status report and renewed motion for computer access
TRANSCRIPT
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IN THE UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT UNITED STATES OF AMERICA, ) U.S.C.A. No. 07-99009 ) Plaintiff-Appellee , ) DCt. No. CR-02-220-DT ) v. )
) JURIJUS KADAMOVAS, ) ) Defendant-Appellant. ) ) )
STATUS REPORT AND JURIJUS KADAMOVAS’S RENEWED MOTION FOR COMPUTER ACCESS IN HIS CELL, AS WELL AS REQUESTS FOR THE IMPOSITION OF MEASURES TO SECURE AND SAFEGUARD IN HIS CELL HIS CASE MATERIALS AND DISCOVERY, AND FOR AN ORDER DIRECTING THE BUREAU OF PRISONS TO ALLOW HIM ACCESS IN HIS CELL TO HIS ELECTRONIC TRANSLATION DEVICE. _____________________________
Counsel for appellant Jurijus Kadamovas respectfully submit this status
report and move the Court to enforce Mr. Kadamovas’s rights under the Fifth,
Sixth and Eighth Amendments to the United States Constitution by granting the
following relief so that Mr. Kadamovas may be able to meaningfully assist in the
appeal of his convictions and death sentence. These requests are made pursuant to
Fed. R. App. P. 47(b), recognizing the Court’s inherent authority to control
proceedings before it. Counsel specifically ask the Court to order the following: 1)
that Mr. Kadamovas be permitted to keep his legal materials in his cell, where he is
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confined, alone, for an average of more than 23 hours per day; 2) that Mr.
Kadamovas, who is not a native English speaker and who was assisted throughout
his trial by a Russian interpreter, be permitted to keep his Russian-English
electronic translation device in his cell; and 3) that Mr. Kadamovas be permitted to
use his laptop computer in his cell (as he was permitted in the Los Angeles
Metropolitan Detention Center (MDC) during his pre-trial and trial confinement)
so that he can do meaningful work on his case during the approximately 23 hours
per day that he is confined. In the alternative, Mr. Kadamovas requests a case
management conference to address this status report, these requests and any other
relevant issues.
Counsel request this relief and an opportunity to be heard believing that each
of these requests is fair and reasonable and that none of them would impose
significant hardship, inconvenience or expense for the Bureau of Prisons, nor
would they compromise the secure operations of the Special Confinement Unit
(SCU) where Mr. Kadamovas and other federal death-sentenced prisoners are
confined. Furthermore, counsel fear that their ability to maintain Mr.
Kadamovas’s trust and confidence is being eroded and that, without this Court’s
intervention, Mr. Kadamovas will slide further toward the despair that gave rise to
his September 2010 hunger strike and earlier pro se litigation.
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Mr. Kadamovas’s extreme and long-term isolation, including almost 5 years
of not only isolation but, in addition, “Special Administration Measures” (SAMs),
compounded by the ongoing general correspondence restrictions that were imposed
when the SAMs were lifted, have had and continue to have a severe negative
impact on Mr. Kadamovas’s mental state. He fears the Bureau of Prisons is
deliberately thwarting his efforts to work on his case1, to improve his English, to
communicate with the outside world and to stay connected to his culture, language
and religion. The deterioration of Mr. Kadamovas’s mental state is impacting and
impeding his attorneys’ ability to effectively represent him.2 Not only are the
conditions and restrictions damaging to Mr. Kadamovas, but they result in an
extraordinary and unnecessary demand on the resources of counsel, the
government and the court.
1Mr. Kadamovas is concerned that, without the opportunity to legitimately
work on his case, he will be unable to prove his innocence. And, without computer access in his cell, he will never be able to assist his attorneys to prove his innocence.
2Mr. Kadamovas’s pro se pleadings and September 2010 hunger strike
reflect his belief that he has no way forward and no way to participate in his defense, as well as his belief that he is being discriminated against because he is not a United States citizen. [See attached October 22, 2010 letter, Exhibit 1].
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I. Introduction.
Юрий Кэдэмов (Yuri Kadamov in English) is a Lithuanian citizen. He is
ethnic Russian, and Russian is his primary language. Jurijus Kadamovas is the
Lithuanian form of his name and the name that appears on his passport.
Mr. Kadamovas served honorably in the Soviet Army, as the lead musician
of the music group in his unit. Although Mr. Kadamovas entered adulthood as the
Soviet Union was collapsing, he worked, raised a family and had no criminal
history.
Once Mr. Kadamovas arrived on death row, he turned his focus to drawing
and painting. Mr. Kadamovas has worked hard to develop his talent as an artist.
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II. The Conditions of Confinement and Unreasonable BOP Rules and Regulations Constitute Undue Interference with Mr. Kadamovas’s Right to the Effective Assistance of Counsel and His Right to Assist in His Defense.
A. Federal Death Row and Solitary Confinement.
It is critical for this Court to understand the conditions of Mr. Kadamovas’s
confinement and the ways in which he, as a foreign national, a non-English
speaker, and a person who, until his arrest in this case, had never been charged
with a crime or spent a night in prison, is particularly vulnerable to the
extraordinary toll that long-term isolation takes on any prisoner.
Federal Death Row is a segregration unit3 – a prison within a prison.
Prisoners, except three times a week when they are allowed two hours of recreation
3ABA Standard on the Treatment of Prisoners 23-1.0(r) defines “‘segregated
housing’ [as the] housing of a prisoner in conditions characterized by substantial isolation from other prisoners, whether pursuant to disciplinary, administrative, or classification action. ‘Segregated housing’ includes restriction of a prisoner to the prisoner’s assigned living quarters.”
