“With the average life expectancy of a juvenile serving life without parole at 50.6 years, 40 and 60-yr. sentences are virtual life sentences”–John O’Hair
State statutes bar use of “good time” credits when re-sentencing juvenile lifers; many would be released immediately otherwise
SADO ignores Retired Judges Assn., former Wayne Co. Prosecutor O’Hair, others condemning state statutes; forges ahead with plea bargaining, not Miller mitigation hearings
Charles Lewis’ motion: “The defendant asks this court to be guided by the U.S. Supreme Court, because the proponent before this Court is not the defendant but the U.S. Constitution,” citing USSC Chessman v. Teets ruling on death penalty case where trial transcripts were corrupted
Lewis expected to be present in person at Oct. 11 hearing in front of Judge Lillard
By Diane Bukowski
October 7, 2016
DETROIT – As an October 11 hearing date for Charles Lewis approaches, it is becoming clear that the state of Michigan, county prosecutors, and many defense attorneys are conspiring to keep most of the state’s juvenile lifers locked up until they die.
This is despite two U.S. Supreme Court decisions, Miller v. Alabama (2012), and Montgomery v. Louisiana (2016), which declared juvenile life without parole unconstitutional, “cruel and unusual punishment,” to be applied only to the “rarest” of children.
Lewis, now 58, is one of 63 juvenile lifers that Wayne County Prosecutor Kym Worthy still wants to die in prison, the highest actual number of any county in the state. He has already served 41 years, on murder charges he has always maintained are false.
Lewis filed a motion with Wayne County Circuit Court Judge Qiana Lillard to dismiss his case, due to multiple constitutional violations including the complete loss of any record of his conviction. He wants it to be heard at his Oct. 11 hearing, scheduled for 9 a.m. in courtroom #502 of the Frank Murphy Hall of Justice.
Judge Lillard said on the record at his last hearing Sept. 6 that she would “writ him out” to be present and to spend one hour meeting with attorney Valerie Newman prior to the hearing.
In Lewis’ motion, he says in part, “The United States Supreme Court said in Chessman that the proponent before the Court was the Constitution of the United States, not the petitioner. The defendant asks this court to be guided by the United States Supreme Court, because the proponent before this Court is not the defendant but the United States Constitution.”
In Chessman, the USSC vacated the conviction of a prisoner facing a death sentence because of the loss of the original transcripts of much of his trial. The stenographer died leaving hundreds of pages untranscribed. Chessman contended the transcripts produced by another stenographer were corrupted.(See link to ruling at end of story.)
Lewis says he is being held unlawfully without any sentence in violation of due process of law under the Sixth and Fourteen Amendments.
The U.S. Supreme Court specifically vacated his conviction and sentence after its Montgomery decision this year, which declared juvenile life without parole unconstitutional on a retroactive basis. It then remanded Lewis’ case, along with others, to the Michigan Supreme Court, which again vacated his sentence pending a hearing under the Miller decision.
However, Lewis says, such a hearing cannot be held without his case file. He cites part of the Miller decision as follows:
“Mandatory life without parole for a juvenile precludes consideration of his chronological age and its hallmark features–among them, immaturity, impetuosity and failure to appreciate risks and consequences. . . .It neglects the circumstances of the homicide offense and the extent of his participation in the conduct . . . .Indeed, it ignores that he might have been charged convicted of a lesser offense if not for the incompetencies associated with youth.”
Even Michigan’s 2014 state statute regarding re-sentencing hearings, MCL 725.6, says that evidence from an individual’s trial may be produced on his behalf.
In Lewis’ case, six witnesses at the scene of the 1975 killing of off-duty police officer Gerald Swypitowski, including SwAypitowski’s partner Dennis Van Fleteren, testified for the prosecutor that the shots that killed Swypitowski came from a white Lincoln Mark IV.
Van Fleteren copied its license plate number and the driver, Leslie Nathanial, was arrested, but inexplicably later released after denying his involvement. A co-worker told VOD that Nathanial was a bookie at the plant where they worked.
The witnesses also said they saw no other vehicles or individuals in the area at the time of the killing, despite contradictory testimony from three minors police had evidently recruited, who claimed they and Lewis drove a yellow Ford Gran Torino to rob Swypitowski.
On cross-exam, Lewis’ defense attorney was able to pin down the first group of witnesses’ testimony more firmly by quoting from reports that they gave police after the killing, which indicated they did indeed hear a gunshot and saw a shotgun blast coming out of the Mark IV.
The defense attorney also got the medical examiner to refute police claims that Swypitowski was shot from a distance of two feet, instead indicating that he could have been shot from as far away as seven feet, consistent with the first witnesses’ testimony that it was a drive-by shooting. (VOD has reviewed a copy of the first transcript of this trial that was retained by a Lewis relative.)
