Guest Commentary: Innocence at the Board

By Maya Emig

A READER OF this column wrote the following to me: “There are obviously people in the prison system who are innocent of the crime for which they were convicted [who] are convinced they must lie to be paroled, falsely accepting blame and concocting a story about why they did it and how they’ve changed.” The writer goes on to say, “I understand the kind of pragmatism that can lead a person to set aside his or her integrity for a moment to tell some ‘harmless lie’ in order to get out of prison.”

First, this is not a “moment”; it is instead a gateway to hearing after hearing, and those are not and never will be “harmless lies.”

I spend a lot of time dealing with this issue, especially with my private cases. The problem with lies is that it takes more lies, and more lies, and things get more and more concocted.

Let me backtrack for a moment. I am going to attack this issue with a disclaimer first: The information I am about to give you should not be a substitute for getting one-on-one legal advice from an attorney with your specific case facts. You can hire an attorney to meet with you and discuss your options — it will cost you money, but long-term it will save you years of your life.

I am a no-nonsense kind of attorney. Tell the truth — not your version of the truth but a global 360-degree view of the truth. At the beginning of each hearing, the commissioner swears in the inmate. For all of you reading this: Take that oath seriously. I have had many hearings where my clients take the oath, and not long thereafter are caught in lie after lie. It is truly cringe-worthy. Clients lie for different reasons — they are in denial; their ego cannot handle telling the ugly truth about their despicable actions; they have lied so much that they cannot keep all their lies straight; and for lots of other reasons.

One of my private clients, Client #131, was convicted of a home invasion robbery that involved the brutal rape of three women in the house. My client allegedly did this crime with several other men. They linked him to this crime because of the type of van he drove, and the victims identified him in a lineup. Client #131 had committed several jewelry store robberies in the past and had an arrest history that made him known to the police. He was the only man who was tried in this case. He maintained his innocence during his entire incarceration.

He, too, received advice from the jailhouse lawyers advising that he admit to the crime to pave his way to eventual freedom. I shut down that [throw in explicative after explicative] immediately. The law is clear: Penal Code §5011 and California Code of Regulations Title 15 §2236 prohibit requiring an admission of guilt as a condition for release on parole. Check out In re Kevin Jackson (2011) 193 Cal.App.4th pp. 1376, 1390; but see also In re Busch (2016) 246 Cal.4th pp. 953, 971 (Busch did not simply deny guilt, but provided an implausible version of events and theory of injury; therein lies the rub).

At my initial meeting with Client #131, I went through the problems people have when they tell lies. I played out a scenario where, if he made the decision to lie to the Board: 1) I would not be his attorney; 2) he would have to figure out what his “fake” internal motivations were to participate in a crime like this; 3) he would have to know the fact pattern inside and out, and all the collateral parts associated with it; 4) keep track of every lie he told in furtherance of his lies; 5) understand the character defects of someone who would do such a crime and have plans in place to deal with each of those character defects; and 6) pray that the panel does not pick up on the multitude of lies.

And by the time I got to Number 7 on my list, Client #131 understood the gravity of the task he would be undertaking. That was the point of going through the list. It seems so simple when you talk to jailhouse lawyers: “Lie, tell the Board what they want to hear.” The problem is that it is superficial and underestimates the complexity of how involved it is to understand character defects and causative factors, and how to deal with those factors while being peppered by questions from the panel.

In December of 2019, I took Client #131 to his initial suitability hearing where he told the truth and maintained his factual innocence. He spoke to the Board candidly about his character defects at the time — he was an addict, he was violent, he was callous, he was entitled, etc. He spoke about all the victims he created in each of his other crimes. He spoke about the old woman whose purse he stole to get money to pay for drugs. He spoke about the woman whom he hit while on a bus when she said something mean to him. He spoke about his causative factors, and he had thorough relapse prevention plans to deal with each one of his issues.

