Posts Tagged ‘parole’

The High Price — and Catch-22 — of Parole

Thursday, February 26th, 2015

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Punishment, the first book in the trilogy known as The Justice Series, deals with a man who was found guilty of murdering his wife by using his trained pit bull dog to attack her repeatedly. The trial is loosely based on a real case that took place in my courtroom around twenty years ago. Following the jury’s verdict, I sentenced the defendant, who was in his mid-thirties at the time, to a minimum of fifteen years to life in the Ohio Penitentiary.

As the judge who presided over the case, I listened carefully to all the testimony presented by both the prosecutor and the defense counsel. I considered motions to exclude certain expert witnesses, read portions of the grand jury record of witnesses’ testimony, and studied legal precedent on a number of issues. At the conclusion of the presentation of evidence and closing arguments, I was prepared to instruct the jury on the law they should apply to the facts, as they found them, to determine their judgment in the case.

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As usual, I met with counsel for both sides to discuss certain aspects of the instructions I would give to the jury. I proposed that I would instruct the jury on the elements of a charge of murder and, additionally, that I would give them an instruction of manslaughter, a crime of passion for which the sentence was eight to fifteen years at the time.

The prosecutor agreed to the instruction, but it was vigorously protested by the defense. Their objection, as I described it in Punishment, was that they believed that no jury could find their client guilty of intentional murder and, that being the case, an instruction on manslaughter would allow them an “easy path” to a conviction where a mistaken verdict would be less onerous. Because a judge cannot overrule a defense counsel’s objection to a charge, the only instructions I gave the jury were for the murder charge.

Unlike the verdict in my book (no, not what you assume), the jury in the case in Cleveland found the defendant guilty. The verdict was upheld on appeal and the defendant remains in prison to this day.

Several months ago, I corresponded with the Ohio Parole Board regarding the defendant’s application for parole. I shared with them my view that while the evidence presented could have been, and was construed by the jury, to support a murder conviction, there was ample evidence to support a finding of manslaughter. The Board denied the parole request.

Punishment: A Legal Thriller by Linda RockerI suspect the denial of parole was based on the defendant’s refusal to admit that he was guilty of the crime for which he was imprisoned. It is a scenario repeated daily in prisons across the country. I deplore it for two reasons: First, the insistence on a guilty plea flies in the face of the increasing number of convictions for major crimes that are getting overturned — in some cases the defendant has already served decades of his or her sentence; and second, parole boards may easily overlook the consequences of decisions regarding jury instructions that doom a defendant to a Catch-22: either plead guilty to the charge or remain in prison — pleading to a lesser offense is not an option.

Judges enjoy immense power. It can be gratifying, but it can also be confounding and haunting because some decisions are made by others outside the judge’s control — juries and lawyers, in particular. And it is never the proper role of a judge to substitute her judgment for that of the jury in a criminal trial. (I admit to ordering a new trial in two unrelated civil cases where the jury’s verdict was blatantly against the “manifest weight of the evidence.” In one such case, the jury acquitted the defendant trucker because he testified that he drove President Kennedy’s casket from Air Force One to Bethesda Naval Hospital in D.C.).

All of this discourse brings me back to the reason I began this journey. If I do nothing else, I derive enormous satisfaction from the possibility that my books and stories will cause you to pay greater attention to the character and fitness of the people who don their long robes and make life altering decisions about our neighbors and families.