DHO Report & Response

On January 26^th of this year (2015) I got a letter from my girlfriend that included some pictures of a famous French child model named Thylane Blondeau. For whatever reason my girlfriend sent me these pictures, it was not because I had asked her to. Thylane is famous for her «sexy» pictures, but none of her pictures are pornographic or against prison policy. The letter I received was opened an inspected by the mail room, and the pictures it contained were prominent and unconcealed in anyway. So when I received these pictures I had no reason to believe I was not permitted to have them. They were literally issued to me by the prison through the mail.

Then, on February 13^th (18 days later) a guard found one of these pictures of Thylane in a folder of drawing materials (I had drawn one of the pictures, of Thylane's face only, as a gift for my girlfriend because she said she liked the model's expression in the pictures), and he thought it «appears to be child pornography». 

Two months later there was a hearing by the «DHO» (Disciplinary Hearing Officer). I presented evidence (copies of Federal laws and B.O.P. policies) that showed that the picture was «perfectly legal» (i.e. did not violate any prison policies or Federal laws), and I even provided a copy of the letter that the picture came in (that showed clear references to the picture and explained why it was sent) to show that the picture had in fact been issued to me «through regular channels».

The DHO ignored the evidence (Federal laws and B.O.P. policies) and declared that the picture had been issued to me «by human error», for which I was responsible for. He found me guilty and imposed an unusually harsh sanction.

The cover of his report confirms the dates and times and other administrative information:

 

The DHO included a copy of the written statement that I provided him at the hearing in his official report. In this statement I clearly reference and explain all the evidence I presented, including a copy of the letter that accompanied the picture proving it was authorized and issued to me.

I also gave the DHO a supplementary statement concerning any supposed «threat» to the «orderly operation of the institution» hoping to thwart any accusations in that regard. The DHO included this in his report also.

 

 

Under «findings» in his report, the DHO fails to mention the hard evidence I presented him, and proceeds to completely distort and misconstrue Federal laws (by inventing his own definition for «child pornography» from dictionary definitions instead of using the Federal law definition that I gave him at the hearing) and B.O.P. policies (claiming that because I am a sex offender that special restrictions apply to me).

But, B.O.P. policy, the same «Program Statement» that the DHO references in his report as evidence against me, says very plainly that special restrictions for sex offenders can only be applied at SOMP (Sex Offender Management Program) institutions, and then only after an evaluation by specially trained psychology staff.

Of course, I am not at an SOMP prison, and no «special restrictions» have ever been set for me. So, I wrote a detailed response/appeal for the DHO's B.S... 

This appeal was rejected by the Regional Office because it was too long. So I shortened it to one page and resubmitted it. Please follow the "Child Porn" Update posts on 5NChronicles to find out what happens, and for more details about this incident, hearing, and appeal.

Request For Administrative Remedy

The following facts were presented in writing and verbally to the DHO at the DHO hearing for I/M Duncan on April 15, 2015:

  ¤ Program Statements generally authorize inmates to receive and retain letters with enclosed pictures that are inspected for compliance with B.O.P. POLICIES (P5800.16 «Mail Management Manual» - Exhibit D)*

  ¤ The confiscated pictures in this case were issued to I/M Duncan by authorized staff in a letter that was opened and inspected by the mail room on 1/26/2016 (see redacted cop of letter with highlighted clear references to the confiscated pictures – Exhibit C)*

  ¤ The confiscated pictures do no depict nudity, and are not sexually explicit, as specifically defined by B.O.P. policies (P5266.15 «Incoming Publications» § 540.72 (b) «Definitions» for «Statutory Restrictions»)

  ¤ The confiscated pictures in this care are patently NOT «child pornography» or «sexually explicit» according to Federal Law definition (18 USC 2256 (8) – Exhibit B)*

  ¤ Only the Warden (or Acting Warden) may restrict mail that is potentially detrimental to the orderly operation of the institution (P5265.14 «Correspondence» § 540.14 (d) and P5266.14 «Incoming Publications» § 540.71 (b)). 

