Another injustice perpetrated by mandatory minimums

It all started with a family feud over something approximating a house, which didn't even have running water.

It ended with the two twenty-somethings getting life without parole in federal prison, thanks to "hardball charging" by the Havre, Montana area US Attorney.

For the next fifty or sixty years from now, these two will molder in federal prison, their lives wasted on the altar of some Congresscritter who wanted to be seen as tough-on-crime, and the ambition of a local Assistant US Attorney.  Oh, yeah.  We taxpayers get to foot the bill for it, too.  Fifty or sixty years' worth of Harvard tuition, room, board and books, each.

It began in early 2005:  

Two charged in fire death (June 22, 2005)

A man and a woman have been charged with first degree murder in connection to the death of Angel Lynn Denny, a 15-year-old Hays-Lodge Pole junior who died in a house fire April 9, Assistant U.S. Attorney Lori Suek said today.

Kenneth John Arcand, 21 of Chinook and Bobbie Jo Wing, 25, of Dodson each appeared before U.S. Magistrate Judge Robert Holter Tuesday in Great Falls and pleaded not guilty, a U.S. Attorney's Office press release said. They have both been released from custody, and a pretrial conference has been set for July 7, the press release said.

Authorities are alleging that Arcand and Wing set fire to a house on the Fort Belknap Indian Reservation, where Denny's body was found in a bedroom. An autopsy determined that Denny died of smoke inhalation.

"The allegation is that this was an arson," Suek said. She said she could not disclose how investigators came to that conclusion.

We later found out the FBI worked them into confessing, after they asked for attorneys.

If convicted, Arcand and Wing each face a manditory life prison sentence and $250,000 in fines, the press release said.

Suek said Arcand and Wing were released in accordance with the Bail Reform Act. People who are accused of such crimes but do not pose a flight risk or danger to the community are released, she said.

A few months later, they were convicted after a trial.

A couple accused of setting fire to a home on the Fort Belknap Reservation that killed a 15-year-old Lodgepole girl sleeping inside, was found guilty of first degree murder Thursday in Great Falls.

After deliberating for three and a half hours, the 12-member jury convicted Kenneth Arcand, 20, and his common-law wife, Bobbi Jo Wing, 25, of killing Angel Denny by setting fire to the home they occupied a mile southeast of Lodgepole in the southeastern corner of the reservation.

U.S. Marshals took the couple into custody as the three-day federal murder trial ended. First degree murder carries a mandatory life sentence.

* * *

At the heart of the case are statements Wing and Arcand gave to FBI agents nearly a month after the April 9 fire.

Prosecutors relied heavily on the written statements and a question-and-answer form, in which Wing and Arcand provided answers to questions such as, "how and why did you start the fire?"

During closing arguments Thursday morning, defense attorneys claimed FBI agents threatened and coerced Wing and Arcand into making false confessions after requesting a lawyer.

Before the trial, the defense attempted to suppress the statements but U.S. District Judge Sam Haddon denied the request.

Assistant U.S. Attorney Lori Harper-Suek argued the statements were not false declarations of guilt because they provided details, such as where the fire originated, matching the burn patterns reported by state fire investigators.

"Is it just a coincidence that the defendant's statements match the evidence?" Harper-Suek asked the jury.

Dick Swingley, a state fire marshal, testified Tuesday that he could not determine the origin or cause of the fire.

* * *

Arcand's attorney told the jury that Wing falsely confessed to the crime to protect her family.

* * *

Nonetheless, prosecutors convinced the jury Arcand and Wing started the fire regardless of whether the couple intentionally meant to harm Denny.

* * *

The couple also were charged with felony arson; that charge was severed from the first degree murder charge, according to Assistant U.S. Attorney Carl Rostad.

Prosecutors will decide later whether to pursue that charge.

Burn pattern analysis, fire marshals who can't tell where or how the fire started, coerced confessions, LWOP sentences.  And more charges, just in case.  Sounds like Texas.  

They were sentenced in accordance with the law - mandatory life without parole.  They appealed.

Today, the appellate opinion came down - affirmed.  

The appellate opinion leads off:  

Pathetic events led to a fire, a death, and the conviction of Bobbi Jo Wing and Kenneth Arcand for first-degree murder. There is no legal basis for overturning Appellants' convictions.

