DOOMED FROM THE START
WelI, on March 4th 2019 I started my civil trial on Excessive Use of Force. Needless to say I lost, but it was one sided from the start. The attorney they appointed me: well he wasn’t the best and wasn’t being paid for it so he really wasn’t into it. But I learned a lot. During the start of the trial I stood up and informed my judge I wanted to fire my attorney; the judge wasn’t too happy about that at all and I can understand why. I knew next to nothing about the rules of evidence and case law l would need to help make my arguments, but I paid very close attention to this female attorney the defendants had and I watched her every move. She was good; I studied how she would use my words against me; I studied how she used the projector and got to see first hand how she attacked the evidence and my lack of evidence. So I was in the presence of someone who knew how to work a court room. So I studied her. And she did look good in that butt-hugging business suit she was wearing, so I learned a few things. Things that will better suit me in the event I am able to win a new trial. and that is what I have seen regarding these Excessive Use of Force cases. They rarely win at the District Court level. Just as in a criminal trial, a civil trial is full of errors. So I have to point errors out.
One of my biggest issues I made clear to the judge is, I did not want my attorney making any mention whatsoever about my criminal conviction. He seemed to want to make this into a Mini Punishment trial which is something I fully rejected from the moment he first told me about it. So I told the judge I forbid counsel to make mention of it, and after a while the judge made it clear that I would be better off with an attorney than without one, and I agreed. I still agree to that. Only a fool will try and represent himself when he or she knows less than nothing about the rules of the court and how to present evidence. But I know now. I know a lot, and after watching I realized it isn’t hard at all. So what does my attorney do during jury selection? He tells my jury, or rather all those there to be picked, I am in prison, but then back doors it with not only am I in prison, but on Death Row. He cut my throat all by himself. I knew the defendants were going to make mention of it, but I did not want my attorney to.
So I think I may have a reversal issue on that. I do not know if the ruling from the U.S. S.Ct* Mccoy v.Louisiana will apply to a civil case, but McCoy instructed his attorney not to do something (concede guilt) and his attorney did it anyway and went against McCoy’s wishes. So I will try and raise this.
I also made it clear to the judge that if he allowed the defendants to make mention of the fact I am a Death Row offender, he would be allowing them to turn the jury against me. And yet he allowed them to do it. It is allowed to bring up one criminal conviction, to ask if they have ever been convicted of a felony, but the nature of the crime or punishment is irrelevant to the case at hand, and there is a deep split between the circuit courts in the states, where some say you cannot use criminal conviction to impeach someone in a civil case unless that conviction was based on some type of falsehood, e.g., lying, because learning about a man convicted of murder has no bearing on a case of Excessive Use of Force. All it will do and did do is taint the minds of the jury. And I would say the fact that I was on Death Row and under a sentence of death and “have nothing to lose” came up no less than 50 times.
Now you have to understand, this trial took place in Lufkin Tx, the heart of the bible belt in Texas, if not the heart, then very close to it. It was deep East Texas and I would be willing to bet every one of my jurors was a supporter of capital punishment. So there they are hearing I am on Death Row, and everyone knows you can only get the death sentence by being convicted of murder in the first degree. So now they know I am a convicted murderer.
If that wasn’t enough, when I took the stand, about mid way through my testimony we took a break, and here is where I believe their attorney went and did a little investigation on me. If he hadn’t already known what I was convicted for, he soon learned and wasted no time in asking me, “Isn’t it true you are convicted of murdering an elderly woman?” Well, now not only does my jury know I am convicted of murder, they now know what type of murder. So since my wonderful attorney didn’t object to it, I had to object, and it made the judge a bit upset, not at me but at the defendants’ attorney, not that it mattered, because he didn’t even instruct the jury to disregard what they had just heard. But for my attorney not to even object showed me I was doomed.
I knew I was doomed when the last paperwork I ever received from the court told me the trial was set for March 18th, 2019. So I am thinking. March 18th is the day of trial. Imagine my surprise when I am taken to trial on March 4th 2019! And, as I am objecting to things regarding my attorney – the fact that he didn’t call ANY of my witnesses – he had two witnesses: me and the doctor who no longer works for TDCJ** who didn’t seem that bright to me.
So I am telling the judge that I cannot present my case without my witnesses and told the judge that my attorney’s reasoning for not calling them is “I have seen how these guards can turn off you guys”. That may be true. Neither you nor he will get an argument from me on that. I mean, darn it, inmates and guards in GP really can’t stand one another. But what he failed to realize even after I told him is I have known some of my witnesses for 18 years. I had NO fear of them flipping on me. I told the judge I was willing to take that chance and want my attorney to call my witnesses. The judge told me, “The trial starts today.” Meaning I needed to wrap up my bitching and moaning because we had a jury to pick.
So there was I saddled with an attorney who didn’t even have the decency to write me and tell me, “Change of plans; the court moved the trial date up two weeks.” I was completely caught off guard. I could fire the man and even try and add my own witness list. Trial was fixing to start whether I was ready or not. I was not!
