The Clemency Petition
THE GOVERNOR OF THE STATE OF NEW YORK
HONORABLE ANDREW C. CUOMO
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A PETITION FOR
NICHOLAS ZIMMERMAN, 02A1663 CLEMENCY ON BEHALF OF
Petitioner NICHOLAS ZIMMERMAN (BASED ON A CLAIM OF ACTUAL INNOCENCE)
- against -
THE QUEENS COUNTY DISTRICT ATTORNEY
THE WESTCHESTER COUNTY DISTRICT ATTORNEY
THE COMMISSIONER OF THE DEPARTMENT OF CORRECTIONS
The Defendants
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TO THE HONORABLE ANDREW C. CUOMO, GOVERNOR OF THE STATE OF NEW YORK:
1. This is a Petition for Clemency on behalf of Nicholas Zimmerman, 02A1663. This Petition is based
on a Claim of Actual Innocence. This Petition challenges the convictions in indictments 3296-98
(Queens County) and 04-0960 (Westchester County) as unconstitutional, not supported by substantial
evidence and the product of malicious prosecution. This Petition also challenges Mr. Zimmerman’s ten
(10) year Solitary Confinement sentence on the grounds of Cruel and Unusual Punishment. As you will
see, Mr. Zimmerman’s innocence is supported by overwhelming evidence in all three (3) cases.
However, the Court system has yet to make a fair and just decision based on the facts of the cases and
the numerous constitutional violations contained herein. Therefore, based on the evidence detailed
below, Mr. Zimmerman and the 300,000 plus supporters who have read and signed this Petition are
asking for Mr. Zimmerman’s immediate release from Solitary Confinement and incarceration.
POINT I. INDICTMENT # 3296-98
CRIMINAL POSSESSION OF A WEAPON (aka)
“THE NAKIA STUBBS CASE”
In 2001, Mr. Zimmerman was convicted and sentenced to Fifteen (15) years in prison for the
charge of Criminal Possession of a Weapon in the Second Degree. The conviction hinges on
the
testimony of Nakia Stubbs, who alleged that in 1998 she rented her Jeep Cherokee to
Mr. Zimmerman and Mr. Zimmerman’s then-girlfriend, Jatanya Belnavis. There was a dispute
between the three over the amount to be paid for the rental agreement, which ultimately lead to
Stubbs demanding the return of her jeep. After her requests to Belnavis for the return of the jeep
went unanswered, Stubbs and three of her friends went to the Belnavis’ home at 3:00 a.m. in
search of the jeep.
Belnavis testified that Stubbs and her two friends came to her home at 3:00 a.m. blowing their
horn, ringing her doorbell, and claiming they were “gonna shoot up her house” if they didn’t
get the jeep back. One of Nakia’s friends appeared to have a gun, as he kept his hand by his
waistband area. Belnavis became nervous and called a nearby friend named Nandi Cooper for
help. Minutes after Belnavis placed this phone call, three men appeared on the scene and
attacked Nakia.
Stubbs testified that one of the three men had a gun and threatened to kill her, while the other
two searched her for weapons and at some point during the ordeal the man with the gun fired
it into the air before fleeing the scene of the crime. After the attack, Stubbs went to the 105th
precinct in Queens and told Detectives that Belnavis’ boyfriend “Sean” attacked her (Sean is
a nick-name that Nicholas Zimmerman used). Also, she later testified at trial that
Mr. Zimmerman attacked her. However, during a candid interview with Private Investigator
Kevin W. Hinkson, Nakia Stubbs signed a sworn affidavit admitting under oath that she was
“never absolutely certain that Nicholas Zimmerman attacked her.” She told Mr. Hinkson that
A.D.A. Leigh Bishop of the Queens County District Attorneys office threatened to have her
arrested and held in jail if she did not implicate Mr. Zimmerman in the case. She also confirmed what
many people involved in the case already knew; that Stubbs had no prior familiarity with Mr. Zimmerman
before she was attacked and that she could not identify Mr. Zimmerman at trial as her attacker, but only
did so at the direction and insistence of A.D.A. Leigh Bishop. An in-depth investigation and report was
conducted in the Nakia Stubbs case in the form of a Federal Habeas Corpus Petition (See Appendix A –
Legal Briefs by Nicholas Zimmerman / The Nakia Stubbs case). The Petition contains overwhelming
evidence of Mr. Zimmerman’s innocence, such as seven (7) affidavits from alibi witnesses
who watched Mr. Zimmerman perform at a Long Island nightclub at the same exact time that
Nakia Stubbs alleged that he attacked her. Affidavits from two (2) eyewitnesses to the crime
that say they saw the men that attacked Stubbs and that it was not Nicholas Zimmerman.