ABA Standard on the Treatment of Prisoners 23-2.7(a) suggests that [c]orrectional authorities should use long-term segregated housing sparingly and should not place or retain prisoners in such housing except for reasons relating to” discipline after the commission of “a very severe disciplinary infraction, in which safety or security was seriously threatened; a credible continuing and serious threat to the security of others or to the prisoner’s own safety; or prevention of airborne contagion.” Even then, Standard 23-2.6 (a) provides that “[s]egregated housing should be for the briefest term and under the least restrictive conditions practicable . . .”
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in a cage on the roof, are confined to their cells 24 hours a day.4 They do not leave
their cells to eat, to shower, or even for most medical care. From the cell, they
cannot see other human beings. When they do leave their cells, death row
prisoners are restrained with ankle chains, waist chains and handcuffs.5
Individual cells have a single small window that allows some light but
affords the prisoner no view of any living thing. They cannot see the sky or a
building or a blade of grass. The steel cell door has a narrow window, and, at the
4Federal Death Row is located directly above the Special Housing Unit
(SHU) where prisoners with various disciplinary and, in many cases, mental health problems are housed. Screaming and banging on the steel showers emanates from the SHU at all hours of the day and night. Prison, in general, is a loud place, and sound, especially for those in isolation, can cause the most torment. See Dave Mann, Solitary Men, Does prolonged isolation drive death row prisoners insane? THE TEXAS OBSERVER, November 10, 2010, at 1. Because death row prisoners are in their cells so many hours each day, this noise is particularly problematic.
Mr. Kadamovas for the better part of his first year at USP Terre Haute was forced to endure a continuously running fan that BOP staff placed between his cell and that of his co-defendant Iouri Mikhel so they could not communicate with each other. Mr. Kadamovas still refers to the fan as the “noise torture device.” [See attached Exhibit 2].
5ABA Standard on the Treatment of Prisoners 23-3.8(b) provides that “[c]onditions of extreme isolation should not be allowed regardless of the reasons for a prisoner’s separation from the general population. Conditions of extreme isolation generally include a combination of sensory deprivation, lack of contact with other persons, enforced idleness, minimal out-of-cell time, and lack of outdoor recreation.”
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bottom, a slit through which guards slide trays of food. Prisoners have described
living in such close quarters as creating the sense of being entombed. See Dave
Mann, Solitary Men, Does prolonged isolation drive death row prisoners insane?
THE TEXAS OBSERVER, November 10, 2010, at 1. Not only are federal death row
prisoners languishing behind solid steel doors in featureless rooms, cut off from the
outside world,6 but also, for all intents and purposes, they have virtually no
physical contact with their fellow prisoners and prison staff.
There is a growing body of research suggesting that this type of extreme and
dehumanizing isolation amounts to torture and a violation of human rights. See
Craig Haney, Mental Health Issues in Long-Term Solitary and “Supermax”
Confinement, CRIME & DELINQUENCY, Vol. 49, No. 1, January 2003, 124-56; Atul
Gawande, Hellhole, THE NEW YORKER, March 30, 2009; Mann, Solitary Men,
supra.
Solitary and solitary-like confinement for longer than 3 months creates
lasting emotional damage, including elevated anxiety, ruminations, irrational
anger, chronic depression, mood swings, perception disorders, hallucinations, or
6Federal prisoners are allowed to visit only those they knew prior to
incarceration, with the exception of their legal team and spiritual advisors. Mr. Kadamovas’s entire family lives outside the United States, making visitation from friends and family back home cost prohibitive. He has also, as the result of seven years of communication restrictions, lost touch with everyone he knew in Los Angeles.
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suicidal thoughts. Even individuals who are not severely mentally ill at the outset
of confinement will often develop severe mental illness as a result of such
isolation. See Haney, Mental Health Issues, supra, 134. See also Comer v.
Stewart, 215 F.3d 910, 915-16 (9th Cir. 2000) ("other courts have recognized that
prison conditions remarkably similar to Mr. Comer’s descriptions of his current
confinement can adversely affect a person’s mental health”); McClary v. Kelly, 4
F.Supp.2d 195, 205-10 (W.D.N.Y. 1998) (noting that isolation can cause
psychological harm).
B. Special Administrative Measures and Subsequent Written Communication Restrictions Compound the Isolation.
When Mr. Kadamovas moved to USP Terre Haute in 2007, the SAMs under
which he had lived since 2003 were renewed because the United States Attorney
General continued to believe that “there is a substantial risk that [Mr.
Kadamovas’s] communications or contacts with persons could result in death or
serious bodily injury to persons.” [See attached Exhibit 3]. In the face of a defense
challenge to the SAMs and perhaps recognizing that Mr. Kadamovas’s
involvement in the MDC escape plot that precipitated the SAMs was limited,7 the
7While it appears Mr. Kadamovas acquiesced in co-defendant Mikhel’s
arrangement to have him moved to a cell abutting a common stairwell and that he admitted that he knew about the plan, a search of his cell uncovered no contraband and nothing linking him to the escape plan. There was no evidence that Mr. Kadamovas used the mail or communicated with anyone on the outside to further the escape plan.
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government, on January 28, 2008, lifted the SAMs. But the government then
placed Mr. Kadamovas “on restricted general correspondence pursuant to 28
C.F.R. § 540.15.”8 [See attached Exhibit 4]. As a result, Mr. Kadamovas can, aside
from legal communications with his attorneys,9 correspond only with his Embassy
and with immediate family, making his existence on federal death row even more
isolating and impossible for him to communicate with death penalty and human
rights organizations that could assist him. Even though allowed contact legal visits
with his longtime CJA appointed paralegal, Christina Larson Gits, the restrictions
mean that Mr. Kadamovas cannot write Ms. Gits, nor can she write him, a result
that creates practical roadblocks for Ms. Gits to effectively communicating with
Mr. Kadamovas about his case and appeal.
