Juan Martinez: A Prosecutor's Success

by Women In Crime Ink

As the jury determines in the next few days whether convicted killer Jodi Arias should serve life in prison or get the death penalty, we thought we'd take a look back at this sensational case and voice our opinions on what went right.

If you've followed the case, you know that after a four-month trial, 32-year-old Arias was convicted of killing ex-boyfriend Travis Alexander in his Phoenix townhouse. It was a particularly grizzly murder, with Arias stabbing Alexander 29 times, most of which were in the back, slitting his throat, and shooting him once in the head. Alexander, 30, didn't stand a chance.

While the final phase of the trial -- the sentencing -- winds down, this seems like the perfect time to take a look back and ask this question:

During the trial, what did Deputy District Attorney Juan Martinez do best to win a guilty verdict?

Here's what some of our WCI bloggers had to say:

Donna Pendergast: The facts in the Jodi Arias case speak for themselves. In terms of a prosecution case, it doesn't get much better than this. Her story of self defense was negated by the physical evidence, her false statements and her manipulative testimony, which came across as very calculated.

Jurors are not stupid and they don't like to be played like they are. Although we have seen a few high-profile cases in the news where the verdict seemingly was inconsistent with the evidence, in most circumstances jurors try to do the right thing. They saw right through Jodi Arias and delivered a verdict consistent with the overwhelming evidence. As a prosecutor, I think that Juan Martinez overdid the histrionics, but I can't quarrel with success.

Gina Simmons: Jurors had a chance to witness Jodi Arias lie frequently and with incredible detail over a long period of time. Psychopaths can create detailed pictures with their lies. These self-serving pictures can appear so convincing that jurors might find it hard to believe that they were completely created from imagination. Jurors got a close-up view of a pathological liar. Psychologically, this close-up view might make it difficult for some jurors to give her the death penalty. 

Robin Sax: If this case shows anything at all it's that the public (even post-OJ) has an insatiable appetite for a good crime story. This had it all: Sex, lies, photos, and a frighteningly smart narcissistic defendant. While Juan Martinez was certainly passionate, he did not make the same mistakes many high-profile prosecutors have made in the past, and that is he didn't drink his own Kool Aid. He spent the time proving each element, painting a picture, and presenting a strong case. Of course, Jodi helped with unbelievable lies, horrific evidence and narcissism that spoke volumes.

Katherine Scardino: As a defense attorney, I agree that this was a dream case for the prosecution. I would have handled her defense in a much more realistic manner. First of all, she would never have spent a minute on the stand much less 19 days. Bad lawyering for her. But seems like Guilty verdict is the right one.

Cathy Scott: The interesting thing in this case was how Martinez brought the pieces of the puzzle together for the jury in his closing. Some things he brought out didn't make sense during the trial, at least to me, until he laid it all out in the end. It was brilliant, and it worked.

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Donna Pendergast opens up for the WCI interview

By Kathryn Casey

Sometimes we take those around us for granted. That shouldn't be, but it's human nature. Then we step back, take a look and say, you know, I wonder if readers understand how truly amazing some of these women are. Donna Pendergast is one of those women. She's one of our stalwarts, here with us from day one. And she's been repeatedly described as one of the top prosecutors in the nation. I recently asked her to sit down for an interview. I'm sure you'll agree that Donna is one incredible woman.

KC: Why are you a prosecutor? What in your past led you to law school and the Michigan Attorney General’s office?

DP: I'm a prosecutor because I want to make a difference. When I look back on my life, I want to know that I helped people. It's a difficult and stressful job, but I feel like it's my calling. My father was a police officer in Detroit for 39 years and that is probably where I get my law enforcement bent. When I went to law school I realized quickly that I was comfortable and did well in the litigation-type classes and exercises. I decided that I wanted to spend my career in a courtroom. There is no area of law where you get as much courtroom time as criminal law. I sure didn't want to represent the other side. As I have been quoted as saying, "I understand that everyone is entitled to a defense. I just don't want to be the one providing it."

KC: You’re well known for prosecuting murder cases, which is understandable since you’ve taken on more than 100 such cases. You’ve never lost one, right?

DP: I have prosecuted hundreds of cases but my specialty is homicide cases. I have prosecuted 100 homicide cases through verdict and won 98 of those cases. The two that I lost--there really was very little evidence. In one case, the main witness recanted and we were left with an identification of the murderer by another witness who said he saw his face "in a dream." The judge dismissed the case at the preliminary examination. The Court of Appeals reversed that decision and ordered it to trial. The other case involved a voice ID made by a mentally challenged person--tough cases.

KC: Tell us about the first murder case you tackled?

DP: Edna Hollis killed her husband while he was sleeping in bed. We never really did learn her reason for doing so. I have my suspicions but they are based on speculation so I won't mention them. Edna fled the scene and was apprehended after a car accident. In a stranger than life twist, a passerby to the accident scene stole the murder weapon from the scene. It was never recovered.

KC: You’ve been called Michigan’s best prosecutor. What case taught you the most about your profession?

DP: That's a flattering characterization, but I don't know about the best-prosecutor thing. There are a lot of topnotch prosecutors out there. I just try to do my very best in every case. When you hold people's lives in your hands, you have to be able to look in the mirror after a trial and know that no matter what the result was, you did your very best. I honestly can say that I have never given less than 100%. But, trust me, it takes its toll.

KC: What was your most important lesson?

