WILL THEY ALL LIVE TO SEE JUSTICE PER USSC DECISIONS IN MILLER V. ALABAMA (2012), MONTGOMERY V. LOUISIANA (2016)?
U.S. Supreme Court first declared juvenile life without parole (JLWOP) unconstitutional for all in 2012
Michigan’s older, ill juvenile lifers may die in prison waiting for justice; only 8 percent have been re-sentenced so far
Charles Lewis case: post-conviction hearing tentatively set for Fri. Jan. 13, 2017; Support him and all juvenile lifers! FREE THEM NOW!
By Diane Bukowski
January 12, 2017
Supporter at rally for Charles Lewis Oct. 11, 2016/Photo: Cornell Squires
DETROIT – Charles Lewis, a Wayne County juvenile lifer whose family and supporters say he is innocent of a murder charge for which he has spent 41 years in prison, recently summed up what is happening in the re-sentencing process for many of the county’s 147 juvenile lifers.
“I think they’re just dragging things out, waiting for me to die,” Lewis told VOD. His mother Rosie Lewis earlier said, “They’ve done everything they can to him—let him go!”
Lewis, 59, has had three heart attacks for which the Michigan Department of Corrections denied him effective treatment. He also suffers from severe diabetes.
Only eight percent of Wayne County juvenile lifers have been re-sentenced to date. Only one, William Washington, has been paroled so far. It has been four and a half years since the USSC’s first ruling in Miller v. Alabama (2012) that only the “rarest child” should be sentenced to die in prison, and that JLWOP was unconstitutional, a view held in every other country in the world.
Michigan was one of four states to wait til the bitter end before agreeing that Miller was retroactive, pursuant to the USSC’s 2016 Montgomery v. Louisiana decision.
Timothy Kincaid and attorney Gerald Evelyn at re-sentencing hearing Nov. 4, 2016.
Attorney Gerald Evelyn wrote regarding Timothy Kincaid, “Mr. Kincaid was born in 1961, when the closest measure of life expectancy for his demographic (African-American males born between 1969 and 1971) was 60 years. Those numbers do not adequately account for being incarcerated for a significant if not all of those years. Thus, a 60-year sentence is a de facto life sentence, which denies Mr. Kincaid the reasonable possibility of parole during his lifetime.”
Others including former Wayne County Prosecutor John O’Hair and Former Michigan Governor William Milliken have also condemned Michigan’s draconic juvenile lifer re-sentencing statutes, passed in 2014, which set a minimum of 25-40 up to maximum of 60 years in those cases where prosecutors have not re-recommended JLWOP. They also bar juvenile lifer re-sentencings from taking “good time” into account.
Lewis has a post-conviction hearing scheduled on his Register of Actions (ROA) for Fri. Jan. 13, 2017 at 9 a.m. in front of Wayne County Circuit Court Judge Qiana Lillard. His entire complex court file went missing several years ago.
His falsified (ROA) remains intact on the county’s website, including only events from 2000 on, although he was sentenced in 1977, after three separate trials. It still incorrectly says he was convicted April 3, 2000 front of Judge Gershwin Drain. State law considers the ROA the backbone of case files.
On Nov. 11, Lillard denied Lewis’ motion to dismiss his case based on U.S. Supreme Court and state court precedents regarding missing or altered records. She ordered the prosecution, defense, and Clerk’s office to “re-construct” his file after eight months of hearings, during which numerous officials affirmed the loss of the records.
According to Lillard’s office, the parties finally met Jan. 10 to begin the process of reconstruction. Whether they can do so legally, particularly without a valid ROA, is questionable. (See box at left listing the minimal contents the state requires in trial court files.)
Lewis is one of 65 juvenile lifers for whom Wayne County Prosecutor Kym Worthy is recommending re-instatement of life without parole sentences. This means they still face complex re-sentencing hearings required by the USSC in its 2012 Miller v. Alabama decision. (See list of County juvenile lifers with LWOP or TOY (term of years) recommendations at http://voiceofdetroit.net/wp-content/uploads/JLWOPchart916.pdf.
Lewis was convicted of killing off-duty police officer Gerald Sypitkowski July 31, 1976. VOD reported previously that Aug. 1, 1976 Free Press coverage of the killing, obtained immediately from numerous eyewitnesses at the scene, including Sypitkowski’s partner officer Dennis Van Fleteren, exonerates Lewis. Those witnesses said the fatal shot came from a white Lincoln Mark IV driving down Harper at Barrett.
Gil Hill (l) consulting with known drug dealer Willie Volsan (back to camera), former Sgt. James Harris. FBI Surveillance photo
None of them told the Freep that they saw four Black teens including Lewis, then 17, in a yellow Ford Gran Torino, at the scene.