The defendants' counsel appears to have done what could be done with a lousy case.  The problem is, though, that jurors are not allowed to be told the punishment coming if they convict:

Appellants argue that the district court improperly implied it possessed discretion in sentencing by instructing the jury that  "punishment . . . is for the court to decide." The judge, however, added "You may not consider punishment in deciding whether the government has proved its case against a defendant beyond a reasonable doubt." When read as a whole, the instruction properly distinguishes the fact-finding role of the jury from the sentencing role of the court, and does not make the implication suggested by Appellants.
Appellants argue the district court had the power and obligation to depart downward from the statutory minimum sentence of life imprisonment. Under United States v. LaFleur, however, the district court had no authority to depart downward from the statutory minimum of life imprisonment for first-degree murder. See LaFleur, 971 F.2d 200, 208 (9th Cir. 1991). Nor did the district court have authority to depart downward under United States v. Booker, 543 U.S. 220 (2005). Booker does not apply to statutory minimum sentences. See United States v. Dare, 425 F.3d 634, 641 (9th Cir. 2005).

These are the kind of judges, practicing good "judicial modesty" of the sort that just has to make a Repug preznit proud, deferring to their betters in the Legislature and the Unitary Executive.  There are, in this writer's view, fewer cases more deserving for judicial surgery than this one.  But, the Repugs have taken the scalpel. Happily, though, one of the judges had some sense of common human decency and wrote a concurrence:

I write separately to express my dismay at the consequences of the result we reach. Although I concur in the memorandum disposition and join fully in its legal analysis, I find the outcome of this case to be troubling.

Even the Government appears to accept that the terrible death of the victim here was an unintended consequence of the defendants' act of burning down a house they viewed as theirs
, in order to end a long-running family disagreement. It has not been disputed that the defendants acted without knowledge that the victim, previously seen getting into a car, had returned to the house and fallen asleep in a bedroom. Nothing reflects any intent on the part of the defendants to injure the victim or anyone else. Aside from this one episode, the defendants have had only a few minor brushes with the law. Yet the mandatory sentences of life imprisonment mean that the lives of these young people, aged 25 and 21 at the time of conviction, may be entirely squandered in prison. It is appropriate that the defendants be seriously punished for what they did, but these life sentences do not square with my concept of justice.

I do not suggest that a mandatory sentence of life imprisonment for felony murder is fundamentally unjust. Rather, I am struck by the consequences of how prosecutorial discretion was exercised in this case. It is telling to me that the Government has made no effort to defend these life sentences based on the particular facts here. I acknowledge that I may not have a complete picture, because it has not been necessary for us to investigate the details of all that occurred that night. I agree with the Government that serious punishment is properly in order. Arson is a serious crime. Anyone setting a fire, even if acting legally, should be responsible for making sure that it is done safely and that nobody will be hurt, which the defendants failed to do. But the Government has

not argued or even indicated a belief that the appropriate punishment on the facts of this case is life imprisonment. Why did the Government pursue first-degree murder charges, if it cannot justify the resulting mandatory punishment based on the specific acts of these individuals? What happened here seems much more like what most people would understand as negligent homicide; I suspect few, if any, would consider this "first-degree murder."

Rather than justify the life sentences for these defendants, the suggestion was made at oral argument that felony murder was charged here so that the defendants might be persuaded to accept a deal that involved pleading guilty to a lesser charge. Despite my appreciation for the candor displayed by the Government, this explanation provides no comfort. Whatever might be said about

using charging decisions as part of hardball negotiation, there is nothing to commend carrying this strategy through to conviction, at least in this case. The Government brought these charges; it cannot pretend to be an innocent bystander without responsibility for what happened thereafter.

Extreme justice is extreme injustice, according to an ancient legal maxim cited by Cicero. Bartlett's Familiar Quotations 108b n.7, 151b (Emily Morison Beck ed., 14th ed. 1968) ("summun ius summa iniuria"). So it may be here. This

court cannot properly alter the result of what was set in motion by this prosecution, but that does not have to be the end of the story. The President has the power to temper justice with mercy. I hope that the Executive Branch revisits this case and, if the facts truly are as they have been made to appear to us, will consider letting the defendants go after a more appropriate term of incarceration.

Don't hold your breath, Judge.

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    A Travesty (none / 0) (#1)
    by kdog on Mon Jan 29, 2007 at 05:19:33 PM EST
    Good job scribe....well done.

    The concurrence is right on the mark...the practice of over-charging defendants to force plea deals is most troubling...its a railroading waiting to happen.

