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December 1, 2010

"Multiple murder suspect had benefited from three-strikes leniency"

The title of this post is the headline of this remarkable story in today's Los Angeles Times.  Here is how the piece starts:

To hear him tell his story, John Wesley Ewell was the victim of an overly harsh criminal justice system.  The South Los Angeles hairstylist complained to journalists over the last decade about the unfairness of the state's tough three-strikes law, saying he lived in fear that even a small offense would land him back in prison for life.

He even appeared on the "The Montel Williams Show" to argue the case against three strikes.  A caption that flashed on the screen when Ewell spoke read: "Afraid to leave his house because he has 2 'Strikes.'"

But Ewell is now charged with murdering four people in a series of home invasion robberies that terrorized the South Bay this fall.  On Tuesday, he pleaded not guilty during a brief appearance at the Airport Courthouse.

Far from embodying the severity of the justice system, Ewell benefited from its lenience over the last 16 years, according to a Times review of court records and interviews.

Ewell has a lengthy criminal history that includes two robbery convictions from the 1980s. Nevertheless, the Los Angeles County district attorney's office decided on four occasions against seeking to use the full weight of the three-strikes law when he was charged with new crimes.

And this year, after Ewell was arrested three times for allegedly stealing from Home Depot stores, a judge agreed to delay sending Ewell to prison so he could take care of some medical problems.  It was during that delay, authorities say, that Ewell robbed three homes and killed the victims.

"He should have been in prison a long time ago," said Leamon "Kelly" Turnage, whose parents were among the victims.  "It is a shock to me that no one is willing to take responsibility for letting this killer go."

Ewell's case is likely to fuel more debate about the practice of many California prosecutors to seek less than the maximum sentence for some three-strikers. 

Under the law, offenders with two previous convictions for serious or violent crimes can be sentenced to prison for 25 years to life if they are convicted of another felony, no matter how minor. But most prosecutors use discretion in deciding when to seek life terms.  Since 2000, the L.A. County district attorney's office has generally prohibited prosecutors from seeking possible life sentences when a defendant's third strike is not serious or violent.

Prosecutors repeatedly exercised this discretion in Ewell's favor.  Critics argue that the district attorney's policy fails to adequately protect society.  The law, they say, deliberately counted minor crimes as third strikes to put away repeat offenders before they hurt other victims.

Prosecutors say it is unfair to suggest that they — or anyone else — could have predicted that Ewell would turn to such violence.  At 53, he appeared to be little more than a petty thief and hardly fit the profile of a killer.  "I really don't think anybody could pretend to anticipate that … this guy would suddenly go from stealing things from Home Depot to murdering old people," said Los Angeles County Head Deputy Dist. Atty. John Lynch.

The district attorney's policy has won widespread support as a just way of dealing with minor offenders who might have serious criminal pasts.  Although a handful of criminals have benefited from the policy only to later commit violent crimes, the vast majority of offenders prosecuted under the policy have not gone on to kill or carry out other serious crimes.

Detectives describe Ewell as a man who led a double life. Residents of his Harbor Gateway community of Los Angeles knew him as a friendly handyman willing to help others.  But investigators said he was a career criminal whose offenses stretched over more than 30 years.

December 1, 2010 at 05:51 PM | Permalink

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"Prosecutors say it is unfair to suggest that they — or anyone else — could have predicted that Ewell would turn to such violence. At 53, he appeared to be little more than a petty thief and hardly fit the profile of a killer. "I really don't think anybody could pretend to anticipate that … this guy would suddenly go from stealing things from Home Depot to murdering old people," said Los Angeles County Head Deputy Dist. Atty. John Lynch."

That's right Mr. Lynch, no one could have predicted that Ewell would kill, but that's why we have these laws. We know that a not insignificant number of criminals with long criminal records will cause serious harm to people. So we resolve the unknown against the violent criminal who, after spending long periods of time incarcerated for serious crimes, decides to continue his law-breaking ways. How hard is that to understand? Lynch must be a moron not to know this. (I bet he's a Democrat, or maybe a Huckabee Republican). Ewell was a violent criminal who got caught for non-violent offenses. Why would the DA assume that the guy wasn't doing other things?

How stupid is Lynch?

Posted by: federalist | Dec 1, 2010 9:54:12 PM

123D. Four innocent murder victims for the price of one murderer, career criminal. The count should have started at 14, and no career violent offender should make it to 18, the start of their peak criminal productivity.

Bereaved families should bring street justice to those responsible. These horrible lawyers have absolute tort immunity from the Supreme Court, and street justice has full moral, intellectual, and policy justification given that tort immunity. To deter.

Posted by: Supremacy Claus | Dec 1, 2010 11:58:53 PM

It should also become a duty of standard of due care to waterboard all career criminals to find the bodies they have buried. It is not settled that he did not have other murder victims, of which the horrible lawyers had no awareness. Waterboarding is standardized now, causes no harm, and can be carried out indefinitely.

Posted by: Supremacy Claus | Dec 2, 2010 12:01:09 AM

There's quite an intellectual disconnect between the tuff on crime rhetoric in this article and subsequent comments and the fact that SCOTUS appears likely to make CA DECREASE its prison population by around 40,000. Given that, federalist calling the LA prosecutor "stupid" or a "moron" is certainly a pot-kettle moment when the policy he suggests is utterly devoid of even a shred of realism. The nom de plume should be changed from "federalist" to "Please Raise My Taxes."

