Nov 94

VOICE OF JUSTICE

November 1994 Official Publication of JUSTICE FOR ALL Volume 2 Issue 13
"Justice will only be achieved when those who are not injured by crime, feel as indignant as those who are."
-King Solomon 635-577 BC

LOOSING MORE FELONS INTO OUR MIDST
by Terry Jennings
With a stroke of a pen, Governor Ann Richards created a statutory "right" to probation for certain felony offenders in Texas.

She and the Legislature have struggled with the early release of parolees for several years. As part of their solution to this problem, they made significant changes to the Texas Penal Code and Code of Criminal Procedure. In doing so, they reduced several felony offenses, including burglary of a building, forgery, theft (including auto), drug possession and drug dealing, to what is now a state jail felony or SJF.

The SJF concept is a radical departure from the previous criminal law. Under the new law, offenders are automatically released into the community on probation upon their conviction (with the possibility that the judge may give them jail time as a condition of their probation). Furthermore, the governor and Legislature intended that the punishment range for SJFs may no longer be enhanced to a higher punishment range based on previous felony convictions (with the exception of certain "violent" prior convictions). This is a mandatory sentencing guideline in the criminal's favor.

For example, under the old law, a cocaine dealer would face punishment ranging from probation to five years to life in prison. If he had two or more prior felony convictions, his punishment could be enhanced to 25 years to life in prison. Under the new law, such a criminal would now face a sentence of two to five years on probation whether he had 20 or no prior drug dealing convictions. Although this was the Legislature's intent, it failed to amend the enhancement statue. Prosecutors will continue to enhance SJFs unless appellate courts rule otherwise.

The vast majority of prosecutors were left out of the loop in the formation of these sweeping changes. Those prosecutors who were involved were exercising damage control, and almost all prosecutors feel that this new law is a historic blunder of monumental proportions. We feel the citizens of Harris County must get the facts and understand the problems which can be anticipated under the new law.

First, SJF law severely obstructs the administration of justice. Punishment no longer fits the crime and the criminal. It is absurd to place a cocaine dealer on probation after he has already been sent to prison two or more times in the past for drug dealing or other crimes. No matter how unqualified a criminal is and no matter how strongly a jury wants to put him in prison, a judge must place him on probation. This is a substitution of Gov. Ann Richards' judgment for that of the judges and jurors, who actually see the defendant and hear the evidence in each case.

SJF law also interferes with plea bargaining by removing all discretion from prosecutors, who have years of experience evaluating such cases. It hog-ties prosecutors by requiring them to offer the minimum on each case. Furthermore, lowering the ceiling on punishment to the absolute minimum will encourage more criminals to set their cases for trial because they no longer risk the possibility of going to prison. Why not roll the dice and see if you can get a hung jury?

Secondly, SJF law will actually increase the danger of public safety. The most damning evidence in this regard comes from a document entitled "A Briefing on State Jail Felon Dynamics" by the Criminal Justice Policy Counsel (CJPC), the state organization responsible for the research behind SJF law.

CJPC predicts that over the next year, 12,390 felons will be placed on probation who would have been sent to prison under the old law. Of these, 4,632 will have one prior felony conviction and 5,022 will have two or more prior felony convictions. Most of these career felons failed to complete their first probation years ago when they began their criminal career. Most experts agree that career criminals commit 20 to 30 crimes before they are caught. By releasing these 12,390 felons, we can anticipate a substantial rise in crime.

The news for Harris County is worst. CJPC predicts that over the next year, 6,800 felons will be placed on probation who would have gone to prison in the past. Of these, 2,457 will have one prior felony conviction and 2,576 will have two or more prior felony convictions. This also means an additional 730 burglars, 438 forgers, 1,341 thieves, 3,000 drug users and 1,291 drug dealers will be placed on probation in Harris County over the next year.

Thirdly, the impact of SJF law is consistent with the stated goal of assuring that violent offenders will serve longer prison sentences. CJPC assumes state jail felons are somehow magically not capable of violent crime. In reality most of the "violent offenders" who are now in prison have an extensive history of committing crimes which are now state jail felonies. The governor and Legislature should have known that often the only difference between capital murder and an auto theft is whether or not the owner comes upon the scene of the crime.