In violation of state law, the only record of Lewis’ case is a file folder kept by Judge Lillard with scattered documents inside. VOD obtained a copy of the motion from Lillard’s office and unsuccessfully attempted to get it properly recorded with the County Clerk’s Criminal Division.
Lewis says he cannot file his motions with that Clerk’s office because they have no file on him, despite the fact that they maintain a falsified Register of Actions on his case, listing only events from his alleged conviction in 2000 to the present. Lewis was actually convicted in 1977 and had multiple post-conviction and appeal hearings after that, none of which are in his record. See a full copy of his motion at http://voiceofdetroit.net/wp-content/uploads/CLmotion.pdf
VOD has contacted Wayne County Clerk Cathy Garrett and scheduled a meeting with her regarding such gross abuse of criminal court records in this and other cases. It is the County Clerk’s responsibility to oversee and ensure the safety and veracity of court files, not the individual judge’s.
In Judge Lillard’s case, her objectivity has been questioned before. Wayne County Criminal Court Chief Judge Timothy Kenny removed her earlier from the Theodore Wafer case after defense attorneys contended she had been a prosecutor and maintained close ties with Prosecutor Kym Worthy and others in her office through Facebook contacts and other means.
Wafer was later convicted by Wayne County Circuit Court Judge Dana Hathaway of second-degree murder in the case of Detroiter Renisha McBride, 19, who he shot to death on his front porch without cause after unlocking and opening a solid door.
Lillard’s staff denied she is a niece of Kym Worthy, as several individuals have alleged, but she would not come to the phone to deny it herself.
Valerie Newman of the State Appellate Defenders’ Office (SADO) earlier refused to file a motion to dismiss Lewis’ case, instead plea bargaining for a 40-60 year sentence, as SADO appears to be doing for the majority of its juvenile lifer clients. This is despite the fact that state statutes regarding juvenile lifer re-sentencing specifically exclude the use of a prisoner’s “good time” credits, which could let many go free immediately.
Dawn Van Hoek, SADO’s director, has once again not responded to VOD’s phone call and email regarding SADO’s stance in handling juvenile lifer re-sentencings.
Newman has also not addressed Lewis’ innocence claim, refusing to call “alibi witnesses” who never testified at his trial, a factor cited in a Sixth Circuit Court of Appeals remand of his case. Such innocence claims are a prime issue in juvenile lifer cases, because many such individuals had no access to paid attorneys and were not familiar with legal processes.
John Hall, 67, the juvenile lifer featured in a Detroit Free Press article on his re-sentencing (see link below), was forced to admit his guilt although it was questionable, forego all right to appeal, and apologize to the alleged victims, according to an informed source, in order to be re-sentenced to 40-60 years after already serving 50 years. Michigan’s Parole Board generally requires an admission of guilt before paroling prisoners as well.
“With the average life expectancy of a juvenile serving life without parole at 50.6 years, 40 and 60-year sentences are virtual life sentences,” former Wayne County Prosecutor and circuit judge John O’Hair said in an article published Sept. 22. (See box above).
O’Hair called for the federal government to step in to remedy Michigan’s position, which distinguishes it as a rogue state. He noted that many county prosecutors have re-recommended life without parole for 100 percent of their juvenile lifers, relying heavily on statutes passed by the state legislature in 2014, unlike 38 other states which have banned JLWOP completely.
“Our Legislature amended the juvenile sentencing statute to ostensibly follow Miller,” O’Hair wrote. “The statute retained the ability to impose a life without parole sentence and allowed the courts to impose a minimum sentence of 25 to 40 years, and a maximum sentence of 60 years. With the average life expectancy of a juvenile serving life without parole at 50.6 years, 40 and 60-year sentences are virtual life sentences.”
Attorney Deborah LaBelle told VOD, “It is a terrible mistake for Michigan to keep going down this path, when that sentence is on its way out. Thirty-nine states have now abolished it for all youth or haven’t used it for anyone under 18.”
LaBelle’s federal case, Hill v. Snyder, is still being argued before U.S. District Court Judge John Corbett O’Meara, who ruled in 2013 that all Michigan’s juvenile lifers are eligible for parole. The state appealed, but lost at the Sixth Circuit Court of Appeals, which remanded the case to O’Meara. Human Rights Watch cited this case in an amicus brief filed with the Inter-American Commission on Human Rights in 2014.
“The United States is alone in the world in its widespread use of life-without-parole sentences for children, and these sentences are a direct consequence of its practice of prosecuting children as adults,” said Alba Morales, US criminal justice researcher at Human Rights Watch,” a release from Human Rights Watch said.