DP: Very early on I learned never to say to the surviving victims of a homicide case: "I understand how you feel," because as a homicide victim's family member once told me,"You could never understand how I feel." Instead I learned to say "I know that I could never understand how you feel, but I've been through this with other families before, and this is what I have seen in the past..." I've also learned that there is true evil in the world. How else do you explain something as diabolical as a serial murderer like Coral Eugene Watts? As I often tell juries, "There is no explanation for pure evil--just recognition of what it is."

KC: Looking back, you’ve handled so many sensational murder cases. In the Lady in the Lake case, the murder of Florence Unger, you had little forensic evidence, only the bits and pieces of circumstantial evidence to work with. Tell us about that case.

DP: The Unger case was a mammoth undertaking. The case was circumstantial, and the medical evidence was very complex. We were also up against a very well funded defense and multiple lawyers on the defense team. Fortunately, I had two great teammates. I'm usually the lone prosecutor in the courtroom, so this was a new experience. My two teammates were brought in specially for the trial. One teammate was my former boss when I was a county Assistant Prosecutor. He was brought onto the team because of his extensive medical malpractice knowledge. My other teammate was a former colleague at the same prosecutors office. My other teammate had been his boss as well. The second teammate had been involved in the child parental-rights termination proceedings against Mr. Unger, and was intimately familiar with the case like I was. In the nearly three years that it took to get the case to trial, he had left the prosecutor's office and gone into private practice. He came on board as a special prosecutor for that case only. It was such a wonderful experience having three very experienced trial lawyers working together for a common goal. When they came on the team we all agreed that I would be the ship's captain. We were all used to being the alpha dog in the courtroom and were not sure how it was going to work. It was a dream experience--we all worked together; there were no egos involved.

KC: Have the shows like CSI influenced juries? Do you have to account for the public’s fascination with forensics?

DP: There is no question that shows like CSI have influenced how juries think. In the Prosecution world, we call it the CSI effect. Jurors see things on TV and expect real life to be the same way. It's not. As prosecutors, we have to work very hard, beginning during jury selection, to educate jurors so that they understand that forensic evidence is not always left at a crime scene. In the case of serial murderer Coral Watts, he killed many many women and never left behind ANY forensic evidence at any of his crime scenes. In fact, as prosecutors we often present what we call negative evidence. Say there are no fingerprints at a crime scene. Often, I will call an expert in just to explain what factors figure in to whether or not fingerprints are left behind and how common it is for there to be no fingerprints at a crime scene or on a weapon, etc. Things like temperature, weather, humidity, the smoothness of the surface and whether or not a person is perspiring all affect whether or not a fingerprint is left behind. That's just one example.

KC: You’re also the prosecutor who kept serial killer Coral Eugene Watts from being released from prison. As I remember it, a paperwork mistake had cleared the way for his release. How anyone could consider releasing a serial killer from prison is beyond my imagination, but it was happening, and there was nothing anyone in the Lone Star State could do to stop it. That’s when you stepped in and prosecuted Watts in Michigan for the 25-year-old murder of Helen Dutcher. The pressure must have been overwhelming, knowing who Watts is, what he’s capable of, and that if you failed, a serial killer would go free. What was that like?

DP: The pressure was enormous. The stakes were so very high, and the case was covered live on national TV. Luckily, we had a judge who admitted similar evidence and testimony so I was able to present evidence of Watts' diabolical pattern of behavior. Thank goodness for an awesome appellate lawyer who wrote the brief and argued the motion to admit similar acts testimony. Being able to present that testimony at trial made a huge impact on the jurors.

KC: Like the Dutcher case, many of your cases are what we’d call cold cases, some decades old. What are the added challenges in these cases?

DP: The Dutcher case was 25 years old when it went to trial. A cold case presents a unique set of challenges. Memories fade and evidence can get lost. When a case is as old as the Dutcher case, oftentimes the witnesses are now deceased. As a prosecutor, you also have the unique challenge of explaining to jurors why the case is being prosecuted years later. As I often tell jurors in a cold case---justice is a concept that doesn't get old.

KC: Another of your sensational cold cases is that of the Duvall brothers, Raymond and Donald, whom you prosecuted for the 1985 murders of two Michigan hunters, cutting up their bodies and feeding them to the pigs. I have to admit that particular case reminded me of the old movie Deliverance. You prosecuted the Duvalls in 2003 and got convictions, resulting in life sentences. Looking back, how do you see the Duvall case? Why wasn’t it prosecuted sooner? How could anyone be that evil?

DP: The Duvall case has often been referred to in the same sentence as the word Deliverance. The Duvall case was like a Michigan legend. Two hunters went up hunting the weekend before Thanksgiving in 1985 and disappeared off the face of the earth. Their bodies and their vehicles were never found. I remember being in law school when the case happened. Every year when hunting season came around there would be stories in the newspaper and the case would be talked about. I, like everyone else, wondered what happened to them. I never dreamed that nearly two decades later I would be the one prosecuting the people who murdered the hunters. The case wasn't prosecuted earlier because everyone was afraid of the Duvall brothers--in fact, terrified of them. A very determined detective from the Michigan State Police found the eyewitness who eventually testified at trial. It took him two years to gain her confidence before she told what she saw. As it turns out, the case was prosecuted just in time. The key eyewitness died a year or so after the trial. There is no understanding of the evil in that case. It's evil, plain and simple.

KC: I know you’ve had a lot of tough cases, but what was the most challenging you’ve ever tackled? Why?

DP: The Mark Unger trial was the most difficult that I have tackled based on the complexity of the evidence and the length of the trial (nine weeks). However, there was a case when I was a Wayne County prosecutor that logistically was nearly as difficult. It was a case with three defendants who each had their own jury. To have three juries going at the same time is extremely difficult. To complicate things further, it was a case without a body, and the officer in charge of the case was arrested the night before the trial started. So, I was in the courtroom alone with no officer in charge to coordinate. That is an experience that I don't want to repeat.

