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The Appeal & Parole

I was sent to prison. I wrote a long letter to my state-appointed appellate attorney pointing out the several mistakes made during my trial. She responded and agreed with most of them, but informed me that since my defense attorney made no objections, she could not raise those points during an appeal. I did not know this before, but in a direct appeal one can only raise those points which the defense attorney objected to during the trial. So, if your defense attorney made mistakes you are screwed. In her detailed letter to me, my appellate attorney explained why she would not be using any of my suggestions in the appeal. Here are some excerpts from that letter:

"Voir dire: No objections were made to any of the things you mentioned… Counsel made no objections to areas of inquiry by the prosecutor. There were several jurors which I believe were subject to a challenge for cause… in several cases he [my defense attorney] did use a peremptory strike on them and in other
cases he did not strike them at all. At the conclusion of jury selection, trial counsel told the court that he had no objection to the jury…

"The reading of the online chats out loud: There was no objection to this procedure… Yes, the
prosecutor wanted to prejudice the jury. Your trial attorney could have raised an objection under Rule 403 of the Texas Rules of Evidence that this was cumulative…

"The evidence regarding the numerous profiles of underage females introduced at punishment: … there was no error in admitting these profiles. There was also no objection by trial counsel. Certainly trial counsel could have pointed out through cross-examination and argument the statistical argument you
raise in your letter to me…Closing argument by prosecutors: Again there was no objection by your trial attorney…

"Exclusion of defense evidence: You mentioned that there were screen shots and newspaper clippings which you wished to have introduced and you also desired to call [“Lisa] as a witness. My review of the record shows that although these exhibits and this testimony were discussed outside the presence of the jury and the trial court sustained the State’s objection to this evidence, trial counsel did not preserve error because he never made a bill of exception which involves having a hearing outside the presence of the jury and introducing the evidence and/or summarizing the witness’s testimony so that the appellate court can have a record of what the excluded evidence consisted of. This was not done so there is nothing for me to argue about and nothing for the appellate court to consider…

"… All of your complaints concerning the actions of the prosecutor in the way he questioned you and other witnesses could have been objected to at trial or addressed in closing argument by your trial attorney. They were not. Thus nothing has been preserved for appeal."

As is clear from all this, my defense attorney made several great errors during the trial. As already mentioned earlier, my defense attorney never objected to the prosecutor’s reading out loud a few lines out of context from my letter to him during the trial, and it was this violation of the “Rule Of Optional Completion” that the jury ultimately used to convict me. Thus, my Constitutional rights under the 6th Amendment – which says: “In all criminal prosecutions, the accused shall enjoy the right… to have the Assistance of Counsel for his defense” - were violated as my defense attorney did not provide me effective assistance. However for some reason, my appellate attorney refused to raise “ineffective assistance of counsel” as a point in my appeal despite my repeated requests to her to add that as a point in my appeal. She kept insisting that the best time to raise “ineffective assistance of counsel” is in a writ of Habeas Corpus that follows when all direct appeals have failed.

An appeal on my behalf was finally filed about a year after my imprisonment. My attorney raised two points in my appeal:

Legal Insufficiency of the Evidence: “When viewing the legal sufficiency of eth evidence, the appellate court is to consider the evidence in the light most favorable to the verdict and determine if any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.”

Under this objection, my appellate attorney raised several points. Here are the excerpts:

“Viewed in a light most favorable to the verdict, there is insufficient evidence upon which a rational jury could find beyond a reasonable doubt that appellant believed that the individual he was talking to was younger than seventeen years of age.

“The evidence showed that Capt. David Torsiello of the Attorney General’s cyber crime investigation unit created a Yahoo profile (State Exhibit 2) listing Amy512817’s age as 18. Appellant testified that when he clicked on Amy512827’s profile, he saw that it listed her age as eighteen. He testified that later in the conversations when she told him she was thirteen he did not believe it because people in chat rooms lie about their age. (R.R. IV, pp. 106-107) Although Amy512817 told appellant in the first conversation that she was thirteen (State’s Exhibit 4a), it is clear from reading the chat that appellant was questioning her age. (R.R. III, pp. 48-55) The evidence shows that appellant continued to question Amy512817’s age throughout the chats. In the second conversation (State’s Exhibit 4b), the following occurred:

‘maninaustin2003…: how old are you?
‘amy512817…: u don’t remember??
‘maninaustin2003…: 18 i tyhink???
‘amy512817…: i’m 13
‘maninaustin2003…: very funny…’

(R.R. III, pp. 55-59)”

My attorney raised other points including my picture-test that I previously mentioned. She concluded this point as:

“In the instant case, appellant testified that he believed the person with whom he was chatting was in fact an adult role-playing as a thirteen year old. (R.R. IV, pp. 109-110, 163) No evidence was introduced to disprove this testimony. In fact on cross-examination Capt. Torsiello, the State’s lead investigator, admitted that in these chat rooms, people do not usually use their real names, nor are people usually truthful about their age or gender. (R.R. IV, p.28) Torsiello also admitted that he could not say whether appellant thought he was dealing with an eighteen year old or a thirteen year old. (R.R. IV, p. 46)…

“… Certainly had the Yahoo profile drawn up by the investigator only listed thirteen as the age of Amy512817, this question would be easier to resolve. But where the State’s own investigator muddied the water by listing Amy512817’s age as eighteen, large questions are raised.”

Factual Insufficiency of the Evidence: “When conducting a factual sufficiency review, the appellate court must determine, after a review of all the evidence in a neutral light, if the proof of guilt is so obviously weak as to undermine confidence in the verdict or if the proof of guilt, otherwise adequate if taken alone, is greatly outweighed by contrary proof…In other words, the appellate court must determine whether a neutral review of all of the evidence, both for and against the challenged finding, demonstrates that a rational jury could have found guilt beyond a reasonable doubt.”

Under this point my appellate attorney basically raised the same arguments that were raised in the first point. She then concluded:

“After a review of all the evidence in a neutral light, the proof of appellant’s guilt is so obviously weak as to undermine confidence in the verdict. Furthermore, the proof of guilt, as to the appellant’s belief as to the age of Amy512827, is greatly outweighed by contrary proof, specifically appellant’s testimony that he did not believe that Amy512817 was thirteen years old.”

In her conclusion, she reminded the court that the burden of proof was on the State to prove my guilt beyond a reasonable doubt and they failed to do that. The State presented no evidence to counter my testimony that I didn’t believe I was talking to a thirteen years old. Further, the counter proof – my testimony, the testimonies of the two doctors, the age of “Amy” as 18 on “her” profile, the State’s star witness’s acknowledgement that people lie about their age and gender on these Internet chats, his acknowledgement that he couldn’t tell whether I believed “Amy” was 13 or 18, the evidence from the chats where I continued to ask her for a second picture to check if “she” was speaking the truth about her age – was so strong that the beyond-a-reasonable-doubt burden of proof could not have been met.

Though I was still a bit upset at my attorney for not raising some of the other points of error in the appeal, I was satisfied that she had made some great arguments. So we waited for the appellate court’s opinion. In June of 2006 – a year and a half after my incarceration – the Third Court of Appeals affirmed my conviction. My attorney sent me a copy of the court’s opinion. It was another shock for me. Instead of performing any logical analysis of the two points raised in my appeal, the appellate judge, Bea Ann Smith, simply stated one paragraph stating:

“Shams argues that the State failed to contradict his testimony that he believed that ‘Amy’ was a role-playing adult woman, and he points to Torsiello’s acknowledgement during cross examination that persons in internet chat rooms usually do not use their real names, ages, or even gender. But the jury, as trier of fact, was free to discount Shams’s testimony in light of the evidence that ‘Amy’ repeatedly told him that she was only thirteen. Applying the appropriate standards of review, we hold that a rational trier of fact could find beyond a reasonable doubt that Shams believed that the person he solicited was younger than seventeen.” [http://bulk.resource.org/courts.gov/states/Tex.App.03/14891. html]

I could not believe what I was reading. The appellate court had made a grave logical error – it had put the burden of proof on me rather than on the State. Logically, under the assumption of innocent until proven guilty my testimony and everything that favored my innocence should have been assumed to be true and it was the State which had to disprove everything beyond a reasonable doubt. Instead, the court’s opinion stated that the jury believed everything the State alleged by default, and discounted my testimony and all evidence in my favor because in their minds it failed to disprove the State’s allegations.

Further, the court said that it applied “the appropriate standard of review.” This was false. The whole opinion consisted of 11 paragraphs, the first 10 of which simply stated the facts of the case. It was only the final paragraph – the one quoted above – that contained the court’s opinion without any analysis.

I wrote a letter to my attorney and pointed out the logical errors in the court’s opinion. I was amazed at how, in order to protect her re-election in the upcoming elections, Justice Bea Ann Smith had simply turned the logical standards upside down. She didn’t want to be the one who “overturned the conviction of a child predator.” What would people say? So, she decided to affirm the conviction. I asked my appellate attorney if the subject of Logic was taught as a course in law schools. Anyone familiar with the basics of logic could easily see the logical error in the court’s opinion. Ms. Bea Ann Smith had to be aware of the logical error she was making. How could someone who didn’t understand the basics of logic could become a judge?