CJPC statistics show that 9.9 percent of all offenders sentenced to prison were murders and first degree felons and 43.4 percent of those sentenced to prison were for offenses which are now state jail felonies. It is unnecessary and absurd to place 43.4 percent of those individuals who would have been sentenced to prison on probation to make room for the other 9.9 percent. For example, CJPC predicts that 513 and 2,599 first-degree felons, a total of 3,112 "violent offenders", will be placed in prisons statewide. Why place 12,390 felons on probation to make room for 3,112 "violent" felon? Again, why place 6,800 felons on probation to make room for 1,167 "violent" felons?

Finally, the SJF system will add a crushing weight to our already burdened probation department.

As of July, 61,418 criminals were on adult probation in Harris County, 36,236 of which were on felony probation. Also in July, 2,142 new probationers were added, 940 of which were felons. Probation officers handled an average caseload of 165.33 probationers. Most experts agree that probation officers should have case loads of less than 50 probationers.

Yet the governor and the Legislature insist that understaffed probation officers handle thousands of new incorrigible felons. Larance Coleman, head of the Harris County Probation Department, predicts that the new SJF system alone will add 10,000 probationers over the next year, creating an average caseload of well over 200 cases per probation officer. However, the governor and Legislature did not provide any additional funding whatsoever for more probation officers.

The governor and Legislature have solved the parole/early release problem by placing 43.3 percent of those individuals who would have been sent to prison on probation. There will be fewer parolees when so many criminals skip prison and go directly back to their communities on probation. While this is a bureaucratic coup, 12,390 felons are going to be released into communities statewide, and 6,800 felons are going to be released into Harris County.

The evidence shows beyond a shadow of a doubt that the governor and Legislature have shifted the parole/early release problem from Austin to the local communities. Why else would they remove punishment discretion from judges and jurors? Why else would they create a statutory "right" to probation? Why else would they place 12,390 felons, 9,652 of which have prior felony convictions on probation without providing any funding for more probation officers?

But where do we go from here? It would seem virtually impossible to repeal the SJF system entirely. Citizens should demand certain necessary changes. First, they should demand the removal of the provision which creates a "right" to probation and return punishment discretion to jurors and judges. They should demand the restoration of punishment enhancement provisions to increase the severity of punishment for career felons. Finally, certain crimes should be restored to their appropriate punishment range: drug dealing should be a first-degree felony, burglary of a building should be a second-degree felony, and auto theft should be a third-degree felony.

It makes no sense to retreat now that the latest statistics show adult crime is down and crack cocaine is tampering off. The governor and Legislature must learn that most crime is committed by a finite number of career criminals. We do not have to build prisons ad infinitum. If our state leaders spend more time adjusting their budget priorities so we can have adequate prison space, they would not have to think up these cheap "politically correct" social engineering projects which ease their problems but increase ours.

Terry Jennings is a Harris County assistant district attorney assigned to the Special Crime Bureau, where he prosecutes white-collar crime cases.

MURDER OF HOUSTON SCHOOL BUS DRIVER BARBARA PULLINS

On Thursday, October 27, 1994 Barbara Pullins was murdered and sexually assaulted while in her apartment located at 9600 Homestead. Her nine year old daughter overheard the attack and was also sexually assaulted. Then she was told to keep quite by her attacker.

Jeffery Lynn Williams was arrested October 28th and charged with capital murder and aggravated sexual assault. Williams has a lengthy criminal record that includes a felony conviction for aggravated assault with a deadly weapon and two counts of auto theft for which he was sentenced to seven years in 1989. In June 1990 after being released on parole Williams received ten years for auto theft and was paroled March, 1994. On April 29, 1994 a motion to revoke Williams was filed due to charges of harassment of a prison guard of whom he had a relationship with. The prison guard refused to file a statement and thus the parole warrant was withdrawn; with the stipulation that Williams would be placed on electronic monitoring, and now we are investigating the reasoning behind this. Whether or not being on electronic monitoring would prevented this crime is unknown since being on EM is only as good as the person honoring the condition.

Bottom line on Williams: since 1989 he has been assessed a total of 42 years for five felony convictions and has only served less than five years. It doesn't take "Dr. Demento" to figure out if Williams had served even 25% of his latest sentence, Barbara Jean Pullins would be alive and driving her school bus today and her daughter would be smiling instead of scared for life.

by Andy Kahan

COURT ACCOMPANIMENT FOR VICTIMS THREATENED

An increasingly common practice among defense attorneys is to list the prosecutor's victim assistance coordinator as a witness, thereby barring the coordinator from attending the trial and providing support to the victim. The Clearinghouse is gathering information on this topic: if this has happened in your community, let us know how you countered it and what the outcome was. This will enable us to provide direction to other coordinators or victim advocates when it happens to them.