KC: You’ve been portrayed in, I believe, four true crime books. As a crime writer, I’m wondering what that experience is like. If I popped in on your next trial, would you be glad to see me?

DP: When I'm in trial, I don't really notice the media once I launch into my case. A trial is all-consuming. If you start worrying about the media, it's going to affect your performance--and not in a good way. It is a strange experience to see yourself portrayed in print in a book. You ask yourself: "Wow. Do I come across like that?"

KC: I worry that spending so much time writing about terrible crimes affects the way I see those around me. I don’t honestly know if that’s good or bad, but do you have the same concerns? Do your experiences color your worldview?

DP: Seeing the terrible things that I do, you try not to let it affect you, but the truth is, it does. So much senseless violence and sadness and so little reason why. It has affected my worldview to the extent that I realize that evil is a very real thing. I am also a far more cautious person than I used to be. When I was young, I didn't think twice about day-to-day actions like getting out of my car to get gas at night. Now I do things like that only when absolutely necessary, and I'm always looking over my shoulder.

KC: I know there are victims and families living with incredible pain and struggling to get a prosecutor’s attention. They or their loved ones have been victimized, and they want the cases pursued. Can you give them any insight into the best way to approach authorities?

DP: Approach them politely and document what they say. Stay in frequent contact but don't become a pest. Above all, never give up. I have prosecuted three cases nearly 30 years old and many more decades or so old. There is always hope that the critical piece of the puzzle will fall into place.

Statements made in this post are my own and are not intended to reflect the views, thoughts or position of the Michigan Attorney General or the Michigan Department of Attorney General.

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Behind Prison Walls: Inside Ellis Unit One

by Donna Pendergast

That old white haired judge in Dallas

Didn't pay my story no mind

They're taking me down to Huntsville

I'm bringing in a load of time

--Merle Haggard

Huntsville, Texas, is the execution capital of the world and the headquarters of the Texas Department of Criminal Justice. Huntsville has become a metaphor for incarceration and Death Row issues. Hearing the word conjures up visions of chain gangs, prison riots, and Death Row. Immortalized in books, movies and songs, Huntsville is a metaphor for all things prison-related, and its very existence has served as a threat for generations of Texan school children who taunted each other about being sent to Huntsville for bad behavior.

Being a Midwestern girl from Michigan, Huntsville was not a place that I ever expected to see--especially not from the inside. That all changed in early 2004, when I found myself on a plane with a colleague and two Michigan State Police troopers. We were headed to Huntsville to attempt to interview serial murderer Coral Eugene Watts (right) prior to making a charging decision on a cold case. He was suspected of committing that crime in Michigan in 1979. The reason we were reviewing the cold case is a long and fascinating story (watch for it to be covered in a future post).

Arriving in Texas, I quickly learned that Huntsville is a town with six separate prisons within the city limits and near the actual town. Our intended destination was Ellis Unit One, on the outskirts. Ellis Unit One is a maximum security facility where the average prisoner's sentence exceeds 40 years. The prison, which houses up to 2,400 male prisoners, was the site of Texas Death Row until shortly after a major escape attempt in 1999. Even before the escape attempt, prison officials were busy relocating Death Row to the Polunsky Unit in West Livingston, Texas. After the escape attempt, officials sped up the move, completing it in 2000. The Death Row transfer, performed under heavy security, was the largest transfer of condemned prisoners in history.

While it may have lost Death Row, Ellis Unit One has lost none of its formidable cachet. A foreboding view on the horizon as one travels the field-lined road leading up to the prison, Ellis Unit One makes its presence known, even from a distance. As I saw the building looming up ahead, the stark reality that I was soon entering those walls sunk in. The thought was disquieting, to say the least.

After parking in a public parking lot, we walked to a gate and flashed credentials up to guards in a sentry tower (pictured above), standing watch heavily armed. The guards had been advised of our anticipated arrival, and we were accompanied by a high-ranking representative with the Texas Department of Criminal Justice, so we were buzzed through the gates quickly and allowed to start toward the prison facility itself. Inside the doors we had to sign a log, turn in personal effects, and put on identification badges handed to us through a window in the foyer area. We were then allowed to proceed through multiple sets of doors that clanged shut behind us with an eerie sound of finality.

This was a first for me. I've been in various jails plenty of times before to interview witnesses, but this was a prison; different--and not in a comfortable way. Even accompanied by two police officers, a male colleague and the corrections official, I was still uneasy and ready to get down to business as quickly as possible so we could get out as quickly as possible.

Prison officials had cleared room for us in a small office used for storage. My fellow assistant attorney general and I hunkered down there while the two troopers were taken and seated in a small adjacent conference room, where the interview was set to take place. Prison officials had set up hidden cameras in the conference room, transmitting back to a television set in our makeshift office. That let us watch as the interview  it took place.

While we waited for guards to transport Watts to area, I needed to use the restroom. I was directed to a bathroom in the infirmary, requiring a journey through several halls. As I headed there alone, I cautiously eyed the trustee inmates working openly and seemingly on their own in the hallways just steps from me. I found myself moving quickly, eager to return to the relative security of my office sanctuary. I would have been moving even faster had I known then that another of the Huntsville prisons had once been the site of a seige by three armed prisoners who took multiple hostages using weapons smuggled inside in a ham and  canned peaches. When the siege ended eleven days later, two of the armed gunmen and two civilian hostages -- a teacher and a librarian -- were dead.