Contracts, fliers, and documents that show that Mr. Zimmerman was scheduled to perform at
Club Jam-Roc at the same time that Nakia was attacked. And most importantly, a tape recorded
conversation between Nakia Stubbs and Nicholas Zimmerman in which she openly discusses,
in-depth, how A.D.A. Leigh Bishop coerced and manipulated her into identifying Zimmerman
as her attacker. Therefore, based on the aforementioned information and the documents in
Appendix-A, Mr. Zimmerman is requesting that you grant him Clemency in indictment
#3296-98.
POINT II. INDICTMENT # 04-0960
ATTEMPTED ESCAPE
IN THE FIRST DEGREE (aka)
“THE SING SING CASE”
In June 2005, Mr. Zimmerman was convicted of attempting to escape from Sing Sing
Correctional Facility and sentenced to 12 ½ to 25 years in prison (It is important to note
that Judge Dibella of Westchester County ordered this sentence to run consecutively to
Mr. Zimmerman’s first sentence of 15 years). This conviction is illegal and unconstitutional
for one main reason: Mr. Zimmerman never “attempted” to escape from Sing Sing.
The allegations surrounding this complex conviction was that Mr. Zimmerman was involved
in a conspiracy with Jatanya Belnavis, Tamara Johnson, and others to help break him out of
Sing Sing in May of 2003. The case received national, and even international media coverage
as reporters spoke of the “brazen escape attempt at Sing Sing.” However, the true facts of the
case were never displayed to the media and much of it was not even allowed into the trial.
Once again, an in-depth investigation and report was conducted in the Sing Sing case in the
form of a Federal Habeas Corpus Petition (See Appendix B – Legal Briefs by
Nicholas Zimmerman / The Sing Sing Case).The Petition contains overwhelming
evidence of Mr. Zimmerman’s innocence and the numerous blatant constitutional violations
in the case. As you will see, there was no evidence introduced at trial that Mr. Zimmerman
attempted to leave the grounds of Sing Sing and the testimony of the alleged accomplices
involved in the case was never corroborated, as required by New York State law. Therefore,
based on the above information and the documents in Appendix-B, Mr. Zimmerman is
requesting that you grant him Clemency in indictment #04-0960.
POINT III. MR. ZIMMERMAN’S TEN
YEAR SOLITARY CONFINEMENT
SENTENCE AMOUNTS TO CRUEL &
UNUSUAL PUNISHMENT
(aka “The Joseph Wolczyk Hearing”)
After Mr. Zimmerman was convicted in Court of the escape attempt charges, the Department
of Corrections designated Hearing Officer Joseph Wolczyk to conduct a disciplinary hearing
against Mr. Zimmerman based on the same escape allegations. At the completion of the
hearing, Wolczyk would find that there was no evidence that Mr. Zimmerman attempted to
escape from Sing Sing C. F. and dismissed that charge. However, Wolczyk did find that there
was evidence that Mr. Zimmerman violated Rule 1.00 of the Department of Corrections Rules
and Regulations, which holds that: “Department sanctions may be imposed based upon a
criminal conviction.” Therefore, simply because Mr. Zimmerman was convicted in an outside
courtroom Wolczyk decided to go way outside the boundaries of fair discipline and sentenced
Mr. Zimmerman to an amazing ten years of solitary confinement. Based on the two arguments
set forth below, Mr. Zimmerman requests that you grant him Clemency on the ten-year solitary
confinement sentence.
THE TEN YEAR SOLITARY CONFINEMENT SENTENCE VIOLATES THE DOUBLE
JEOPARDY CLAUSE OF THE CONSTITUTION:
Initially Mr. Zimmerman was placed in solitary confinement under the guise of “Administration
Segregation” based on an “ongoing investigation of an escape attempt at Sing Sing CF”
Mr. Zimmerman would remain in Solitary Confinement under Administrative Segregation
from May 2003 through June 2005 (more than 2 years) because of the “ongoing investigation.”
Eventually, Mr. Zimmerman would be convicted of the escape allegations in June 2005 and sentenced
to 12½ to 25 years. This sentence was ordered to run consecutively to Mr. Zimmerman’s 15-year
sentence he was already serving.
