Issue:  Counsel was ineffective in investigation, preparation or for another substantial reason.

• No mental health or medical evaluation of Branch regarding shock, trauma, inability to form malice afterthought under these circumstances, seeing Sparks bleeding to death, nervous system response to simply survive.
• Unable to get chow hall riot evidence into trial, indicative of large scale riot and inability of BOP to control inmates: this was happening as Sparks and Johnson were being placed onto gurneys; how did black inmates know it was Johnson? Because it was part of a large, orchestrated, calculated event at USP Pollock on that day.
• Inability to have expert witness testimony about life in federal prisons: gangs, racial imbalances, BOP reports showing number of inmate on inmate assaults.  In light of Jena-6 occurring in the same area, in the same time frame, and a facility where there are approximately 1500 inmates (200 white), racial instability and violence are integral to the story. The influence of the gang DC Blacks at USP Pollock is paramount and should have been introduced. Johnson was a member of this gang.
• Inability to have Government witnesses (inmates) in video: after thorough review of all camera angles, locations of key witnesses is not the way it was presented in court.  This is pivotal because the jury was incorrectly led to believe that a major witness for the prosecution was in the vicinity of the incident, when in fact, his cell door was closed at the time. 
• Ineffective exploration of BOP guard policies during inmate altercations: if it is their policy not to intervene, and inmates know this, how does an inmate protect himself from being assaulted or killed? The role of correctional officers in this incident will be discussed in detail later in this memorandum. Multiple interoffice memos describes these incidents.  Officers include: Stephen Cope/Special Investigative Technician, Lt. Anthony Garrow, Officer James McCullough and Lt. J. Lemoine.
• Failure to produce an adequate visual for the jury of the B-2 unit, which was imperative to show the distance Johnson walked to re-engage Branch.
• Did not pursue the “two-minute” interviews conducted on all inmates after the incident: there are many frames of the prison video that show six to seven inmates in key parts of the altercation, but these records were not adequately reviewed, and inmates were not interviewed by Mr. Blanchard.
• Unable to get records regarding Johnson into evidence. His Chronological Disciplinary Record details 25 disciplinary incidents, 14 being assaults on other inmates. Johnson also stabbed a correctional officer and should have never been in general population.  His violent history and affiliation with the DC Blacks is critical to understanding this incident.  Conversely, Branch had no write-ups and this should have been explored further.  In fact, Branch was 18 months away from going home. 
• Testimony from an inmate on the bus coming into Pollock with Johnsonheard him say “he was going to get a cracker”, yet this was never introduced into evidence.  Yet multiple statements from inmates regarding “comments” by Branch were admitted and heavily weighted.  These will be addressed and discredited later in this memorandum.
• Testimony of inmate Fox was not investigated even though he had an altercation with Johnson immediately preceding Johnson’s attack on Sparks and Branch.

By the Government’s own definition of self-defense, Branch was only protecting himself.  This defense strategy was not aggressively pursued or challenged

Issue: Counsel’s failure to maintain adequate communications with defendant.Issue: Court’s failure to provide substitute counsel

Issue: Court’s failure to hold inquiry into claim of ineffective assistance of counsel.Issue: Counsel had conflict of interest or another case that occupied his time.

On January 13, 2008 Branch wrote a letter to Judge Kirk asking for the transfer to Florence to be put on hold.  This would make legal visits from his lawyer in Louisiana very difficult.  Branch states Mr. Blanchard has not adequately prepared for the case and requests new representation.  Branch met with Mr. Blanchard for ten minutes prior to court on December 12, 2007.  They met a second time for ten minutes on January 9, 2008 since Mr. Blanchard spent the majority of his time with another inmate at the facility.

Branch received no information or discovery about his case.  He requested another attorney.  Also, with non-contact legal visits, phone conversations between Branch and Mr. Blanchard could have been recorded.

Branch wrote to Judge Kirk again on January 21, 2008 to air additional grievances with Mr. Blanchard.  There were approximately 1,500 interviews done the day of the incident that were not reviewed.  Key witnesses had already been moved to other federal prisons or released and were not properly interviewed. Branch also stated that he only received partial discovery records.  There were no police reports, inmate reports, medical reports or FBI documents.

Mr. Blanchard confirms that he met Branch immediately prior to the court appearance on December 12, 2007.  In the Motion to Determine Status of Representation, Mr. Blanchard also states he “spent the bulk of his time with another inmate “ at Pollock on January 9, 2008.

On January 17, 2008, Branch wrote Mr. Blanchard directly and asked him to remove himself from the case.  A second letter was written to Mr. Blanchard by Branch on January 30, 2008 again requesting he remove himself from the case.

On January 31, 2008 Branch details in another letter to Mr. Blanchard why “there is a conflict of interest and a breakdown in communication.”

After being advised his only other option was to represent himself, Branch reluctantly and under duress, retains Mr. Blanchard as counsel on March 19, 2008.  Branch was fearful time was running out to prepare his defense and felt “some” representation was better than none.

Mr. Blanchard had only tried one other inmate homicide case prior to this one. He did not  

comprehend the the severity of conditions in BOP facilities and reasons for gang affiliations.

       Cross examination was non-existent or minimal on key witnesses.  Discrepancies in testimony were not effectively pointed out for the jury..

The actual time spent in the courtroom was minimal and witness investigation poor.