There was a bit of levity during the wait for Watts once I got back to the storeroom. My colleague had pulled aside the shade on small window in the corner of the room and was peering outside. He announced there were a couple hundred naked men right outside the window. Certain that he was trying to get my goat and make me even more uncomfortable than I already was, I said, "Sure there are," as I bounded over to the window and pulled aside the shade. I got an eyeful. There were indeed some hundred-plus naked men standing directly outside the window hosing down after coming in from the fields, where they raise crops for the prison. In my haste to close the shade, I tripped over a box while my colleague laughed hysterically, saying "I told you so." To think I thought I was uncomfortable before that.

The interview with Watts was cordial but provided no answers. He played cat and mouse with the troopers for a couple of hours before announcing that he wanted to end the interview and be led away. I breathed a sigh of relief as we passed through the barbed wire fence. We were done--or so I thought. We gave it our best shot but were still going to charge the case even without a statement from Watts.

As it turned out, we weren't quite done yet. While enjoying a relaxing late lunch at a genuine Texas BBQ joint, we received a call from the warden. Watts had decided he wanted to talk. We hightailed it back to the prison and went through the same complicated entrance procedure. With insufficient time to reassemble the camera setup, my colleague and I waited and paced in the infirmary while the troopers went back into the conference room to reinterview Watts. It was all for naught. In true serial murderer style, he again toyed with the officers. After an hour or so, we left with no more information than the first time around.

When I say I've done my time in Huntsville, it means something different than it does for most. Nonetheless, it was more than enough time for me. As many who are finally let out those exit doors surely say: "I'm not going back."

Last night I dreamed that I woke up with straps across my chest
And something cold and black pullin' through my lungs
‘N even Jesus couldn't save me though I know he did his best
But he don't live on Ellis Unit One
--Steve Earle, "Ellis Unit One"

Statements made in this post are my own and are not intended to reflect the views, thoughts or position of the Michigan Attorney General or the Michigan Department of Attorney General.

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My Kind of Prosecutor

by Diane Fanning


How do you decide which true crime book to read?  There are a number of reasons I make those decisions.  Sometimes, I am familiar with the case and want to know more.  Other times, it is because of an author whose work I respect and enjoy reading.  And then, there are times, I must admit, when I judge the book by its cover.

But recently, I found a whole new reason to select a particular true crime book.  I ended up holding Afraid of the Dark, by Tom Henderson, in my hand for a much more personal reason.  I don't know Tom, and I'd never read one of his books.

It started in my doctor's office.  During this follow-up visit, my doctor, Ronald Cohle, asked about my latest books and what I had in the works.  Then, to my amazement, he revealed something he'd never mentioned in the last sixteen years: his brother, Stephen Cohle (below right), is a medical examiner in Michigan.  He also said that Stephen had recently been on television and mentioned in a book.  He couldn't, however, remember which television show or the title or author of the book.

It didn't take long, though, for me to track down Afraid of the Dark, a true crime book about Florence and Mark Unger (above left).  When Henderson described the boathouse where Florence died, it sounded familiar.  I flipped to the photo section and there it was.  It all rushed into focus -- I remembered learning about that case on Dateline NBC.  Now, I really wanted to know more.

Then, what to my wondering eyes should appear in the pages of that book but prosecutor and Women in Crime Ink contributor Donna Pendergast.  I flashed back to the television show and recalled how impressed I'd been watching her in action in the clips on Dateline NBC.

The book added far more depth than an hour-long show could hope to offer.  It gave a glimpse into the complexities of two people whose marriage with children disintegrated into a melodrama of misery and murder.

It all came to an end on the morning of October 25, 2003, when Florence's body was found floating in the shallows of Lower Herring Lake at Watervale Inn, a northern Michigan resort.  Her husband, Mark Unger, claimed that on the previous night, he left her alone on a deck atop the boathouse to check on their boys.  He said that when he returned fifteen minutes later, she was gone.  He thought that she went to the cabin of friends to socialize.

The next morning, when her lifeless body was discovered, he surmised that Florence must have tripped, hit her head and fallen into the water where she drowned.


But prosecutors and law enforcement had another theory.  They believed Mark had knocked his wife off of the boathouse, causing a severe injury to her head when she hit the concrete slab twelve feet below.  Then, to cover up the assault, they suspected he pushed her into the water, bleeding but alive.

 

Mark was charged with first degree murder in May 2004.  The investigation uncovered financial problems, a divorce filing, an extramarital affair, an addiction to Vicodin and a looming custody battle over the Ungers' two young boys.  They also discovered many pieces of forensic evidence that were inconsistent with the tale told by Mark.

His trial began on May 3, 2006.  It was the 93rd murder trial for Donna Pendergast, (right). She and her assisting counsel, Mark Bilkovic and John Skrzynski, presented a thorough and convincing case from beginning to end.  But one piece of evidence stood out to me -- something emotionally compelling.  Florence Unger was extremely terrified of the dark and had been all of her life.  There was no way she would have sat alone on top of that boathouse in the pitch-blackness of a rural night.  Mark's whole story was a lie.

Still, the case was all circumstantial, and a battle of experts made the forensic evidence complicated.  Reading the book, you are not sure of the verdict until the end.

One thing, though, is obvious throughout: Pendergast is a formidable prosecutor.  The Detroit Free Press ran a profile of her with the headline: "Born to Prosecute,"  noting that her father was a 40-year veteran police officer. In the article, Swickard wrote: "Defendants can hear a cell door's cold clank when she enters the courtroom."

