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Life sentence thrown out for Wyoming juvenile over prosecutor objections

Wyoming Supreme Court
Wikimedia Commons

Life sentence thrown out for Wyoming juvenile over prosecutor objections

The Wyoming Supreme Court threw out a lengthy sentence imposed on a teenager who was only 16 when he shot and killed another teenager.

Phillip Sam, who is now 18, was convicted of first degree murder and 12 counts of assault for the 2014 shooting of Tyler Burns. Sam was given an aggregate sentence that meant he was not not eligible for parole review until he was 70.

The U.S. Supreme Court previously held in Miller v. Alabama that automatic sentences of life without the possibility of parole for juveniles convicted of murder were unconstitutional. The Court in Miller allowed for such sentences only if the sentencing judge “[took] into account how children are different, and how those differences counsel against irrevocably sentencing them to a lifetime in prison.” The Court later emphasized that such sentences could only be imposed on “the rarest of juvenile offenders, those whose crimes reflect permanent incorrigibility.”

The first question for the Wyoming Supreme Court in Sam’s case was whether a chance for release in his 70s was the equivalent of a “lifetime in prison.”

The prosecution argued that Sam still had a chance at freedom.

The Wyoming Supreme Court rejected that argument.

Wyoming Supreme Court Justice Kate Fox, writing for the majority, held that that “[t]he prospect of geriatric release . . . does not provide a meaningful opportunity to demonstrate the maturity and rehabilitation required to obtain release and reenter society,” as required by the U.S. Supreme Court’s holdings.

Because Sam’s sentence was the practical equivalent of a life without parole sentence, Fox wrote, the trial court would have to have found that Sam was the rare exception of a juvenile whose “permanent incorrigibility” justified such an outcome. But because the trial court at sentencing “made the determination that Mr. Sam is not a juvenile so irredeemable that he deserves incarceration for the rest of his life,” the court held that the sentence he received violated the Eighth Amendment of the U.S. Constitution.

Sandburg disagreed with the Wyoming Supreme Court’s ruling and said the trial court had, in fact, considered all relevant factors before handing down the sentence.

“I think ultimately the court could do exactly what it did again,” Sandburg said.

Thanks to Jake Sussman.

Democratic candidates debate ahead of Brooklyn DA primary elections

Democratic candidates debate ahead of Brooklyn DA primary elections

Candidates sparred last month at a political forum hosted by VOCAL-NY in the race to become Brooklyn’s next District Attorney. The debate allowed community members to question candidates on myriad criminal justice issues, from wrongful convictions to protecting immigrants from deportation. According to recent polling, Eric Gonzalez, acting-District Attorney since Ken Thompson’s death in October 2016, leads the polls at 19 percent, with Vincent Gentile and Marc Fliedner trailing him at 14 percent and 10 percent, respectively. Ama DwimohAnne Swern, and Patricia Gatling are each polling at less than 10 percent. Meanwhile, around 40 percent of those polled said they were undecided about who to vote for in the September 12 primary.

The next forum will be tonight, August 29, during which candidates will specifically focus on police and criminal justice reform.

Here’s a recap on what we heard from the candidates last month. (Gatling was unable to attend last month’s forum.)

The Candidates

Marc Fliedner, the former chief of the Civil Rights Bureau under Thompson and the only openly gay candidate, opened the debate by immediately accusing acting-DA Gonzalez of corruption.

“You cannot vote for acting District Attorney Eric Gonzalez,” Fliedner said, asserting that Gonzalez has “committed more acts exhibiting a disregard for the rule of law, a lack of respect for victims, and out and out acts of corruption.” Fliedner also cited an example of Gonzalez refusing to prosecute a case because he is “political cronies” with the brother of the person who would be charged.

Gonzalez, who was recently endorsed by the Police Benevolent Association, said he believed he could end mass incarceration while continuing to keep cities safe. Gonzalez also said he wanted to reduce reliance on cash bail, continue to root out wrongful convictions, and protect immigrants.