The district attorney opposed parole vehemently, and brought up the brutality of the crimes. My closing was solid. Client #131’s closing had to do with remorse for all the crimes he committed and spoke about the atrociousness of the crime he was convicted of but did not do. That hearing lasted for 3 hours and 55 minutes, and they found him suitable for release.

That hearing is a testament to telling the truth. In my 17 years of being an attorney, it is the flagship example of a commissioner and deputy commissioner doing their jobs and reading all the police reports and eyewitness accounts and thoroughly examining plausible deniability.

The antithesis of this is Client #858; that story I will reserve for the next column.

Attorney Maya Emig focuses her area of practice on parole and post-conviction law. She is a former attorney with the California Parole Advocacy Program, where she represented thousands of parolees in parole revocation matters. She also has extensive experience representing prisoners at parole consideration hearings. Ms. Emig has appeared on The Today Show and Dateline to discuss lifer suitability matters. Ms. Emig is a graduate of UC San Diego and the McGeorge School of Law.

About The Author

Disclaimer: the views expressed by guest writers are strictly those of the author and may not reflect the views of the Vanguard, its editor, or its editorial board.

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1 Comment

  1. Olivia Campbell

    Yeah… sorry, but I’m gonna have to shut down *your* (throw in *expletive* after *expletive*). You make it sound just so easy–like all you have to do is sit down in the board room and tell the truth, the whole truth, and nothing but the truth… and the commissioners will be awed by your integrity and nobility and insight and will open their arms and set you free. And that is just so not how it works most of the time. The approx. 20% grant rate of the BPH is proof enough of that. The whole process (from 1030 chronos to the governor’s reversal power) is fraught with corruption and politics and, from the representation at the hearings to the backgrounds of those on the board, is skewed in favor of the state. They have no (throw in expletives here) to give about Penal Code §5011, California Code of Regulations Title 15 §2236, In re Kevin Jackson, or In re Busch. They are predisposed and incentivized to grant as few applications as possible. Your Client #131’s hearing was not a “flagship example of a commissioner and deputy commissioner doing their jobs”. It was the exception to the norm of injustice and barbarity. I think sometimes people believe that it’s right to put the onus on incarcerated people to try and be correct and above board all the time in this travesty of a justice system and that they’ll prevail in the end if they do this, because most people don’t want the emotional ramifications of accepting just how corrupt and barbaric the system they work within truly is, because then they may feel like somehow they’re not doing enough to make it better. So it’s just easier to shift the responsibility to a population already encumbered with the mistrust and contempt of all of society. What’s one more burden, right? Well, a lot of incarcerated people have tried to play that game. They’ve gone into the board rooms and proclaimed their actual innocence. And guess what their integrity got them? Still more decades languishing in state-sponsored concentration camps. And I’m just gonna go out on a limb here and say that it’s probably still easier to come up with and keep track of a bunch of bs about character defects and causative factors than it is to approach a room full of conniving, vicious, verbally abusive (throw in every expletive in the book here) with honesty and integrity (and that goes for everyone, wrongly convicted or not). I have never been incarcerated myself, but I’m gonna stay out on my limb and say that given the choice, I would probably take the advice of those who live the horror and corruption of the system every day over someone who thinks that the prospect of a person regaining years of their life just magically produces the means to hire a private attorney and who gets to clock out every day, go back to their clean, spacious, temperature-controlled, well-ventilated homes, eat full, healthy, and balanced meals, and get expeditious, competent, and compassionate healthcare when they need it. Please consider your position and check your privilege. Bottom line: how an incarcerated person chooses to fight/survive/escape from this atrocity we call a justice system is a personal, individual choice. They weigh the risks vs the benefits. If they choose to compromise their own integrity, then that is their right and their informed choice. To assume that they should play by the rules because the prisoncrats are doing so is naive, idealistic, and misinformed, and to withhold legal representation from someone just trying not to be murdered by the prison industrial slave complex… well that’s your choice too, but it’s a shallow, misguided, and frankly callous one.

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