All of Mr. Kadamovas’s requests through the grievance process and the
efforts of counsel to either lift the restrictions or add persons to the list with whom
Mr. Kadamovas can communicate, except for a spiritual advisor, have been denied,
with the USP Terre Haute warden and other BOP officials referencing his
8Counsel is advised there are several other federal death row prisoners with
escape histories but they are under no written communication restrictions. 9If his attorneys or his Embassy forget to mark the envelope as “special
mail” as required by 28 C.F.R. 540.18, the mail is most often rejected but has also been opened outside his presence.
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“extensive ties to Russian Organized Crime10 and a proclivity for violence” in
addition to his “involvement in an elaborate escape plot.” [See attached Exhibit
5].11
C. Administrative Grievances, Previous Computer Litigation, Mr. Kadamovas’s Pro Se Motions and this Court’s February 24, 2010 Order.
Since Mr. Kadamovas arrived at federal death row in April 2007, he has
been seeking, with little success, to be able to engage in meaningful work on his
appeal. He has been unable to secure a functioning computer by which he can first
translate documents into the Russian language and then review his trial transcripts
and digital discovery and case materials. Translation is necessary because of Mr.
Kadamovas’s limited English proficiency and the difficulties are compounded by
the differences between the English and Cyrillic alphabets.
10The government introduced no evidence at trial of any connections by Mr.
Kadamovas or co-defendant Mikhel to the so-called Russian mafia, and the government admitted in its brief filed in co-defendant Petro Krylov’s appeal that they never introduced such evidence or characterized Mr. Kadamovas or co-defendant Mikhel as being members of any Russian organized crime group. See, e.g., p. 26, n.8, Appellee’s Brief, USA v. Krylov.
11 BOP officials have opened mail from the Court to Mr. Kadamovas outside his presence, also contrary to BOP policy. [See attached Exhibit 6]. Additionally, Mr. Kadamovas mailed, on July 9, 2010, a pro se motion to this Court asking for relief from the written communication restrictions. [See attached Exhibit 7]. This motion was, inexplicably, never received by the clerk or the Court nor returned to Mr. Kadamovas.
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In order to work in a meaningful and legally permissible manner on his
appeal, Mr. Kadamovas initially made informal requests to BOP officials that were
denied. He subsequently filed a series of administrative grievances that were also
denied. [See attached Exhibit 8].12
On July 24, 2009, believing his appointed counsel was unable to help him, in
desperation Mr. Kadamovas filed a pro se motion seeking to represent himself
which the Court ultimately denied, on June 3, 2010. The initial pro se motion,
however, launched 6-7 months of litigation, with motions filed by counsel for Mr.
Kadamovas,13 counsel for the government14 and, pro se, by Mr. Kadamovas,15
12Mr. Kadamovas has also sought administrative relief related to the
destruction by other prisoners of his discovery, case-related materials and an electronic translation device that were not maintained in a secure location; the lack of meaningful opportunities to learn and improve his English; and his inability to stay connected to his language, culture and religion, all issues which further interfere with his ability to assist his attorneys, and, as a consequence, deny him access to the courts. All his grievances have, generally, been denied with little meaningful consideration. [See attached sample of grievances, Exhibit 9].
13Counsel for Mr. Kadamovas made alternative requests for Russian
speaking counsel, funding for translation of transcripts and case related materials or a laptop computer, printer, scanner and appropriate software, including translation and word processing software so that Mr. Kadamovas could effectively review the transcripts, discovery and other materials in the case and assist his lawyers.
14The government, relying on alleged safety, security and management
concerns, objected to Mr. Kadamovas’s request for access to a laptop computer in his cell, assured the Court that the BOP would provide Mr. Kadamovas with “a suitable computer” but would not allow word processing software, even to enable the use of translation software.
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related to Mr. Kadamovas’s access to his discovery, translation software and
computers.
On February 24, 2010, this Court entered an order that “[t]he prison shall
provide [Mr. Kadamovas] “with access to the out-of-cell computer16 20 hours per
week, with the understanding that if [Mr. Kadamovas] declines computer access on
any day then his scheduled time for that day has been forfeited and is deducted
from the weekly 20-hour total.”17 The Court further ordered the parties to confer
15Mr. Kadamovas’s pro se motions addressed matters related to his
intermittent access to a laptop computer and word processing translation software while he was incarcerated pending trial in the Los Angeles MDC and the subsequent damage, after he arrived on death row, to his handheld translation device and the loss of his digital discovery and case materials which he submits would not have occurred had he been allowed to keep his translation device and discovery materials in his cell. Mr. Kadamovas also provided the Court with a list of computer equipment and software that he believes are necessary for him to be able to work on his case and assist his attorneys. [See attached list, Exhibit 10]. Finally, Mr. Kadamovas voiced his concerns and objected to the ongoing written communication restrictions which are imposed against him. For relief, he requested that the Court 1) allow him to proceed pro se, 2) order the BOP to stop damaging and/or allowing his case related materials to be lost, 3) order the BOP to conduct an inventory of his case related materials and then allow him to keep the materials in his cell, 4) provide computer resources to compare, translate, sort, make notes, print and scan and work on his case daily in his cell, and, 5) allow him to learn and improve his English through use in his cell of his Ectaco translation device.
16The BOP had previously agreed to provide a computer dedicated solely to
Mr. Kadamovas’s use to be used only outside his cell.
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and file a status report concerning the adoption of a regular 20-hour per week
schedule for Mr. Kadamovas to use the computer without him having to make a
written request, the provision of adequate work space and writing utensils, and for
the repair or replacement of Mr. Kadamovas’s hand-held translation device.