Meanwhile, Anne Swern, who worked in the Brooklyn District Attorney’s office for 33 years and later as managing counsel for the Brooklyn Defender Services, reminded the crowd that the District Attorney wields the “most power” and discretion of any other actor in the criminal justice system. Swern said her experience on both sides of the courtroom gave her a unique perspective. Swern also said she would hire a statistician in her office to determine how the office’s actions and policies disproportionately affect people of color.

Vincent Gentile, a former Queens Assistant District Attorney and elected official, posited that he was the only candidate who had experience as both a prosecutor and politician at the state and local levels. Gentile also said that he is in a unique position to uncover wrongful convictions because he is the only former prosecutor not to have worked in the Brooklyn District Attorney’s Office. Gentile insisted that the office needed to address the ongoing opiate crisis in Brooklyn, which he said has caused more deaths than car collisions and homicides combined.

Ama Dwimoh, who worked as an Assistant District Attorney in Brooklyn for 21 years, prided herself on her past work on behalf of “voiceless” child victims by founding the first Crimes Against Children Bureau in the DA’s office in 1997. She said she left the District Attorney’s office in 2010 because her values differed from then-District Attorney Charles Hynes.

Wrongful Convictions

The moderator opened the debate by discussing last month’s exoneration of Jabbar Washington, who spent 23 years in prison. Washington was ultimately released because the Brooklyn District Attorney’s Office had failed to disclose that a key witness later confessed that she actually recognized Washington from the building she lived in — and not as the perpetrator of the crime. The moderator asked whether the candidates supported Brooklyn Borough President Eric Adam’s five-point plan to create an independent state commission to investigate and identify all of the players, including prosecutors, who were responsible for wrongful convictions.

All candidates agreed that they would support the commission, with Dwimoh emphasizing that she would “without a doubt,” Gentile stating “absolutely,” and Swern saying it is “really important,” and that her focus would extend beyond prosecutors to investigators, paralegals, and other actors in the office.

Gonzalez, however, sought to clarify that the commission’s scope was statewide and not necessarily focused on Brooklyn specifically. Gonzalez also emphasized that not a single wrongful conviction from the office could be associated with him. Gonzalez said he would be “very committed” to working with the commission, reminding listeners that his work in the Conviction Review Unit (CRU) began under Ken Thompson in 2014, and that the unit’s work has led to the uncovering of 23 wrongful convictions.

Gentile, Dwimoh, and Fliedner shot back at Gonzalez, asserting that the CRU’s work lacked transparency and noting that the investigations have failed to identify the systematic flaws that led to the miscarriages of justice. Gonzalez responded that his office regularly discusses those underlying causes, but Fliedner then cited a recent example of a man who waited 9 months in jail before the prosecutor finally disclosed an exculpatory 911 call, which led to the dismiss of the case.

Closure of Rikers Island

A former defense attorney asked the candidates what policies they would implement to ensure the speediest closure of Rikers Island, New York City’s main jail complex that has been the focus of intense criticism. Most candidates deflected on the actual logistics of closing the complex and instead offered potential ways to reduce the city’s jail population.

Gentile cited the case of Kalief Browder as proof that the jail facility was “not working” and suggested that judges should know the financial status of defendants before they set bail.

Swern lambasted prosecutors for offering non-jail plea deals but then later seeking bail if those plea offers were rejected. Swern also stated that she would push the office to not overcharge (which leads higher bail amounts), reform discovery rules to engender “honest conversations” between prosecutors and defense attorneys, and use alternative sentencing programs, such as drug and mental health treatment, to their “full capacity.”

Fliedner remarked that he would not prosecute the “litany of broken windows” offenses, which he called “survival offenses.” Dwimoh went further, stating that she would “send home all misdemeanor defendants” under an expanded pretrial supervision program. She emphasized that pretrial detention does not reduce recidivism.

