Sunday, November 28, 2010

Judge makes up facts and sends autistic defendant to prison

A basic sense of fairness dictates that a criminal defendant should be sentenced only for his crime of conviction.  Given this, most people would be surprised to learn that, when dispensing punishment, judges may also consider “uncharged and unproven offenses,” and increase their sentences accordingly.  But this incredibly lax standard still wasn’t enough for one judge, who went even further and created facts out of thin air (and contrary to the evidence) to justify sending an autistic defendant to prison.

In State v. DeVera, the twenty-one-year-old defendant suffered from “several developmental disorders,” including a form of autism “which manifests, in part, as a child-like presentation and social immaturity.”  This defendant had an ongoing, “non-coercive” sexual relationship with his girlfriend, which led to a felony charge of statutory rape.  The state offered a lesser felony and a recommendation for probation, which the defendant accepted. 

At sentencing, the judge ignored the parties’ joint request for probation, and instead ordered nine years imprisonment because, as the judge repeated several times, the defendant “already had proved his unsuitability for probation by flouting conditions of probation and bail.” 

Normally, “flouting conditions of probation and bail” would be good reasons for considering a prison sentence; however, as the defense lawyer told the judge at the hearing, this defendant was never even convicted of a crime, let alone placed on probation.  Further, because he didn’t have $25,000 in cash, he was never even released on bail; instead, he was brought to court in a jumpsuit—compliments of the county jail where he had been sitting for the eight months leading up to sentencing.

Because the judge sentenced this young man to prison for violating probation and bail, when, in reality, he had never been placed on either one, the appellate court reversed the sentence.  But, the injustice is ongoing:

  • The defendant doesn’t get released from prison; instead, he merely gets a new sentencing hearing.  But by the time he gets re-sentenced, he’ll have been incarcerated for nearly three years, which is three years longer than what the prosecutor and the “independent sentencing report” recommended.

  • The same judge gets to re-sentence the defendant, and can order the same sentence a third time.  That’s right: a third time.  Before the appeal, the defense lawyer gave this judge a chance to correct her errors.  While the judge admitted that she relied on bad information in sending the defendant to prison, she refused to change her sentence.  Can we really expect a different outcome the third time?

  • In addition to the incalculable harm inflicted on this developmentally disabled defendant, the taxpayers get to pick up the tab; after all, lengthy incarceration, stacks of legal transcripts, and years of litigation don’t come cheap.

  • Finally, there are no repercussions for this judge, a former prosecutor and career-long government employee.  Instead, her “pervasive disregard for detail”—a dramatic understatement, indeed—will likely get brushed under the rug.           

Click here for the appellate court decision.


  1. Good post Mike. My law partner, Donna Kuchler, was Devera's lawyer at the trial level and was responsible for negotiating the reduced charge and the probation recomendation. It also sounds like Mary Scholle did a heck of a job handling this case on appeal.

  2. The defendant is entitled to substitution of judge when the appellate court orders re-sentencing, § 971.20(7), something DeVera will no doubt closely weigh on remand. The fortuitous availability of this remedy doesn't minimize any of Michael's points, though.

  3. Thank you for monitoring this for the public, Mike. My son has autism and I know this type of thing is going to happen more and more as 1% of the population is now diagnosed with autism. Since the skyrocketing numbers began to dramatically spike around 1988, that population will now be entering adulthood. I expect there will be a lot more of this occurring. Someone needs to keep an eye on it!