Supreme Court to decide fate of jailhouse lawyer

Martin Serendipity Morales is a jailhouse lawyer. Morales, 26, who identifies as a woman, is currently lodged in the Springfield jail.

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Published April 3, 2016 in the Times Argus Supreme Court to decide fate of jailhouse lawyer By Kathleen Phalen Tomaselli Martin Serendipity Morales is a jailhouse lawyer. And when Vermont inmates came to her for help writing speedy trial motions or filling out court forms, she assisted, never accepting offers of money or gifts for her aid. “Prisoners like Ms. Morales, who build a reputation as (a) trusted source of legal knowledge, are permitted by the Department of Corrections to assist fellow prisoners,” wrote Kelly Green, an attorney with the Prisoner’s Rights Office in Montpelier, who is Morales’ co-counsel. “Being a jailhouse lawyer is an honor.” Nonetheless, after helping five inmates prepare court documents, the Bennington County State’s Attorney criminally charged Morales earlier this month with the unauthorized practice of law. “Defendant has repeatedly and consistently practiced law by reviewing cases, researching issues, and drafting motions for inmates already represented by counsel,” wrote Deputy State’s Attorney Alexander Burke in his memorandum in support of charges. And on Wednesday, the full Vermont Supreme Court heard Morales’ case at the Vermont Law School in South Royalton. “The unauthorized practice of law is punished as criminal contempt of the Vermont Supreme Court,” said Assistant Attorney General John Treadwell. Less than a month before Burke filed a memorandum with the high court regarding Morales, environmental activist Annette Smith, head of Vermonters for a Clean Environment, was cleared by the Vermont Attorney General of a similar charge. Following a December complaint by an unidentified source, Smith was under criminal investigation by the attorney general’s office for practicing law without a license. As part of her work, Smith helps individuals fill out documents related to hearings before the Vermont Public Service Board, the entity that regulates utilities. But on Feb. 8, Attorney General William Sorrell said his office did not find legal or factual support of the claims. “There is no basis for taking any enforcement action,” he said about Smith, who was present at Morales’ hearing on Wednesday. “What happens in this decision will be very interesting,” Smith said on Friday. “I heard nothing from the hearing that made me feel concerned.” Morales, 26, who identifies as a woman, is currently lodged in the Springfield jail. She is serving up to 22 more years in jail for kidnapping, aggravated domestic assault with a weapon and burglary. The claim According to Burke, Morales drafted legal documents for five Bennington charged defendants — Travis Squires, Reynald Carey, Steven Russell, Thomas Cross and Shaun Caccamo — who were already assigned counsel from Rutland and Bennington. “Defendant is interfering with … access by interjecting herself into an already established attorney-client relationship,” Burke wrote. “The drafting of motions, including motions to dismiss, motions to review probable cause, a motion to sever, and motions for speedy trials, falls squarely under the act of preparing legal instruments.” Conversely, Green said that Morales actually helped, not harmed, inmates. “Travis Squires told police that his public defender had not yet invoked his right to a speedy trial so he filed it himself with Ms. Morales’ help,” she wrote in response to the state’s memorandum. “Reynald Carey also complained that he hadn’t had much contact with his attorney and that Ms. Morales assisted him with several motions including a request for a speedy trial.” Since the 1977 U.S. Supreme Court decision — Bounds v. Smith — ruled that inmates have a basic constitutional right to access legal documents, prisons are required to provide legal assistance and counsel to inmates through law libraries and trained legal support. “In every single state, the Department of Corrections is required to provide inmate access,” said Carol Callea, director of legal education for DOC. In the state, for post-conviction inmates, jailhouse lawyers can help inmates fill out forms for filings and guide them to definitions found in law libraries in all state jails, she said. In 1997, Callea, who is a lawyer, wrote a detailed directive for DOC regarding libraries and education. Currently, state jails have law libraries, law librarians and legal assistant inmate training in the jails, according to Callea. Legal education, for already sentenced inmates, has several components, including a basic 12-hour legal course to the extensive 30-hour legal assistant training, said Callea. A certified legal assistant training in the Michigan facility — used for Vermont inmates — was just completed with 19 inmates, she said. “They can’t represent an inmate,” she said, adding that many inmates are illiterate and need help with documents. “A law librarian may operate as a scribe,” she said. “Or show an inmate how to find court form templates.” Callea added that unlike attorneys, jailhouse lawyers and DOC-trained law librarians or certified legal assistants do not have a confidential relationship with the inmates they are helping and they cannot take any payment, even food, for their services. Outdated definition Currently, the state operates under 1937 and 1962 definitions of the practice of law which Treadwell said is outdated. “This decades-old definition does not reflect the reality of practice in Vermont and does not provide sufficient guidance to prosecutors, practitioners and the public,” Treadwell said in a request that the Supreme Court consider revising the definition as part of the Morales case. Under the current definition, Treadwell said in an interview, Morales clearly violated the law. “The facts presented here provide an opportunity to examine issues of access to justice,” Treadwell said. The issue in Morales’ case relates to pre- and post-conviction inmates. Presentence inmates have a right to an attorney and if they cannot afford one, an attorney is assigned, Treadwell said, adding that in post-conviction cases the same rights do not apply. After sentencing is when jailhouse lawyers and legal assistants can help inmates with access, he said. During Wednesday’s hearing, Associate Justice Beth Robinson asked Burke, “What’s the state’s interest in a criminal charge against Miss Morales? What’s the harm?” Burke responded that it was not a one-time event and that Morales prepared a variety of documents in a short period of time. And Robinson asked why that was a bad thing. Burke explained that it is an issue of access and these defendants already had access to the court. Robinson gave the hypothetical example of a sister helping her brother prepare paperwork in a civil dispute against a neighbor. “Is that the unauthorized practice of law?” she asked. Burke said no, because in that example, the sister was helping her brother access the court. Associate Justice Harold E. Eaton Jr. said he had been a trial court judge and added, “I would much rather someone with a little knowledge help a pro se defendant, rather than getting the filing on an envelope.” Burke again said it was a problem because pre-sentence inmates already have an attorney. But Morales’ co-counsel, Emily Tredeau from the Prisoner’s Rights Office, said even though inmates are assigned counsel, they may not be getting the access they seek, pointing to several defendants Morales helped who said they had not been able to access their assigned attorneys. “If preparing documents and contracts is considered practicing law without a license,” she said, “then the state has an unprosecuted epidemic of unauthorized practice.” A decision by the high court in the Morales matter is pending.