The parties, on March 24, 2010, filed a status report that advised:
a. Although the BOP would provide Mr. Kadamovas access to a computer 20 hours per week without any requirement that he make a written request, the warden had yet to approve the Unit Manager and legal advisor’s suggested procedures.
b. The Prison had received a new handheld translation device to replace the damaged translation device, and that the new device was being cleared for Mr. Kadamovas’s use in the room where he would be allowed to use the computer.18
Subsequent to the submission of the status report, Mr. Kadamovas continued
to file pro se motions related to his request to represent himself and additional
support for his request that he be allowed to use a laptop computer in his cell.
17The Court, however, denied Mr. Kadamovas’s request to be allowed to use
a laptop computer in his cell and his request that the BOP-issued computer have word processing capability.
18Because the BOP still will not allow Mr. Kadamovas to use the replacement translation device in his cell, he has sought to have it returned to his attorney, Barbara O’Connor, only to learn that the BOP cannot return the device because they paid for it with government funds which requires Mr. Kadamovas to file a tort claim to be compensated for the destruction by others of his original translation device.
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In May 2010, undersigned counsel Margaret O’Donnell began to work on
Mr. Kadamovas’s case. In July 2010, she initiated efforts to ensure that Mr.
Kadamovas had a working computer so that translation software could be installed
and enable him to begin work on his case.
Despite outreach to BOP officials at USP Terre Haute over the course of
three months (from July 26-October 28, 2010), Mr. Kadamovas still does not have
a functioning computer that will even allow him to open all his digital discovery
materials which consist of well-over 75,000 documents,19 let alone determine
whether translation software can be installed. [See attached declaration of
Margaret O’Donnell, Exhibit 12]. Mr. Kadamovas is still unable to take an
inventory of his digital discovery files and other digital case materials.20
D. Hunger Strike
When Mr. Kadamovas came to believe that the BOP was also going to
ignore the most recent outreach of his attorneys about the computer and translation
19Undersigned counsel Barbara O’Connor initially determined in August
2008 that the BOP assigned computer would not open various CD’s included in Mr. Kadamovas’s discovery. [See also attached May 19, 2009 BOP inventory, Exhibit 11]. It appears the same computer is suggested by the BOP for use at this time.
20BOP officials would not even allow paralegals working for his attorneys to undertake an inventory of the case materials that were confiscated when sent by Mr. Kadamovas’s trial counsel.
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software, on September 7, 2010, he began a hunger-strike to protest his conditions
of confinement.21 [See attached letter, Exhibit 13]. The hunger strike reflected Mr.
Kadamovas’s belief that:
a. his legal materials were not safe-guarded or protected by the unit team and BOP administration, resulting in damage to and loss of his legal discovery materials; b. he has not been afforded a meaningful opportunity to learn English by the Education Department at Terre Haute; c. he is entitled to, and the BOP should provide, books, newspapers, religious and music CDs, and TV programming in the Russian language, particularly when the BOP provides various of these resources to Spanish-speaking inmates, such as Spanish translations of legal books and research materials; d. because of his difficulties with reading and writing English, security concerns arising from the damage to his materials and translator, and his limited ability to speak English, he should be allowed a laptop computer for his sole and exclusive use in his cell which would contain a Russian-English translation software program to enable him to review his case materials and discovery for the purpose of providing assistance to his attorneys in preparing his appeal;
e. he has been unlawfully and arbitrarily placed on restricted general written correspondence, which prohibits him from writing or receiving mail from anyone but his attorneys, his Embassy and his immediate family.
21Mr. Kadamovas also protested the quality of the food, inadequate medical,
dental and mental health care and the ongoing and chronic delay in processing his art supply purchase orders.
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At times during the course of the hunger strike, BOP officials kept Mr.
Kadamovas in an empty cell and did not allow him access to any of his legal
materials, nor did they allow him to use a toothbrush or to change his underwear;
which act as subtle, but symbolically powerful acts of harassment and intimidation
against his ability to peacefully protest, all in contravention of BOP Program
Statement P5562.05.
Mr. Kadamovas’s 24-day hunger strike ended on October 1, 2010 after two
days of attempts by the BOP to prematurely force-feed him. Prison officials
terminated undersigned counsel Margaret O’Donnell’s September 30, 2010 legal
visit 3 hours early in order to force-feed Mr. Kadamovas. Because of the pain,
disrespect and humiliation of the force-feeding, Mr. Kadamovas ultimately
abandoned his hunger strike.22
III. Reasonable and Meaningful Access to a Computer in His Cell Is Imperative to Facilitate Mr. Kadamovas’s Right to the Effective Assistance of Counsel.
Undersigned counsel recognize the need to give wide deference to prison
administrators in making decisions that impact the day-to-day operations of a
prison facility. Prison officials certainly have a legitimate interest in correctional
22Mr. Kadamovas’s requests for all records related to the hunger strike,
including the videotapes of the efforts to force-feed him have, to date, not been honored. He, therefore, requests this court to order the BOP to release those records to his counsel.
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practices necessary to secure the safety of Mr. Kadamovas and others. See, e.g.
United States v. Mikhel, 552 F.3d 961 (9th Cir. 2009). The BOP’s current concerns
about security, safety and management as they relate to Mr. Kadamovas’s request
to use a laptop computer in his cell, however, make no sense, particularly given
Mr. Kadamovas’s language barriers and his long-standing desire to work on his
case. The ban is an “exaggerated response” to penological concerns. Id.
