Life After Murder

A month later, the land-line phone in my office rings. It’s Lieutenant Messick. Even though he’s no longer public information officer, he has followed my stymied attempts to tell the story of one lifer getting out of prison on parole. Now the prison’s legal affairs coordinator, he calls with an inside scoop. “Nancy, I think I’ve got one for you,” he says. “The California Supreme Court just issued an important ruling, and I just got word one of our lifers is going to be the first released in the state on the ruling. From what I hear, the attorney general’s office isn’t going to appeal a court of appeals ruling to release him to the supreme court, so he’s getting out next week. Probably on Tuesday.”

“It was a ruling in a case called Lawrence. You should look into it. This is big. It could change things for a lot of lifers. The inmate’s name here at San Quentin is Phillip Seiler. Ask Sam about him.”

Seiler. The name sounds familiar. Energetic guy, light brown hair, electric-blue eyes. Yes. He participated in a VOEG session (Victim Offender Education Group) I attended about a month ago.

Jacques Verduin, executive director of the Insight Prison Project, which sponsors the VOEG program, tells me, “What we find is that when the two ends of the violence, an offender and a victim, have been through months of individual and group counseling and deep psychological preparation, and we bring them together inside the prison to meet and talk, we have discovered that this meeting offers both sides a chance to reconcile the pain they hold in common and possibly heal. The survivor gets to tell their story, ask questions, and hopefully find some closure. The offender has the opportunity to see the pain actions like their own have caused, and if they choose to, to answer questions about their own crime and apologize.

“Victims do this for different reasons. Some of them are clear that they want to reach a state of forgiveness and put it behind them. For others it just might be, ‘Hey, that was my loved one. I didn’t know what the last moment was and as horrible as it may have been, I need you to tell me what that was like. If the inmate is ready, they’ll tell the victim survivor. There’s usually an eight- to ten-month preparation, visiting each of the parties separately and deciding if the place is reached where they can meet.

“My dad was a prisoner in WWII,” Verduin continues, sitting in the office of his nonprofit, a few miles from San Quentin. “When the Berlin Wall came down, he went back to find his captors and make peace. He was in enforced labor. He used to scream in his sleep. When he went back and reconciled, he never screamed in his sleep again. It just so happens, that’s our biggest program: the Victim Offender Education Group.”

Verduin says it isn’t always possible to have the survivor or victim meet with the person who committed the crime they experienced, and if that isn’t possible, the organization tries to arrange for people to meet who have experienced similar crimes, to give the victims and offenders an opportunity to share their grief.

In July 2008, before attending a meeting of the Victim Offender Education Group, I had arranged to meet victims participating in the program on the outside. One of the victims I met, a woman whose son was murdered by his college roommate, had already met with a group of lifers in the VOEG program at San Quentin. Radha Stern said the process helped her not only heal but move beyond the pain so she could begin to live her life again. The other woman I met, Jaimee Karroll, said she had been kidnapped and sexually assaulted as a child. Now, years later, she had been through months of counseling and was preparing to go inside San Quentin to meet with lifers in the VOEG program. She invited me to join her.

The day of the session, Jaimee walked into the prison and down to the Education Center with Verduin. Fifteen inmates who had been preparing for the session were waiting for them in a meeting room. As they sat together in a circle, Verduin gave everyone a chance to introduce themselves before Jaimee began telling her story.

While she spoke, the men sitting in the circle listened quietly, intently. When Jaimee paused to catch her breath, a man with short, bristly light brown hair raised his hand. It was Phillip Seiler. He thanked her for sharing her story with them, and then, in a voice wobbling with emotion, said, “I can’t help thinking what a brave and smart little nine-year-old girl.” Another man in the circle asked her how she survived the crime. She took her time in answering. It seemed to me, watching from the sidelines, that they were looking back, together, to find something to ease the pain of the memory.

After finishing her story, Jaimee told the men she wanted to play a song written by Jesse Winchester called “Songbird.” Pulling an acoustic guitar out of a hard case sitting near her chair, she began to strum and sing, her voice softly filling the prison room: “Poor bird who has done no harm, what harm could she do, she shall be my prisoner her life long.” Some of the men began to cry. When she finished singing, Jaimee, Verduin, and the men held hands. There is nothing good about crime, but years, even decades later, after the dust has settled, there seems to be at least the hope of some kind of peace.