My advice to anyone contemplating murder: steer clear of Pendergast's territory. She obtained her first murder conviction in 1989 and hasn’t stopped yet. Donna Pendergast has a passion for justice; a tireless persistence to seek it, no matter how long it takes; a steely determination to achieve the right outcome in every single case; and a win rate in murder trials to prove it.

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What are Prisons Really For?

By Women in Crime Ink

 We've asked our contributors a few questions about the prison system. What is its purpose -- punishment, rehabilitation, or separating criminals from society? Is the system accomplishing that purpose? If the purpose is keeping criminals apart from the rest of society, are there alternatives besides incarceration in prison cells? 

Kathryn Casey:
It depends on the case. For those with life without parole, prisons are nothing more than a holding area, some more humane than others, where dangerous folks are segregated to keep society as a whole safer for the rest of us. For those who might someday get out, prison is primarily punishment, but it does offer, for those who reach out for it, a chance for rehabilitation.

Most of the prisons I've visited, and I've been in plenty down here in Texas, offer literacy and GED programs. Illiteracy is incredibly high behind bars. Yet I remember years ago meeting a convicted murderer who finished high school, got a bachelor's and a master's degree while serving a 60-year sentence. When I talked to him, he was working on a Ph.D. through a correspondence course. An inmate has to seek out the opportunities, and few do. For most offenders, the time in prison is simply punishment and wasted years.

One of the disappointing things is that there's so little treatment for sex offenders and violent criminals in prisons. Most aren't given any treatment at all until shortly before release, despite studies that show these types of ex-cons have high recidivism rates and require years of therapy, if there's any hope at all of preventing future crimes.

Donna Pendergast:

 The prison system aspires to rehabilitate offenders, but it isn't the purpose of the system -- only a goal.

The purpose of prison is to isolate offenders from society to protect the public and to punish offenders.  Unfortunately, although prison may not be a preferred experience, the amenities offered to offenders sometimes strain the bounds of belief. Libraries more extensive than in a prosecutor's office, large screen TVs, and well-equipped work out areas are standard fare at most prisons.  These privileges should be earned, not mandated.  I am not at all for any kind of abusive treatment of prisoners, but the prison experience should not be a posh one. That's why I am such a fan of Sheriff Joe Arpaio, whom I have posted on before.  Although he presides over a county jail rather than a prison, he makes sure that it is not a pleasant experience.  His standard retort to complaining prisoners is "If you don't like it, don't come back.

Katherine Scardino:

Jurors want revenge for a really heinous crime.  A kidnapping, rape or any crime involving a child induces immediate wrath on the defendant.  There is no discussion of rehabilitation.  I truly believe that a juror couldn't care less whether the prison system allows for counseling, education or any other individual assistance. The only issue is "how much does it cost?"  Your question: "why do we have a prison?"  It is, as Kathryn said, a "house" for people who have violated our laws. In capital cases, there are serious problems relating to sensory deprivation, where humans are kept in a box 23 out of 24 hours a day, and fed through a hole in the door.  This is inhuman and more than punishment. But, we say, they deserve this. These people hurt my family, my society, and should not be allowed to join the rest of us. No one disagrees with it. But prison should be more than a holding cell. Prison should be a place where bad people have an opportunity to learn about being better and returning to society as different people -- instead of learning how to be worse than they were when they entered the prison system. This does not help any of us.

Andrea Campbell:

Just as there are different camps on most major issues of any importance, there will always be disagreement on why offenders should be punished, how offenders should be punished, and what constitutes punishment. The common dictionary says quite generally that punishment is loss, severe treatment or suffering. Our prison systems are based on the concept that corrections serve these functions:  1) retribution, 2) deterrence, 3) incapacitation, and 4) rehabilitation. I think we also need to consider two other functions are enumerated: reintegration, and control.

But what about retribution for the victims? This system dictates that the severity of the offense should match the level of incarceration. If some petty, non-violent crook gets nicked, he might be able to do his time at an “honor farm.” Likewise, if a man has been convicted as a murderer, maximum security is probably what he’s earned. This methodology even weighs the type of probation on the same scale. In the aftermath, the probationary attention to follow-up and detail befits the crime similarly. Citizens should like this system, because they feel it shows the moral imperative of “getting tough on crime.” We might think about a new, modern Justice Model of punishment.

Like a “Just Desserts” concept,  it rejects the notion of rehabilitation as key and aims to avoid sentencing disparities. It seeks to match the punishment to the crime with room for variation, with a major difference up-front: To do a re-evaluation of the offender's past record. Then it would institute the type of justice a particular community wants reflected onto the behavior of its citizens. The foundation for the policy is that everyone is responsible for his/her own actions; that rational thought brought them to this end; that the criminal should bear the blame for his/her acts; and that the public needs protection and should be able to legislate punishment according to proscribed dicta of constitutional severity. As far as corrections, I think prisons should be privatized.

Pat Brown:

I think we have to look at two types of prisoners: those who can be rehabilitated and deserving of rehabilitation, and those who can't be rehabilitated nor deserving of rehabilitation. The latter are excessively violent repeat offenders, violent sexual predators and serial killers. Therapy does not "cure" arrogant psychopaths lacking in remorse or empathy; they will always be a danger to society, and they deserve no sympathy from us. Put them away and keep them away. Furthermore, we shouldn't be wasting taxpayer money allowing them to amuse themselves studying and getting degrees while their victims are rotting in the grave or living lives or psychological, physical or economic poverty.