Since his April 2007 arrival at USP Terre Haute, Mr. Kadamovas’s efforts to
work on his case, as he did during pre-trial and trial proceedings with a computer
in his cell, have been blocked at every turn. Not only do BOP rules and
regulations prohibit Kadamovas’s ability to work on his case, on his own schedule,
in his cell, but the BOP has not yet complied with this Court’s order. Even after
this Court ordered, in February 2010, that the BOP must provide Mr. Kadamovas
with a computer dedicated solely to his use for 20 hours each week, the BOP still
has not provided a functioning computer sufficient to allow Mr. Kadamovas to
access his discovery, and translate his case materials into Russian.23
In determining whether a prison regulation "burdens fundamental rights,"
the court must ask whether the regulation is "'reasonably related' to legitimate
23Until Mr. Kadamovas has access to a functioning computer, undersigned
counsel cannot move forward with the purchase and installation of translation software.
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penological objectives, or whether it represents an 'exaggerated response' to those
concerns." Turner v. Safley, 482 U.S. 78, 87 (1987). The Court, in Turner,
promulgated a four-prong test for evaluating whether a prison regulation that
allegedly violates a constitutional right is reasonably related to a valid correctional
objective. Courts must consider 1) whether there is a "valid, rational connection"
between the regulation and the legitimate governmental interest used to justify it;
2) whether there are alternative means for the prisoner to exercise the rights at
issue; 3) the nature of the impact that any accommodation will have on guards,
other inmates, and prison resources; and, 4) the absence of "ready alternatives" to
the challenged conditions of confinement. Id. at 89-91.
The BOP ban on computers in prisoners’ cells is an “exaggerated response”
to legitimate penological objectives. There is no meaningful distinction between
the availability of computers and those electronic devices that prisoners are
allowed in their cells as a matter of course, such as televisions, radios, CD players,
and typewriters.24 It appears that at least two other federal death row prisoners have
previously been allowed to use computers in their cells to work on their cases.
24Death row prisoners are entitled to use electronic typewriters in their cells,
but this is not a solution because of Mr. Kadamovas’s language issues, which are further compounded by the differences in the Cyrillic alphabet and by the fact that a typewriter cannot translate English into Russian.
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Undersigned counsel can think of no legitimate correctional interest in treating
computers as different from other well-accepted electronic devices.
A computer can be secured so that it cannot access the internet. He has no
opposition to prison officials routinely checking his computer as long as he is
present when the checks take place and they do not read his confidential case
materials.25 BOP Program Statement No. P558007, which prohibits prisoners from
possessing personal property valued in excess of $100, while, perhaps, a legitimate
policy for the general prison population where prisoners could sell the items, has
no impact on death row where prisoners, for all intents and purposes, are in
segregation.
25The government has argued that permitting a prisoner to have access to a
computer device that the prison cannot frequently monitor creates a risk to the safe, secure, and orderly management of the prison because a prisoner “given unfettered access to such a device could load unauthorized software and hardware on such a computer, could alter the computer to use it as an unauthorized communication device, could possibly use the computer to tamper with the computer systems in place at the facility, and could remove, substitute, or tamper with the computer’s parts for any number of nefarious purposes.” [See Government’s Opposition to Defendant Kadamovas’s Motion to Have Access to Laptop Computer in His Cell, p. 12]. Mr. Kadamovas is in a “Catch 22” situation. Unless the computer is connected to the prison network, there is no means to tamper with the prison computer system. On the other hand, if the computer were attached to the prison network, prison officials could monitor Mr. Kadamovas’s computer, which would protect against all the problems about which the BOP is concerned. But frequent review of the computer and its capabilities in Mr. Kadamovas’s presence would seem to satisfy all BOP security concerns.
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The 21st Century is a digital world. Our old ways of reading newspapers and
books, listening to music and communicating with others are fast becoming
obsolete. And, specifically in the context of the legal world, lawyers file motions
and courts issue orders electronically. Discovery is provided digitally to opposing
parties. Hard copy case files are increasingly rare. Our clients in prison, however,
by and large, still rely on 20th Century methods of reading books and newspapers,
and sending written and oral communications to the outside world. While 20th
Century methods still generally work in most contexts, they no longer suffice for a
prisoner to work on his legal case when the case materials are digital and his access
to the tools to work with those materials is limited by prison rules.
In the pre-digital discovery age, death row prisoners could spend any or all
waking hours working on their cases in their cells. All they needed was a pen, a
notepad and the hard copy versions of their discovery and transcripts. Because of
the prison noise factors, many prisoners prefer to do their important work at night
when it is quieter and to sleep during the day. It is not so simple to work many
hours a day or through the night with digital materials if access to computers is
limited and the ability to use the computer is controlled by arbitrary factors such as
the prison staff’s workload, whether there is sufficient staff to escort the prisoner to
the location where the computer is to be used, the potential for prison lockdowns
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which limit and sometimes even prevent prisoner movement, and, in general, the
good will of staff.
If case-related materials are provided solely in an electronic format, then the
government should be obligated to provide prisoners with a meaningful ability to
work on their cases in the same, or relatively similar, fashion they could with hard
copies of their case materials.26 As it now is, Mr. Kadamovas cannot do that. He
is limited to a certain amount of time, and totally reliant on the good will of others
to ensure his already limited access to the computer.
Before his trial, Mr. Kadamovas was able, on his court-approved laptop
computer, to start reviewing case-related discovery and other materials, which
involved over 78,000 pages of Bates stamped documents, 7 boxes of government
exhibit binders as well as audio, video tapes, depositions, and DVD/CD disks.
Once the 8-month trial commenced, the trial court authorized Mr. Kadamovas,
during the evenings and on weekends, to use in his cell his double-password
protected Dell laptop computer (purchased by his attorneys) equipped with, among
other programs, a Promt Russian translation software program, Adobe Acrobat 7.0
26The government’s argument that allowing Mr. Kadamovas to work with a
computer in his cell is a “unique accommodation that would create an inequality between defendant and other inmates” [Government Opposition, p. 11] is not persuasive. All prisoners, with the legitimate need, should be able to work on their cases in their cells. And, Mr. Kadamovas has language barriers that a majority of prisoners do not.