LaBelle said the next hearing on Hill v. Snyder will take place in O’Meara’s court in Ann Arbor on Nov. 3, 2016 at 10 a.m.
VOD spoke with Retired Judge Peter E. Deegan, Vice-President of the Michigan Retired Judges Association, who said O’Hair proposed the resolution they passed Sept. 22 at the State Bar Association of Michigan’s Annual Meeting in Grand Rapids.
“Several of us felt very passionately about this issue,” Judge Deegan said.”As retired judges with the wisdom gained from years of experience, we are very careful to pick out issues that are relevant and will be beneficial to criminal justice in our courts. This was a desperately needed conversation with Miller when it first came down. We felt that our voices needed to be heard. The conversation is developing. Hopefully it will get to reflect where we should be now in America and how we should treat our youth.”
Judge Deegan read the resolution to VOD over the phone.
It says in part, “. . . . for almost a year the state of Michigan has employed a failed re-sentencing process, placing a heavy burden on the funds and human resources of state and local units of governments and often requiring victims’ families to revisit [painful past memories.]” It calls on Michigan to forego the resentencing process and replace it with a declaration of parole eligibility for all juvenile lifers, as 38 other states have done.
The full resolution is linked below this story. Judge Deegan has himself written passionate articles for the Port Huron Times-Herald on this matter, also linked below.
Former Michigan Gov. William Milliken also wrote an article denouncing juvenile life without parole sentences, linked below. He said in part that the following organizations have also passed anti-JLWOP resolutions: the American Probation and Parole Association, American Correctional Association, National Association of Counties, National PTA, American Bar Association, American Psychological Association, Boys Scouts of America, Council of Juvenile Correctional Administrators, U.S. Conference of Catholic Bishops, Evangelical Lutheran Church in America, General Synod of the United Church in Christ, Jesuit Conference, Muslim Public Affairs Council, Union for Reform Judaism, United Methodist Church General Board
VOD asked Holly Kramer, the press representative for Michigan’s Parole Board, about the board’s stance regarding re-sentenced juvenile lifers.
VOD asked in part whether the board has received training in the Miller and Montgomery cases, met to establish specialized procedures for these individuals, or plans to expedite their hearings.
VOD also asked, “Is anything being done to speed up programming for release of these offenders while in prison so their parole is not delayed, considering they have been serving sentences that have been declared unconstitutional on a retroactive basis? Some of these juvenile lifers are in fact innocent, due to their financial inability to retain their own attorneys, their lack of knowledge of the judicial system, and to other factors. Will declarations of innocence be held against them by the parole board?”
Although these questions were emailed two days ago, Kramer stated there were technical difficulties in received repeated copies. She gave the following statement on behalf of the parole board, which skirts the issues involved entirely.
“The Parole Board has significant experience in reviewing a wide variety of cases, including those of youthful offenders that were sentenced to long indeterminate sentences. While some of these juvenile lifer offenders might be newly eligible for parole, the types of cases are not new to the board in terms of handling them.”
Apparently the real answer to VOD’s questions is that newly sentenced juvenile lifers would not be treated differently than anyone else.
That is not good news for them, since many prisoners experience repeated “flops” from the parole board. Since its conversion from a civil service entity to a board appointed by the governor under former Michigan Governor John Engler, the parole board has released fewer and fewer prisoners every year. Many are serving time far beyond their earliest release date.
S0-called “parolable lifers,” such as John Alexander used to be paroled beginning after 10-15 years, but Engler’s appointed parole board head Stephen Marschke declared, “Life means life.” Alexander has now spent 35 years in prison and is awaiting his next parole hearing. A class action lawsuit filed for the parolable lifers earlier eventually petered out. A few such as Kenneth Foster-Bey have finally been released far beyond the times their judges expected them to serve, indicating the continuing recalcitrance of Michigan’s parole board.
In Alexander’s case, his sentencing Judge, Michael Sapala, said he expected Alexander to be released with evidence of rehabilitation after 10 years. But Alexander has been behind bars for 36 years, despite obtaining a doctoral degree in theology, teaching ant-recidivism classes to prisoners, accumulating numerous work-related certificates, and maintaining his long-time marriage, among other accomplishments.
The Michigan Citizens Alliance on Prisons and Public Spending reported in 2013, “The proportion of paroles granted declined from 68% in 1990 to 48% in 2002. In 2010, it was 56%. At the end of 2010, a total of 9,322 prisoners were past their earliest release date. Nearly 1,200 people were required to “max out.”
Michigan’s current budget calls for over $2 billion to be spent on prisons. A report from the U.S. Department of Education said that from 1979 to 2013, Michigan increased spending on schools by 18%. During that same time period, the state increased spending on corrections by 219%.
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