  ¤ The Warden must advise the inmate in writing when mail is restricted, and provide specific reasons for the restriction (ibid.). (Exhibit A)*

  ¤ I/M Duncan has never received notice of his mail being restricted for any reason for the Warden or any other official.

  ¤ I/M Duncan voluntarily submitted all other pictures of «partially nude» (but not «sexually explicit») children that were issued to him in the mail as evidence of the past authorization of such pictures (Exhibit E)*.

* All Exhibits marked above were presented to the DHO, along with a two-page statement, prior to the hearing on April 15.

After the above facts were explained to the DHO at the hearing, he said: «It doesn't matter what [the law says ... I say that] this is definitely child pornography.» He then found me guilty of «Possession of anything not authorized for retention or receipt by the inmate, and not issued to him through regular channels.» (305) contrary to the facts and his duty to obey B.O.P. directives. The DHO deliberately and flagrantly disregarded numerous directives, and the U.S. Constitution, in order to find me guilty and illegally punish me because of my «crimes against children».

The following provisions of the disciplinary policy were either ignored or deliberately contradicted by the DHO at the hearing for inmate Duncan on April 15, 2015:

  ¤ §541.2, Part 3 (c) «Staff control inmate behavior in an impartial and consistent manner».

  The DHO was neither impartial or consistent. He made numerous references during the hearing to my «crimes against children», which I took reasonably to be the cause of his bias. His disregard for laws and policies in light of the facts is clear evidence of bias. His findings and punishment were inconsistent with the evidentuarily established pattern of routinely authorized pictures of children I have received via regular channels (mail) in the past. In fact, the DHO referred to this evidence (Exhibit E) during the hearing as «proof» of my guilt, even though I had voluntarily submitted it for review after I was accussed of having «child pornography», as evidence that established a consistent pattern of authorizations. The DHO ignored this consistency, and acted inconsistent with past «staff control» of «inmate behavior».

  ¤ §541.8 (b) «... The DHO will be an impartial decision maker...» (see above)

  ¤ §541.8 (f) «... The DHO will consider all evidence presented during the hearing. The DHO's decision will be based on at least some facts and, if there is conflicting evidence, on the greater weight of the evidence...»

  The DHO ignored the facts and evidence. There was no conflicting evidence except what existed in the mind of the DHO (i.e. bias).

  ¤ §541.2, Part 3 (d) «Disciplinary action may not be capricious or retaliatory.»

  The DHO said during the hearing, «It doesn't matter what that says...» after I had just read him the Federal Law definition of «child pornography». This is a capricious disregard for the law.

Numerous other directives, laws, and prisoner rights were also ignored and contradicted by the DHO by his actions during this hearing. The DHO's abuse of authority is clear and palpable, but my own personal principles prevent me from even suggesting what his sanctions should be. I only hope that he somehow is compelled to understand that the consequences of his actions (for everyone) are far more serious than he presently seems to imagine.

I, Joseph E. Duncan III, swear that the above is the truth as I know it, and that I have made no attempt herein to either deceive or mislead anyone.

Joseph E. Duncan III

April 27, 2015

"Child Porn" Statement In My Defense

To whom it may concern, in regards to the Incident Report filed on 2/13/2015 by c/o Hill indicating that he found a picture that «appears to be child pornograph» in the cell that I, Joseph Duncan (12561-023, SCU Cell C-404), currently occupy.

After receiving notice of this incident report it took me some time to figure out what picture c/o Hill was concerned about. I do not keep child porn, or any porn, in my cell, and I knew I had no pictures that fit that description (which I indicated verbally to the lieutenant who served me the notice). But, after looking through my letters and other property I soon discovered that a page of printed pictures that I had not yet filed with my other letters as I usually do was missing. Since I knew that one of the images on this page was of a bare chested prepubescent girl, I assume this was the picture that «appeared» to be child pornography to c/o Hill. It was also the only picture I found missing.

I had not filed this page with the letter it came in because I drew one of the other pictures on the same page as a gift for a friend. The picture I drew is clearly indicated on the page by the grid marks I drew over it as a drawing aid.