Based on the June 2005 conviction, Mr. Zimmerman was sentenced to ten years in SHU after being
found guilty of violating Rule 1.00. In all, Mr. Zimmerman would be sentenced to 12 years in SHU
solely because of the conviction in Westchester County. The above events violate Mr. Zimmerman’s
rights against Double Jeopardy.
DISCUSSION
“The Double Jeopardy Clause provides that no one shall be subject for the same offense to be twice
put in jeopardy of life or limb. U.S. Const. amend. V. The Clause protects against both a subsequent
prosecution for the same offense after acquittal or conviction as well as multiple punishments for the
same offense.” U.S. V. Hernandez - Fundora 58 F3D 802 (2nd Cir.1995) quoting U.S. V. McCormick
992 F2D 437 (2nd Cir. 1993)
“A prisoner who commits crime in prison violates both prison rules and criminal laws, and may thus
be sanctioned both internally, to carry out goals of penal institution, and through criminal prosecution,
to vindicate public justice, without violating double jeopardy, so long as disciplinary sanction does not
stray so far beyond bounds of separate state interest in maintaining prison order that sanction can only
be viewed as constituting criminal prosecution.” People V. Vasquez 655 NYS2D 870 (Ct. App. 1997)
applying U.S. V. Halper (109 Sct. 1892)
“We recognize that a prison disciplinary sentence might be found to be so harsh and extreme as to
invoke double jeopardy protections.” People V. Echevarria 658 NYS2D 523 (3rd Dept. 1997)
“The Court was careful to note that its analysis was “a rule for the rare case” where a fixed penalty
provision subjects a (prolific) but (small gauge) offender to a sanction overwhelmingly
disproportionate to the damages he has caused.” People V. Vasquez 655 NYS2D 870 (Ct. App. 1997)
United States V. Halper (109 Sct. 1902)
Mr. Zimmerman in the instant case is a “prolific” but “small gauge” offender with a
“sanction disproportionate” to the damages he has actually caused.
THE INSTANT CASE:
Mr. Zimmerman has been punished a total of (3) times for the same exact offense. The (2) two years
spent in Administration Segregation from May 2003 to June 2005, was indeed, “punishment.” While
in segregation, Mr. Zimmerman was subject to the same rules and regulations as prisoners who have
been sentenced to disciplinary time. Being confined for 23 hours a day, only receiving 2 showers a
week and 1 visit a week, with no personal property, no phone calls, no commissary and limited
personal mail, all constitutes, “punishment.” Even more, the Supreme Court in Hewitt V. Helms 103
Sct. 864 has held that more than 6 months of Administration Segregation is punishment.
Even more troubling is the fact that Mr. Zimmerman’s placement in segregation was a guise to force
Mr. Zimmerman to admit to a crime he didn’t commit.
After serving 6 months in segregation and developing high blood pressure, Mr. Zimmerman was
forced to succumb to the Department of Corrections and the State Police and gave an involuntary
statement which implicated himself in an escape attempt, at Sing Sing C.F. At a subsequent “Huntley
hearing” in Westchester County, Judge Dibella would suppress the statement, agreeing that it was
involuntary because D.O.C.’s had placed Mr. Zimmerman in solitary for no other reason but to obtain
the statement. These events by the State prove that Mr. Zimmerman’s stay in segregation was punitive
and was “overwhelmingly disproportionate” to the State’s interest, simply because the State did not
have to place Mr. Zimmerman in solitary for 2 years. They only wanted to get a statement.
Second, Mr. Zimmerman was again punished by the imposition of the 12½ to 25-year sentence, and
the sentence is “overwhelmingly disproportionate.” Normally, after a defendant is convicted at trial
he/she is sentenced to the top count of the indictment and given the maximum. In this case,
Mr. Zimmerman was given the maximum on each count he was convicted of, and each count was
ordered to run consecutive to each other, adding up to 12½ to 25 years, and the new sentence was to
run consecutively to Mr. Zimmerman’s 15-year sentence he was already serving. At a normal sentence,
Mr. Zimmerman would have received 3½ to 7 years for the top count of the indictment.
Mr. Zimmerman’s sentence was “overwhelmingly disproportionate.”