Posted by: Gritsforbreakfast | Dec 2, 2010 8:08:02 AM

As a former three strikes prosecutor now handling exclusively gang cases, the above demonstrates the difficulty and challenge of fashioning an appropriate policy of charging defendants who have previously committed serious/violent felonies with a measured hand. While we can throw the book at them all, and even if the courts went along which they won't, we would capture far more felons just to get one like Mr. Ewell. There is no easy answer unless the answer is to lock them all up, easy yes, expensive yes, and harsh. The fact is that the criminal justice system is not committed to implementing three strikes as written (except perhaps in Orange and Riverside Counties), so unless there are a lot more Mr. Ewell's out there, things will not change toward a more aggressive policy.

Had this come out before the election, I wonder what then candidate Kamala Harris would have said?

Posted by: David | Dec 2, 2010 10:23:13 AM

David --

I agree that this story should prompt not concern but complacency, not to mention self-congratulation for prosecutors who are, you know, "measured," especially when the price of being "measured" is paid by someone else.

A report like this should, as you imply, be deep-sixed, lest the public be goaded toward, as you say, a "lock them all up" policy motivated by being viciously "harsh."

Meanwhile, "measured" prosecutors are certainly entitled to shrug off a rabble-rousing account of this kind. Better for them to head off for Friday afternoon cocktails with their buddies in the defense bar. It's a lot niftier, and less, ummmmmm, discomfiting, than heading off with the victims' families to the morgue.

Posted by: Bill Otis | Dec 2, 2010 12:25:44 PM

Grits, funny, I don't recall discussing the cost of incarceration in my post. And neither did Mr. Lynch. So it appears that your post criticizing me is entirely besides the point (surprise surprise).

I am not sure that SCOTUS is poised to order the reduction of California's prison population either. If the Court so rules, there will be a political price to pay for the Court in terms of legitimacy.

As for being devoid of realism, well, I heartily reject the idea that federal courts should micromanage state prisons. Society has a right to lock up criminals, and Congress has put some pretty strong restrictions on federal courts ordering prisoner releases. We know that the price of prisoner releases is blood.

Posted by: federalist | Dec 2, 2010 9:28:16 PM

Bill,

I think I get your point, but contrary to your insinuation, my concept of measured is not consistent with the defense bar wishes and on Friday afternoon and evening I am still at the office getting ready for the next week.

Your lecture to me is not well taken given that I handle those very murder cases you allude to, often at the hands of repeat offenders (gang members). My point, apparently not clear, is that the case is tragic and represents the difficulties and challenges we face as prosecutors in using the tools we currently have. Unless and until society is willing to go with 123D as advocated by Supremacy Claus, or in California to actually apply the three strikes law as it written (Bay Area voters and judges don't), we have to use a "measured" approach in order to keep the tool of 3 strikes. The fact is that we almost lost a good chunk of three strikes in 2006 and the fact is that in the Bay Area, and LA probably, the voters and the judges do not want to apply 3K as written. If we continued to seek 3 strikes in all eligible cases, we WILL lose that tool for the most deserving cases (determined without the benefit of hindsight).

I am aware of and have enjoyed reading your biting, and sometimes confrontational tone, but I admit, I take some umbrage at your implication regarding my prosecutorial zeal. I have been accused of a lot of things, but when it comes to prosecution, it is to follow the letter of the law, harsh or not. Regardless, I imply no such desire to deep-six the tragedy that is the death of Leamon Turnage, Robyn Turnage, Denice Roberts and Hanna Morcos. This is a story that needs to be told, along with all of the other stories where technicalities, judicial leniency/incompetence, or prosecutorial leniency/incompetence leads to a human cost in further crime. However, I do wonder that if we as prosecutors did not so vigorously apply 3K in the late 1990s against every eligible offender, there might have been less of a backlash in the 2000s over applying it to repeat offenders like Mr. Ewell.

Posted by: David | Dec 2, 2010 11:56:45 PM

David --

The problem this story makes clear is not one that calls for any serious person to start bemoaning, as you did a scant five lines into your original post, a "lock them all up" attitude, which as you must surely know is one of the favorite strawmen of the defense bar. No serious prosecutor's office has any such attitude. There is no reason for you to give it currency, much less to do so in response to a story that correctly suggests that the actual problem is the opposite.

The problem is not that we "lock them all up," or have any desire to even if the money were there to do so. The problem is that we as prosecutors are insulated from brain-dead, lazy or bought-off leniency some of our number sometimes help produce -- leniency of the kind that resulted in Ewell's dance through the system notwithstanding that he was a lifelong criminal. Ewell was hand-delivered a basis for believing that the system wasn't serious. He took full advantage. The people who paid the price were not those asleep at the switch. That fact is, as you say, tragic, but it is more than that. It's a scandal. Your original post seemed to me to miss that point entirely.

Of course it is true that prosecutors have to make dicey judgments, are not infallible, and have no crystal ball. But what that means is that their inevitable errors should ALWAYS be made in the direction of safeguarding future victims, not looking "measured" so as to draw a pat on the head from the bar association. If that's "harsh" and "expensive," as you say, too bad. The alternative is what we see in this case. These murders were preventable, and with all respect to you, THAT is the lesson that needs to be learned for the future.

Posted by: Bill Otis | Dec 3, 2010 11:44:12 AM

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