    The DA's office should be ashamed of themselves.  Maybe, just maybe, a couple years in prison and these 2 could turn their lives around like my old man did.  Instead they rot in a cage for life, and we'll never know.  Sad.  Unfortunately I share your pessimism...both parties aren't abandoning the "tough on crime" schtick anytime soon.  Most people don't seem to care either.  

    I can only begin to imagine ... (none / 0) (#2)
    by syinco on Mon Jan 29, 2007 at 08:22:02 PM EST
    It is only the remarkable human ability to adapt to any abject circumstance,
    whether through resignation, hope, faith,
    or exercise of sheer will,
    that spares us the horror of witnessing a man
    confront, for each moment evermore,
    the senseless, nearly total deprivation in which he is to live his life,
    forever condemned to the shadows of that which could have been,
    of that which could still readily be,
    but for want of just a moment's
    understanding and reason.  

    Were we to truly perceive this confrontation, we would instantly know our actions to be unconscionable, and recognize them as cruel and unusual.

    Scribe (none / 0) (#3)
    by sarcastic unnamed one on Tue Jan 30, 2007 at 12:07:43 PM EST
    More info here via the USDOJ.

    There is little info I could find on this case, but what seems to have happened is Wing and Arcand lived in a house ostensibly owned by Wing's mother, however that ownership was also vigorously claimed by other members of the extended Wing family.

    One night, at a party at the Wing home, several members of the Wing family argued about the ownership. Later that night, after Wing and Arcand removed all their possessions from the house, it was set on fire. Wing's cousin was asleep in a bedroom of the house and perished in the fire.

    Wing and Arcand confessed to setting the fire. Defense contested the confession.

    IA(obviously)NAL but it seems to me, regardless of guilt or innocence of setting the fire, they should never have been charged with Murder 1 in the first place. ie., I could find no reference that suggested they intentionally killed the cousin with malice aforethought and premeditation.

    Scribe, isn't the core problem of this case not minimum sentencing guidelines but rather that they should never have been charged with Murder 1 in the first place?

    The problem is manifold. (none / 0) (#4)
    by scribe on Wed Jan 31, 2007 at 11:42:28 AM EST
    First, you are correct they never should have been charged with murder one.  Even the government sorta acknowledged that (in the appellate oral argument, once they had a conviction in hand) - read the appellate opinions, particularly the concurrence.

    Second, the facts of the case seem to indicate that, not only did they not have any intent to kill, but they were misinformed by others at the scene as to the presence of the decedent.  It appears they were told (or led to believe) she had left the house - which she had, but then she came back in without anyone knowing about it.  Thus, the "heroic" efforts to get her out.

    Third, it was pretty much conceded all around there was overcharging to force a guilty plea.  This is IMHO the courtroom equivalent of the bully making a big show, knowing he's a lot weaker than he is. Otherwise, why also charge felony arson and then separate the trials - so the government can get a second bite in case the first trial fails (because it was pretty weak).

    Finally, and this is both ugly and more a conclusion from the published reports, it appears this came about because (at least in part) the defendants were Native Americans and the prosecutor not.  The only reason there was federal jurisdiction in the first place was because this took place on the reservation.  This is The West and, no matter what anyone says, there's still a strong undercurrent in public life and the judicial system of bad and unequal treatment to Native Americans.


    Thanks scribe (none / 0) (#5)
    by sarcastic unnamed one on Wed Jan 31, 2007 at 12:56:00 PM EST

    Finally, someone is speaking out in the blog world (none / 0) (#6)
    by Electa on Fri Feb 23, 2007 at 11:40:24 AM EST
    about the draconian US Mandatory Sentencing Guidelines and it's effects on disproportionate sentences versus the crime committed.  Evenmoreso addressing the behavior of over zealous prosecutors who are rail roading defendants into taking plea bargins to avoid excessive sentences.  Ninety seven percent of the goverments' wins are plead bargins.

    I am a professional woman who spent 6 months at a federal prison camp.  During my stay I witnessed first hand the devastating effects mandatory minimums are having on women, their children and families as whole.  I met a women who had not seen her daughter in 11 years, the last time being 3 mos. old.  Others hadn't touched their children in seven, nine years.  I was fortunate because I lived within an hours drive to the facility so my visits were regular.

