Getting off easy: Jackson County gives many violent criminals probation, data show

08/02/2014 1:00 PM

08/02/2014 6:40 PM

LaShanda Bynum’s grief still comes in waves, even years after Djuan Hatten ambushed and killed her son.

Hatten never should have been on the street that night.

A year earlier, he’d shot a stranger simply for asking directions. That assault could have sent Hatten to prison for 10 years. Instead, he remained free on three years of probation.

“If the system had him do the time he was supposed to do for the person he shot before, he would not have been out to commit that crime against my son,” Bynum said.

Hatten has lots of company in Jackson County.

More than 1,200 times since 2009, Jackson County judges have put violent criminals on probation instead of locking them away with long prison sentences, a Kansas City Star analysis of state data found.

Compared with its neighboring Missouri courts, Jackson County grants probation more frequently to armed robbers, unprovoked shooters and men who have beaten up girlfriends or endangered children.

It doesn’t stop there.

Even killers sometimes receive probation in Jackson County.

Defendants, meanwhile, have grown to expect second, third or even fourth chances in Jackson County, where prosecutors and judges often sign off on probation or four-month “shock time” sentences as part of plea deals, according to a Star investigation.

Jackson County likely pays a price for using so much probation, one expert says.

“When the system lets violent offenders go unpunished, no one should be surprised to see more victimization in the community,” said Tim Lynch, director of the Project on Criminal Justice at the Cato Institute in Washington, D.C.

“The authorities are, in effect, enabling crime.”

Probation long has been a sentencing option for low-risk defendants convicted of nonviolent crimes.

But over the last 15 years, Jackson County has given it to more and more defendants convicted of some of the most violent crimes spelled out in state law.

Some of the reasons are baked into the criminal justice system and happen in courtrooms everywhere. But others are part of everyday justice in Jackson County, lawyers said.

Here’s how it happens:

– Prosecutors cut some probation-related deals, even in murder cases, to get a defendant’s testimony against more culpable parties.

– If a case falls apart, such as when witnesses back out, prosecutors sometimes salvage a conviction by accepting probation in a plea bargain.

– Jackson County judges usually accept negotiated plea bargains even if they have reservations about the probation sentence.

– Some Jackson County judges grant probation because they think long sentences mandated by state law are unduly harsh for young or first-time offenders.

According to some Jackson County judges and prosecutors, almost any conviction against a violent defendant, even if it includes probation, is better than dropping the charges.

But officials elsewhere say they believe in stern punishment for violent criminals.

“If it is a violent crime, it is going to be treated very seriously,” said Larry D. Harman, presiding judge of the Clay County Circuit Court.

Jackson County Prosecutor Jean Peters Baker said she stood by her staff’s work on cases uncovered by The Star’s investigation, saying the community ultimately was safer for it.

“In a lot of those cases, we got multiple bad guys off the street,” Baker said. “We may have had to give a deal to someone with dirty hands, but we got violent people off the street.”

Yet the situation concerns judges who dish out harsher justice in nearby courthouses.

And it’s surviving family members of murder and manslaughter victims who ask the most anguished question: Why was the person who killed my loved one free on probation?

———

Djuan D. Hatten’s case illustrates what can happen.

In January 2008, a motorist asked for directions in Hatten’s neighborhood. Hatten told him to leave. The motorist raised his hands and retreated toward his car.

Hatten pulled a handgun and fired.

One bullet sliced into the motorist’s femur, damaging it so severely that a surgeon later had to insert a rod in the 43-year-old man’s leg.

Prosecutors charged Hatten, then 19, with first-degree assault and armed criminal action. Yet the case quickly began to unravel, prosecutors said.

Within weeks, one witness no longer could recall whether shots had been fired. Another no longer could positively identify Hatten as the shooter. And some changed their stories to say they had felt threatened by the victim, raising the likelihood of a self-defense argument.

A little self-defense goes a long way with Jackson County juries, prosecutors and defense lawyers say.

So Hatten pleaded guilty and got probation.

The next year, he and two other men sought to settle a neighborhood dispute. They drove to Fremont Avenue, parked and waited 20 minutes for a young man to emerge from a nearby home.

Inside, 19-year-old Domineak Bynum kissed his mother goodbye before leaving to spend the evening with a friend. Near the front door, he paused to kiss his younger sisters goodbye.

Then Bynum, whom everyone called Neako, stepped outside.

Hatten and his accomplices opened fire, unloading at least five shots.

Bynum’s mother raced out her front door and found her son sprawled on the sidewalk.

“Domineak!” she pleaded. “Please don’t leave me!”