But that was the scenario former DPD homicide chief Gil Hill (then a sergeant) cooked up against Lewis, recruiting three frightened juveniles to testify against him, admittedly overriding court rules that required them to be handled by juvenile court. Hill, who testified he was working with the “Special Assignment Squad,” was known for decades as an allegedly dirty cop who took bribes to cover up homicides and drug-deals.
“I said that the police obviously made up their stories,” Lewis said he told his court-appointed attorney Valerie Newman. “All of their stories are basically the same story. If you get three sixteen year old’s together and have them watch one event you will get three different versions of what happened. So, for them to all make basically the exact same statement was crap. I asked her how do you take the testimony of three juveniles over the testimony of a police officer, white college students, and a white bouncer. She could not answer that question. The reality is this, if you don’t believe in my innocence, you can’t fight for me.”
(L to r) William Washington, relatives Lizzie Young and Vincent Washington. Photo: Jodi Westrick, Michigan Radio
Meanwhile, to date, only one juvenile lifer out of the County’s 147 has actually been paroled after re-sentencing under draconic state statutes passed in 2014, currently under federal appeal by the American Civil Liberties Union.
He is William Washington, who was released from prison Nov. 17, 2016 at the age of 59 after serving 40 years, the first juvenile lifer out of up to 370 across the entire state to finally see freedom.
Seven others shown below, (known to VOD) still serving these unconstitutional sentences have been re-sentenced but not yet paroled. Michigan Radio reported Dec. 17, 2016 that a total of only 12 juvenile lifers in Wayne County have been resentenced. That’s only a little over eight percent. Wayne County Prosecutor Kym Worthy has appealed re-sentencing decisions for at least two of the 12, causing further delay. See http://michiganradio.org/post/interactive-infographic-how-many-michigans-juvenile-lifers-have-been-resentenced
Edward Sanders family after re-sentencing (to be named).
Sanders family (TBN)
In Kincaid’s case, an appeals court ordered Dec. 29 that he be re-sentenced to 60-90 years for “assault with intent to commit murder (AWIM),” while upholding a trial court re-sentence of 30-60 years for three counts of first-degree murder in a 1976 case.
Kincaid is already 55 years old. He has served 36 years for the murders of three women, carried out by two older men in 1976, when he was 16. Ironically, Kincaid himself did not shoot or kill any of the four women victims, instead having one hide in a closet while he shot into the ground. Two older men who were the actual killers did not receive life without parole sentences.
“According to the probation officer, the surviving victim believes she is still alive through the intercession of Mr. Kincaid, in light of his protective conduct during the shooting,” trial court Judge Michael Callahan said during Kincaid’s re-sentencing Nov. 4. “She even visited him while he was housed in the Department of Corrections.”
Attorney Evelyn said, “In the prosecution’s brief, they acknowledge that any judge has the authority to correct an unconstitutional sentence. The prosecution should not have opposed Callahan’s common sense correction,”
Odessa Kincaid, who passed in 2011, with her sons Timothy and Waymon during their youth.
Evidently, however, the COA ruling will hopefully not hinder Kincaid’s parole. His hearing on that was held Jan. 5, 2017, according to his family members, who had the understanding that the AWIM sentence of 60-90 years was NOT a JLWOP charge. Therefore, state good time rules should apply, cutting 35 years out of that sentence. The state’s OTIS website already indicates his new sentence, showing his earliest release date as Sept. 26, 2013.
Kincaid’s brother, Waymon Kincaid, a parolable lifer who was a plaintiff in an ACLU lawsuit against the state’s changes to parolable lifer sentencing, is now finally home himself.
Meanwhile, the Court of Appeals has not yet ruled on Worthy’s appeal of Wayne County Circuit Court Judge Bruce Morrow’s re-sentencing of Zerious “Bobby” Meadows to 25-45 years, which should have set him free immediately, since he had already served the 45 years.
Wayne Co. Prosecutor Kym Worthy listening to top advisors.
Worthy contends state law requires that the maximum of 60 years is mandatory, while Meadows’ attorney Melvin Houston said, “My client has little else to lose by appealing this matter as the state has already taken his youth.”
Houston has filed extensive briefs which contend that setting up to a maximum of 60 years does not make it mandatory, as well as citing a Florida case where an appeals court struck down mandatory minimums for juvenile lifers.
VOD covered Meadows’ case earlier, at http://voiceofdetroit.net/2016/11/28/case-of-zerious-meadows-challenges-michigans-draconic-juvenile-lifer-re-sentencing-practices/.
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