Not only that, but this attorney was up here at the unit two different times and didn’t even call me out for a visit.
I will admit that he did show up one day; they told me I had an attorney visit, but ten minutes later they told me it had “been canceled”. So, yeah, I was saddled with a real professional. Hey I can’t really be mad at him. He was working for free. And he did ask some good questions, but every time he had them against the ropes, he would back off and not ask my follow up questions; let them get away with lying when I could prove they lied. So yeah I was doomed from the start.
But as I said, if I win a new trial and I do have some good
issues – at least I think so:
A) The court refused to grant me access to the Computer Audit Log that would show me just .how much video was recorded and from which cameras and by whom, all of which is documented on the Computer Audit Log, also known as the “Computer Activity Log”. It is relevant information, more so since I claimed that there were more DVDs and they say there were not. I know what I was allowed to see in the fact-finding investigation and what wasn’t there. So since I was denied this the defendants’ attorneys capitalized on that like the professionals they are, saying, “Raby is lying. He wanted you to believe there was more surveillance video. It is all one big conspiracy. He wants you to think that these people are all a bunch of criminals”, etc., etc. So yeah they capitalized off the fact that I wasn’t able to prove this by way of Computer Audit Logs.
B) Talking about my conviction and crime when the 5th Circuit is one of the circuit courts that have said a criminal conviction has no bearing in a civil case. And since I am under the 5th Circuit jurisdiction, that alone should get me a new trial. I mean they can talk about working 12 building which is Segregation and can be pretty violent. They can talk about how I am housed, how I am single man recreation, and single man cell; how I am strip searched every day, sometimes 5 different times a day. But they cannot or should not be allowed to make mention that they work Death Row, when that is true and false at the same time. It is true they SOMETIMES work with DR, but it is also true they work with General Population Administration Segregation. There are three cell blocks/pods of Death Row and three of GP-AD-Seg. They not only work 12 building but they also work 11 building which is Pre-hearing Detention (PHD). So all of those guys on 11 building are General Population. So although true they work with Death Row, they also work with General Population. But none of this was mentioned. So my hope is this will be a good appealable issue. It is not a harmless error. I mean, by letting my jury know I was a convicted murderer and sentenced to death, and then the victim of my crime was mentioned, yeah, it put me at an unfair disadvantage with my jury. They sided with the defendants because I was a convicted murderer sentenced to death for the murder of a little old lady. Even when they could clearly see the force used was excessive and I showed that “bite” mark was NOT a bite mark, so yeah, them learning of my conviction harmed me beyond repair.
C) False testimony .and several other things.
So we’ll see.
But, man oh man, you talk about some lying bastards. They were sworn in under oath, “Do you swear to tell the truth, the whole truth and nothing but the truth so help you GOD?” They all three answered, “Yes”. But, man oh man, the lies upon lies. I was so darned mad that l learned something about myself. And that is my mild form of dyslexia turned into full-blown dyslexia. I could not read anything. I have studied these papers for close to 6 years and when I looked at them the words were nothing but jibberish. I couldn’t think clearly. I could hardly even talk hearing them lie as they did. And top that off with the fact that every time I told my attorney to attack them on what they said, he didn’t. You talk about one mad and frustrated man and that was a mixture that caused mv mild form of dyslexia to turn into something I can honestly say I have never seen in my adult life happen to me.
And it had me wondering about how I was as a child, although I don’t recall ever seeing what I saw in court as a child, but it makes sense, because as a child I couldn’t read or write. And when it kicked in during the trial I couldn’t read or write. So if that is anything like what I experienced as a child, I understand a lot more about myself now. And it was all brought on by stress, anger and frustration. So when I was a child I would say it was brought on by stress, anger, frustration and fear of my home life, the fear of having to go home to my stepdad, where I was beaten and forced to stay in my room. I was listening to (NPR) National Public Radio a while back and heard of Toxic stress that children go through. And that was me they were talking about. And just yesterday on NPR listening T.E.D. Talk there was this show on where this female doctor was talking about the ACE test. She listed off 10 questions that a child is to answer. I marked off 8 of the 10 questions, and it was shocking to me. Anyway, interesting show. You can likely archive it (at 88.7 KUHF. TED talk, March 12th or 13th). Very interesting program.
But as I was saying, sitting there listening to the lies I got to hear all three of the defendants testify that Tolly didn’t beat me a second and third time. And for the first time I really got to see the damage to my face and WOW I had never really looked at it on the video before. That man beat the hell out of me. I got to hear him tell the jury, “All I can tell you is he was beating himself up too”… meaning I was slamming my own face to the floor so I could beat me up. Me beat me up? That was a good one. I got to hear them lie about the spitting and biting, and lying about the drinking. There is no video of me drinking because to have the video would have shown where I must have gotten it from, or would have shown I was telling the damned truth. There was no disciplinary case written; to do so would have required them to preserve evidence. So, no video. No case, yet they can use that as a defense to beat me. No case on spitting or biting, yet they get to use that as well. And, man oh man, my attorney had that clown Floyd on the ropes to the point that he said he isn’t sure if it was from the handcuffs or a bite, and how his arm was trapped UNDERNEATH me. So when I told my attorney to ask about it some more during redirect, where he gets a second shot at the witness, he didn’t even question him about ANYTHING; he rested!