In session 10-29-08          2:00-5:20 pm

                 10-30-08          8:45am -4:50 pm

                 10-31-08          9:00am-11:35 am

                                         3:10pm-3:20 pm

Approximately fourteen (14) hours to defend a man’s life. 

                        Issue:  Counsel’s failure to investigate mitigating circumstances.

Mitigating Circumstances:

1)      Ongoing race riot throughout the institution.

2)      Tension in Louisiana due to mishandling of Jena-6 – the march in Jena took place 36 days before Branch’s Grand Jury hearing.

3)      U.S. Attorney Donald Washington had been heavily disparaged in the press and the community for not punishing white juveniles involved in incidents leading up to Jena-6 assault.

4)      Did not argue aggressively to get Johnson’ s record into evidence, including history of stabbing an officer and not being accepted into a gang-related program, as well as the statement of “going to get a cracker” upon arrival to Pollock. His vicious attack took place 18 days later.

5)      BOP statistics that show the prevalence of inmate assaults at USP Pollock.

6)      Racial imbalance at USP Pollock, dominated by black gangs, particularly violent gangs like the DC Blacks (Johnson was a member).

7)      Failure to introduce Inmate Fox’s statement, which involved an altercation with Johnson immediately preceding the stabbing of Sparks.

8)      Failure to question why Johnson was in general population after his brutal stabbing of correctional officer at Marion.

Issue: Counsel’s failure to advocate the defendant’s theory of the case.

Serious Errors

1)      Failure to understand video evidence: key witnesses are misidentified.  Proper identification would have shown certain inmates could not have heard what they stated they heard.

2)      Failure to compare critical testimony at Grand Jury versus the trial, and the fact that only witnesses who received reductions testified to inflammatory statements and key statement about Johnson “letting” Branch go.  Victor Novene, a black inmate who assaulted Branch in the shower, never heard these statements and he is the only witness in a physical location to hear any exchanges between Johnson and Branch.  He only heard Johnson say “go get your shit”, which meant (and Novene stated) that Johnson was coming back for Branch.

3)      Failure to acknowledge gang affiliations and racial climate at USP Pollock

4)      Failure to have Branch’s injuries adequately explained – “superficial” wounds shouldn’t need sutures.  Review of medical records shows Branch should have been taken to the hospital for xrays and intravenous antibiotics and blood work to rule out any exposure to bloodborne pathogens. 

5)      Failure to discuss the severity of racial incidents surrounding April 20, 2007, which caused USP Pollock to be locked down for a month, with National Guard intervention.

6)      Failure to have key players, particularly Alexander Blackmon, identify themselves on the video – this would have immediately negated Blackmon’s testimony due to his location, and severely hindered his opportunity for 18 year sentence reduction.

7)      Failure to discuss on video that Blackmon’s cell door was shut while Johnson says “I’m going to spare you” making it impossible for him to hear this.  A simple demonstration behind the closed courtroom door at 80 feet away from the jury would have proven this.

8)      Failed to demonstrate why it wasn’t safe for Branch to leave the unit- race riots going on in multiple yards

9)      Failure to exploit discrepancies in witness and inmate testimony

10)  Failure to adequately demonstrate the layout of B-2, where incident took place and where key witnesses were from all different camera angles

11)  Failure to use BOP’s own internal memos to corroborate Branch’s self-defense argument, defense witness positions, statistics on inmate assaults and failure to capitalize on flawed BOP security policies

12)  Failure to prevent photos of Johnson from being shown: his injuries could have been explained by the medical  examiner.  She was a neutral witness who merely relayed the facts.  The prosecution hoped to add drama and shock the jury with the horrific facial photos.  Johnson died from internal bleeding and cerebral swelling, so these photos had no merit in the trial, except to somehow arouse sympathy for the aggressor

13)  Failure to explore BOP officer statements regarding the incident:

6:44:10 Johnson approaches Branch

Per R. Fontenot/Senior Officer:  he escorted Branch out to recreation cage and never head the racial statement alleged my inmate Hudson

Per Stephen Cope/Special Investigative Technician: “I started to pan the camera and noticed inmate Edgar Branch getting up from the floor in the B-4 unit common area.  Inmate Tyrone Johnson was moving in the vicinity of Branch.” Also provides detailed account of racial riots going on in other units of USP Pollock at the same time

Lt. Craig Lee: provides detailed account of simultaneous race riots at time of Johnson-Branch incident throughout the prison. 

Summary of Ineffective Counsel Issues 

1)      Mr. Blanchard did not have experience with inmate homicide cases.

2)      Mr. Blanchard had little interaction with Branch for pretrial strategy and frequently ignored Branch’s requests.

3)      Mr. Blanchard failed to effectively cross examine government witnesses.

4)      Mr. Blanchard failed to properly identify key witnesses on the video.

5)      Mr. Blanchard failed to show the jury a detailed map of B-2 for the jury to understand where witnesses were

6)      Mr. Blanchard did not effectively argue key issues: allowing expert testimony in, allowing Johnson’s record into evidence, did not pursue psychological examination of Branch, and weak cross examination of government witnesses

7)      Mr. Blanchard failed to effectively argue Branch’s position of self-defense which is confirmed by prison surveillance.   Mr. Blanchard failed to competently use the very piece of evidence that exonerates Branch: the prison surveillance videos.