-Pro
Se
is at the mercy of his keepers who are able to whimsically grant or deny him
necessary access to the means for the prosecution of his claims and a
Warden/Respondent who can arbitrarily change the rules of the institution that
allow such prosecution as has been the case with this Petitioner during the
length of his incarceration.
CONSEQUENCES
The
loss of parity between parties affects the entire concept of “fairness” in the
United States judicial system. is a
civil process. Thus the prisoner without means or benefactors is forced into
the role of Prisoner-Pro Se, but time limits
and the requirements to show “due diligence” and comply with other requirements
in the prosecution of his claims are the same for him as for those attorneys
who represent the Warden/Respondent. In the case of this Prisoner-Pro Se Petitioner, time limits to respond, some as little as 10
days are simply unrealistic, and the requirements to show due diligence in the
prosecution of his claims have been severely complicated by the conditions
described above.
Petitioner
now relies exclusively on regular United States mail for communications with
his self-recruited research and clerical assistant[2]
who is resident in another state. Thus on receipt of opposing materials and
Court orders, Petitioner must first analyze such responses and prepare his own
response and instructions for 1 or 2 or more days, mail his work, a journey of
3 or more days, to his research and clerical assistant for further research and
clerical work that may take 1 or 2 or more days, wait another 3 or more days
for the return mail and finally sign and return the final product to the Court,
a journey of another 3 or more days. Requirements, to show due diligence and
others are similarly complicated, mostly by the Warden/Respondent and his staff
for the reasons stated above under consequences. Petitioner has no means to
compel and relies on “open record” requests to gain the necessary documentary
evidence to satisfy necessary requirements. Because of the vagaries to which he
is subjected, the procurement of such information from the institution often
resolves into a form of game strategy to gain the evidence.
LIMITATIONS
Petitioner recognizes the limitations of
the Court in this situation. He further recognizes that the vast majority of
Prisoner-Pro Se Petitions involve
a single issue, or at most only a few straightforward issues that lack the size
and complexities of the instant petition. Petitioner also recognizes that since
this is a civil action and the Court has severe limitations on any financial or
legal assistance it can render, he expects none and will meet any expense
involved in the remedies he will propose through his own efforts and means.
Petitioner further recognizes that his case is exceptional, and that all rules
have exceptions.
Petitioner
further recognizes the necessary financial, safety and good order requirements
of the institution wherein he is incarcerated, and he is prepared to ask
nothing that is not immediately within the rules of the institution,
immediately available and without cost for the Warden/Respondent to grant and
his staff to administer in the remedies proposed.
PROPOSED REMEDIES
The Prisoner-Pro
Se
Petitioner is by definition his own “attorney of record”, and as such should
qualify for certain exceptional privileges normally granted to prisoners and to
their attorney of record as enumerated below:
(1)
The Prisoner-Pro
Se
Petitioner be allowed visits from his researcher and clerical assistant in the
rooms reserved for prisoner-attorney conferences, and that both he and his
assistant be allowed to bring necessary conference materials into the
conference room subject to search and approval by prison staff. Further,
Petitioner and his research and clerical assistant be allowed necessary
visitation during business hours outside of normal visiting days and hours,
thus reserving these occasions for visits with his family.
(2)
The Prisoner-Pro
Se
Petitioner be allowed necessary telephonic communications with his research and
clerical assistant outside of the normal telephone access schedules and
procedures for the prison. Further, Petitioner and his research and clerical
assistant be allowed to use telephone facilities not associated with the
prison’s profit center system[3],
and that Petitioner be allowed to use his research and clerical assistant’s
“800” number for such communications to keep his costs down for such necessary
legal communications.
(3)
The Prisoner-Pro
Se
Petitioner be allowed to use and maintain a personal computer in his immediate
cell for his use in complying with due diligence and other requirements and for
legal and other research. The facilities available on the Internet to opposing
counsel give such counsel an extraordinary advantage over the Prisoner-Pro Se Petitioner, and those advantages could at least be
somewhat balanced by this remedy.
Further, the granting of this remedy
would eliminate the need for (2) above. This would avoid any complications for
the institution that may be caused by the granting of any special
considerations that may be involved in granting the provisions of that
paragraph. A personal computer equipped with a wireless connection would allow
Petitioner Email, fax mail, Internet and telephonic communication access
without any wiring considerations other than power.
Petitioner’s research and
clerical-cum-technical advisor, whose last position before retirement was as the
Southeast Regional Director of Computer Systems and Regional Information
Systems Security Officer[4],
assures him and can assure the Court and the Warden/Respondent that foolproof
restrictions can be imposed on such personal computer use. Petitioner, his
technical advisor and the Warden/Respondent and his staff can negotiate the
terms of such use for approval for the Court or can institute such use based
upon any provisions imposed by the orders of this Court.
(4)
That this Court compel Warden/Respondent
to furnish such information from prison records as needed and requested by
Petitioner in order to demonstrate compliance with due diligence and other
requirements of the law to further his case, either by means of subpoena or
voluntarily at costs that are reasonable and reflect Petitioner’s meager
resources. Petitioner is more than willing to negotiate such conditions with
Warden/Respondent and to submit any dispute to this Court for arbitration.
CONCLUSION
Petitioner avers his lack of parity with
Warden/Respondent and opposing counsel is both real and prejudicial to his
efforts to establish his innocence. Without all of the modest remedies he
proposes to this Court, this inequity will remain and can only deteriorate.
Without Internet access, Petitioner cannot even view the WEB site[5]
established for him with its massive information stores and careful analyses of
that data. Warden/Respondent and opposing counsel can view, download and
utilize that data to the detriment of Petitioner’s cause with only a few keystrokes,
while Petitioner is arbitrarily denied such privileges and efficiencies. Such a
situation adds to the inequity and prejudice already suffered by Petitioner and
increases his burden in his attempt to prove his innocence.