Gonzalez promised that he would be fair and only ask for bail when it’s necessary, noting that Brooklyn sets the lowest bail in the city. Swern shot back, stating that although Brooklyn has historically set lower bail, the District Attorney must “go further” to close Rikers Island.

Bail Reform

A community member stated that he had been tricked into going to a police station for an interview to tell his side of the story in a family dispute, but was instead immediately handcuffed, arrested, and spent the night in jail. He said that even though he had never missed a court date, the prosecutor asked for $3,000 bail, and the court eventually set it at $1,000. The man could not afford to post his own bail and said the Brooklyn Community Bail Fund posted it on his behalf — making him one of over 2,000 other people who have benefited from the fund’s services. He asked whether the candidates could commit to not seeking bail amounts that people could not afford.

All candidates agreed that bail reform was necessary, but Dwimoh and Fliedner took the strongest positions supporting the elimination of cash bail for low-level offenses. Dwimoh also said she would expand pre-trial supervision to reduce the system’s reliance on bail.

Swern stated that she would support legislation that would increase the cap on the Brooklyn Community Bail Fund, which stands at $2,000. She also noted that people return to court when they are given a Metrocard and reminded of their court date.

Accountability in Police Shootings

Community members asked what the candidates would do to ensure accountability in police shooting cases. Hertencia Petersen, the aunt of Akai Gurley, a young black man who was shot in 2014 by NYPD Officer Peter Liang, accused Gonzalez of mishandling the prosecution against Liang, who ultimately received a sentence of five years probation and 800 hours of community service. Petersen praised Fliedner for being the only person in the District Attorney’s office to return her calls during the case.

Swern boasted that she took a police officer to trial in 1989 for killing a black man, which led to prison time. Swern also said she supported the creation of a bureau that would specifically investigate those cases.

Fliedner highlighted his role in prosecuting Liang and says he left the office when it chose to recommend a non-jail sentence over his objection. Fliedner criticized out the District Attorney’s office for failing to communicate openly with Gurley’s family members, lamenting that the family found out about the non-jail sentence recommendation from the media before they heard from the District Attorney’s offices.

Dwimoh agreed with Fliedner, calling the lack of transparency a “moral outrage.” She said she would insist on appointing special prosecutors to handle police shooting cases.

Gentile stated that the District Attorney’s office needed to be transparent. Citing the Eric Garner case, Gentile said he would have released the grand jury transcript as a way to increase the public’s confidence in the work of the District Attorney’s office.

Gonzalez led the case against Liang and asserted that the Brooklyn District Attorney’s Office was the first in the city to held a police officer accountable.

Broken Windows

A community member asked whether the candidates would decline prosecuting all “broken windows” offenses, including park trespassing, turnstile jumping, and minor drug possession.

Dwimoh asserted that broken windows policing has disproportionately impacted minority communities, and promised to either divert or dismiss those cases.

Swern warned that diversion of cases would not go far enough to address the underlying problems with broken windows policing.

“We need to be honest about [this],” Swern stated. “Referring [defendants] to a system that continues to penalize poverty is not the answer. In the theft of services issue, they said 25 percent of those issues will remain in the criminal courts. Why is that?”

Neither Gonzalez nor Gentile would commit to refusing to prosecute low-level offenses. “I’m looking to divert drug cases as a health issue,” Gonzalez said. “I also stated I would follow [Manhattan DA Cy] Vance’s lead [to stop prosecuting turnstile jumping].” Fliedner questioned why those policies have not already been enacted.

Gentile refused to categorically dismiss broken windows cases, stating they would be handled based on the “skill and analysis” of individual prosecutors in the office.

Protecting Immigrants Against Deportation

A community member asked what measures the candidates would take to ensure that New York acts as a strong counterweight to immigration policies coming out of Washington, D.C.

