March 1994: Mohamoud and Blair Cases -- The Importance of Counsel

Two cases on the court docket on March 15, 1994, underlined the importance of having legal counsel, both negatively by counsel’s absence and positively by his presence.

Mr. Mohamoud, a young black Somalian prisoner, faced a charge of fighting with another prisoner. When Mr. Mohammed was asked to plead to the charge, he asked who was it he was fighting with. Mr. Walters informed him that the offence report did not indicate the person. Mr. Walters asked the adviser, Mr. Demers, whether there were any other particulars of the offence. He replied there were not, but he did tell Mr. Mohamoud that this was the incident that happened on the tier in H Unit on February 24. Mr. Mohamoud, whose first language was French, at first seemed not to remember the incident but then said he did remember. However it was difficult to determine the degree of his understanding of either the proceedings or the particular offence. At one point Mr. Mohamoud stated, "Do I plead not guilty?." Shortly thereafter he stated that, "I did have a fight with another inmate" to which Mr. Walters responded "Do you want to plead guilty then?" Mr. Mohamoud stated, "I will plead guilty. There was a fight. I had injuries." Mr. Walters asked Mr. Demers whether he knew who the other inmate was. Mr. Demers said that it was Mr. Unger and that he had also been charged. Mr. Demers was asked for his recommendation on sentence and responded that because this was Mr. Mohamoud’s second charge of fighting within the month, he was recommending 20 days segregation which was the same sentence that was imposed on the first charge on March 1. Mr. Walters pointed out that this charge arose before March 1 and therefore it should be treated as a first offence. Mr. Mohamoud was asked if he had anything to say. He told Mr. Walters that he had been in segregation since last July and did not understand why he was being kept in Kent because he should be in a medium-security institution. He also said that he was trying to contact his Somalian community but could not get through because it was difficult to get telephone calls in segregation. He stated, "The only family I have is the Somalian community." Mr. Walters inquired of Mr. Demers whether Mr. Mohamoud had been put in segregation because of these charges. Mr. Demers replied that at the time of these charges Mr. Mohamoud was in H Unit but had been transferred back to segregation as a result of the charges.

Mr. Walters ruled that because this charge arose before the imposition of the first sentence he was going to impose 10 days segregation. Mr. Demers asked whether that was consecutive or concurrent to the 20 days on the other charge, and said that he would prefer it to be consecutive. Without any further discussion Mr. Walters made it consecutive. The hearing ended with Mr. Mohamoud saying that there were three other black prisoners on the range with him and that they were being discriminated against.

Mr. Mohamoud’s hearing clearly illustrated the need for representation by counsel. Mr. Mohamoud’s understanding of the proceedings was very limited and, based upon the initial exchange, it was impossible to say that his guilty plea was an informed one. Furthermore, there were no submissions made on his behalf as to whether the sentence should be concurrent rather than consecutive. I interviewed Mr. Mohamoud later that day and although he did seem to have some comprehension of the English language, his first language was French and he was at a clear disadvantage in trying to follow the proceedings in English. Although he had very little to say about the fight, he did tell me a number of things that would have been important to bring out in terms of mitigation of sentence. Shortly after this incident, while he was in segregation, another prisoner threw boiling hot water over his face and shoulder, severely burning him, and he showed me the scarred area of his shoulder and upper body. His return to segregation therefore had extremely negative consequences for him of which Mr. Walters was not made aware.

The second case on the March 15 docket involved Mr. Blair who was charged with possession of contraband. The offence report read, "Inmate Blair’s cell was searched at above time and date. A pair of broken scissors was found. It is apparent that they were being fashioned into an offensive weapon." The offence arose on February 15 and Mr. Blair has been in segregation since that date. Mr. Blair was represented by his legal counsel, Ken Beatch.

Officer Perry testified that he was instructed by Correctional Supervisor Ferguson to search Mr. Blair’s cell. Officer Perry and his partner, Officer Terrien, in the course of the search found a pair of scissors, one of the blades of which had been broken off. In response to a question by Mr. Walters, Officer Perry said that the scissors were found in Mr. Blair’s desk drawer. Officer Perry was questioned by Mr. Beatch:

Q Why do you say these are contraband?

A: It is deemed an offensive weapon.

Q: Because they are scissors?

A: No, because they were broken.

Q: Are inmates allowed to have scissors?

A: Only if they have a permit.

Q: Did Mr. Blair have a permit for these scissors?

A: Not that I’m aware of.

Q: How big were the scissors?

A: I’m not sure.

Q: Where they four inches, 6 inches or eight inches long?

A: They were about four inches.

At this point the scissors were retrieved from the contraband locker and were produced. They were about eight inches long and one of the blades had been broken off above the rivet. Mr. Beatch then continued his cross-examination of Officer Perry:

Q Other than the broken blade, these scissors are standard issue?

A Yes.

Q Do you know that Mr. Blair is involved in a hobby that requires the use of scissors?

A No, I didn’t know that.

Q When you found the scissors they were not hidden, were they?

A No.

Q The only reason you believe that the scissors were an offensive weapon was because of the broken blade, is that correct?

A Yes.

Q Was any effort made to resolve this case informally?

A Not that I’m aware of. In another case where a prisoner produced his permit for a pair of scissors that was the end of the matter, but Mr. Blair did not produce any permit in this case.

Q Did you make any inquiries of Mr. Blair regarding his possession of these scissors?

A No.

The next officer to give evidence was Officer Terrien who testified that while doing the search with Officer Perry the scissors were found in the drawer. While he did not find them himself he observed Officer Perry find them.

In cross-examination Mr. Beatch asked Officer Terrien:

Q Do you agree that the scissors were not hidden?

A No, I don’t agree. They were hidden.

Q Well, your partner says that they were not hidden but were found in the drawer.

A Well, if he says that, they were not hidden.

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