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and word-processing software, Word Perfect, Microsoft Word, and Microsoft
Office as well as Real Player, Sonic Record Now and Nero (all video playing and
editing related software). [See attached Exhibit 14]. Periodically, the MDC
computer technology staff checked the laptop to make sure all was in order from a
security standpoint. To the best of undersigned counsel’s knowledge, not a single
security issue arose during the time Mr. Kadamovas used his laptop computer in
his cell.
All Mr. Kadamovas seeks is to work on his case -- to review his discovery,
to read the trial record, and to take notes -- so that he can have a meaningful role in
discussing his case with his defense team. This can be readily accomplished, as it
was during trial, by his use of a laptop in his cell – with all necessary translation
and word processing software.27 Mr. Kadamovas should not pose a threat to
security. His two write-ups since he arrived at USP Terre Haute concern
possessing unauthorized, but harmless devices to heat water.
Mr. Kadamovas believes that to adequately assist his attorneys and to work
on his case, he requires more than what this Court has ordered and what the BOP
has not yet even provided. He believes he needs the computer equipment he
27Another difficulty with the BOP plan to take Mr. Kadamovas to a special
out-of-cell location to work n the computer is there is no bathroom. He, in the past, has been diagnosed with “irritable colon and urinary bladder”, which have led to “phobic reactions to ‘not having access to a toilet.’” [See attached Exhibit 15].
23
requested in his March 29, 2010 Motion to Withdraw Counsel(s) and Seeking
Leave of the Court to Proceed Pro Se in These Proceedings, as well as the ability to
use the computer to work on his case in his cell. [See attached Exhibit 10].28
The constitutional guarantee of due process includes a requirement that
prisoners be afforded meaningful access to the courts to challenge unlawful
convictions and to seek redress for violations of their constitutional rights. Lewis
v. Casey, 518 U.S. 343 (1996). Mr. Kadamovas requests this Court to revisit the
computer access issue and to order the BOP to allow Mr. Kadamovas to use his
own laptop computer in his cell so that he can work in an effective and meaningful
manner on his case and assist his counsel.
28Since the entry of the Court’s order, in an attempt to avoid litigation, Mr.
Kadamovas's counsel have diligently attempted, through direct discussions with the BOP staff and attorneys, to resolve problems of compliance with the order and problems that have arisen or come into focus since the entry of the order. Matters are confused by language and cultural barriers as well as by Mr. Kadamovas’s adamant and principled refusal to work with a government issued computer. Quite understandably, his trust in the BOP has eroded due to the fact that, pre-trial, government officials searched his cell and confiscated notes intended for his attorneys in which Mr. Kadamovas described co-defendant/cooperating witness Ainar Altmanis’s criminal history, and within a week, the government re-interviewed Altmanis and asked him about his criminal past about which they likely knew nothing until they had seized Mr. Kadamovas’s privileged materials. The fact that the BOP staff currently monitors other death row prisoners’ electronic legal research and could not safeguard Mr. Kadamovas’s legal materials or translation device from other prisoners further eroded his confidence in the government’s capabilility.
24
IV. The BOP Must Safeguard Mr. Kadamovas’s Legal Materials; the Most Practical Means of Accomplishing that Goal Is to Allow Mr. Kadamovas to Keep His Legal Materials in His Cell.
USP Terre Haute officials do not allow Mr. Kadamovas to keep his
discovery and case materials in his cell.29 [See attached Exhibit 17]. In 2009, Mr.
Kadamovas learned that his discovery and case materials were not secure as fellow
prisoners, during cell rotations, were routinely locked in the cell where his case
materials were kept. [See attached declarations, Exhibit 18]. The expensive
handheld translation device purchased by Mr. Kadamovas’s attorneys for his use
was inexplicably stolen, kept in a fellow prisoner’s cell, damaged beyond repair
and had to be replaced. BOP officials would never explain how it came to be
broken. [See attached Exhibit 19]. Subsequently, Mr. Kadamovas learned that two
of his case-related CDs were found in the cell of a mentally ill death row prisoner,
who, at some point, had also been locked in the cell with Mr. Kadamovas’s legal
materials. [See attached Exhibit 20].
Initially, BOP officials accused Mr. Kadamovas of some complicity in the
wrongdoing. [See attached Exhibit 21]. Even when staff ultimately conceded that
29After his trial, officials at the Los Angeles MDC released Mr.
Kadamovas’s discovery and case materials to his trial counsel, who then forwarded them to Mr. Kadamovas at USP Terre Haute. When the case materials arrived, BOP officials confiscated some 61 CDs as contraband, even though Mr. Kadamovas had been allowed to keep those same CDs in his cell during the course of his trial. [See attached letters, Exhibit 16]. The remaining CDs to which the BOP did ultimately allow Mr. Kadamovas access were in disarray.
25
Mr. Kadamovas had nothing to do with the loss or damage to his case materials,
they, in ruling on Mr. Kadamovas’s administrative grievances, found he had not
proven any of his allegations. [See attached Exhibit 22].
Currently, the BOP has advised Mr. Kadamovas that his legal materials are
kept in the management team’s office. However, understandably, given the
previous course of events, Mr. Kadamovas is concerned that his legal materials are
not safe. The materials, although containing much information, can fit in one box
that can easily, within BOP regulations, be kept in Mr. Kadamovas’s cell where he
can be certain that their integrity is safeguarded.