I call Sam Robinson on Friday morning, August 22, and leave a message. That’s the way it is with prisons and media access: public information officers answer when they answer; they return your call when they return your call. Usually I try to be patient, but now I don’t have time to wait. This is the moment I’ve been waiting for. A lifer is going to be released from a California prison on my watch. I’ll try to reach Sam again Monday morning. Until then I research more deeply into In re Lawrence (California Supreme Court, August 21, 2008) and what could represent a seismic shift for prisoners serving life sentences with the possibility of parole for murder in the state.

Since the 1988 election, when voters gave the governor the power to reverse lifers’ parole, state courts had been reluctant to overrule the governor, essentially seeing his authority to reverse a lifer’s parole as the will of the voters.

It wasn’t until 2000, twelve years after Proposition 89 was passed, that the courts for the first time issued a ruling gently limiting the governor’s review. On April 27, 2000, the Second District Court of Appeal in Los Angeles decided in favor of a lifer in In re Rosenkrantz.

For more than a dozen years, attorney Keith Watley has represented prisoners serving life sentences in California. He says the district court’s ruling, In re Rosenkrantz, “marked the first time in a very long time that a court was willing to strike down a board’s decision and order relief for a lifer. The court ordered the board to go back and give Mr. Rosenkrantz a new hearing, which resulted in a grant of parole. The governor later reversed that parole grant.” But Watley says the district court’s 2000 decision “instantly energized lifers’ efforts to secure their freedom. Thousands of lifers made their way into the courts to challenge unfair denials of parole by the board and reversals of parole by the governor.”

Rosenkrantz then appealed the governor’s reversal of his grant of parole by the board, and on December 16, 2002, the California Supreme Court issued a ruling limiting the scope of a lifer’s relief in state courts. The court ruled that the board or governor can rely solely on the circumstances of a prisoner’s crime to deny him or her parole, as long as the board or the governor can identify some aspects of the crime that might fit within the description in the parole regulations of an “especially heinous, atrocious, or cruel” crime.

“Since the board was already describing every crime as ‘especially heinous, atrocious, or cruel,’” Watley argues, “this seemed to put a stamp of approval on that practice.”

Then, on January 24, 2005, the California Supreme Court issued its most restrictive ruling on lifer parole. In In re Dannenberg, the court repeated what it had said in Rosenkrantz in 2002: that the crime alone could be an acceptable reason for the board to deny parole or for the governor to block a prisoner’s release. But the new decision went another step, holding that as long as the board or the governor’s decision was based on protecting public safety, then it did not matter how long the prisoner was incarcerated.

“Taken together,” Watley says, “Rosenkrantz and Dannenberg touched off a battle among the state’s superior courts and appellate courts. Some courts interpreted the supreme court’s decisions to say that as long as the board or governor could point to any evidence in the record that might support a factual finding that the inmate posed a current risk to public safety, the decision not to parole had to stand. Other courts believed that such a strict view would prevent many lifers from ever being released, because parole decisions were being based on facts from the past that would never change. This later view finally prevailed and gave rise to In re Lawrence.

On August 21, 2008, the California Supreme Court ruled in a landmark 4–3 split decision that, by itself, the seriousness of a prisoner’s crime is not enough to justify denying parole. Instead, the court said that there must be some current evidence to show that the prisoner remains dangerous. “In other words,” Watley says, “prisoners with strong records of rehabilitation, who have demonstrated that they could safely be released, must be granted parole, even if their crimes were really bad.”

By Tuesday morning, August 26, three business days after the supreme court issued its ruling in Lawrence, I still haven’t heard from Sam. I have, however, found and contacted Phillip Seiler’s attorney, Michael Satris. Satris isn’t just any postconviction attorney. For more than twenty-five years he has earned a reputation for representing, oftentimes successfully, the “liberty interest” of lifers incarcerated in state prisons.