Bynum’s 15-year-old sister dropped to her knees and crawled to him. His 17-year-old sister clutched his hand and prayed.

He spent several days hospitalized on life support before surgeons harvested his kidneys, pancreas, lungs and heart for transplant.

This time, Hatten lost his freedom. A Jackson County judge sentenced him to 20 years in prison.

Every Friday, LaShanda Bynum visits her son’s grave and faces what probation stole from her.

“Sometimes,” she said, “I scream and cry.”

———

A crisp saying among sentencing reformers goes like this: “Prison should be for people we’re afraid of, not people we’re mad at.”

But many Jackson County criminals we’re afraid of remain free.

Tired of seeing some of those probationers appear in his courtroom on federal weapons charges, U.S. District Judge Dean Whipple rebuked his state counterparts in 2008. His remarks came as he sentenced a former Jackson County defendant on federal charges.

Whipple already had sent a parade of armed Kansas City felons to prison since federal law enforcement had begun scooping them up almost a decade before.

He accused Jackson County judges of lulling defendants into a sense of “complacency” and filling them with expectations of soft sentences.

“You think the criminal proceedings are a joke, and they may be in Jackson County,” Whipple told the defendant, who earlier had received probation for involuntary manslaughter in Jackson County. “But then the problem comes up that you do something that comes to the attention of the United States attorney’s office, and the United States attorney’s office, under the direction from Congress, acts a little differently.”

Jackson County judges automatically defaulted to 120-day shock time sentences and probation, Whipple said, allowing an overloaded court system to quickly dispose of cases.

“They’re abusing the system something terrible,” Whipple said. “Well, we can’t do that up here.”

He sent the defendant to federal prison for nearly 22 years.

State judges in neighboring counties also have dealt harshly with former Jackson County defendants.

Those criminals include Mitchell Moore, who collected Jackson County convictions for domestic assault, a weapons charge, burglary and violating orders of protection.

Each time, his punishment amounted to short jail sentences or probation.

Then in 2011, Moore harassed and threatened a Riverside woman in the Northland.

Before hearing his 15-year sentence, Moore said he bitterly regretted heading north of the Missouri River.

“If I had any idea that Riverside, Mo., was connected to Platte County, I swear to God I would have never come down there,” Moore said.

———

Jackson County judges have used probation often for the worst robbery and assault crimes on the books, The Star found.

Consider first-degree robbery, a violent crime that can include armed home invasions and carjackings.

One-third of the county’s 389 convictions from 2009 through 2013 ended with probation, about twice the rate for Clay County. Platte County issued no probation sentences for that crime.

Or consider Class A felony assaults, which are attacks that cause serious physical injuries.

One-fourth of Jackson County’s 127 sentences were probation, records show. Clay County issued one probation sentence among 11 convictions. Again, Platte County issued none.

Through the years, the percentage of Jackson County probation sentences in those crimes has risen substantially, The Star’s analysis showed.

From 1999 through 2003, its judges granted probation in 19 percent of first-degree robbery cases and 16 percent of the worst felony assault cases. By 2009-2013, those numbers had risen to 33 and 25 percent.

In some of these cases, defendants had to spend 120 days in state custody before beginning probation.

About one-quarter of defendants receiving probation served time for an armed criminal action count linked to the same case. But those sentences were far shorter than the minimum 10 years called for in the assault or robbery charge.

Judges often resort to such arrangements because they believe long mandatory minimum sentences are not appropriate for young defendants or first-time offenders, said Charles Atwell, who retired from the Jackson County bench in late 2012.

“I think that in certain situations they are too harsh,” Atwell said.

Lawyers and others could not identify an event or change in state law that set off Jackson County’s decadeslong increase in giving probation to violent criminals.

Marco Roldan, Jackson County’s presiding judge, noted that the 19 circuit judges here work independently but in a “unique” legal culture that tends to “facilitate agreement.”

“We don’t tell our colleagues how to do it, but we talk and we all grew up in this culture,” Roldan said.

Probation also can occur when witnesses become uncooperative or unavailable, said Jackson County Circuit Judge Brent Powell, a former state and federal prosecutor. Or sometimes judges toss the prosecution’s physical evidence if they decide that police gathered it improperly, he said.

Other times, prosecutors fear that a defendant’s self-defense claim, even if “manufactured” by a lawyer, could devastate an otherwise viable case, Baker acknowledged.

Any combination of those factors can make cases unwinnable at trial.

“To a person, I don’t know of a judge or prosecutor who thinks they (the violent criminals) should be on probation,” Powell said. “But they’re better off on probation than walking out of the courtroom acquitted of the offense.”

