What do law clerks do? Former law clerk Edward Lazarus wrote a book about his experiences during what he termed the “dog days” of the court’s term, March and April. He lists some of the duties of the law clerks:
[D]rafting majority opinions, drafting dissents, drafting concurrences (opinions that agree with the result reached by the majority opinion but for somewhat different reasons), writing “bench memos” (which help a Justice prepare for a case the Court is about to hear), writing post-oral argument memos (which amend views set forth in bench memos), commenting on draft opinions, dissents, and concurrences circulated by other Chambers, recommending which new petitions for certiorari the Court should grant, and advising on emergency applications, often including last-minute requests for stays of execution.6
Given that insight, who really makes law?
There is a considerable distance between the offices of a court clerk and the prison cell, yet the vagaries of the clerk’s duties visit profound consequences on the inmate. For many men in Huntingdon State Prison, that distance of class, space, and power was bridged by the intercession of a committed jailhouse lawyer.
Steve Evans taught what he learned about the law to as many men as he found were patient enough to study. There are now dozens of people all around the state who have learned from him.
The problem was, as much as he tried, Steve couldn’t get anything really cooking on his own case. It’s the bane of jailhouse lawyers. They seem to be able to help everybody but themselves. With his aggravated assault case—Steve said he shot a dude who was trying to shoot him—he couldn’t buy a new trial. Yet, win or lose, he continued to try to get a good result. He fought as long and as hard as he could.
Steve never obtained the key to his own case, and maxed out—did the maximum sentence. As he prepared to leave Huntingdon Prison and return to his beloved family home in Virginia, he was served notice of a long-forgotten federal detainer—a legal order forbidding his release to anywhere but federal custody—and snatched straight into federal custody, where his fight for freedom began anew.
This was not to be. Disheartened by the turn of events, after nearly a decade of living in the hole, smoking—as he used to joke—“like a Cherokee,” rarely exposed to fresh air or sunlight, Steve died of lung cancer while imprisoned in Lewisburg Federal Prison in Union County, Pennsylvania, near Bucknell University.
Before he died, one of his students, a remarkable autodidact named Warren Henderson, would make his teacher proud—as well as break his heart.
Warren Henderson
Warren was a young man who came to Huntingdon after the ruinous street wars of the 1970s had raged like a tsunami through North Philadelphia. Like far too many coming from the city’s decaying public schools, he was poorly educated and could barely read.
Locked in the hole for years, Warren found that the only companions he could count on (other than his “old-head” Steve) were books. So, through force of will, he taught himself to read. And once those strange black scribbles on paper began to make sense to his brain, he broke the bank of learning and reading.
He didn’t just love reading, he loved books, and scoundrel that he was, he became what Steve jokingly called a “biblio-kleptomaniac”—a notorious book thief. Any book that came into his hands would be quickly and thoroughly devoured—and then would mysteriously disappear!
One day, returning from the yard, I glanced into his cell, only to find him sitting in the very center of the cell, with his feet tucked beneath him like a Zen monk. On the floor were four thick books, placed around him like cardinal points of a compass.
Having never seen such a sight before, I asked him what was he doing.
“I’m readin’, Mu,” he innocently answered, as if it were obvious to any slug with a brain.
“Four books—at one time?”
“Sure,” he replied, with his distinctive high-octave voice, as if it should’ve been obvious to a dim-witted child.
“But, why . . . ?”
“I gotta get ’em read before the guards come in and take ’em!”
I recognized among the books one I sent him a few days before. It was Miguel Mármol, Salvadoran poet Roque Dalton’s remarkable biography of the Latin American revolutionary. I began questioning Warren about the early chapters and he answered each question promptly and correctly.
He spoke about the other texts just as easily.
“But, Warren—how do you read four books at the same time?”
“I read one chapter from one book, then spin around to the next book, and then the next, until I finish them all.”
“And you don’t get mixed up or confused by switching from one book to the next—one storyline to the next?”
“Nope—it’s fun that way! You don’t do that?”
“Don’t do that? I can’t do that, man! Stuff’ll get all jumbled up!”
“C’mon, Mu—stop playin’, man.”
Warren was serious. But I never saw the copy of Mármol again.
Warren would ship hundreds of books home to his mother. When I asked him about it, he said, “When I get home, I’ma start a community library, so kids in the ’hood can grow up readin’ these books.”
When Warren went home, however, he wouldn’t get the chance to build his dream. He got into a conflict with another young man in the informal drug industry and was convicted of slaying the man. He was sentenced to life in October 1991. While awaiting trial, he was also charged with stabbing a man to death at the since-closed (and later reopened) Holmesburg Prison in Philadelphia.
Warren, well schooled by Steve Evans, acted as his own attorney at the murder trial where there was no shortage of jailhouse snitches. The jury was out for six hours before they returned with their verdict.
Not guilty.
Even the trial judge had to admit, “You did a good job representing yourself.”
Warren calmly responded to the verdict, “It took a long time to prove my innocence.”7
He had no GED.8 He had no college degree. He had no law degree. But he had years of tutelage under Steve Evans, jailhouse lawyer. Evans’s instructions doubtless saved him from death row.
Warren learned many things in the hundreds of books he swiped and read, among them a deep love of reading and a hunger for writing. He’s written and self-published several books on his rough-and-tumble upbringing in North Philadelphia. His first work, published in 2005, was City of Nightmares: BQ4775, a book as raw and as original as its author.
Warren also read his share of law books. Through long years of reading, as well as enduring Steve’s late-night lectures, Warren Henderson learned the law.
The Law of Jailhouse Lawyers
In prison as elsewhere, as we have seen, law is what the judge says it is. What published opinions claim, in all their legal niceties, matters little.
For jailhouse lawyers, one of the fundamental cases is Johnson v. Avery, a 1969 U.S. Supreme Court decision that rejected Tennessee’s punishments