Third, Mr. Zimmerman was punished again by the imposition of the 10-year sentence in SHU, and the
sentence was solely based on the escape conviction. For instance, Mr. Zimmerman was initially
charged with Bribery 103.10, Escape 108.10, and 1.00 Penal Law Offenses. At the hearing, Wolczyk
found that there was no evidence that Mr. Zimmerman attempted to escape or bribed anyone and so he
dismissed those charges. However, based solely on the Westchester conviction, Wolczyk found
Mr. Zimmerman guilty of Rule 1.00 Penal Law offenses, and sentenced Mr. Zimmerman to 10 years in
the SHU. This sentence is “overwhelmingly disproportionate.”
The fact that Mr. Zimmerman was found not guilty of the more serious charges, and only found guilty
of the lesser charge, but still given 10 years, shows that Wolczyk had a bias against Mr. Zimmerman
from the start and was not fair and impartial. Notably, prisoner’s have been found guilty in criminal
proceedings in the past and then punished by D.O.C.’s for violating Rule 1.00, but never has a prisoner
been given this much time for Rule 1.00. For instance, in Howard V. Pierce 981 F. Supp 190 the
prisoner violated Rule 1.00 and was only given 60 months in SHU for committing a murder while in
prison. Likewise, prisoners with much worse offenses have been given less SHU time:
Giano V. Kelly 869 F. Supp 143 “20 months in SHU for escape” Linz V. Sullivan 541 NYS2D 563
“5 years in SHU for setting a fire and escape” Hoyer V. Coombe 638 NYS2D 514 “365 days for escape”
Williams V. Coughlin 593 NYS2D 570 “5 years for a riot.”
It should be noted that people were actually hurt in those cases. No one was hurt in Mr. Zimmerman’s
case and there were no damages done to any government property. The 10-year sentence in SHU for
simply being convicted at trial is “overwhelmingly disproportionate.”
THE HUDSON FACTORS
Most recently, the 2nd Circuit court of appeals re-evaluated its decision in United States V.
Hernandez-Fundora 58 F3D. 802 (1995). Although the Court did not overturn the case, it did recognize
that in light of the Supreme Court’s decision in Hudson V. United States 118 Sct. 488 (1997), it would
start to apply the “Hudson Factors” when evaluating a claim of Double Jeopardy. Therefore, for the first
time, the Court of Appeals applied the Hudson factors to the case of Porter V. Coughlin – Docket No. 03
-0273 - decided Aug. 31, 2005.
In that case, Porter was indicted and convicted of promoting prison contraband, based on allegations
that he possessed a homemade knife during a riot at Southport C.F. Porter was given an additional 3
to 6 years in prison. Based solely on the conviction, Porter has issued a disciplinary infraction and was
found guilty of violating Rule 1.00 and given 5 years in SHU. In evaluating Porter’s Double Jeopardy
claim, the 2nd Circuit used the following factors:
“1) Whether the sanction involves an affirmative disability or restraint 2) Whether it has historically
been regarded as a punishment 3) Whether it comes into play only on a finding of scienter 4) Whether
it’s operation will promote the traditional aims of punishment – retribution and deterrence 5) Whether
the behavior to which it applies is already a crime 6) Whether an alternative purpose to which it may
rationally be connected is assignable for it, and 7) Whether it appears excessive in relation to the
alternative purpose assigned” Porter V. Coughlin 03-0273.
The Court agreed that the first 5 Kennedy factors (the factors in Hudson originated in
Kennedy V. Mendoza-Martinez 362 U.S. 144) “appeared to support Porter’s argument that the
disciplinary proceeding is criminal in nature, rather than civil.” However, “the last two Kennedy
factors weighed heavily against Porter.” The Court of Appeals found that Porter’s claim must fail
“because the actual sanction he received was not at all excessive in light of the events that prompted
it.” Basically, the 3 to 6 year sentence and the 5 year SHU sentence was not “overwhelmingly
” for a riot and shank. With this we agree, however, the sanction imposed in Mr. Zimmerman’s case
more than doubled Porter’s sanction.
Similar to the defendant in U.S. V. Halper 109 Sct. 1892, Mr. Zimmerman in the instant case was
sentenced to more time than he should have been for the felony he was convicted of – and – he was
given more time than he should have been for the charge he was found guilty of at his disciplinary
hearing.