According to Federal law, and B.O.P. Program Statements, none of the pictures on this page are pornographic, much less «child pornography». I have taken the time to prepare this statement which cites USCS 18 2256(8) for the definition of «child pornography» and various B.O.P. program statements which authorize me to have this picture (i.e. Program Statement inmate Correspondence).

Exhibit A (Program Statement) indicates that «sexually explicit» material is restricted when it is «contrary to law»; specifically, «child pornography which is prohibited by law». The key point here is that in order for a picture to be unauthorized as «child pornography» then it must be «prohibited by law»; not by how it «appears» to prison staff.

Exhibit B (USCS 18 2256) is the Federal legal definition (law) for «child pornography». The picture confescated from my cell is not «child pornography» by any interpretation of this definition. It is not «sexually explicit» at all (according to the definition of «sexually explicit» also @ USCS 18 2256). The child in the picture is bare chested, but has no «breasts» (as defined by Merriam-Webster; «the pair of mammary glands extending from the front of the chest in pubescent and adult human females») and is by commonly accepted standards not «exposed». She is not engaged in sexually explicit conduct, she is not depicted in a sexual situation or location, and the intent of the photograph is not to arouse or stimulate sexual desires.

Even if a person is sexually aroused by this picture, or pictures like it (which I am not), then that does not make it «child pornography», any more than a picture of a woman's shoe is «pornographic» because it arouses a man with a shoe fetish. It must meet the lawful definition of «child pornography» before it is «unauthorized» by B.O.P. policy, against child porn.

The child in the picture is in fact Thylane Blondeau, a famous child model who is photographed professionally. I received this picture of her in a letter that was opened and inspected by mailroom staff before being issued to me. I did not (and never do) solicit this picture or any pictures of children at all, which the letter (Exhibit C, redacted) indicates (see boxed section of Exhibit C). The person who sent me this letter is aware of B.O.P. policies concerning «obscene» material, and she would not have sent it if she had any concerns about it causing trouble.

When I received this picture in the mail I had no reason to think it was not authorized. Exhibit D also indicates that it is the responsibility of mailroom staff to ensure that inmates do no receive contraband. It was very reasonable for me to assume that this picture had been viewed and deemed «authorized» before it was given to me. The fact that it was found in «the open» in my cell (not hidden, and not with other pictures) supports this. I had no reason to hide it.

Exhibit E (pages 1-5) shows copies of other images that have been «authorized» by the mailroom. I do not collect images like this, and the only reason I have these compiled is in my defense. (It took me several hours to go through my property and find these images – I never had reason or the desire to bring them together before now.) These images also show «bare chested» (male and female) children, and even provocative pictures, but none of them are «unauthorized» or «child pornography».

The pictures I have been authorized to have in the past clearly establish a pattern of permitted pictures that the picture in question falls into easily. Again, I had no reason to think it was not authorized! even if it wasn't.

If a mistake was made in authorizing me to have this picture then it was not my mistake and I should not be held accountable for something I had no reason to suspect was awry. I had no way to know this image was «unauthorized» since it violates no laws, no B.O.P. policies, and I have received numerous images like it in the past (by pure coincidence, not intent). These images hold no special meaning for me, I don't «collect» them and never have.

P.S. Prior to this «Incident Report» I was fully aware of the Federal laws and B.O.P. policy regarding «child porn» because of my crimes. So I was well aware of the «boundaries» in such matters and hae always been careful not to cross them or even come close. This picture (in question) does not even come close, which is why I never questioned whether or not it was «authorized». 

Unanswered Mail

I've been receiving more mail than usual from people I don't know. But, I'm already corresponding with about a half dozen friends, and one girlfriend, who I have gotten to know via the mail since my arrest in 2005. So, I haven't been responding as I usually do to all the mail I receive, not even to just politely acknowledge the receipt of their mail.