But I wanted him to ask Floyd, Is he aware of my medical
history, meaning does he know if I have Hepatitis A, B or C? Or if I have
Tuberculosis (TB) or Human Immunodeficiency Virus (HIV)? He would say, “No.” And then follow up with, “Did
he get tested for any of these things?
He would again answer, ”No”, proving that he wasn’t too worried about it
being a human bite with enough force to break the skin, since he didn’t seek any
testing. I had him, and my attorney just
let him go because it was this: the MAIN thing they were using to say force was
“justified”, that I was spitting and biting to the point that my teeth grazed Floyd’s
arm with enough force to break the skin. Yet I was never written any disciplinary cases
for spitting which is a serious case, and one that, if even alleged, the
offender.is placed on paper mask restriction for 7 days. Period.
The same for biting. I never received a case for biting and that is
because it didn’t happen. They never
thought in their wildest dreams I would take it this far, so they didn’t write
these cases. But even if I could have
proved it even further – and I did prove it wasn’t a human bite mark but rather
from the ratchet “teeth” from the handcuffs – it would have made
little difference once
my jury was aware I was under the sentence of death and for killing an elderly woman, nothing else mattered. To them I deserved it. To them, strong supporters of capital punishment, I have no rights.
Now, speaking about my Jury, man, when the attorneys were questioning them, they asked the question: “Do you have any friends or family in prison or who have been in prison, or who have been to visit anyone in prison, or work in prison? …. Holy hell, hands shot up! Some of the potential jury members even worked and knew one of the defendants. Some had family that worked prison but there were a few who had family in prison. And then the question was asked “Do you have contact with them, do they tell you what prison is like?” and one woman said, “I don’t have anything to do with my son any more”. Granted she may have her reasons, but, damn, that is harsh. I could never cut my child out of my life. I don’t care what she did. Another referred to his grandson as, “My son’s son is in prison, I don’t see him or write to him”. I thought, “Damn, these are some hardened people here in this bible belt, no forgiveness in them at all. This man couldn’t even call his grandson, his grandson, but instead “my son’s son” …. And these people were to be part of my jury; one of them actually got picked.
One thing I noticed about that tight-dress attorney, well other than she had a very very well shaped butt (I am sure everyone noticed that), but what I noticed was how she went after the black jurors. There was an older black man and a middle-aged black chick who didn’t say anything at all during the questioning, and she went at them, respectfully of course, but she zeroed in on them real quick by saying, “You two on the end there, I haven’t heard anything from you”, forcing them to speak. But she didn’t do that to many of the whites who had said anything. And I was telling myself, ‘Man I hope that black lady is on the jury, but she was struck.
Then there was this Spanish woman who couldn’t stop looking at me; she must have been in her early to mid 30s. But as soon as I locked eyes with her, I knew she was in some kind of pain. I can’t explain it, but maybe my painful soul just recognized another, and I was right, she was hurting because of her sister being on her death bed due to cancer. I don’t know if it was her hearing that I was on Death Row or what, but she just couldn’t stop looking at me and had this look of sorrow to the point I had to look away from her. And I think their attorney saw the way she was looking at me, so she zeroed in on her. The woman was in so much pain, that she could hardly even talk, so later they had her come before the judge; so the judge questioned her. It was heartbreaking to see them question her. She was clearly in pain, and started crying, and I felt a tightness in my chest at seeing that. But the judge allowed her to be dismissed, which I was grateful for.
I cannot explain it, but I just knew something was troubling her, the way she kept looking at me … and blinking…”I don’t know, but she touched me. I had made up my mind that, no matter what, I would demand that my attorney use one of my strikes to make sure she would not be picked. I wanted her to go home. But that’s the psychopath in me I guess. No feeling for others right? Psychopaths think of nobody but themselves. and care even less. I wonder what that idiot of a nut doctor would say to my feeling the pain of a woman I knew nothing about? How when I saw her cry it moved me to the point that I felt a tightness in my chest.
Ah well, it was all a learning experience and one that I did learn from and one that if I get a second chance, I now know every lie and argument, and I will do it myself, and I will be damned if I let them off the ropes. I will handle it in such a way that I believe I can do a far better job than my court appointed attorney did. All he did was get out of the way his 50 hours a year that he must do pro bono. His heart wasn’t into it. No money. I can understand that I guess. Not all attorneys can be as wonderful as my attorneys who represent me on my criminal conviction, who have, put in over 10.000 hours of pro bono work, over the last 18 years. Well anyway I am appealing it, so there may be a second trial, you never know. If so, I do believe I will be much better off on my own.
But I will say I did enjoy the rides, just wish the vans had had windows I could look out of.
C. (C.D. Raby)
March 14, 2019
*United States Supreme Court
** Texas Department of Criminal Justice