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Inmate's sentence affected by court ruling

Published on May 18, 2010 in the Pensacola News Journal 

Joe Sullivan was only 13 when he robbed an elderly woman's house in West Pensacola. He later returned with a knife to rape her.

Circuit Judge Nick Geeker sentenced the boy to life in prison for the 1989 crimes without any chance of returning to the outside world. He already had a lengthy juvenile record.

"He is beyond help," Geeker said at the time.

On Monday, the U.S. Supreme Court ruled 5-4 that it was unconstitutional for a Florida court to sentence Terrance Graham to serve life in prison without the possibility of parole. The teen was 16 when he committed a slew of robberies.

The case was argued before the Supreme Court in November along with Sullivan's. While Monday's decision only mentions Sullivan briefly, the Graham decision will apply to Sullivan.

State Attorney Bill Eddins, whose office prosecuted Sullivan before Eddins worked in the office, expects the case to eventually return to Geeker. Eddins said his office intends to keep Sullivan in prison.

"We're going to request he be resentenced to life again after he has the opportunity to demonstrate that he should receive a lesser sentence," Eddins said. "We don't believe he can demonstrate that."

Attorney Bryan A. Stevenson of the Equal Justice Initiative, which filed the petition on Sullivan's behalf, said he was pleased with Monday's ruling, but said many questions remain unanswered.

"It represents a need for revisiting this issue in a more informed way," Stevenson said. "States will have to work out mechanisms and procedures for sentencing. It will vary from case to case and from jurisdiction to jurisdiction."

Now the state of Florida, which did away with parole in 1983, is left with the question of how to implement a parole system where none currently exists.

There are 129 juveniles serving life sentences without parole in state and federal prison on non-homicidal crimes. Of those, 77, or nearly 60 percent, are in Florida prisons.

Mike Weinstein, a prosecutor and state legislator from Jacksonville, tried for two years without success to pass legislation to create a restrictive parole system for juveniles who meet certain conditions.

Similar bills died in committee this year in both the House and the Senate.

"I think we overdid it and now we're being told we overdid it," Weinstein said of the Supreme Court ruling.

In addition to having to rewrite the laws that ensure new juvenile offenders aren't given such sentences, the state now will have to figure out what to do with those who already are in prison.

The Florida Parole Commission continues to exist despite the legislative abolishment of parole 27 years ago.

The commission oversees some 6,000 inmates who still are eligible for parole because their sentences came before 1983, commission spokeswoman Jane Tillman said.

The Legislature likely will have to infuse more money into the Parole Commission, which likely will see its workload increase as a result of Monday's decision, Weinstein said.

Florida Attorney General Bill McCollum's office handled arguments in the Sullivan case and that of Terrance Graham, who was 16 and 17 when he was involved in a number of armed robberies.

A host of government agencies will have a hand in how this system ultimately looks, including the Attorney General's Office, the Department of Juvenile Justice and the Department of Corrections, as well as the House and Senate.

While Monday's decision gives hope to dozens of teens sentenced across the country, Justice Anthony Kennedy said in the majority opinion that the decision is not a free pass.

"A state need not guarantee the offender eventual release, but if it imposes a sentence of life, it must provide him or her with some realistic opportunity to obtain release before the end of the term," he wrote.

Weinstein believes that under the Supreme Court's ruling, the state would be allowed to implement many of the restrictions contained in his earlier bill.

"There's a lot of studying that needs to be done to see what it is we'll need to do," Weinstein said. "We can implement any requirements as long as they are reasonable and as long as they are not used to circumvent the rules."

Escambia County has six men in state prisons who were arrested as juveniles and sentenced to life in prison with no possibility of parole.

A U.S. Supreme Court decision Monday in the case of 13-year-old Pensacola resident Joe Sullivan deems life prison without parole for juveniles unconstitutional.


Transient

Childers awaits decision

Published on Feb. 16, 2011 in the Pensacola News Journal

ATLANTA - An attorney for former Escambia County Commissioner W.D. Childers said his client never would have been convicted of bribery if his defense attorney had been allowed to conduct a more rigorous cross-examination of a key witness.