The problem of uncooperative witnesses is not new. A 2012 Kansas City Star series explored why aggravated assault victims rarely helped authorities prosecute their attackers.

Many victims — some disfigured for life — said they feared retaliation. They didn’t believe that police or prosecutors could keep their assailants off the streets.

In part because of that, Kansas City police solved only a small percentage of assaults. Just 10 percent garnered criminal charges in 2012.

Even fewer resulted in convictions.

And even less resulted in prison time.

———

Bert Godding knows too well what a repeat offender on probation can do.

Four years ago, he received a dreadful call from his aunt. A drunken driver had caused a wreck that killed his cousin and injured the cousin’s wife and two children in Kansas City.

Godding sped from his Parkville home to comfort one of the survivors, a 15-year-old named Thomas.

“Dad saw the car coming,” Thomas recounted to Godding, “so he turned the wheel to take the impact on himself.”

Harvey Shoate’s reckless driving that night killed Greg Godding of Independence.

After prosecutors charged Shoate with involuntary manslaughter, Bert Godding dug into court records.

Since 2002, Shoate had amassed 10 felonies, most disposed of with probation and shock time. Just once had he been sentenced to prison for an extended period, four years.

And just 36 hours before he killed Greg Godding, Shoate had emerged from a court-ordered alcohol treatment program — and begun five years of probation — following a domestic violence conviction.

For the fatal wreck, Shoate received a 24-year prison term.

The tragedy bruised Bert Godding’s confidence in a legal system that he reveres and serves. Godding, a criminal defense lawyer, often must ask judges to be understanding of his clients’ missteps.

“When something like this happens, it’s harder for me to stand before a judge and say, ‘Judge, there’s benefit in this treatment program for this client,’” he said.

———

Guilty pleas followed by probation or short prison sentences can protect public safety, many lawyers and judges argue.

The conviction gives authorities leverage over the defendant if he or she continues to misbehave. Should a defendant violate probation rules, a judge can revoke probation. And if the defendant commits a new crime, prosecutors can argue for a longer sentence.

But not all plea agreements are created equal.

Defendants sometimes admit guilt having no idea what their punishment will be. The judge decides after prosecutors and defense lawyers make recommendations.

But other times, prosecutors and defense lawyers present a binding plea deal that includes an agreed-upon sentence. Judges do not have to accept the deal. But if they do, they must impose that sentence.

Jackson County’s judges almost always accept such plea deals — even when the agreed-upon sentence is probation, said Roldan.

That’s true even if the defendant’s criminal record likely would disqualify him or her from probation in other jurisdictions, Roldan said.

Although criminal history is an important sentencing factor, “that factor is trumped if there’s an agreement,” Roldan said.

Not all judges share that philosophy.

Abe Shafer, who stepped down from the Platte County bench in May, said he likely would reject an agreement if the sentence didn’t adequately account for the defendant’s felony record.

“The trigger of whether I accept … is often the criminal history,” Shafer said.

Accepting such pleas overlooks a step that judges elsewhere consider essential.

Judge Harman said that in Clay County, since sentencing ultimately is his responsibility, he orders a risk assessment in all felony cases.

Risk assessments contain information on factors — such as education, drug and alcohol use, and work and criminal histories — that decades of social science research has shown affect a person’s tendency to commit new crimes.

Ordering assessments would be “a very good policy,” said Michael Wolff, a former member of the state’s Supreme Court.

“What I would really care about if I go along with this deal is the likelihood that this person would reoffend,” Wolff said.

Roldan acknowledged that Jackson County judges seldom order such reports in violent crime cases when prosecutors and defense lawyers have agreed on probation.

“It would be a waste of resources to do that,” he said.

Judges, prosecutors and defense lawyers pointed to state recidivism numbers to support the use of probation as a rehabilitation tool.

About 13 percent of all Jackson County defendants sentenced to probation later break the rules or commit new crimes, according to the latest figures from the Missouri Department of Corrections. That compares to about 30 percent for those sentenced to prison.

But statewide figures from the Missouri Sentencing Advisory Commission’s website suggest that recidivism rates for those sentenced to probation for particularly violent crimes are much higher. Depending on age, criminal history, education and drug use, up to 32 percent of those convicted of first-degree assault and sentenced to probation can be expected to reoffend.

That number for those convicted of first-degree robbery stands at 42 percent.

———

“Catch and release” is the epithet cynics use to describe Jackson County’s criminal justice system.

But just 250 miles to the east, probation for the worst violent crimes happens much less frequently in St. Louis City Circuit Court.

St. Louis judges grant probation for first-degree robbery at less than half the rate of their Jackson County colleagues.

And the St. Louis circuit’s probation rate for serious assaults is less than one-third that of Jackson County.