The former group can be divided into two subgroups: those who are willing to be rehabilitated and those who are not. Prisoners should earn their right to favors by the society they have abused and when they earn that consideration by good behavior and hard work, then they can be moved to a rehabilitation facility where they can earn an income and pay for their education and vocational training like citizens do on the outside.

Lisa Cohen:

This topic resonates particularly for me. For most of the last five years, I researched and wrote a book (AFTER ETAN: The Missing Child Case That Held America Captive) about the long, horrific “career” of Jose Ramos, a serial pedophile who damaged countless helpless children in the '70s and '80s (including Down's Syndrome and mentally challenged boys). He was finally locked away from any future victims in 1986 and has served the last 25 years in prison.  A generation of children have been safe from him. But in 2011, he’ll max out and will walk free unless someone can figure out a way to stop him. He’s never completed a sex offender program and has never taken responsibility for the worst of his crimes.

The father of Etan Patz, the boy Ramos almost certainly kidnapped, raped and killed, has said Ramos should never be released from prison.  “He’s a predator,” Stan Patz told me,  as well as a 60 Minutes audience, “and he should never be allowed near children again. He should be kept behind bars until he’s too old to walk.” His is a compelling argument.

But for the last year, I’ve been involved in a very different project, albeit on a related topic. "ONE LAST SHOT: A Story of Redemption," is an ongoing documentary I’ve been directing. It tells the story of inmates at maximum security Angola Prison, home to Louisiana’s Death Row and some of the most hardened criminals you will ever meet. Half of them are killers; 85 percent will die at Angola. The particular inmates I’m focusing on staff a hospice at the prison, where they help dying fellow inmates to a humane death, something most of them cheated their own victims out of.

I’ve now spent time with several of these men. Many committed their crimes decades ago. So did Jose Ramos.  They are soft-spoken and articulate. So was Jose Ramos whenever I talked to him.

But I watch as these hospice volunteers clearly care about their dying patients. They feed them, clean them, comfort them.  Sometimes they change their diapers.  They watch them slowly waste away and eventually die, holding their hands as they slip away.  They treat each other and their hospice colleagues with respect.  They speak eloquently of developing compassion, of nurturing their humanity. They say they seek redemption.

They seem different than Jose Ramos, and they want to send that message via this documentary. As I continue to film, I hope to learn for myself whether that is true.  If so, then programs like prison hospice, inmate counseling, religious rehabilitation, are worthwhile and need to be promoted.  I’ve heard over and over while at Angola the credo: “A man’s entire life should not be judged by his worst act.”  

Cathy Scott:

I'll quote my friend Kevin Powell, an author and a Brooklynite through and through who cares about his rundown community and is running for a seat in U.S. Congress.

One leg of his campaign platform is "rid the 'hood of crime and pollution." He says that includes redirecting imprisonment dollars into education and enhancing "alternative strategies to lower incarceration rates." He also calls for abolishing the death penalty. "These actions," he says, "will reduce the rates of recidivism while creating opportunities for success." As the late Chief Justice Warren Earl Burger once said in his "Factories with Fences" speech, "We need prison reforms that will encourage offenders to earn and learn their way to freedom." I'm with Powell and Burger. Change is needed, and giving inmates the tools they need is paramount for them to live as non-offenders and contributing members of society outside the prison walls.

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The Thin Line Between Life and Death

by Donna Pendergast

It's been more than 20 years since Joseph Passeno (left) and Bruce (Christopher) Michaels (below right) stunned the suburban Detroit community of Rochester Hills with a gruesome crime that defied comprehension and shocked the public.

After finishing dinner at home on Nov. 9, 1989, Wanda Tarr, 58, was headed out in her Chevrolet Cavalier to meet an insurance client when she was forced out of the car at gunpoint by Passeno, then 17, and Michaels, then 16. They took her to Hawthorne Park in nearby Pontiac, where they robbed her and shot her to death. Passeno and Michaels then used her personal identification to find her home, where they told her husband, Glenn Tarr, that they had abducted his wife. The pair then abducted Tarr and forced him to withdraw money from an ATM. Then they took him to Hawthorne park and murdered him next to his wife's body by shooting Tarr six times.

Passeno and Michaels were arrested shortly after their crimes, when they bragged about their thrill kill to schoolmates. They were found guilty of first-degree murder and multiple other charges in a March 1990 jury trial. They were sentenced as adults to life in prison without parole.

After nearly two decades in separate Michigan prisons, Passeno and Michaels bear little resemblance to the fresh-faced teens they were when they went in. His entire face covered in tattoos, Passeno now looks like a mutant from a carnival midway. Michaels lost the baby face once so at odds with his horrific crimes.

Last week, two companion cases argued before the U.S. Supreme Court could have implications for the mandatory life sentences imposed on Passeno and Michaels. The court was asked to consider whether life sentences for juvenile defendants constitutes cruel and unusual punishment, prohibited by the Eight Amendment.

The cases before the court involve two Florida residents, Terrance Graham and Joseph Sullivan. Graham, now 22, was 16 when he robbed a restaurant at gunpoint. After serving a year behind bars, he violated the terms of his probation by committing another armed burglary, breaking into a man's house and robbing him at gunpoint. Sullivan was 13 in 1989 when he sexually assaulted a 72-year-old woman in her home during a burglary. It was the eighteenth crime committed by Sullivan, who is mentally disabled, during just two years. Both defendants were sentenced to life in prison without parole.

Arguing before the court, petitioners in the current case cited the 2005 Supreme Court ruling in Roper v. Simmons, which banned executing people who commit capital murder before they reach the age of 18, on Eighth Amendment grounds. Lawyers argued that the logic of that ruling should be extended to life sentences, the equivalent of a slow death in prison for an adolescent. As in the Roper case, lawyers highlighted adolescents' limited cognitive capacities to assess and manage impulses because their pre-frontal cortex, which controls them and recognizes consequences, isn't fully developed.