I drive north on the freeway fifteen minutes to catch him at the Marin County Juvenile Court before he heads in to try a case. I find a parking space in a crowded lot and follow anxious parents accompanied by suited attorneys to the courthouse door.

A uniformed guard puts his hands up. “Excuse me, Miss. You can’t bring that recorder in here.” He points to the tape deck hanging from my shoulder and the microphone I’m gripping in my hand.

“Do you know Michael Satris?” I ask, explaining that I don’t want to record anything happening in the juvenile court but that I’m trying to find the attorney for an interview.

I take a seat on a small bench outside the single-story, cement-block building and wait for Satris. Five, ten, fifteen minutes pass before my luck turns and a rugged man wearing a rumpled, dark blue tailored suit and carrying a worn leather briefcase appears on a walkway connecting the parking lot to the courthouse. “Excuse me, are you Michael Satris?”

He slows his beeline to the court door and turns his tanned, Marin County face toward mine. I’ve caught his attention. “Your secretary, Sabine, said you might have a minute to speak with me about Phillip Seiler,” I say. “I’ve been told he’s getting released on Lawrence.”

“What Lawrence was, was the executive, the governor in the state, acting unconstitutionally, as is their regular practice in these parole consideration hearings,” Satris says. “In Phillip Seiler’s case, he got a parole date from the parole board because it was clear in all ways that he was suitable for release and would not pose a danger. They rarely grant a parole date under those circumstances as it is. He was one of, basically, the cream of the crop.

“The governor reversed Phillip’s parole, but the trial court sent it back to the governor, saying you have no basis to deny or reverse parole on these grounds. And, uh, the governor basically issued another decision where he basically reiterated what he said before: ‘Solely because of the facts of the crime, I find that you would be a risk twenty years later.’ The trial court again said, ‘No, I told you before that you acted unconstitutionally denying him parole on the basis of the crime. I’m not going to send it back to you again, because it’s clear you’re unable to follow the law, or in this case at least, and so I’m going to order him released.’

“The state appealed this order, and the court of appeal stayed the trial court release order until they determined the appeal. Then the only issue was whether the state was going to seek action [appeal the state court of appeal’s order to release Seiler] by the California Supreme Court. So they [the state, the prison] were continuing to hold him in custody pending that determination. And right in their ten-day period that they had to act to file in the supreme court, a decision came down from the California Supreme Court that said basically, ‘The governor cannot reverse a parole grant on the facts of the crime when that’s the only facts, uh, that he’s relying on to conclude that the person is a danger when it was so long ago and so many things have happened,’ and such reform and rehabilitation and it was showing that it was the kind of crime that was the product of stress.

“On that basis, the state gave up and realized they had no basis to seek review. The court sent a message to the governor of fundamental fairness. They said, ‘Look, Governor, you can’t raise the banner of public safety as a basis to deny a prisoner release on parole when he has shown through reform and rehabilitation and age and maturity that he is no longer a threat.’”

“Yes. There’s a handful of cases where before the Lawrence decision, the state sought review by the supreme court, and the supreme court granted review and put the cases on hold while it decided the Lawrence case. Two of those cases concern my clients and they fit firmly within the guidelines of Lawrence, and I expect when the court acts, it will result in their release.”

I wonder how the state feels about this turn of events, so I track down Julie Garland, senior assistant attorney general in the Criminal Law Division of the California attorney general’s office. She supervises the attorney general’s correctional writs and appeals section and argued Lawrence on the governor’s behalf.

Garland tells me that despite the disappointment of losing, arguing Lawrence before the California Supreme Court was “a great experience. It was probably one of the highlights of my legal career so far. There was a lot of expectation about it from our end, our clients, the governor, and the Board of Parole Hearings. In this case, it was a governor decision that was at issue, so I was officially just representing the governor in this case. But we knew the outcome would affect the board as well.” I find it interesting that as assistant attorney general for the State of California, Garland represents both the parole board and the governor—two entities whose decisions could be at cross purposes in lifer parole decisions.

“How would the decision affect the board as well?” I ask. “The parole board’s decision wasn’t really at issue. It was more the governor’s reversal of the board’s decision that was at issue.”