In Halper, the defendant was convicted of, inter-alia, 18 U.S.C. 287 based on his submission of 65
inflated Medicare claims each of which overcharged the Government by $9. He was sentenced to 2
years imprisonment and fined $5000. The Government then brought an action against Halper under
the civil False Claims Act, 31 U.S.C. 3729-3731. The remedial provisions of the False Claims Act
provided that a violation of the act rendered one “liable to the United States Government for a civil
penalty of $2000, an amount equal to 2 times the amount of damages the Government sustains because
of the act of that person, and costs of the civil action. Given Halper’s 65 separate violations of the Act,
he appeared to be liable for a penalty of $130,000, despite the fact that he actually defrauded the
Government of less than $600. However, the District Court and subsequently the Supreme Court,
agreed that a penalty of this magnitude would violate the Double Jeopardy Clause and refused to
impose that sanction. We are asking that those same principles be applied to the instant case as the
10 year SHU sentence, following the 12½ to 25-year criminal sentence for the same offense is violative
of the Double Jeopardy Clause.
THE DEFENDANT’S ARE PRECLUDED FROM RELITIGATING THE (SAME) ESCAPE
ALLEGATIONS.
The allegations of an escape attempt at Sing Sing C.F. has already been “fully and fairly” litigated in a
prior proceeding, that being the Westchester County Court. The exact allegations were re-litigated by
D.O.C.’s in the instant disciplinary proceedings and the disciplinary violation in question is 100% based
on the Westchester conviction, that being Penal Law 1.00. No (new) evidence was introduced at the
disciplinary hearing that was not introduced at the trial. In fact, Defendant Wolczyk relied on the
Westchester conviction as an “aggravating factor.” In reality, this was his (only) factor as he had
dismissed all the other charges. Therefore, since the SHU time is only based on the fact that Mr.
Zimmerman was convicted in Westchester County, it must be dismissed on issue preclusion grounds.
“The determinative issue is whether the issue in question has been fully, fairly and conclusively litigated
by the parties, at their request, in a quasi-judicial proceeding” Allied Chemical V. Niagra Mohawk
Power 532 NYS2D 230.
THE TEN YEAR SOLITARY CONFINEMENT SENTENCE VIOLATES THE CRUEL & UNUSUAL
PUNISHMENT CLAUSE OF THE CONSTITUTION:
Discussion on the history of Solitary Confinement and its Physical and Mental Effects:
1. In 2005, the Commission on Safety and Abuse In Prison conducted a year-long investigation into
the effects of prison life and, more specifically, the effects of Solitary Confinement. The Commission
consisted of attorneys, federal circuit judges, advocates, psychiatrists, wardens, medical doctors,
prisoners, prosecutors, correctional officers, major generals, senators, FBI agents, Sheriffs etc.…
At the end of the inquiry, all of these professionals agreed upon one thing: “End conditions of isolation
and make segregation a last resort”. (See “Confronting Confinement, a Report by the Commission
on Safety and Abuse in America’s Prisons” by Commission Co-Chairs John J. Gibbons and
Nicholas de B. Katzenbach.)
(Download the FREE report at www.Prisoncommission.org)
2. Several experts gave testimony before the commission about their knowledge of Solitary
Confinement. Psychologist and University of California Professor Craig Haney, who has
interviewed hundreds of prisoners in segregation, has said they are “utterly dysfunctional when they get
out”. (See page 52 of the Commission Report) Lawyer Fred Cohen stated that segregation has become
a “regular part of the rhythm of prison life” @ 53 finding that people who pose no real threat to anyone
are languishing in solitary confinement for years @ 52. Psychiatrist Stuart Grassian, who studied the
effects of solitary confinement for 20 years found symptoms of anxiety, confusion, and hallucination
and sudden violent and self-destructive outbursts in the prisoners in solitary. Grassian labeled this the
“SHU Syndrome” @ 58 and other experts before, and after Grassian, has observed the same symptoms
in prisoners. (Brodsky and Scogin 1998, Fisher 1994, Haney 1993, Haney 2003, Kupers 1999,
Rhodes 2004, Toch 1975.) @ 58. The American Correctional Association warned the inmates whose movements are restricted in segregation units may develop symptoms of acute anxiety or other mental
problems”. @ 60 The commissioners found that “a record of 44 prisoners killed themselves in
California prisons in 2005, and 70 percent of those suicides occurred in disciplinary segregation units”.
@ 59. In the end, the Commission found that in light of all the evidence, we should accelerate this
trend: Stop isolating people and ensure segregated prisoners have a regular meaningful human contact
and are free from extreme physical conditions that cause lasting harm” @ 59.
3. Peter Scharff Smith of the University of Chicago also published a report about Solitary
Confinement called “The Effects of Solitary Confinement on Prison Inmates” (See 34 Crimes &
Justice 441) Much like the Commission Report; the Smith report confirmed that solitary confinement
causes serious mental health issues.