The most high profile instance of this occurred during William Kennedy Smith's trial some years ago. Defense attorneys reportedly subpoenaed every sexual assault counselor in the Palm Beach area. Victim Patti Bowman finally got help from the National Victim Center - but her advocate's identity was kept secret during the trial so she too did not get a subpoena.

JFA HOLIDAY TREE IN MEMORY OF CRIME VICTIMS

The Holidays bring great joy for most, however, when you have lost a loved one, whether it was this year or twenty years ago, the holidays are never the same. Justice For All would like to begin a tradition of remembering those victims of crime by placing an ornament on a tree to be located in a public location. Please start thinking about the type ornament and the crime victim you would like remembered during the holiday season. The ornament can be glass, paper, wood, ceramic, metal or any creation you desire. It can be purchased and engraved or handmade, and representing your religious beliefs. This is your opportunity to be creative while not forgetting the victims of crime. If you have not lost a family member, friend or co-worker, but have met a person who has lost a family member, please remember them during this time of the year. We will announce the location and the date of decorating the tree in the next newsletter.

** TEXAS REACTION TO THE BERKOWITZ CASE IN PENNSYLVANIA **

The Pennsylvania Supreme Court at the end of May, 1994, issued an opinion that holds potential consequences for the prosecution of rape cases both in Pennsylvania and here in Texas. The essential facts of the case are undisputed: In 1987 at East Stroudsburg University, a female student entered the defendant's dorm room looking for his roommate, who wasn't there. Berkowitz, the defendant, locked the door, pushed her onto a bed, partly removed her clothes and sexually penetrated her, according to court records. She said "No" repeatedly throughout the encounter, and Berkowitz told the jury that he heard her say it but did not believe that she meant it. Because no overt force was used, the Pennsylvania Supreme Court threw out the original conviction, holding that Berkowitz's acts did not qualify as the "forcible compulsion" defined by Pennsylvania law as a prerequisite to a rape conviction.

The Berkowitz decision highlights a critical flaw in our rape statutes. While great strides have been made in most states over the past two or three decades, we still have statutes such as the one in Pennsylvania -- and the one here in Texas -- that were drafted with the typical "stranger rape" scenario in mind. Consequently, these statutes simply are not equipped to deal with the kind of acquaintance rape that makes up around 75 percent of all sexual assaults in this country. The sitting judges of Pennsylvania's Supreme Court took much criticism for their decision. The tragic fact of the matter, however, is that they really had very little with which to work. If we're serious about ending rape, we have to allow prosecutors to obtain -- and judges to sustain -- convictions in cases such as Berkowitz.

-- from TAASA Board Member Grant Hartline

Protest Alert: Release of Another Violent Criminal Possible
Susan Cotellesse was savagely attacked in her home on July 1, 1986. After beating Susan in the head with a hammer (she suffered five facial fractures), raping her, terrorizing and robing her -- Jack Walton left Susan Cotellesse for dead. Jack Walton was sentenced to 15 and 30 years, to run concurrent, in different courts and is now scheduled for his second parole review. Let's keep this vicious criminal in prison where he belongs.

Write a letter of protest to:

Raven Kazen Director, TDCJ Victims Service
P.O. Box 13401
Austin, TX 78711

Reference to Inmate: Jack Walton State ID 03726514 TDC # 434042

HELP FOR VICTIMS OF VIOLENCE By Jessica Kirpatrick, M.S., L.P.C

It always starts with the sound of his voice. Janet hears her brother frantically calling for help. She runs to him, just catching the tips of his fingers as he slips from her grasp. When she wakes up, she must remind herself that her 23 year old brother is dead. And that he died in the worst possible way. Peter was murdered, shot in cold blood by a troubled man he had befriended. The man who killed Peter is now in jail. And all Janet has left of her little brother is his grave, two blocks from their childhood home, and her recurring nightmare. No one touched by violent crime emerges unscathed, and while newspapers report that there are more than 6 million violent crimes each year, they don't always tell what happens to victims after the crime. A recent study by the South Carolina Crime Victim's Research Center found that millions of Americans are walking wounded, casualties of the war that is fought on our streets every day. Crime victims face emotional problems as varied as the violence that is done to them. Victims who were kidnapped or held hostage often become afraid of small, closed-in spaces like airplanes, cars and elevators. People who were attacked outdoors may describe feeling panicky in wide open spaces. Those who survive restaurant or other public shootings say they sit near exits and constantly map out escape routes in their minds. They can't relax and enjoy a concert or a ball game because they are always on the lookout for a nut with a gun. Women who were stalked may jump out of their skins just at the sound of a ringing phone or a knock at the door. Rare is the crime survivor who does not experience what is called an anniversary reaction -- increasing depression and troubled memories as the anniversary of the crime draws near. The approaching holiday season can be very difficult for people who are victimized near a holiday or for people who are grieving the murder of someone they love. It is a pain that is almost inescapable, because reminders of family celebrations are everywhere, and happiness of others only seems to magnify their sadness. Where can crime victims turn? Treatment by a skilled mental health professional can help lessen the grief, ease the preoccupation with ugly memories and reduce fear, anxiety and flashbacks. Medication like anti-depressants and beta-blockers have been known to reduce anxiety, calm racing hearts, and decrease flashbacks and panic attacks. And the best news is that this care can be free to crime victims who qualify. The Crime Victims Compensation Division of the Texas Attorney General's Office provides funds for medical and psychological care for crime victims. To qualify the crime must be reported within 72 hours of its occurrence. An arrest or a conviction of the suspect is not necessary, only a report. The application must be made within a year of the crime, unless there is a valid exception. To get an application for crime victim compensation funds call the local crime victims assistance office at 755-5625 (Houston). The State Compensation Division number is (512) 462-6400 (Austin). This fund may also pay for lost wages or the funeral expenses for a murdered loved-one. If your application is approved and you seek counseling, it's okay to ask the potential counselor if she or he has any special training in the treating crime victims or if they have ever been the victim of violence. This will help you avoid a counselor who won't know hoe to help you. Also make sure they are licensed to practice in Texas. Nothing can ever take your pain away, but getting help could make it easier to bear.Jessica Kirpatrick is a member of Justice For All and a Licensed Psychotherapist specializing in helping victims of violence. She can be reached at 852-8797.

UPCOMING EVENTS

Monday, November 7 - Three defendants will face the Honorable Judge A.D. Azios in the 232nd Harris County Criminal Court, 9:00 AM at 301 San Jacinto for the Capital Murder trial of David Orlando. The defendants are David Collier, Max Maussazadeh, and Justin Dudik.

Saturday, November 12 - Petition signing in front of the Houston Zoo from 1-5:30 PM. In an attempt to get the maximum sentence allowed by law for Frank Medina's murderers Nathan Moss and Chris Rubilo. (See trial information listed below on Nov. 28th)

Tuesday, November 15 - The execution date is scheduled for Gerald Lee Mitchell for the murder of Charlie Morino on June 4, 1985.

Friday, November 18 - Revocation hearing for Charles Dean Spicuzza over an alleged DWI. Spicuzza is on a 10 year deferred adjudication over the child abuse and torture resulting in the death of 3 year old Timothy Struthers. This was the longest felony case to remain on the docket.

Monday, November 28 - The murder trial of Lavenia Henderson for shooting Michael Anthony George in the back of the head. The proceedings will be held in the Honorable Judge Mary Bacon's 338th Harris County Criminal District Court on 301 San Jacinto at 9:00 AM.

Monday, November 28 - Jury selection will begin in the case of Nathan Moss and Chris Rubio for the murder of Frank Medina. The trial is scheduled in the 184th Criminal District Court, Judge Burdette presiding at 9:00 AM.

Sunday, December 4 - The 15th annual "Toy Run" for the Boys and Girls Country, a Christian orphanage, will be held at the Northwest Mall 11:00 AM to 1:00 PM. The Toy Run is sponsored by the Houston Chapter of the San Jacinto High Rollers Motorcycle Club. This orphanage is in need of toys and the ever constant need of money. They are also in need of a refrigerator. If you can help please contact Randy Ertman. If you can help this is a very noteworthy cause.

Monday, December 12 - Jury selection will begin for William David Kelley with additional charges for burglary with the intent to sexually assault Pam Lychner four years ago. Honorable Judge Caprice Cosper 339th Harris County District Court, 301 San Jacinto at 9:00 AM.

Monday, January 9 Jury selection begins for the second defendant, Erica Sheppard, in the murder trial of Marilyn Sage-Meagher in Judge Carl Walker's courtroom, 301 San Jacinto at 9:00 AM.

Monday, April 17 Jury selection begins of the trial of Rex Mayes in the double murder of Kynara Carrerio and Christine Willey. The trial will be in the Harris County 176th Criminal District court with Judge Raines presiding.

UPDATES