Childers' lawyer told the full 11th U.S. Circuit Court of Appeal on Tuesday that his conviction should be overturned because his legal team was denied the right to fully cross-examine Willie Junior, a commissioner who cut a plea bargain to testify against Childers.

"You have a situation where one witness was not allowed to be cross-examined," attorney Nathan Dershowitz said after the hearing. "We have a system that believes that cross-examination is indispensable."

Childers, 77, who lives in South Florida, did not attend the hearing, but his daughter, Lake Worth attorney Karen Childers, was in attendance.

Before becoming a commissioner, Childers served 30 years in the state Senate. He was elected to the commission in 2000 after being term-limited out of the Senate.

Soon after his election, he was accused of paying Junior thousands of dollars in cash to vote in favor of the county's purchase of the old Pensacola Soccer Complex. One of the allegations was that he presented the cash in a large pot; the precise amount was never determined.

He was convicted of bribery and accepting unlawful compensation for official acts. He was released from prison in West Palm Beach on June 17, 2009, after serving nearly three years of a 42-month sentence.

Florida's appellate courts upheld the convictions, and a federal judge also rejected Childers' challenge.

But a three-judge panel of the 11th Circuit reversed the ruling by a 2-1 vote, finding that Childers should have been allowed to challenge Junior's testimony more fully.

In a rare move, the court then agreed to have the full panel of 11 judges rehear the appeal. The oral arguments took place Tuesday, and the court will issue its opinion at a later date.

Childers is eligible to receive $2,533 per month in retirement benefits should his conviction be overturned, according to the Department of Management Services.

But Dershowtiz said Childers' isn't motivated by the money.

"I don't think it's the financial ends of it; to me he wants to be vindicated," Dershowtiz said as he left the courthouse.

Under a plea agreement, Junior testified at the separate trials of real estate agent Joe Elliott and Childers.

Junior faced a potential 125 years in prison, but under the terms of his agreement, his sentence was to be capped at 18 months. Junior committed suicide before he was sentenced.

When Elliott was acquitted, Dershowitz argued, Junior changed his story to guarantee Childers' conviction and to preserve his plea deal.

"He changed his story because of the acquittal," he said during his argument. "He changed his story because he thought he was going to lose the deal."

Then-State Attorney Curtis Golden was so frustrated with Junior's changing stories that he attempted to cancel the plea bargain. The trial judge would not allow it.

At the trial, Childers' attorneys cross-examined Junior for hours about his changing accounts of the alleged bribery. But Childers' appeal is based on the judge not allowing defense attorneys to bring up the prosecution's move to revoke the plea deal, something they thought would show that even the prosecution had doubts about Junior.

"Why don't you let the jury have all of the facts?" Dershowitz asked.

Dershowitz was given the first 15 minutes of the hearing to explain to the judges why Childers should be vindicated. Assistant Deputy Attorney General Christine Ann Guard was allowed 20 minutes to give the state's argument, and Dershowitz given another three minutes for rebuttal.

The attorney general dismissed the importance of the testimony that wasn't allowed in the trial.

But one judge noted Junior's importance to the state's case and why it was paramount that he remained credible.

"The state's case rises and falls on Junior's testimony," said Judge Charles Wilson, a native of Pensacola.

Guard said that Junior's testimony wasn't the exclusive evidence in the case. She cited phone records and additional witnesses.

Wilson responded that in high-profile political corruption cases, key witnesses themselves are often suspect.

"State's witnesses are generally bad people themselves," he said.


Childers' conviction thrown out

Published on June 9, 2010 in the Pensacola News Journal

A federal appeals court Tuesday overturned the bribery conviction of former Senate President and Escambia County Commissioner W.D. Childers.

The U.S. 11th Circuit Court of Appeal ruled the judge in the bribery case erred by not allowing Childers' attorney to cross-examine the state's star witness about his plea bargain deal and other issues that would have changed the outcome of the case.

"There was a violation of his constitutional rights to confront the witness to demonstrate the witness was biased," said Nathan Dershowitz, Childers' appellate attorney. "That goes to the heart and soul of our system, and it demonstrates that the trial was constitutionally deficient."