The court could rule in a number of ways. One key point in the pending cases: neither defendant had committed a homicide. The court's opinion could differentiate between juvenile offenders who kill and those who commit lesser crimes. It also could uphold the two defendants' current sentences or set an age limit for when such punishment is inhumane. It could ban life without parole for all juvenile offenders, affecting thousands of cases like those of Michaels and Passeno.

Robust policy discussions have sprung up debating the potential for rehabilitation and reform of juvenile offenders after maturation of the brain. But what about the cold-blooded sociopath who kills with extraordinary brutality and without remorse? What about when the crime is so serious and vile that denying the offender freedom for the rest of his life is the most appropriate response? An antisocial predator who has spent years or decades in prison is extremely unlikely to be able to reintegrate into society. There is no proven treatment for antisocial personality disorders that will drive an inmate to rape or kill if released. Prisons serve not only to rehabilitate and punish but also to prevent those who are a threat to society from harming others.

As a prosecutor, I have seen the bad and the worst for well over two decades. Yet I'm reluctant to dismiss the possibility of reform. I'm more reluctant, though, to release someone who will create more victims if returned to society. Out of 100 murder trials I have prosecuted, only three involved 16-year old-defendants sentenced to life without parole. All three cases involved chronically violent youthful offenders who committed heinous acts beyond comprehension.

Charging a juvenile with an offense carrying the possibility of life without parole is a decision that should not be made lightly. But as a prosecutor, I want that tool in my arsenal.

Statements made in this post are my own and are not intended to reflect the views opinion or position of the Michigan Attorney General or the Michigan Department of Attorney General.

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The East Mountain Triple Homicide

by Donna Pendergast

It's going on a decade since that night in May 1999, when three teens were gunned down in the East Mountains of Albuquerque, New Mexico while returning home from a graduation party in an incident that would later become known as the East Mountain Triple Homicide.

On May 29th, 1999, around 11:30 pm, 16-year-old Luis Garcia and his friends Kevin Shirley and Matthew Hunt, both seventeen years old, (pictured above Shirley, Hunt, Garcia) were murdered in a barrage of 24 bullets as they sat in Kevin's car at the intersection of Pinon Hills and Jennifer Drive.

Despite a massive investigation and a $100,000.00 plus reward the case remained a mystery for years until 2006, when a 27-year-old drifter, Brandon Craig, was arrested after being identified by three individuals who claimed to have witnessed the shootings. Craig was charged with three counts of murder and three counts of child abuse on the basis of the statements made by the newly discovered witnesses.

The case went to trial last month. Key to the prosecution case were the witnesses that belatedly came forward with details of the murder: Craig's former girlfriend, Jocelyn Schneider; Craig's cousin, Luke Morris; and an associate of Craig's named Jeffrey Moore. All three testified that they spent the afternoon of the murder getting high on drugs.

Per Schneider's testimony, during the course of that afternoon, the subject of a $500 drug debt that Kevin Shirley allegedly owed to Schneider came up in conversation. At some point, Craig, under the belief that he owned everything that Schneider owned, decided that he wanted to collect on that debt. Collecting that debt became a mission for Craig and the three drove to the party where Shirley was but left after Craig and Shirley argued over the money.

Schneider testified that after leaving, Craig decided to return to the party and confront Shirley again. Before they they could turn around they observed Shirley's vehicle heading in the opposite direction with Garcia and Hunt as passengers. Craig decided to chase Shirley's car and eventually cut it off blocking their path. He then went to the window and begin arguing with Shirley again. Craig then went back to Schneider's vehicle, pulled out a rifle and started firing into Shirley's car at close range.

On April 2nd, after a two-week trial, Craig was acquitted of all counts after two days of jury deliberations. Although some jurors later expressed misgivings about their decision, feeling that Craig probably was the shooter, they felt that there was too much doubt for conviction. Inconsistencies in the witnesses testimony, the lack of physical evidence tying Craig to the murders, and the unreliability of key witnesses who all had rap sheets of their own, all contributed to the not-guilty verdict. Other factors that didn't help were Schneider admitting to lying to a grand jury and sending text messages to Morris's sister asking for details of the crime so that they could get their testimony to match.

Reaction to the verdict has been mixed in the news and on Internet chat forums. Many are passionate about their opinion that a murderer walked free. Others are equally adamant that the system worked as it should with the not-guilty verdict being the end result of contradictory and sparse evidence. Whatever your opinion, the fact remains that not-guilty verdicts create as many questions as they do answers.

Did the State proceed with a case that they should have never charged because of the paucity of the evidence? In my opinion, the answer is no. When you have three witnesses saying pretty much the same thing that is a case that a jury needs to decide. In my experience there are always inconsistencies between witnesses testimony. That is why jurors in Michigan are instructed that people see and hear things differently and that they need to keep that in mind when determining whether a witness is being truthful.

Another question that has been asked is whether a person with a checkered past who has lied to a grand jury can be relied upon as a witness. I don't think that there is any correct answer to that question. Certainly a person who has made mistakes in the past can be reliable as a witness. More troubling is the issue of lying under oath to a grand jury. The question has to be asked how testimony under oath in a trial can be relied on when the witness has lied under oath before.

A lot of Internet posters have speculated that the eyewitnesses would have had more credibility if they had been charged as aiders and abettors for their roles in the crime. That begs the real question of whether the key witnesses were aiders and abettors or were merely present at the crime, which does not make them culpable under the law.