“Our policy is we never recommend (probation) in a violent crime, a homicide, robbery or an assault,” said St. Louis Circuit Attorney Jennifer Joyce.

And her office doesn’t default to probation when witnesses or evidence vanish, she said. “We would just dismiss the case.”

She can refile if evidence or witnesses get better.

And St. Louis prosecutors routinely do something their counterparts in Jackson County do not: put sentencing recommendations in writing and in the court file.

Joyce soon will post those memos online, she said. That way, the public can compare what prosecutors recommend and what judges ultimately decide.

Baker declined to comment on how prosecutors in St. Louis do their jobs.

St. Louis criminal defense lawyers attributed their circuit court’s low probation figures to Joyce’s stern attitude toward plea bargaining.

Although Jackson County lawyers have described plea bargaining as a free-flowing, give-and-take negotiation, prosecutors in St. Louis seldom do much dickering.

Prosecutors say, “You make an offer and if it matches what we think it should be, we’ll accept it,” said St. Louis criminal defense lawyer Terence Niehoff. “Otherwise, you come with a different offer.”

With more defendants going to trial or pleading guilty without agreements, St. Louis judges have become less willing to grant probation, said defense lawyer Nick Zotos.

Niehoff agreed.

“They’re giving fewer people probation and sending more people to prison,” Niehoff said.

———

Jackson County judges already had given Lionel Henderson his third “second chance” by the time he and Calvin Boswell walked down East Armour Boulevard late in the afternoon on Nov. 20, 2009.

Since 2004, Henderson had been a steady visitor to the Jackson County Courthouse. His record included probation sentences for two car thefts and one domestic assault. And each time he violated probation, a judge usually sentenced him to more probation.

In his first probation case, Henderson pleaded guilty in 2004 to burning a woman on the arm with a lit cigarette and punching her in the face while they argued in a car. She fought to escape with her child and almost had made it out when Henderson accelerated, dragging her and the child.

Nearly six years and multiple probation violations later, Henderson and Boswell spotted a driver they’d been hunting. While Henderson stood by, Boswell pulled out a handgun and fired into the car.

Ashley Thomas, a 25-year-old passenger in the front seat, took two shots to the head and died almost immediately. Her unborn child, Amya, asphyxiated in the womb.

She wasn’t even the intended target. That was her boyfriend, the driver, who was critically wounded.

Thomas’ parents, David and Alison Thomas, got the news from a detective at the crime scene.

“I still have nightmares about it,” Alison Thomas said recently.

For nearly nine months, Ashley Thomas and her mother had been preparing for the baby’s birth with sonogram and prenatal appointments and baby showers.

Alison Thomas looked forward to having her daughter move back home to Independence. Life after high school had toughened up her daughter. An abusive boyfriend once had thrown her down a flight of stairs.

Yet Ashley Thomas tended to focus on the good in everyone, her parents said.

“She had a smile that could light up a room,” David Thomas remembered.

Soon after the killings, Jackson County prosecutors approached the Thomases for help. They needed Henderson’s testimony against Boswell.

“He said, ‘There’s a chance that Calvin Boswell could get off if they didn’t get Lionel’s testimony,’” Alison Thomas said.

They approved, reluctantly, because they wanted Boswell convicted. He is serving a life sentence.

Henderson’s help was critical in upgrading the charge against Boswell to first-degree murder, said Jackson County’s chief trial assistant, Ted Hunt.

Henderson pleaded guilty to reduced counts of conspiracy to commit first-degree assault and unlawful use of a weapon.

Alison Thomas said she understood his need for a second chance.

But she didn’t learn details of his earlier crimes — and that he’d already had multiple second chances — until recently.

“I wanted to believe he could do something with a second chance,” she said. “This makes me feel ridiculous.”

And Henderson later got even more “second chances.”

In 2013 and 2014, prosecutors charged him with theft for stealing a television from a Wal-Mart and with two counts of domestic assault for punching a woman in the chest and choking her.

On May 12, Henderson appeared before Jackson County Circuit Judge Kathleen A. Forsyth to plead guilty.

Forsyth accepted a plea bargain that called for 120 days of shock time. Henderson likely will get probation after that.

“You will get a fresh start,” Forsyth told Henderson. “You understand that?”

“Yes ma’am,” he answered.

“You will be on probation,” Forsyth continued. “You understand that?”

He did, indeed.

The Star’s Donna McGuire contributed to this report.

To reach Mark Morris, call 816-234-4310 or send email to mmorris@kcstar.com.

To reach Glenn E. Rice, call 816-234-4341 or send email to grice@kcstar.com.

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