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April 1, 2013

Clerical error in processing sentencing order proves deadly in Colorado

I have noted in prior posts here and here the murder of Colorado's prison chief Tom Clemens; this new ABC News story about his killer details that a sentencing mistake may have allowed the crime to happen.  The piece is headlined "Error Led to Colorado Prison Chief Shooting Suspect Evan Ebel's Early Jail Release," and here are the basics:

Evan Ebel, the prime suspect in the shooting death of Colorado prison chief Tom Clements, was released from prison four years early because of a clerical error, court officials said today. Ebel, 28, was released from a Colorado jail in January.

In 2008, he agreed to a plea deal after assaulting a prison guard at Fremont Correctional Facility. He was supposed to complete a sentence of up to four additional years in prison for that assault, to be served after he completed the eight-year sentence he had been serving since 2005.

"The judge announced a sentence of four years in the Department of Corrections but did not state it was consecutive because it was already required by the terms of the plea agreement," Walter Blair, the judicial district administrator for Colorado's 11th Judicial District, and Chief Judge Charles Barton said in a written statement. "Because the judge did not expressly state that the sentence was consecutive, the court judicial assistant did not include that term in the [court order] that went to the Department of Corrections," the statement said.

When prisons officials believed that Ebel had finished his court-ordered sentence, they released him on Jan 28. Ebel was on parole from Colorado prisons and was not legally allowed to purchase a weapon. He is believed to have used a gun to kill Clements on March 19 at Clements' Colorado home. He is also believed to be involved in the death of a Domino's delivery man, Nathan Leon, in Denver.

Ebel was then pulled over by Texas authorities two days later and engaged in a high-speed chase and gun battle with them. He was shot and died later at a hospital....

Law enforcement sources told ABC News on March 28 that they were investigating whether Clements' death was orchestrated by members of Ebel's white supremacist prison gang, 211 Crew. They were still trying to determine whether others were involved in Clements' death.

April 1, 2013 at 10:15 PM | Permalink

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Comments

The lack of specificity of the phrasing of the sentencing judge is below standards of due care for legal utterances. A negligent causal factor.

The clerical error is negligence and another causal factor.

The gun sale to a felon was negligence per se. It may be an unforeseeable intervening cause, but should not provide relief for the tort liability of the judge and the clerk.

There is no chain of causation in nature. There is a cluster of factors coming together to cause the damage. The prevention of any one of them would prevent the entire catastrophe.

Lastly, the members of the white supremacist gang should be water boarded until the reveal the full extent of the conspiracy that led to these murders. All conspirators should be summarily executed.

If there were any justice, the lawyers protecting the criminals after age 14 would each get 50 lashes.

Posted by: Supremacy Claus | Apr 2, 2013 3:16:27 AM

I'd hardly call it a "clerical error." What happened was the judge failed to impose the sentence contemplated by the plea agreement. And the prosecutor apparently didn't object.

Under Colorado law, if the judge doesn't specify that a sentence is to run consecutively, it runs concurrently. The judge here didn't specify, so the sentence was properly recorded as concurrent. It was a substantive judicial/prosecutorial error, not a "clerical" one.

Posted by: Colorado lawyer | Apr 2, 2013 11:03:49 AM

The headline means to say that anyone let out early, which mean let out at all, is bound to kill. The subtext is that another four years in prison isolation would have cured him of any thoughts of revenge. There is of course no way to disprove that which makes it a very effective headline.

Posted by: George | Apr 2, 2013 6:38:39 PM

Colorado Lawyer: An AP story, headlined "Sentencing transcript shows judge wanted long sentence for Colo. prison chief slaying suspect" (available at http://www.foxnews.com/us/2013/04/02/sentencing-transcript-shows-judge-wanted-long-sentence-for-colo-prison-chief/) suggests that this mistake was more clerical than judicial:

"Court transcripts show that the man suspected of killing Colorado's corrections chief knew he was being sentenced to four more years in prison for punching a guard in the face. But a paperwork and communication mistake in court led to Evan Spencer Ebel's release in January.

"The transcripts show Ebel told the judge he'd be 33 when he was released, and asked for a more lenient sentence. The judge told him at the 2008 hearing that four years on top of an already under way eight-year sentence was fair.

"The judge, however, didn't use the word consecutive, and the court clerk didn't write it down."

Posted by: Doug B. | Apr 2, 2013 9:20:29 PM

George --

"The headline means to say that anyone let out early, which mean let out at all, is bound to kill."

Where on earth are you getting that from?

And do you think there are any lessons to be learned from Tom Clements' murder? If so, what are they?

Posted by: Bill Otis | Apr 2, 2013 9:47:29 PM

Mr. Bill: "Where on earth are you getting that from?"

It appears that in an effort to be concise maybe I was a little too blunt again.

"The subtext is that another four years in prison isolation would have cured him of any thoughts of revenge. There is of course no way to disprove that which makes it a very effective headline."

That is true for any sentence. So what I meant was that any crime after any release could be construed as the release was wrong, too soon. It is clear in isolated 20/20 hindsight. Hence the ratchet. Only longer and longer sentences for everything can help ensure against that. So I was arguing the headline takes that implied leap of faith because there is no guarantee another 4 years would have prevented rather than delayed. Indeed, the only guarantee would be LWOP for every crime, but even that ignores crimes on the inside.

There are bound to be many lessons but I'll wait for more facts before guessing what they all may be.

Posted by: George | Apr 3, 2013 3:25:15 AM

Doug: Thanks for the additional info; I hadn't seen the article you linked.

I still have to respectfully disagree with your opinion that the mistake was more clerical than judicial though. The judge made 2 mistakes. First, he didn't use the operative word "consecutive" in formerly imposing a criminal sentence, apparently relying instead on a clerk to translate his words into the proper, legally effective term. Second, he apparently didn't check the judgment (called a "minimus" in Colorado) for accuracy before signing it (something the judge I clerked for long ago would never have done). The formal judgment in a case is important. The words matter.

And where is the prosecutor's responsibility in all of this? Any lawyer worth his or her salt - civil or criminal - knows to check a written judgement for accuracy, to make sure it matches up with what was said in open court.

Don't get me wrong, this was a horrible mistake, with tragic consequences. My beef is just with the blame being placed solely on the "court clerk." I've heard many a judge and many a prosecutor give lectures about accepting responsibility and not passing blame off to others, but that doesn't seem to be happening here.

Posted by: Colorado lawyer | Apr 3, 2013 11:59:34 AM

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