My appellate attorney replied back and informed me that she had filed a petition for discretionary review of my appeal with the Court of Criminal Appeals – the highest court of appeals – in Texas. She also wrote to me in that letter:

“After reading through the opinion again, I agree completely with your letter regarding the reasoning of the opinion of the Court of Appeals. I am hopeful that because of the offense involved and the total lack of reasoning in the Third Court’s opinion, that this is a case that the Court of Criminal Appeals will find important enough in which to grant review.”

In her petition for review, my attorney raised some important issues. Here are some excerpts:

Under “Reasons For Review,” she stated:

“1. The Court of Appeals has decided an important question of State law that has not been, but should be, settled by the Court of Criminal Appeals. TexR.App.Proc.66.3(b)

“2. The Court of Appeals has decided an important question of State law in a way that conflicts with the applicable decisions of the Court of Criminal Appeals, specifically, CLEWIS V. STATE, 922 S.W.2D 126 (TEX.CR.APP.1996), JOHNSON V. STATE, 23 S.W.3D 1 (TEX.CR.APP.2000), ZUNIGA V. STATE, 144 S.W.3D 477 (TEX.CR.APP.2004). Tex.R.App.Proc.66.3(c)

“3. The Court of Appeals has so far departed from the accepted and usual course of Judicial proceedings as to call for an exercise of the Court of Criminal Appeals’ power of supervision. Tex.R.App.Proc.66.3(f)”

She then summarized the court of appeals’ opinion as follows:

“The Court of Appeals began its opinion by setting out in paragraph two the standards to be used in analyzing legal and factual sufficiency of the evidence… The court then used the next ten paragraphs to set out the facts adduced at trial. In paragraph 11, the last full paragraph of opinion, the Court writes, without citation to authority or any type of analysis:”

She then quotes the entire paragraph of eth court’s opinion (cited above) underlying the part “Applying the appropriate standards of review, we hold that a rational trier of fact could find beyond a reasonable doubt that Shams believed that the person he solicited was younger than seventeen.” She then states:

“This is an improper method of review under the factual sufficiency standard. In fact Petitioner would argue that the Court of Appeals conducted no review under the factual sufficiency standard. Certainly the Court of Appeals opinion contains no analysis or legal reasoning which can be examined to justify the Court’s decision. The logical effect of this opinion is that there is no difference between a review for legal sufficiency of the evidence and factual sufficiency of the evidence. As long as there is some evidence in the record which supports the jury’s decision, the Third Court of Appeals apparently feels that the evidence will always be factually sufficient. This is troubling because in the Petitioner’s case there was evidence from both Petitioner and the State’s star witness, David Torsiello, a cyber crimes investigator for the Texas Attorney General, that rebutted the State’s theory that Petitioner thought he was communicating with a thirteen year old.”

She then reminded the Court of Criminal Appeals of the standards for review that the Court of Criminal Appeals itself had set:

“’… a factual sufficiency review dictates that the evidence be viewed in a neutral light, favoring neither party. Clewis v. State, 922 S.W.2d at 134. In conducting a factual sufficiency analysis, the reviewing court “does not indulge inferences or confine its view to evidence favoring one side of the case. Rather it looks at all the evidence on both sides and then makes a predominantly intuitive judgment...” William Powers and Jack Ratliff, Another Look at “No Evidence” and “Insufficient Evidence,” 69 Tex.L.Rev.515, 519 (1991).’ Johnson v. State, 23 S.W.3d 1, at 15 (Tex.Cr.App.2000).” (emphasis added).

As is obvious from the Third Court of Appeals opinion, the justice clearly violated this standard. She made inferences that the jury was free to discount my testimony and evidence in my favor, and she clearly favored the side presented by the State. Where was the analysis that showed why she thought that the State’s evidence disproved my testimony and evidence?