4. The report confirms that solitary confinement is “physical isolation of individuals in which they are
confined in their cells for around 23 hours per day”. The Commission also agreed upon this definition.
The report explains that “general psychological distress increases with the increase of restriction” and
that “inmates in segregation reported more feelings of inadequacy, inferiority, withdrawal, rage, anger,
aggression”. @ 8 and “though a few studies reached discordant findings, the vast majority document
significant negative health effects arising from solitary confinement”. @ 8.
5. Currently, Mr. Zimmerman is being housed at Attica C.F. which is notorious for ignoring prisoners
who have languished in solitary for years or who have a serious mental illness. The insensitivity about
Attica Staff has been documented as far back as 1999: “Many researchers report difficulties in learning
about symptoms of isolation since many prisoners hide their condition. Inability to cope maybe
perceived by the prison guards as a weakness, a weakness many prisoners try hard not to reveal,
but even if prisoners reveal such weaknesses, they may be interpreted by prison staff as attempts at
manipulation to get special treatment. A Human Rights Watch Report describes how staff at Attica
C.F. were pre-occupied with not being ‘conned’ or manipulated by prisoners. Even self-mutilation can
be interpreted in that way” @ 17. Surprisingly, the article details that “serious symptoms can occur in
healthy individuals after only a few days or weeks in isolation and that each day in isolation was likely
to continue a risk that is heightened the longer the isolation continues”. @ 29.
6. Another article written by Jules Lobel entitled Prolonged Solitary Confinement and the
Constitution (See Journal of Constitution Law, Vol 11:1 December 2008) quotes Tommy Silverstein’s
definition of solitary confinement: “It’s like a toothache, a slow constant peeling of the skin, stripping
of the flesh, the nerve wracking sound of water dripping from a leaky faucet in the still of the night
while you’re trying to sleep”. (Mr. Silverstein has been in solitary confinement for 25 years!) @ 116.
A prison in Sweden likened solitary confinement to “a well built machine – a nightmare for the spirit”
@ 118. Solitary Confinement in Auburn C.F. was proven to be fatal to the majority of prisoners.
It devours the victim incessantly and unmercifully; it does not reform, it kills”. @ 118. District Judge
Henderson found that “some inmates spend time simply pacing around the edges of the pen; the image
created is hauntingly similar to that of caged felines pacing in a zoo”. @ 119 “to confine someone in
isolation for many years seems extreme – akin to a death sentence for life” @ 122. The International
American Court of Human Rights found that “Prolonged isolation and coercive solitary confinement
are, in themselves, cruel and inhumane treatment, which damages the person’s moral and psychic
integrity”. @ 123. The United Nations Committee Against Torture “has recommended that the
practice (of Solitary Confinement) be abolished altogether” @123. The European Commission of
Human Rights observed that it is generally acknowledged that all forms of solitary confinement
without appropriate mental and physical stimulation are likely, in the long term to have damaging
effects”. @ 124. What is most important about the Jules Lobel piece is that it points out that even in
the
case of a convicted terrorist who was considered “the worst of the worst”, and a second terrorist who
was convicted of “killing thousands of people” were sentenced to 8 and 6 years respectively, in solitary
confinement for their crimes, but the European Committee on the Prevention of Torture still called
upon the Turkish Government to release them out of segregation. @ 124. Of course, in the instant case,
Nicholas Zimmerman is no terrorist. He was simply convicted of attempted escape in Westchester
County Court, but was later found not guilty of the same escape attempt by the New York State
Department of Corrections?
7. An amici curiae brief was filed in the case of Wilkerson v. Austin 2005 WL 539137 (2005).
Thi
brief
was affirmed and co-signed by more that eight medical and mental health doctors that all agreed with the
writings of Attorney, Michael E Deutsch Esq. In the Brief Mr. Deutsch highlighted that solitary confinement
“imposes an atypical and significant hardship” on prisoners…. Because “prisoners (now) experience levels of
isolation and behavioral control that are more total and complete and literally dehumanized than has been
possible in the past”. @ 7 “Some jurists soon recognized that solitary confinement was a greater evil than
certain death and it was reported that prisoners in solitary beg, with the great earnestness, that they may be
hanged out of their misery”. @ 8 “A person exposed for the first time to isolation develops…anxiety,
frustration, and depression” @ 10 and that “prisoners even after one week of solitary confinement
experienced levels of sensory deprivation”. @ 10. The brief compared the technique used to “break the will”
of a subject to solitary confinement and found them to be one in the same. @ 11 It is also found that “human
beings cannot endure significant levels of uncontrollable stress for long periods of time without psychological
harm… and… the more prolonged and complete the isolation, the greater the risk of harm”. @ 11.