Wherefore,
for these and all other good, just and sufficient reasons, Petitioner begs this
Honorable Court to grant the proposed remedies as described and to order and
compel Warden/Respondent to implement them immediately.
Submitted this 1st Day of December 2003,
MICHAEL H. CHAPEL
GDC #845840
Applicant – Pro se
Georgia State Prison
Reidsville, GA 30499
MOST RECENT ACTIVITIES
Civil Service/Military retired since January 3, 1997
Food and Drug Administration, Southeast Regional
Office. Atlanta. GA. 3/92-1/97
Regional Computer Center Director – Regional
Information Security Officer
Independent Computer Programmer/Analyst and
ADP Consulting Analyst. 10/89 - 3/92
Los Angeles/ Atlanta, GA, (Contracts with:
AT&T, IBM, UPS, NABISCO, and others)
Integrated Systems Analysts, Inc. Port
Hueneme. CA. 7/87 -10/89
Senior Systems Analyst/ADP Manager
Senior Computer Scientist
Norman Engineering Co., Los Angeles. CA. 4/80
-10/84
Manager, Computer Services
Autologic Inc., Newburv Park. CA. 11/77 -
4/80
Senior Systems Analyst/Acting Director
Systems Engineering
Litton Industries, Mellonics Information
Center. Canoga Park. CA. 10/74 - 4/77
Senior Data Systems Analyst
Research Systems, Inc.. Manhattan Beach. CA.
11/72 -10/74
Manager Systems Development
Security Pacific National Bank. Economic
Research Department Los Angeles. CA . 6/67 - 6/72
Research Economist/Research Officer/Assistant
Research Manager
MILITARY SERVICE DATES
U.S. Air Force 01/03/50 – 09/08/53
U.S. Army 08/02/55
– 08/22/57
BA
European Area Studies (1959) Air Force Association
Berlin Veterans
Association
St. Louis University, St. Louis, MO
Graduate Studies in Economics (1962-1967)
UNITED STATES
DISTRICT COURT
FOR THE
NORTHERN DISTRICT OF GEORGIA
ATLANTA
DIVISION
MICHAEL HAROLD CHAPEL, GDC 845840 )
)
Petitioner ) PRISONER
) 28 U.S.C. 2254
v. )
)
HUGH SMITH, Warden ) CIVIL
ACTION NO.
Georgia State Prison ) 1:03-CV-2655-CP
)
Respondent )
)
CERTIFICATE OF SERVICE
This is to certify that I have this day served the opposing party to this action with a true and correct copy of the within and foregoing Petitioner’s Motion for Equity, Filed December 1st, 2003 with the U.S. District Court at Atlanta, Georgia by placing a copy in the mail, with adequate postage thereon to ensure prompt delivery, and addressing it to:
Honorable
Thurbert E. Baker
Attorney
General
State
of Georgia
40
Capital Square SW
Atlanta,
Georgia 30334
This 1st Day of December 2003,
MICHAEL
H. CHAPEL
GDC
#845840
Applicant
– Pro se
Georgia
State Prison
Reidsville,
GA 30499
IN
THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF GEORGIA
ATLANTA DIVISION
MICHAEL HAROLD CHAPEL, GDC 845840 )
)
Petitioner ) PRISONER
) 28 U.S.C. 2254
v. )
)
HUGH SMITH, Warden ) CIVIL
ACTION NO.
Georgia State Prison ) 1:03-CV-2655-CP
)
Respondent )
)
CERTIFICATE OF SERVICE
This is to certify that I have this day served the opposing party to this action with a true and correct copy of the within and foregoing Petitioner’s Motion for Equity, Filed December 1st, 2003 with the U.S. District Court at Atlanta, Georgia by placing a copy in the mail, with adequate postage thereon to ensure prompt delivery, and addressing it to:
Mr.
Hugh Smith, Warden
Georgia
State Prison
Highway
147
Reidsville,
Georgia 30499
This 1st Day of December 2003,
MICHAEL
H. CHAPEL
GDC
#845840
Applicant
– Pro se
Georgia
State Prison
Reidsville,
GA 30499
[1] Motion
for New Trial, Volume II, October 9, 1997, “My investigators are
endeavoring to reach him in Chattanooga. If necessary, the chief of police has –
we have begun to put in motion the fact that we’ll fly him back here in the
police helicopter …”, District Attorney Danny Porter, page 319.
[2] Self
Recruitment of Outside Assistance by Prisoner-Pro
Se Petitioners is not only sanctioned but encouraged: Drew v.
Department of Corrections, No. 99-4176(2002), lexis 14494 (11th Cir
18 Jul 2002).
[3] The
effect of this exorbitantly expensive personal telephone system is to
inevitably further impoverish state prisoners and their families and leads
inevitably to further isolation of prisoners when they need their loved ones
most. Petitioner’s family pays from $300.00 to $500.00 each month for a few
minutes of telephone conversation with him each week. Other prisoners are not
as fortunate, and the isolation from their loved ones inevitably turns them
inward to a dependency on gangs, drugs and other mischief. With the
technologies of today, surely something else can be substituted that will allow
these prisoners continuous contact with their loved ones. Families are not inmates,
and as such they entitled to all possible respect and considerations from the
State, the Warden/Respondent and all prison staff..
[4] See the
resume and other credential attachments of Petitioner’s assistant.
[5] www.projectinjustice.org/chapel.
Petitioner’s assistant is managing to wrest some control over his system from
the hackers who have plagued him since his letter to the Attorney General. He will
be able to update the site in a few days with the latest available information,
including an electronic copy of Petitioner’s Supplemental complete with
electronic links to all the many attachments and legal cases cited.