My appellate attorney then further reminded the Court of Criminal Appeals a further clarifying standard the Court had itself established in 2004:

“Then in 2004, the court of Criminal Appeals acknowledged that its previous discussions regarding factual sufficiency were confusing in light of the ‘beyond a reasonable doubt’ standard of proof in criminal trials and explained the factual sufficiency standard of review as follows:

‘There is only one question to be answered in a factual-sufficiency review: Considering all of the evidence in a neutral light, was a jury rationally justified in finding guilt beyond a reasonable doubt? However, there are two ways in which the evidence may be insufficient. First, when considered by itself, evidence supporting the verdict may be too weak to support the finding of guilt beyond a reasonable doubt. Second, there may be both evidence supporting the verdict and evidence contrary to the verdict. Weighing all the evidence under this balancing scale, the contrary evidence may be strong enough that the beyond-a-reasonable-doubt standard could not have been met, so the guilty verdict should not stand. This standard acknowledges that evidence of guilt can “preponderate” in favor of conviction but still be insufficient to prove the elements of the crime beyond a reasonable doubt. Stated another way, evidence supporting guilt can “outweigh” the contrary proof and still be factually insufficient under a beyond-a-reasonable-doubt standard.’ Zuniga v. State, 144 S.W.3d at 484-485.” (emphasis added)

So even if there were evidence supporting the verdict outweighed the contrary proof (which in my case was not true), it was still would not necessarily be sufficient.

Here is the balancing act that the Court of Appeals should have done in my case, but it didn’t do:

Evidence For The Verdict:

In 3 chats spread over 6 weeks, “Amy” told me a total of 3 times that “she” was 13.
I succumbed to “her” pressure to meet “her” and made an arrangement to meet “her,” and then went there to meet “her”.

Evidence Against The Verdict:

I testified that in 2 years I have role-played with several people online.
I testified that people often lie about their age, name and gender on these internet chats.
“Amy’s” profile stated “her” age to be 18.
I testified that I had verified through my own checks and by viewing “Amy’s” profile that I was chatting with an adult. I was correct in my conclusion.
I testified that I never believed I was chatting with a minor.
State’s star witness, Mr. Torsiello (who was pretending to be “Amy” online) acknowledged that people often lie about their age, name and gender on these Internet chats.
Mr. Torsiello also admitted that he couldn’t tell if I believed I was chatting with a 13 year old or an 18 year old.
The two doctors, who tested me, testified that my psychological profile does not suggest that I would arrange a meeting with a minor for sexual purposes.
No real minor existed in the case. “Amy” was a fictional minor. The case was based on fiction instead of fact and reality.

It is clear for anyone who looks at this balancing review – as recommended by the Court of Criminal Appeals – can see that there was no preponderance of evidence against me and that the contrary proof was so much that the beyond-a-reasonable-doubt standard could not have been met. The State had presented absolutely no evidence to disprove any of the above contrary proofs.

For the Court of Criminal Appeals to grant a review a majority of the 7 justices have to vote to grant a review. In August of 2006 my attorney informed me that the Court had voted not to grant me a discretionary review. That killed my direct appeals process right there. It is obvious why the Court of Criminal Appeals decided not to grant my appeal a review. Had the Court granted a review, then according to the standards the Court itself had set, it would have no other choice but to reverse my conviction. Again, all those justices would not want to be known as the ones who “set a child-predator free,” especially when the elections were looming so close. Since the review is discretionary the justices felt it was safer not to grant me the review.

The next step for me would have been to write a writ of Habeas Corpus to the same Court that refused to grant me a review. The State had no obligation to provide me with an attorney for that purpose. So, now it was up to me to either hire an expensive attorney or to do legal research myself and file the writ myself. The process of filing it myself would have taken a few months since I would have to then study law at the prison law library and file the writ myself raising legal issues. Judging from what I witnessed other prisoners going through, I was further discouraged: Most writs done by prisoners themselves were refused due to “errors,” and most of the ones that were accepted for review were rejected without ever going before the judges – the same judges who had voted not to grant my appeal a review.

My family advised me to wait for the parole process to finish, and if that failed completely then they would hire a writ-lawyer to help me file the writ.

People think it is easy to get justice in the U.S., but the reality is that it is extremely hard just to go through the process of finding justice much less attain justice. The system is designed to frustrate and discourage the accused at every step. Let’s say an innocent person is convicted and sentenced to more than 10 years in prison in Texas. He cannot post an appeals bond and stay free until the appeals process is finished. He stays in prison for at least a year and a half before he gets the results of the appeal. As is often the case – as evident from my own example – the appellate court carelessly rejects the direct appeal. So, he waits another 6 months before getting a decision from the Court of Criminal Appeals whether it will review the appeal or not. So, he has already spent 2 years in prison. Now the Texas Court of Criminal Appeals rejects to even review the majority of appeals. So, now the person hires another expensive lawyer to file a writ of habeas corpus (at the same court) – or do it himself. This whole process again takes about a year. In many cases the writ never even gets accepted. So now this innocent person has spent at least 3 years in prison – his life and family devastated.