8. Psychiatrist Frank Rundell recalled the “madness” he saw working in the solitary unit as prisoners
“set their mattresses on fire, tear their sink and toilets from the wall, ripping their clothing and bedding and
destroying their own personal property to escape the torture of their own thoughts and despair.” @ 11 One
solitary unit in main reported that “almost all their prisoners had attempted suicide”. @12. “Some prisoners
lose the ability to initiate or control their own behavior, or to organize their personal lives… Some prisoners
become uncomfortable with small amounts of freedom because they loose confidence in their own ability to
behave without constant restrictions to which they have become accustomed” @16 Psychologist Michael
Jackson found that “The study of isolated Canadian prisoners revealed that the single most important factor
in the segregated inmates description of the effects that solitary confinement had upon them was the prisoners
experience of the justice or injustice of his segregation” @17.
9. In 2005, the Correctional Association of New York conducted an inquiry into the complaints among
prisoners at Attica C.F. Among other things, they “were struck by a widespread sense of fear and intimidation among inmates.
” (See correctionalassociation.org and download the Attica Correctional Facility Report 2005) “Reports of staff physically
abusing inmates and retaliation by officers against inmates who file complaints about the staff were extensive” @ 1 “Inmates…
reported that the administration is unable to halt the pervasive violence and abuse by the officers”. @ 1 Even the Correctional
Officers who unjustifiably assault prisoners admit “Attica is not a fun place for inmates”. @ 10 “It takes an exceedingly long time
to process visitors, significantly shortening the length of visits. @ 10 and that “Female visitors face sexual harassment”. @ 9
“The most consistent complaints was the problem of staff abuse, which apparently takes several forms, including physical abuse,
inappropriate force, intimidation during pat frisks… shutting off inmates lights or water or denying them meals and recreation, etc…
” @ 5
10. And lastly, the fight to end solitary confinement is not an old issue, and in fact it is still a hot topic. On October 17th, 2011
The Metro New York newspaper reported that the United Nations was holding meetings with religious and human rights groups
to discuss ending the practice of solitary confinement, nationwide (See www.Metro.us “Isolation In Prison Akin to Torture:
Group” October 17th 2011).
Discussion on the history of the 8th Amendment and how the Courts apply it to the issue of Solitary Confinement:
11. “The state, even as it punishes, must treat its members with respect for their intrinsic worth of human beings. A punishment is
Cruel and Unusual therefore if it does not comport with human dignity. (See Furman v. Georgia 92 Sct 2726)
12. “ The Eighth Amendment’s ban on inflicting Cruel and Unusual Punishment…proscribes more than physically barbarous
punishment; it prohibits penalties that are grossly disproportionate to offense, as well as those that transgress today’s broad and
idealistic concepts of dignity, civilized standards, humanity and decency”. (See Hutto v. Finney 98 Sct. 2565 @ 2565)
13. “Confinement in prison or in an isolation cell is a form of punishment subject to scrutiny under the Eighth Amendment
standards” @ 2565
14. “Punitive isolation is not necessarily unconstitutional, but it may be, depending on the duration of the confinement and the
conditions thereof”. @2571
15. “A penalty also must accord with dignity of man, which is the basic concept underlying the Eighth Amendment. This means
at least, that the punishment not be excessive… Second, the punishment must not be grossly out of proportion to the severity of the
crime” (See Gregg v. Georgia 96 Sct 2909)
16. “It is equally plain, however, that the length of confinement cannot be ignored in deciding whether the confinement meets
constitutional standards. A filthy, overcrowded cell and a diet of grue might be tolerable for a few days and intolerably cruel for
weeks or months” @2571
17. “Eighth Amendment claim may be established by proof that the inmate was subjected for a prolonged period to bitter cold”.