Childers, 76, was released from prison in West Palm Beach on June 17, 2009, after serving nearly three years of a 42-month sentence for bribery and accepting unlawful compensation for official acts during his stint as an Escambia County commissioner.

Childers can now attempt to have his state pension retroactively reinstated.

He is eligible to receive $2,533 per month, according to a Department of Management Services estimate.

The appellate court decision also will mean that Childers will not have to serve the duration of his probation term, which was set to expire in December.

Dershowitz spoke with Childers on Tuesday after the opinion became public.

"He was very happy," he said.

The legendary Florida politician served in the Florida Senate from 1970 to 2000 and was elected to the commission after being term-limited out of the Legislature.

Childers' attorney argued in the appeal that the state's star witness, the late County Commissioner Willie Junior, altered his testimony in order to maintain a plea deal in his own corruption case.

Junior - the state's key witness - himself faced 125 years in prison and agreed to testify against Childers and real estate agent Joe Elliott about the county's $3.9 million purchase of the old Pensacola Soccer Complex.

On June 17, 2002, Junior entered into a plea agreement with prosecutors that would give him a prison sentence of 18 months in return for his testimony against Childers and Elliott. Prosecutors reserved the right to revoke the deal if Junior failed to testify truthfully, according to appeal documents.

Childers was accused of delivering tens of thousands of dollars in a stainless steel pot to bribe Junior.

After Elliott was acquitted, Childers' attorneys contended that Junior altered his testimony in the Childers bribery case to ensure a conviction and to keep his deal in place.

However, Childers' attorneys were not allowed to cross-examine Junior about the inconsistencies. The defense also was not allowed to acknowledge Elliott's acquittal before the jury as such evidence is often considered prejudicial.

The jury in the Childers' trial also never learned about a move by prosecutors to revoke Junior's plea deal because he had changed his testimony regarding the alleged bribery during pre-trial depositions and before the grand jury.

The judge rejected the motion saying it appeared Junior was cooperating with prosecutors and there was no basis to revoke the deal.

At Childers' trial, his attorneys were not allowed to bring up the prosecution's move to revoke the plea deal and attempt to show that even the prosecution had doubts about its star witness, the appeal noted.

The First District Court of Appeal in Florida upheld the conviction and the Florida Supreme Court did not hear the case.

Childers' attorneys filed an appeal in federal court in South Florida. The case was sent to the Pensacola federal court and in July 2008, U.S. District Magistrate Judge Elizabeth Timothy denied Childers' claim.

Senior U.S. District Judge Lacey Collier rejected an appeal and the case was taken to the 11th Circuit Court of Appeal in Atlanta, which sided with Childers.

In the majority opinion, Circuit Judge Judith Barzilay wrote that Childers' constitutional rights were violated with the exclusion of Junior's inconsistent statements in the different trials.

"These motivations and their effect on the jury's perception of Junior's credibility lie at the heart of the appellant's right to be confronted with the witnesses against him," Barzilay wrote.

Circuit Judge Gerald Bard Tjoflat, who wrote the dissenting opinion, said that the defense in the case had ample opportunity - 10 hours according to court records - to question Junior during Childers' trial. He noted the jury was aware of the plea agreement and that Junior was motivated to cooperate with prosecutors in order to receive a reduced sentence.

But Dershowitz said that evidence didn't speak to Junior's state of mind and why he might have chosen to change his testimony to benefit himself.

"He was afraid he would end up with not getting the benefit of the bargain," Dershowitz said.

Junior later committed suicide on the day he was set for sentencing for his role in the bribery case.

Childers now lives with his daughter in South Florida.

The man who helped send Childers to jail, former prosecutor John Simon, is now a judge. He could not be reached for comment Tuesday.

Assistant State Attorney Greg Marcille said his office is weighing its options as to how to respond to Tuesday's ruling.

Those options include seeking another hearing at the federal appellate level which would require the approval of all 17 appellate judges, or to request standing before the U.S. Supreme Court.