Sunday, November 15, 2015

Rick Wershe's next battleground: the Michigan Supreme Court

Rick Wershe’s struggle to win his freedom after 27 years in prison for a non-violent drug offense committed when he was 17 has moved to the Michigan Supreme Court. In September, the Wayne County, Michigan judge assigned to his case agreed he deserved to be re-sentenced in light of significant changes over the years to Michigan’s drug laws and sentencing guidelines related to similar convictions. The Wayne County prosecutor is vigorously fighting Wershe’s re-sentencing, insisting he was sentenced to life and should stay in prison for life. Thus the case is now before Michigan highest court. Here’s what the lawyers are arguing about.

The Michigan Supreme Court

The court argument about whether Rick Wershe can be re-sentenced to time-served after 27 years in prison comes down to whether prison sentences can be changed or modified as the times and the laws and public attitudes change or whether a prison sentence meted out under the laws of the time must never, ever be changed because it was legal at the time. Wayne County Circuit Court judge Dana Hathaway believes Wershe can and should be re-sentenced. The Wayne County prosecutor vehemently disagrees.

The Wayne County prosecutor’s office is squandering money and staff resources trying to keep Wershe in prison even though everyone else in Michigan sentenced to life in prison for a non-homicide drug crime committed as a juvenile has been paroled.

Prosecutor Kym Worthy, who never misses an opportunity to whine that Wayne County doesn’t give her a budget sufficient to prosecute bad people who need to be behind bars, is wasting her budget dollars in a desperate effort to keep Rick Wershe in prison until he dies. Yet a prison official where Wershe is serving time says if there were such a thing as a model prisoner, Wershe would fit the description.

Worthy has admitted, in response to a Michigan Freedom of Information Act request from me, that records do not exist to support claims by her predecessor, Mike Duggan, now the mayor of Detroit, that Wershe was a drug lord with a gang that had a habit of getting themselves killed when they weren’t busy slinging dope or making God-fearing witnesses against Wershe disappear. A 2003 Duggan letter to the Michigan Parole Board argued Wershe should remain in prison the rest of his life as a menace to society for various alleged crimes Worthy now admits aren’t supported by any records in the prosecutor’s office files.

It is the elephant in the room no one wants to talk about for fear all hell would break loose if a serious effort is made to find out the truth about the legend of White Boy Rick, as Wershe came to be known in the media. That legend is largely responsible for the inertia in releasing him from prison. No one wants to be the one to release a legendary menace to society, even if the legend was built on a pile of lies.

As her fight to keep this one man in prison until he dies plays out before the Michigan Supreme Court, the court battle isn’t about a vendetta against a white FBI informant in the mostly black Detroit drug world aided by police and political corruption or about the shaky and shady evidence used to condemn Rick Wershe to a life in prison.

Wait! Haven’t you told us Rick Wershe admits he was working to become a cocaine wholesaler?

Well, yes. That’s absolutely true. He did this after law enforcement recruited him at age 14 to become a confidential drug informant, then kicked him to the curb once they made their big case after he helped them achieve success. Wershe was about 16 or so and a school dropout because he was so busy playing drug world spy, he turned to the only trade he knew; the one law enforcement taught him. He set out to become a dope dealer.

In his 1988 drug trial the Detroit Police could not and did not produce any evidence that Wershe’s fingerprints or palm prints were on the cocaine he was accused of having in his possession. Don’t forget: Wershe wasn’t charged with conspiracy or racketeering. He was charged with possession with intent to distribute over 650 grams of cocaine.

Hmm, you might say. Did Detroit narcs plant the box of dope they “found” in a neighborhood back yard about half an hour after Rick Wershe was arrested, dope they claimed belonged to Rick Wershe even though there was nothing tying him to the box of cocaine? I am shocked. Shocked! To think you might have such a thought about these brave and honorable men in blue who risked their lives to make the mean streets safe from bad hombres like 17-year old Rick Wershe. But I digress. Let’s get back to the pending battle before the Michigan Supreme Court.