I feel a little guilty about this, because all of these letters are well-wishing, and most seem like interesting people. I'm pretty sure that at least some would be genuine friends if I gave them the chance (by offering my friendship in return). But, I just don't have the time to spend on so much letter writing, and I honestly have a great bunch of friends already to keep up with, not to mention expositions to write for the Fifth Nail project.

So, I've decided to respond at once to all these unanswered letters in one “exposition” for the Fifth Nail Letters, and hope that those who have written and received no response from me will find this and know that I truly appreciate their support, and the time and effort they have taken to write to me. I read and careful consider the words of every letter I receive, so no one should ever feel ignored or unheard at least.

I have compiled the following comments in response to some recent letters, in no particular order:

P.H. from Utah: I hope your “research” is going well I responded to your last letter but have not heard from you since. So many people don't reply after my initial response that I often wonder why they wrote in the first place. Maybe I'm just not the person you expected, which makes me wonder what you expected.

D.G. of “Human Writes”, U.K.: Thank you for the X-mas card and offer to find me a pen-pal. But, I didn't reply for obvious reasons, though I support what you are doing (encouraging people to treat prisoners like people) and hope your agency prospers.

H.T. of “LifeLines” in Rotterdam: Again, I thank you for your offer of friendship, and I pray that you find meaning in your work. (Ditto for D.T. Of “LifeLines” U.K.)

L.H. of Killeen, TX: I never respond to people who want to “save my soul”, sorry; your ignorance astounds me. :(

K.F. of Battleground, WA: Wow! Dude! You really need to learn punctuation! :) But, thanks for your friendly letter.

J.S. of New Richmond, OH: You look really mean in your picture, but sound like a great guy in your letter. You seem like someone who could be a good pen-friend, so I hope you'll try writing someone else in prison who captures your interest. Good luck!

T.K. of Ohio Northern U.: I hope your research on “the popularity of serial killers in American culture” has turned up some interesting results. I'm sorry I couldn't reply to your questions, I honestly didn't know how to reply (maybe you should ask people why they are so fascinated with “serial killers” instead of asking “serial killers” why they think people are so fascinated by them; just a suggestion. :)

D.T. of Hamilton, Canada: Thanks for the fun pictures! :)

R.H. of “the Forum”, in Fargo, ND: Are you serious? If you knew anything about me (as opposed to the media image of a monster named “Joseph E. Duncan III”) then you'd know I never cooperate with people who sell a packaged and marketed version of the truth that they call “the news”. It's pure deception as far as I'm concerned, and I want nothing to do with it, thank-you-very-much.

C.J. of Augusta, ME: Love the X-mas card (cute puppy) and Santa's helper picture (nice legs), thanks!

J.P. of Brooklyn, NY: I let Judy Clarke (my lawyer) know you were asking about her, but she has yet to give me her permission to answer you. Since you don't work for any marketed media agency directly, and since you weren't asking about me or my case, I considered replying to your letter. But, without Judy's permission I can't, sorry.

M.C. of Mesquite, NV: “Criminology” is a pseudo-science at best and a religion at worst. Don't do it! (But, thanks for your support of the Fifth Nail.)

J.H. of Smelterville, ID: Yes, we had a very nice Christmas holiday meal here; thank you for asking. :) And I'd love to see some of your artwork, if you'd still like to send it, please do.

Z.M. of Lakeland, FL: Thank you for the B-day card and warm wishes. I liked the “kiddie” drawing, and thanks for supporting the Fifth Nail!

M.F. of Northeim, Germany: I hope you will continue reading the Fifth Nail and that it provides you with the insights you are hoping for. If you have any questions after reading it, please feel free to ask, and I'll answer what I can. Thank you.

Clara, of Italy! I have sent you several letters last year and this, but the card I got from you for X-mas does not seem to acknowledge my letters to you! Have you received them? Perhaps there is a problem with international mail service to Italy? I hope you see this and let me know! Your friend, Jet.

That's all for now, but, if I get more letters in the future that I cannot answer for any reason then I will at least try to mention them in an exposition like this one, and of course I will still try to answer as many letters as I can that my “heart” steers me to answer (as always).

[J.D. February 23, 2015]