There are no apparent legitimate correctional interests, security or otherwise,
as the BOP has already allowed Mr. Kadamovas to maintain these very same case-
related materials in his cell during his pre-trial and trial confinement. The BOP’s
refusal to allow Mr. Kadamovas to keep his digital legal materials in his cell now
is an exaggerated response that is placing an unacceptable burden on his due
process and Sixth Amendment rights. Mr. Kadamovas, therefore, respectfully
requests this Court to enter an order allowing him to keep his digital case-related
materials in his cell.
26
V. Mr. Kadamovas’s Ability to Assist His Counsel Requires that He Have
Meaningful Opportunities to Improve His English, and, at a Minimum, Be Allowed to Keep and Use His Ectaco 900 Translation Device in His Cell. At the time of his February 2002 arrest, Mr. Kadamovas’s ability to speak
English was quite limited. The entire five year course of his pre-trial, trial and trial
proceedings was conducted with the assistance of a Russian language interpreter.
Since he arrived at USP Terre Haute in April 2007, Mr. Kadamovas has
sought to improve his English. The BOP has, however, only provided him with
English-as-a-Second Language self-study materials, all written in English.30 When
Mr. Kadamovas pointed out that he could not understand the English directions in
the ESL materials and that the prison education staff would not help him [see
attached Exhibit 24], BOP officials accused Mr. Kadamovas of refusing to work
with the instructor,31 when, in reality, the instructor, who could speak Spanish, but
not Russian, only stood outside his closed cell door for no more than a couple of
30Although prisoners are required by BOP policy to take the GED test, the
test is not translated into Russian. BOP policy provides, however, that the GED tests, when appropriate, must be translated into Spanish and French. [See attached 23].
31Not only is the BOP not facilitating Mr. Kadamovas’s ability to improve
his English, officials, except for only a brief window of time, do not allow Mr. Kadamovas to submit grievances in Russian [See attached Exhibit 25], and will not assist Mr. Kadamovas in submitting grievances in English. [See attached Exhibit 26]. Many of his grievances and pro se filings have, therefore, been written by Mr. Kadamovas’s fellow native English speaking prisoners.
27
minutes each time, and did nothing to assist Mr. Kadamovas in his efforts to learn
English.32
When the ESL program proved ineffective and the BOP provided translation
device was quite limited, Mr. Kadamovas’s attorneys, with BOP approval,
purchased for him a sophisticated Ectaco electronic translation device. Mr.
Kadamovas’s belief was that he would be able to use and keep the translation
device in his cell. When it arrived, however, BOP officials would not allow him to
have the device in his cell. It was, therefore, stored with Mr. Kadamovas’s
discovery and case materials in a cell that was accessible to other prisoners and, as
could be expected, the device was damaged beyond repair. Pursuant to this
Court’s February 24, 2010 order, the BOP replaced the translation device.
Despite undersigned counsel’s more recent and on-going efforts to address
BOP concerns so that Mr. Kadamovas can use and keep the translation device in
his cell, including removing the objectionable microphone, and suggesting
alternative devices, the BOP will still not allow him to use a translation device in
32Mr. Kadamovas quite appropriately believes that in order for Russian
speakers to learn English they must have either access to directions and other guidance written in Russian or a Russian speaking teacher who can explain the lessons. Alternatively, the translation device that the BOP will not allow Mr. Kadamovas to have in his cell has an application/program for a Russian speaker to learn English.
28
his cell, citing again the BOP regulation against prisoners possessing personal
property with a value greater than $100.33
Mr. Kadamovas fears that he is being discriminated against because he is a
citizen of Lithuania and speaks Russian. 42 U.S.C. § 2000(d) (Title VI of the Civil
Rights Act of 1964) provides that “[n]o person in the United States shall, on the
ground of race, color, or national origin, be excluded from participation in, be
denied the benefits of, or be subjected to discrimination under any program or
activity receiving Federal financial assistance.” See also Lau v. Nichols, 414 U.S.
563 (1974) (the failure of school district to take reasonable steps to ensure
meaningful access to English language classes for Limited English Proficient
(LEP) persons is a form of national origin discrimination prohibited by Title VI
and appropriate regulations.).34
33Nor can BOP officials explain why Mr. Kadamovas was permitted to keep
and use a less comprehensive Ectaco XL 1500 translation device (that came with the more expensive device) in his cell until it ceased working. This device is valued in excess of $100.
34ABA Standard on the Treatment of Prisoners 23-7.1 “Correctional
authorities should treat prisoners in a manner that respects their human dignity, and should not subject them to . . . invidious discrimination based on . . . religion, language, national origin, [or] citizenship . . . .” See also Standards 23-1.1 (d), 23-1.2 (a) and 23-7.3.
29
In the 8 ½ years since his arrest, Mr. Kadamovas’s ability to communicate in
basic spoken English has improved, but his proficiency is, nevertheless, still
limited, and his ability to comprehend English is particularly compromised with
regard to understanding written documents and legal proceedings. Barriers of
language, culture and perception continue to hinder Mr. Kadamovas’s ability to
fully understand and act on his legal rights.
His seeming ability to carry on an ordinary conversation in English should
not be considered proof of proficiency. Non-natives’ fluency is often insufficient
to understand and assign appropriate importance to many American legalisms that
citizens take for granted. The ability of any listener to internally translate and
process verbal information provided in a foreign language is dependent on the
speed of the conversation, the complexity of the vocabulary and the accent of the
speaker. English is a difficult language to master, given its inconsistent rules of
grammar and pronunciation. This difficulty is even greater for a native Russian
speaker because of the differences between the Cyrillic and the Latin-based
alphabet from which English derives.35
35Differences in culture are can also constitute major roadblocks to effective
communication and understanding. Much information that people convey to each other is either unspoken or derives from a shared set of social assumptions and behavior. This unconscious dialogue is generally cultural in nature, often resulting in misunderstandings that can be just as significant as language barriers.
