Sunday, October 4, 2015

CRUEL and UNUSUAL Punishment

Rick Wershe’s battle for freedom continues. He suffered another legal setback when the Michigan Court of Appeals rejected a Detroit judge’s plan to re-sentence him to time served. It may be time to start fighting for Wershe’s civil rights. This post explains why there is a good case to be made that his civil rights have been and continue to be violated.

I was once so downhearted
Disappointment was my closest friend
Higher and Higher – Jackie Wilson

Richard J. Wershe, Jr. is used to disappointment. The 46-year old Michigan prison inmate has endured setbacks many times in his life. A recent ruling by the Michigan Court of Appeals blocking a judge’s proposed re-sentencing to time-served instead of a life term is just the latest.

Rick Wershe, Jr. with his mother, Darlene, at Oaks Correctional Facility
(Photo Free Richard Wershe, Jr. Facebook page)

Wayne County Circuit Court judge Dana Hathaway noted the changes in law and criminal procedure in Michigan and other states regarding inmates serving life prison terms for crimes committed when they were juveniles when she ruled she intended to re-sentence Richard Wershe, Jr., who is the last remaining Michigan inmate serving a life term for a non-violent drug crime committed when he was a juvenile.

But a three-judge panel of the Michigan Court of Appeals said no. They said she failed to take in to account a technicality in Michigan law about multiple motions by a defendant who has been convicted and sentenced.

The ruling came with lightning speed after the prosecution and defense filed briefs with the higher court. It’s like they couldn’t wait to say no. That may be the case.

Michigan Court of Appeals - Chief Judge Michael Talbot circled in center.

The opinion was written by Michael Talbot, the chief judge of the Court of Appeals, who has a reputation as a “hanging” judge. A former Grosse Pointe neighbor recalls how Talbot used to delight in describing how he stuck it to criminal defendants when he was a trial court judge in Wayne County.

So where does Rick Wershe’s struggle go from here? There are several options.

One is to appeal it to the Michigan Supreme Court. That may or may not lead to a different outcome.

Another option is to remedy the technicality the Court of Appeals cited and try again with Judge Hathaway in Wayne County. But since Wayne County Prosecutor Kym Worthy is inclined to spend whatever it takes to keep Rick Wershe in prison and with Michael “the hanging judge” Talbot ruling the roost at the appeals level that may or may not lead to a different outcome.

Yet another option is to focus on Wershe’s pending lawsuit in federal district court in Grand Rapids. The case was filed in Grand Rapids because Wershe is incarcerated in Oaks Correctional Facility near Manistee which is in the jurisdiction of the Grand Rapids federal court.

Ralph Musilli, Wershe's Defense Attorney (WDIV)

In that lawsuit, defense attorney, Ralph Musilli, argued the Michigan Parole Board violated Wershe’s Eighth Amendment right against cruel and unusual punishment.

Federal judge Gordon Quist tried to dismiss the case as frivolous but the U.S. Sixth Circuit Court of Appeals disagreed and sent the case back to Quist to explore whether the parole board has given Rick Wershe fair consideration for parole. Quist has been sitting on the case for over a year.

“Since 2003 his case has been before the Parole Board six times,” Musilli notes. “He’s been given no (parole) consideration, yet they’ve been paroling convicted murderers, rapists and child molesters, thousands of them. Where is the fairness?”

The fairness is missing in action and has been in the Wershe case for years.

"Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted."
—Eighth Amendment to the U.S. Constitution

On its face the case of Richard J. Wershe, Jr. seems to be a violation of his civil rights, his Constitutional right prohibiting cruel and unusual punishment.

The State of Michigan, for dark and unexplained reasons, is subjecting Rick Wershe to unusual punishment for the simple reason he is being treated differently than everyone else. The Michigan Parole Board has released every juvenile sentenced to life in prison for a non-violent drug crime except one: Richard John Wershe, Jr.

“That’s unusual,” Musilli says. “Twenty eight years is cruel.” Wershe’s defense attorney believes this is clearly a civil rights case. “Civil rights is about treating someone differently than everybody else convicted of the same crime. He’s being treated differently.”

What makes Rick Wershe’s case different—the only difference—is that he was recruited by the FBI at age 14 to get in to the drug underworld as an informer against the Curry Brothers—a Detroit drug gang with family ties to the late Mayor Coleman Young. Wershe happened to be a neighbor of the drug dealers. They trusted him and that made him an ideal secret informant.

Over the years, Wershe helped the FBI prosecute and imprison drug-corrupted cops and the brother-in-law of Mayor Young. What’s more, prosecution claims that Wershe was a “drug lord” and drug “kingpin” are false. There are no facts, no charges in any court to support the claim of the Wayne County prosecutor that Rick Wershe is a menace to society who needs to remain in prison until he dies.

Someone needs to tell the White House about Richard J. Wershe, Jr. President Obama has made it clear he believes the time has come to change the nation’s policy on long prison sentences for non-violent drug crimes. The Obama Justice Department has issued guidelines for presidential clemency for non-violent drug offenders. Those criteria are:

  • They are currently serving a federal sentence in prison and, by operation of law, likely would have received a substantially lower sentence if convicted of the same offense(s) today;
  • They are non-violent, low-level offenders without significant ties to large scale criminal organizations, gangs or cartels;
  • They have served at least 10 years of their prison sentence;
  • They do not have a significant criminal history;
  • They have demonstrated good conduct in prison; and
  • They have no history of violence prior to or during their current term of imprisonment.

With the exception of his status as a state prisoner, Wershe qualifies for clemency on all the criteria established by the Justice Department.

Just as important is the fact Rick Wershe was a recruited federal law enforcement informant. By letting him rot in prison for what is clearly retribution for informing on drug corruption in Detroit, the Justice Department, through successive administrations, is sending a bad message to prospective future informants: “If you help us nab criminals with political connections don’t expect us to help you if you get in trouble with the locals.”

Barbara McQuade, U.S. Attorney, Detroit
(U.S. Government photo)

Detroit U.S. Attorney Barbara McQuade needs to open a civil rights investigation of the Wershe matter. The Justice Department needs to back her up. The heat of public opinion might light a fire under her. Here’s how to contact her:

Barbara McQuade
U.S. Attorney
United States Attorney’s Office
211 W. Fort Street, Suite 2001
Detroit, MI 48226
(313) 226-9100

Vanita Gupta, Deputy Assistant Attorney General, Civil Rights Division
(U.S. government photo)

Another person to contact is the chief of the U.S. Justice Department Civil Rights Division:

Deputy Assistant Attorney General Vanita Gupta
U.S. Department of Justice
Civil Rights Division
950 Pennsylvania Avenue, N.W.
Office of the Assistant Attorney General, Main
Washington, D.C. 20530
(202) 514-4609

Urge them to consider opening a civil rights investigation regarding Michigan prison inmate Richard J. Wershe, Jr., inmate # 192034. He is incarcerated in the Oaks Correctional Facility in Manistee, Michigan. Explain why. Explain in your letter that he was an FBI informant who helped prosecute public corruption in Detroit and now his Eighth Amendment civil rights are being violated, apparently to get even for helping the U.S. Justice Department. Maybe, just maybe someone will pay attention.

Federal law enforcement administrators, assistant United States attorneys and Justice Department functionaries in Washington can rationalize and make excuses all they wish. The fact of the matter is the federal government, through the Wershe case, is telling the people who can help them make big cases that they don’t matter. They are expendable. No wonder the “war on drugs” is such a fiasco.


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