“Right, but we knew we were asking the court to clarify the standard of review that would apply to executive branch parole decisions,” she says. “So we knew that the standard the court adopted here would be something the board would be held to as well.”

“Our argument was based primarily on separation of powers. We felt that judicial review needed to respect that separation between the executive and judicial branch, and the standard of review that the court of appeal had applied in Ms. Lawrence’s case did not respect that separation and really took it out of the hands of the governor and decided her suitability.”

“And this goes back to 1988 and the initiative that gave the governor the authority to override any parole board decision,” I say. “That’s what the people of California voted for?”

“But the courts have been increasingly split on this, whether to back the governor or not, because the board has been deciding one way and the governor reversing it. It must have been hard to argue.”

“Because the board decided one way and the governor decided the other?” Garland asks. “Well, the board and the governor are two separate decision makers. The governor’s decision is independent of the board’s, and the supreme court in the Rosenkrantz case in 2002 held that it’s just fine that the governor can disagree with the board, be more strict or cautious than the board, and so there are often differing opinions and they take different things into consideration.”

“Since 1988 the board has been more conservative, finding fewer lifers suitable for parole,” I say, trying to hold my own with this attorney, whose job it is to argue the thinnest slivers of the law. “But the governors—Wilson, Davis, and Schwarzenegger—have overturned something like 90 percent of the parole grants, or even higher. So who decides? In ’88, the people of California decided we want the governor to decide in the case of murder, but then the governors started reversing so many parole decisions that it seemed like the courts have begun acting as a balance to the governor’s decisions. Do you think the courts saw this opportunity in Lawrence as a correction?”

“It’s hard for me to say. It certainly is possible,” Garland says. “There have been more adverse decisions against the governor in the past couple of years than prior to that. It’s a bit ironic because this governor [Schwarzenegger] has approved a much higher percentage of parole grants than probably the previous two governors combined.”

“Do you feel the court made a bad decision?” I ask. “It was a 4–3 split decision. It wasn’t an overwhelming ruling against your case. Are you concerned about the impact of the court’s decision?”

“I’m not sure what the impact’s going to be yet.” Garland says. “I don’t know whether we should be concerned or not. We were certainly disappointed. We feel the dissent really understood our argument and respected our argument and respected the separation of powers more than the majority did. We were certainly hoping the majority would go along with what the dissent said, but we were just one judge short of that. That’s a bit tough to handle. As far as the impact, I really think we’ll have to wait and see.”

I nod and throw her another question. “One of the issues that was brought up in this case before the supreme court was whether or not the governor’s decision to reverse the board’s grant of parole was supported by “some evidence” the inmate remained a current threat to public safety. That he or she, whoever is serving as governor, can’t just say that the original crime, however long ago it was, is enough justification for denying or reversing a parole decision. Now the governor needs to include some evidence of the current state of the prisoner’s status. Is that the crux of the decision?”

“What the court focused on was that the governor’s findings need to relate to the potential dangerousness of that inmate if he or she were released tomorrow. And that’s what the governor does already! He looks at the whole inmate: his crime, his in-prison conduct, pre-prison conduct, attitude, demeanor, parole plans. The whole picture. What I think the change is: now the court can look at that big picture and come up with potentially a different conclusion about whether that means the inmate will be a danger.

“The courts have always had the power to overturn a decision if they felt it violated due process. What the court changed to some extent, although the majority said it didn’t change Rosenkrantz, was that what they’re looking for as far as the ‘some evidence’ is not the objective sort of factual accuracy of the decision, it’s more of a subjective conclusion the governor made and whether the evidence supports that subjective conclusion. So it’s possible the court’s subjective conclusion about it will be different than the governor’s. Before, courts really weren’t authorized to second-guess the governor’s conclusion. The way I read the decision, there’ll be more.”

Garland’s feelings about the ruling may be mixed, but for thousands of lifers locked up in California prisons—and men like Messick, who’ve watched their struggles for decades—In re Lawrence seems to signal an end to the practice of governors reversing nearly everyone’s parole dates. Twenty years after the voters of California gave the governor the authority to single-handedly take a lifer’s parole date, the state supreme court has checked that power. And for Phillip Seiler, the ruling hasn’t come a minute too soon.