A not-guilty verdict is always a reminder to police and prosecutors that we don't make evidence; we only do what we can with the cards that we are dealt. However, it doesn't take the sting out of a "not guilty" verdict on a case like the East Mountain triple homicide.

Statements made in this post are my own and are not intended to reflect the views, opinions, or position of the Michigan Attorney General or the Michigan Department of Attorney General.

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Yes, It Could Happen to You

by Donna Pendergast

I was not planning to write this article today. In fact, I never planned to write this article at all. I had a post waiting to go, sitting in the queue all ready for today, but the events of the past two days have caused me to preempt it and write this piece instead. I think that this "public service announcement" is more important than what I intended to post originally. I will tweak the other post for a future date.

Flash back 48 hours ago to Friday night when I arrived home around midnight to find an e-mail message from an old friend who lives in New York. He is a Vice President for the NFL and was in town for the Final Four basketball game. He had an extra ticket and wondered if I was interested in attending the next day's game. Hmmmm . . . yeah, right, like I had to think about it.

Saturday comes around and it is a beautiful day. I arrive in downtown Detroit, pay an outrageous amount for parking and trot over to the Irish bar where we had decided to meet. So far, so good—no, so far, so great. I was happy. I get to see my old friend, downtown Detroit is awash in a sea of green and white, and there is excitement in the air. Such a great day for a basketball game especially when the home team is in the Final Four.

Within a few hours everything would change.

My buddy and I arrived at the Ford Field before the start of the game. You could feel the excitement in the air. I too was excited right up to the time that I went to the restroom and realized that my wallet was gone. My credit cards, my license, my debit card, $150 cash, you name it, it's gone.

In my initial panic I think that my car keys are gone as well but then realize that they are with the parking valet, thank God for small miracles. OK, at least even if they have my home address, they don't have my keys as well. I can get home and I can get in the house. The Southfield police also reassure me that they will keep an eye on the house just to make sure that everything looks alright.

That's where my good luck ended, but I will get to that in a minute.

Needless to say the experience put a damper on the evening. Yes, my hometown team, Michigan State, won their game but all that I could think about was my wallet and whose hands it might be in—always the prosecutor, I guess. However, I stayed to watch the first game and was even excited by the result despite my apprehension.

Increasingly anxious, I decided to go home after the first game ended. I got home, got in, and reassured myself that someone would take the money, dump the wallet, and go on their merry way.

I was wrong.

I spent Sunday morning cancelling credit cards. While I was on the phone with one company, my credit union monitoring agency called to ask if I has just spent $900 at Walgreens in Livonia, Michigan. Of course, I had not. Remember, I can't leave the house because I have no money, no debit card, and no license to drive.

As it turns out, nearly $1200 had been charged to my debit card before they were able to shut it down. That being said, I have been told that the credit union will refund that amount. I'm on the hook for $50.00 at the most and will probably not even be charged that amount. Once again, thank God for small miracles.

Being a prosecutor for 22 years, one would think that I am the last person who would be victimized. I know how things go down, I've seen it all before. Quite frankly, for the most part, to say that that being a prosecutor has made me a more cautious person is an understatement at best. But guess what? Even I am not immune to fraud and deception as knowledgeable as I consider myself to be.

I'm pretty sure in hindsight that I know when the wallet was actually lifted. As soon as I got into the bar a guy sidled up to where my friend and I were standing at the bar claiming that he was a small percentage part-owner of the bar and wanting to make small talk. My friend and I laughed at him, but he was harmless right? Not so right. The bar was mobbed, he continued to hover and at one point he made his way to the other side of me, the right shoulder side where I carry my purse.

I had a hobo purse with no top flap (you see where this is going, I trust). At some point another guy approached (an accomplice I'm sure), coming up to the bar to say that I had beautiful eyes. My friend an I were laughing but as it turns out we were probably being silently laughed at that very second. I am completely convinced that at that moment as my attention was being distracted my wallet was being lifted from the hobo purse.

It all seems weird in hindsight, but remember this was a happy crowd and everybody was high fiving each other and talking to everybody around them. What a perfect place to commit a crime.

And guess what? Someone knew in advance that these type of venues are a fertile haven for unsuspecting victims. The local news warned about pickpockets at the Final Four just the other night. I only half paid attention because I didn't anticipate being downtown and even if I was, I'm a prosecutor, so no one would dare touch me—right? I guess not so right.

Listen people, if it can happen to me it can happen to you. This is your wake up call.

I have taken the day off today and will be running from venue to venue. First, the credit union to get money so I can go to the Secretary of State's Office for a new license and registration. That's only the beginning—the list goes on. More frightening is the ever-present shadow of identity theft that will now loom large for a long time to come. I am taking all of the appropriate precautions but I just want to cry.

I think these guys were out-of-town professionals because one of the early debit charges was a Hertz rental car. But I'm not quite sure because the other small charges that were incurred before the big charge (which prompted my monitoring company to call) were for $25 dollars at Bed Bath and Beyond and and a small charge at a local restaurant. My credit union monitoring company did tell me that often times a few small charges are made to test the waters before they go in for the "big bang." As the monitoring company told me, I'm lucky that the "big bang" was only $900 before we got them shut down. I'm sure that the next charge would have been for substantially more.

Be aware, readers, this can happen to you too. Once again, I could just cry—in fact I'm sure I will when I get to bed.

Statements made in this post are my own and are not intended to reflect the views, opinion, or position of the Michigan Attorney General or the Michigan Department of Attorney General.

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