@164(collecting cases) and that proof of unsanitary conditions (excrement in front of a prisoner cell door for days) may violate the
constitution. (See Gaston v. Coughlin 249 F3D 156 @166)
18. “The record shows, what anyway seems pretty obvious, that isolating a human being from other human beings year after year
or even month after month can cause substantial psychological damage, even if the isolation is not total”
Davenport v. DeRoberts 844 F2D 1310 (7th Cir. ’88 @ 1313)
19. “A considerable number of prisoners fell, after even a short confinement, into a semi-fatuous conditions, from which it was next
to impossible to arouse them, and others became violently insane; others still committed suicide; while those who stood the ordeal
better were not generally reformed, and in most cases did not recover sufficient mental activity to be of any subsequent service to the
community” (See In Re Medley 10 Sct 384 @386)
20. Also see Madrid v. Gomez 889 FSupp 1146 (Finding the risk of isolating prisoners with mental illness or those likely to develop
a mental illness is unreasonable and violates the 8th Amendment.) Inmates of Occoquan v. Barry 650 FSupp 619 (holding that housing
prisoners with serious mental illness in segregation unit is inappropriate) Casey v. Lewis 834 FSupp 1477 (condemning placement and
retention of prisoners with mental illness on lock down) Gates v. Cook 376 F3D 323 (the isolation and idleness of prisoners,
combined with the squalor, poor hygiene, temperature, and noise of extremely psychotic prisoners create an environment toxic to
the prisoners mental health).
21. Based on the above reasons, Mr. Zimmerman is requesting that you grant him Clemency on his ten-year solitary confinement
sentence. While confined in solitary, Mr. Zimmerman has been diagnosed with clinical depression by two mental health doctors,
diagnosed with high blood pressure by three medical doctors and has attempted suicide on several occasions. It is without question
that solitary confinement causes serious mental illness and we are requesting that Mr. Zimmerman be released from solitary immediately.
POINT IV. MR. ZIMMERMAN’S RIGHT TO
RUN HIS BUSINESS IS
PROTECTED BY THE FIRST
AMENDMENT OF THE CONSTITUTION.
In addition to the ten-year solitary confinement sentence by Wolczyk, officials at Auburn Correctional Facility and Attica Correctional Facility has buried Mr. Zimmerman in another six years of solitary confinement time based on his insistence to continue to operate his website, www.FREENicholasZimmerman.com. The Department of Corrections position is that Mr. Zimmerman is “running a business” in violation of 7NYCRR by selling a book, CD and other products through his website. Mr. Zimmerman’s position is that he does not own the website, book, CD, etc. and does not make money from it, but even if he did, his right to do so is protected by the First Amendment of the United States Constitution. Once again, an indepth investigation and report was conducted in the form of an Article – 78 Petition (See Exhibit C – Legal Briefs by Nicholas Zimmerman / My Right To Run A Business Is Protected By The First Amendment). This Petition will show that Mr. Zimmerman’s Freedom of Speech Rights were violated when the Department of Corrections punished him for operating his website. Although this Petition only challenges Mr. Zimmerman’s conviction for (one) disciplinary infraction dealing with running a business, he has (five) other disciplinary infractions for the same issue, totaling six years of solitary confinement time. Therefore, if you find it in your heart to grant Clemency on the enclosed disciplinary infraction, we ask that you grant Clemency on the five remaining infractions, as well. We strongly agree that Mr. Zimmerman does have a right to run his business, so long as it doesn’t involve “fraud, encourage violence and/or burden prison resources” as the 3rd Circuit found in Abu-Jamal V. Price 154 F3D 128 (3rd Circuit 1998).
Therefore, we request that you grant Mr. Zimmerman Clemency on all the above issues. We thank you for your time and consideration on this matter and look forward to hearing from you in the near future.
Cc: Nicholas Zimmerman 02A1663
Attica Correctional Facility
P. O. Box 149
Attica, NY 14011
The Family and Friends of
Nicholas Zimmerman
c/o Madison Avenue Entertainment Group
P. O. Box 8455
Alden, NY 14004
Email: TheMAEGMovement@gmail.com
Phone: 518-400-0917
THIS PETITION IS ENDORSED AND SUPPORTED BY:
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1. The Zimmerman and Willis Family (TheFamily@FREENicholasZimmerman.com)
2. The F.O.C.I.S. MOVEMENT (Focis@TheFocisMovement.com)
3. Madison Avenue Entertainment Group (MAEG@MAEG.com)
4. FREENicholasZimmerman.com (Hello@FREENicholasZimmerman.com)
5. Rev. Al Sharpton (contact info)
6. Senator Chuck Schumer (contact info)
7. Senator Vehementa Montgomery (contact info)
Etc…etc…
THE FOLLOWING PEOPLE HAVE SIGNED THIS PETITION:
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