    Mandatory minimums are satanic in its purest form.  Prosecutors use the RICO ACT to exploit defendants into taking plea bargins.  I met women who were sentenced to 60 mos. simply because someone said they did something.  From what I understand the government needs no evidence under RICO to indict and convict.  It only requires merely the mouth of one witness and that witness is usually a snitch trying to get a sentence reduction.  This story was repeated over and over and over again.  When asked, "why are you here," 99% of the women responded "Conspiracy".  The majority of these women are substance abusers and did whatever for their drugs, but they are not hard core criminals.  

    Another thing I found to be amazing was there were no kingpins.  Only young women, who are mostly poor African-American and Hispanic, are incarcerated serving these ungodly long sentences.

    I was considered a short timer, and relative to what surrounded me, I was just that.  However for me it was a lifetime so I can imagine how the women who are serving as high as 240 months must feel.  It's a form of death and these prisons are the tombs where the walking dead roam.  

    This is genocide and it is destroying American families. These excessive sentences are robbing the taxpayers to the benefit of a few.  Bob Barker Enterprises provides products to the prison commissaries throughout the federal system.  Prison is BIG BUSINESS.  UNICOR is big business.  State Prison Industries is big business and Foster Care for the children of incarcerated women has become big business.  

    My Cousin (none / 0) (#7)
    by creesugarbaby on Sat Sep 15, 2007 at 09:34:26 PM EST
    Well that was my first cousin and I'm glad they got what they did..their not the ones that are six feet in the ground..she had and still has a wonderful, large, loving family that still wonders what her life could have been like if she were still alive..they shouldn't have set that house on fire in the first place.

    My best friend (none / 0) (#8)
    by nakodanative on Tue Oct 09, 2007 at 11:14:56 PM EST
    Angel was my best friend. This past May, we would have graduated together. There is no way to express how hard it was walking down the isle, knowing she was not there with us. There was a special place reserved for her, with her picture and a beaded cap and gown. Many people spoke of her and how her death affected everyone. She will never be forgotten. Her death affected the Hays and Lodge Pole communities, as well as others. I will be honest and say that these two people  deserve the life sentences they received and I am very glad that they got these sentences. They can sit in their cells for the rest of their lives and think about the hurt and pain they have caused. Angels friends and family now have only memories, which are the best, but you never stop wondering what she would be doing now. An innocent young woman was killed resulting from their selfish acts, they deserve the sentence they got.

    If you only knew... (none / 0) (#9)
    by nakotaluv on Fri Dec 14, 2007 at 01:01:32 PM EST
    I can't believe how many articles I've read on the internet in support of these two individuals who were convicted of killing my sister, Angel.  It's really sad & painful to read the articles and if these people who wrote them actually knew the TRUTH behind the Wing family, then I would have to say they would have wished not to have ever known them or felt one ounce of sympathy for them.  I do not claim any of the Wing family as my family, nor will I ever and thats is the same decision of most of my tioshpaye`.  My children, nieces and nephews will be told the stories of this family and the pain they have caused my family.  To those of you living on the rez, I advise you BEWARE of them...they may appear to be living a god fulfilled life but, like my inan` told me...no one can change spiritually and completely overnight, especially when that's all they ever knew since birth.  The vicious and blinded cycle of alcohol and drugs.  I pray everyday for my tioshpay` (immediate family) that the Creator blesses them with strength and courage to carry on with a good, strong heart, mind and spirit.  And more importantly, to teach our younger ones the TRUTH.  For so long the truth of these people was hidden from the world and finally now after 3-4 generations has the truth been revealed, even though something so tragic and devastating like this happened and how even people from the same blood destroy a life so precious, only given by the Creator.  

    TO ALL OF ANGEL'S FRIENDS & FAMILY: Thanks for all your prayers and everything else, and we would like to inform you that Angel's family has drafted a petition to the US President to deny Bobbi Jo & Kenny's REQUEST FOR EXECUTIVE CLEMENCY (pardon by the President).  If you would like to sign in support of denying them a pardon, PLEASE EMAIL ME AND WILL CONTACT YOU SOON. You may contact I or Jenny on MySpace. OH, AND ONE MORE THING...I'VE STARTED WRITING A BOOK, IF YOU HAVE ANYTHING YOU WOULD LIKE ME TO ADD, PLEASE SEND ME AN EMAIL.  Thanks!

    This is how it was told to me and that is all I have to say.
    Amba` Washday! (Good day!)