You don’t have to have a law degree to understand the key elements of Wershe’s appeal to the Michigan Supreme Court. You just have to understand lawyers hate talking to each other in plain English. Take a deep breath and read the next paragraph, even though the second sentence may set a record for its length:

“The present case involves an important and significant issue of law and fact. In her opinion and order, Judge Hathaway ruled that because Mr. Wershe’s original sentence of mandatory nonparolable (sic) life as a juvenile for a non-homicide offense was indisputably unconstitutional under the Eighth Amendment’s ban on cruel and unusual punishment, pursuant to subsequent decisions of the United States Supreme Court, the proper remedy for that unconstitutionality should be a resentencing, at this time, under the current version of Michigan’s controlled substances law, in which the Michigan Legislature has twice reduced the severity and eliminated the mandatory nature of the sentencing scheme which was applicable in 1987.”

Did you get that? It is from Wershe’s appeal to the Michigan Supreme Court. Let’s break it down. At the time Wershe was arrested in 1987 and sentenced in 1988 Michigan’s drug law stated if the amount of drugs involved was over 650 grams (the prosecution claimed Wershe had 17 pounds of cocaine) the sentence was mandatory life without parole. That law, one of the harshest in the nation, was eventually overturned to allow for the possibility of parole.

Wershe’s lawyers argue sentencing a juvenile to mandatory life in prison for “a non-homicide offense” is cruel and unusual punishment as prohibited by the Eighth Amendment of the U.S. Constitution, so the way to remedy that is to re-sentence him, under current Michigan drug law, as Wayne County Circuit judge Dana Hathaway has proposed. As the Wershe appeal notes "...the Michigan Legislature has twice reduced the severity and eliminated the mandatory nature of the sentencing scheme which was applicable in 1987.”

The Wayne County Prosecutor’s answer is basically what’s done is done and it was done properly under the law that was on the books at the time and therefore cannot and should not be modified. The fact the Michigan legislature has modified the law and the Michigan Supreme Court has weighed in on sentencing guidelines makes no difference to Prosecutor Kym Worthy.

“There has been no holding, let alone a retroactive one, that parolable mandatory life for a nonhomicide offense committed by a juvenile is unconstitutional,” Wayne County argues in its reply to Wershe’s appeal to the Michigan Supreme Court.

The Wershe appeal says Judge Hathaway has it right, noting: "In particular, she noted that while Mr. Wershe’s sentence of LWOP (Life Without Parole) has been changed, due to prior case law and the changes to the statutes, to a sentence of life with the possibility of parole, he has never been sentenced by a judge who had discretion to impose anything but a life sentence, regardless of Mr. Wershe’s age at the time of the offense, the circumstances of that offense, or any other relevant factors."

This is saying, yes, Wershe is eligible for parole under Michigan’s revised drug law, but he was never re-sentenced under the new law. So, yes, his sentence in 1988 was proper at the time, but no judge has formally updated his sentence to reflect current law.

Just in case the Michigan Supreme Court justices are persuaded by the Wershe argument about the law, Kym Worthy’s argument to the high court shift gears at the end and says, in effect, what’s the big deal? Wershe can get relief through parole from the Michigan Parole Board or a commutation by the Governor and doesn’t need any interference from an uppity trial judge in Wayne County.

"The trial judge here is neither the governor nor the Parole Board. Defendant is serving a sentence of life in prison, and is subject to parole consideration...Whether he is being so afforded by the Parole Board is not a matter for consideration as to the constitutionality of the sentence...Further, defendant can seek a commutation of his sentence from the Governor, and is so doing. But his sentence is constitutional,” the Wayne County prosecutor’s brief argues.

The Wershe appeal focuses on the question of whether the Michigan criminal justice system is a living, evolving set of principles and rules versus a rigid, unchangeable system cast in stone:

"...the threshold issue this Court must face, and should grant leave to appeal on, is the definition of “retroactive change in law”... This Court should grant leave to appeal on this important, but as yet unanswered, issue to the bench and bar," the Wershe appeal states. That last phrase—bench and bar—is lawyer talk meaning judges and lawyers, as in the State Legal Bar, not the shot-and-shell joint over on the next block.

Barristers (lawyers) are sure to nitpick this non-lawyer simplification, but the issue for the Michigan Supreme Court in the Richard J. Wershe, Jr. case is retroactivity. Can and should the criminal justice system re-consider old cases? The times and public opinion and laws enacted by the Michigan legislature have changed since Wershe was sentenced to life in prison in 1988. Should the now-discarded law under which he was sentenced prevail forever or should the courts take a fresh look at his punishment in light of changes in the law and the Michigan Supreme Court’s own rulings that sentences need to be “proportionate” to the crime committed? That is the question.



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