After filing the writ at the State level, the next process is to file a writ with a federal district court. There goes another year. If the district court rejects the writ, the next step is to file with the federal 5th-Circuit court. There go at least another couple of years. So the innocent person is still in prison for 6 years now. If the 5th Circuit Court rejects the appeal then the appeal sits on the docket of eth U.S. Supreme Court for a while. So, wait another 3-4 years at least. By the time the Supreme Court sees the case and rules on it, the innocent person has already spent about 10 years in prison. By that time he is a psychological mess. The fact is that you do not get justice in the U.S., except for a few token cases so that the media and the people can sing and dance and worship and praise the “American Justice System” and feel good about themselves.

Some readers at this point might dismiss this by stating that conviction of innocent people is very rare. Some statistical analysis from the Innocent Project will reveal a different story. In the past 7 years the Innocence Project has used DNA evidence to help successfully overturn the convictions of hundreds of men across the US – innocent men who had been in prison for decades on false convictions of rapes. In Texas, with its “tough on crime” politicians the rate of wrong convictions is higher than most other States. According to the latest statistics available from the Innocence Project, in Dallas County alone, out of 38 people who were tested with DNA, a staggering 17 were innocent. Some tests were inconclusive, and the remaining convictions were affirmed. [http://ipoftexas.org/texas-cases/texas-exonerations/]

The example of Dallas County is very revealing in more than one ways. According to Jeff Blackburn, director of the Innocence Project of Texas, “Dallas County has been the site of an inordinate number of exonerations in part because the laboratory prosecutors use holds onto biological evidence for up to 25 years. Other labs across the State often destroy samples after convictions.” [cited in “The ECHO”, Volume 79, No.3, April 2007]. So the reason why other counties may not show such a huge percentage of exonerations is not because they have a better justice system, but because they destroy the evidence that could reveal their mistakes. The example of Dallas County is thus a truer measure of the state of the justice system in Texas.

The statistics shown above shows that in Dallas County 45% of the people who were convicted for rape and murder cases and who maintained that they were innocent were actually innocent. How can these people be convicted beyond a reasonable doubt? By default there had to be reasonable doubt that the juries/judges ignored in their cases. This shows the general attitude of the juries and judges in Texas. What about the cases where DNA evidence is either not possible or is no longer applicable? If juries and judges are convicting 45% innocent people of all who maintain their innocence in rape cases, we can safely assume that they are doing the same in other cases where unfortunately DNA evidence is not applicable. This means that in Texas out of every 100 convicted people who claim that they are innocent, about 45 are actually innocent. This is the logical consequence of having “innocent until proven guilty” on paper, but “guilty until proven innocent” in practice.

My first parole hearing came about 18 months after my incarceration. Everything was in my favor: I was a first time “offender” with no criminal history; I had not received any disciplinary cases while incarcerated; there was no history of violence in my record; there was no real victim; many people had written letters on my behalf to the parole board, requesting my release; while in prison, I had been tested by a trained psychologist of Texas who specialized in treating sex offenders, and her report came out very good, recommending that I be released on parole; I had used my time in prison effectively, getting published in math journals and tutoring other prisoners for GED classes; prisons in Texas were overflowing with a severe over-population crisis; I was to be deported out of the U.S. upon my parole release; and I was eligible for parole. My family had hired the best parole lawyer available in Texas. However, the parole board refused to grant me parole. Their reason was:

“The record indicates that the inmate committed one or more violent criminal acts indicating a conscious disregard for the lives, safety, or property of others; the instant offense... has elements of brutality, violence or conscious selection of victim’s vulnerability such that the inmate poses an undue threat to the public…”

There it was again. The phantom non-existing “victim” again made an appearance in the Texas parole board office and met personally with the three parole board members, convincing them that I was a very dangerous prisoner who had committed a violent and brutal act against a fictional character, and who would continue to harm “our children” from Pakistan.

I was given a one year set-off. During that one year my friends and family approached several politically influential people who personally made requests to the Texas board of pardon and parole on my behalf. As a result, I was finally granted parole three years after my incarceration. I was then handed over to the U.S. Immigration and they deported me to Pakistan, barring me from entering the United States forever.

My two daughters live with their mother – my ex-wife – in the U.S. I have been taken away from their lives, with no available possibilities to meet them again. My ex-wife has remarried and apparently has no immediate intentions of letting me communicate with my daughters any time soon. I have lost all rights to fight for my daughters due to my deportation and the charge against me. Is this what the U.S. Justice System is all about? Based on a fictional case and to protect an allegedly fictional “victim”, the State of Texas has removed a loving father from the lives of two innocent real girls.