All candidates strongly agreed that they would do their best to ensure that immigrants do not face criminal charges that will result in an unwarranted deportation. Dwimoh accused the country of being “at war with immigrants” and promised to create a special unit in the office that would protect and advocate on behalf of immigrants.

Swern recalled her time at the Brooklyn Defender Services, where she learned that unrepresented immigrants were 80% more likely to be deported or forced to “voluntarily depart.”

Fliedner said he would ensure that his prosecutors fulfilled their “moral and ethical obligation” to individually consider the immigration consequences a defendant may face.

Gentile said he would support legislation that would protect misdemeanor defendants from automatic deportation by changing the maximum number of days they can be sentenced from 365 days to 364.

Topics that were not covered at last month’s forum include whether the candidates support civil asset forfeiture reformthe prosecution of gravity knife offensesthe prosecution of opiate offenses, or reforms to New York’s discovery laws.

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Kym Worthy refuses to admit fault, again

Wayne County Prosecutor Kym Worthy
Wayne County

Kym Worthy refuses to admit fault, again

In 1996, a 12-year-old girl named Christina Brown was found dead in a Detroit apartment. She had been beaten to death with a toilet tank lid; she’d also been stabbed. Lamarr Monson — who had been living with and dealing drugs with Brown thinking she was older — came home and found her dead. He called for the neighbors to dial 9–1–1.

Monson became an immediate suspect. Authorities thought Brown had been stabbed to death, so they tried to connect Monson to the knife found in the apartment. “This case can be closed with a confession from Monson,” one police report read. Police somehow coerced Monson into giving some inconsistent statements incriminating himself by supporting their original (and wrong) theory of the crime. Monson went to trial and was convicted of first-degree murder.

The Michigan Innocence Clinic at the University of Michigan Law School, led by David Moran, fought for Monson’s freedom based on DNA evidence found on a knife used to murder Brown. The DNA belonged to Robert Lee Lewis, who had actually been the original suspect identified by his girlfriend, who said that Lewis had confessed to her at the time of the crime. The witness had come forward previously, but then changed her mind because Lewis had threatened to kill her and her family. She recently came forward again to affirm what Lewis had said at the time.

In January, Monson won a new trial based on the testimony of the girlfriend, a bloody thumbprint belonging to Lewis, and evidence that Monson’s original “confessions” had been coerced. Last week, Wayne County prosecutors decided to drop the charges, citing destruction of evidence and “passage of time.” Key pieces of evidence had never been tested for DNA at the time of trial, including the toilet tank lid with a bloody print that turned out to be Lewis’s. The police also did not disclose that several anonymous tips had been called in pointing to Lewis. (Monson’s lawyer had previously asked the Wayne County Conviction Integrity Unit to intervene. According to Monson’s briefs, they refused, with Wayne County District Attorney Kym Worthy writing that the Conviction Integrity Unit “is not staffed with any attorneys.”)

Perhaps most notable, however, was the prosecution’s reaction. Worthy, who assumed her position in 2004, blamed everyone else for Monson’s exoneration, all in an effort to avoid admitting a mistake by her office. She said that she had contacted Lewis, who denied involvement, and she blamed the policies of the Detroit Police Department for their “failure…to retain critical evidence.” Her comments never conceded that Monson was likely innocent, instead preserving the illusion that he could be tried again if only the police had done a better job: “Due to the destruction of evidence, issues surrounding the way the police obtained Monson’s confession and the passage of time, we are unable to re-try this case.”

This wishy-washy behavior isn’t unusual for Worthy. When Davontae Sanford was exonerated in 2016 Worthy gave a long press conference complete with PowerPoint slides where she doggedly explained that the arrest, prosecution and sentence were somehow reasonable and fair. Sanford — who is legally blind and suffers from developmental disabilities — was wrongfully convicted at the age of 14 for a shooting that another man had confessed to at the time. Sanford had given a coerced confession. When asked about an apology for Sanford, Worthy refused to respond.

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