30
Recently, the Civil Rights Division of the Department of Justice notified
state court administrators and judges that “[d]ispensing justice fairly, efficiently,
and accurately is a cornerstone of the judiciary. Policies and practices that deny
LEP persons meaningful access to the courts undermine that cornerstone. They
may also place . . . courts in violation of long-standing civil rights requirements.”
The Department of Justice interprets this meaningful access requirement as
extending to court functions that are conducted outside the courtroom where access
is essential to the fair administration of justice. [See attached August 16, 2010
letter from Thomas E. Perez, Assistant Attorney General, Exhibit 27].
Mr. Kadamovas’s efforts to improve his English through the prison
education department have been unsuccessful. His attempts and those of his
attorneys, to resolve the translation device issue, including suggesting alternatives
that he can keep and use it in his cell have been futile. Any claimed correctional
interests are, at best, an exaggerated response to their concerns when evaluated
under the four-pronged test in Turner v. Safley, 482 U.S. at 87.
While microphones, in theory, could present security and management
issues, the mechanism in most translation devices is not a microphone per se. It is
a mechanism that would allow Mr. Kadamovas to pronounce a word and the
translation device would then properly pronounce the word back to him. It is
simply impossible to learn English as a native Russian speaker without hearing the
31
language spoken in translation. And, as argued previously in this motion, the BOP
policy prohibiting prisoners from possessing anything worth more than $100 is not
necessary for prisoners who live in segregation. In any event, certainly exceptions
can and should be made in appropriate circumstances. This, given Mr.
Kadamovas’s specific language considerations, is such a circumstance.36 He,
therefore, requests this Court to enter an order allowing him to keep his electronic
translation device in his cell.
VI. PROPOSED REMEDY
Undersigned counsel are concerned about the ultimate impact of the
conditions, rules and regulations on Mr. Kadamovas’s mental state which are
interfering with undersigned counsel’s efforts to effectively represent him on direct
appeal. The generally bleak conditions under which he is confined have become
increasingly unbearable for him. Mr. Kadamovas has undertaken a hunger strike
and is contemplating dropping his appeals. It is for this reason that undersigned
counsel, relying on the Court’s jurisdiction ancillary to Mr. Kadamovas’s direct
appeal and pursuant to the Court’s authority to “regulate practice in a particular
case [before us] in any manner consistent with federal law,” bring these matters to
36Spanish speakers have access to two Spanish language television stations,
Spanish radio stations, as well as Spanish language books, CDs and magazines. GED tests, as well as BOP rules and regulations, are translated in to Spanish. Mr. Kadamovas gets nothing unless he pays for it himself.
32
the attention of the Court. See Fed. R.App. P. 47(b); United States v. Mikhel, 552
F.3d 961, 963 (2009).
Given these concerns, undersigned counsel respectfully request that this
Court take the following actions:
1. Order the BOP to provide Mr. Kadamovas reasonable and meaningful
computer access in his cell to allow him to work on his case and to assist his
counsel, or in the alternative, order the BOP to provide Mr. Kadamovas with the
ability to review case-related video and audiotapes in his cell.
2. If the BOP will not provide Mr. Kadamovas with the tools he needs to
be able to assist his counsel and work on his case, then undersigned counsel
request that the Court stay the briefing in this direct appeal case to allow time for
the translation from English to Russian case-related materials, as well as the pre-
trial and trial transcripts, direct payment for the same, and then allow sufficient
time for Mr. Kadamovas to review the translated documents.37
3. Order the BOP to take reasonable measures to permit Mr. Kadamovas
to conduct an inventory of his case materials and files before allowing him to to
secure and safeguard his case materials and discovery in his cell.
37This, however, is a significantly less practical solution given the volume
of materials that would need to be translated and the accompanying time and expense for official translations.
33
4. Order the BOP to allow Mr. Kadamovas reasonable and meaningful
access to his electronic translation device in his cell.
5. Order the BOP to submit to the Court and counsel for Mr. Kadamovas
a status report in 30 days specifying in detail the steps taken to comply with the
relief ordered by this Court and to submit additional status reports every 30 days
thereafter until BOP has fully complied with the ordered relief.
6. To the extent that this Court believes that it would be helpful, order
the parties to participate in a case management conference to address this status
report and request and any other relevant issues.
Respectfully submitted,
s/Margaret O’Donnell Dated: December 30, 2010
COLEMAN & BALOGH LLP BENJAMIN L. COLEMAN 1350 Columbia Street, Suite 600 San Diego, California 92101 Telephone: (619) 794-0420 O’CONNOR & KIRBY, P.C. BARBARA E. O’CONNOR 174 Battery Street, 3rd Floor Burlington, Vermont 05401 Telephone: (802) 863-0112 MARGARET O’DONNELL Attorney at Law P.O. Box 4815
34
Frankfort, Kentucky 40604-4815 Telephone: (502) 320-1837 Attorneys for Mr. Kadamovas
CERTIFICATE OF SERVICE
I, hereby certify that on December 30, 2010, I electronically filed the
foregoing Status Report and Jurijus Kadamovas’s Renewed Motion For Computer
Access in His Cell, As Well As Requests For the Imposition of Measures to Secure
and Safeguard in His Cell His Case Materials and Discovery, And For An Order
Directing the Bureau of Prisons to Allow Him Access in His Cell to His Electronic
Translation Device with the Clerk of the Court for the United States Court of
Appeals for the Ninth Circuit by using the appellate CM/ECF system.
I certify that all participants in the case are registered CM/ECF users and
that service will be accomplished by the appellate CM/ECF system.
Dated: December 30, 2010 s/Margaret O’Donnell MARGARET O’DONNELL