STATE OF MICHIGAN - SADO - Michigan State Appellate ...



STATE OF MICHIGAN

IN THE 6th CIRCUIT COURT FOR THE COUNTY OF OAKLAND

PEOPLE OF THE STATE OF MICHIGAN, Case No. 93-124150

Plaintiff, HON. Martha Anderson

vs.

JENNIFER PRUITT,

Defendant.

______________________________________________________________________________

JESSICA R. COOPER (P23242) ROBYN B. FRANKEL (P43629)

Oakland County Prosecutor Attorney for Defendant

1200 North Telegraph Road 26611 Woodward Avenue

Pontiac, MI 48341 Huntington Woods, MI 48070

248-858-0656 248-541-5200

______________________________________________________________________________

MEMORANDUM IN SUPPORT OF MOTION TO VACATE UNCONSTITUTIONAL SENTENCE AND FOR MITIGATION HEARING AND RE-SENTENCING OR

FOR AN ORDER GRANTING IMMEDIATE PAROLE ELIGIBILITY

INTRODUCTION

This case involves the application of the United States Supreme court’s June 25, 2012 landmark decision in Miller v Alabama, __ US __, 132 S Ct 2455 (2012), which prohibits mandatory life without parole sentences for juveniles. The Supreme Court recognized in Miller that children are different and that the Eighth Amendment prohibition against cruel and unusual punishment “Forbids a sentencing scheme that mandates life in prison without the possibility of parole.” Miller, supra, 132 S Ct at 2469. Jenny Pruitt has been serving such a sentence for over twenty years.

On August 29, 1992, Elmer Heichel was stabbed to death by Donnell Miracle. Jennifer Pruitt had advised Ms. Miracle that Mr. Heichel had money in his residence and had accompanied Ms. Miracle to the home. Jenny was convicted of aiding and abetting in Mr. Heichel’s death. She was sixteen years old at the time. No one involved in the case - not the investigating officer nor the prosecutor nor the judge evidenced any belief that Jenny had ever touched the murder weapon. In fact, it was Jenny Pruitt who reported the homicide to the police when - after waiting for her co-defendant to fall asleep - she escaped the residence, called the police and led the officers to the murder scene.

Jenny and Ms. Miracle were both charged with the homicide. The trial was delayed until the following year because Jenny was found incompetent to stand trial. Both Jenny and Ms. Miracle were convicted as charged on August 3, 1993. At the time of her conviction the law provided that Jenny Pruitt could be sentenced as a juvenile and held until her 21st birthday or alternatively that she could be sentenced as an adult. The mandatory adult sentence was life without the possibility of parole.

The trial judge, the Honorable Fred Mester, conducted a sentencing hearing. He concluded that even though the evidence established that Jenny could be rehabilitated and that the necessary programs existed in the juvenile system to insure that rehabilitation, he also found that, “It is just too short of a time." (Waiver hearing at 120). Judge Mester concluded that there was simply not enough time to provide Jenny - just eleven days from her eighteenth birthday - with the necessary rehabilitative treatment prior to her 21st birthday. That left him no alternative. On November 15, 1993, Jenny Pruitt was sentenced to a term of imprisonment of life without the possibility of parole. She was seventeen years old.

STATEMENT OF RELEVANT FACTS

A. Jenny’s Childhood

Jennifer Pruitt was born in Pontiac, Michigan on November 27, 1975. She did not have a good relationship with either of her parents, both of whom have died subsequent to her incarceration. Her relationship with her father was particularly troubling. Her father, Danny Pruitt, worked for General Motors. Unfortunately, Danny Pruitt was also an alcoholic and his drinking often led to difficulties at work. But even when he was working he kept his earnings for himself. He would cash his check, go out for cigarettes and come home drunk - four hours later. He would get into fights and automobile accidents. Jennifer’s mother, Judy, needed to work so as to pay the bills and care for their three children. She walked to work because her husband took the family’s vehicle. Sometimes there was not much food in the house. There was certainly no peace nor was there harmony.

Danny Pruitt was an alcoholic and a drug addict.[1] He was a physically abusive husband and father. The household functioned in a continuing state of confusion and chaos. He was angry and unhappy and thought that he was the center of the world. He beat Jenny, her mother and her brothers. It was not unusual for Jenny to awaken with her eyes blackened. Her eldest brother packed up and moved out on Christmas Eve when he was seventeen years old. He had attempted to interrupt his father’s beating of his mother. Yet, the physical abuse was not the worst. Danny Pruitt reserved his harshest treatment for his only daughter.

When Jenny was between ten and twelve years old, her father began to sexually assaulted her. He would throw her two brothers out of the house and then take Jennifer into the bedroom with a bible and question her. Then he would touch himself and make Jenny touch him as well (App G, Neal Tr at 149). Jenny told her mother about the molestation but the only resolution was that Jenny was not allowed to remain at home alone with her father. There was no counseling and certainly there was no police intervention.

Danny Pruitt became angrier and resentful of his daughter. He refused to admit the sexual assaults. He called her a liar and accused her of trying to split up his family (App G,. Neal Tr at 151). Jenny started to run away on a regular basis in order to avoid her family life and to avoid her father’s drunken anger.

Jenny would run away from home and stay away for days at a time. She spent time at Donnell Miracle’s residence because Donnell was older - an adult - and seemed to understand Jenny’s fears and concerns. Donnell represented a support system - the only one that Jenny had at the time. Donnell supplied Jenny with a “safe” place to stay. Sometimes when she ran away the police would bring her home. They would tell her to just hang on until she was seventeen and then she could leave home. She didn’t make it that far.

At the time of the instant offense, Jenny had been gone from home for several days. Her father had thrown her out of the house in the midst of an angry tirade, accompanied by his screams and accusations that Jenny, his sixteen year old daughter - was a “bitch,” a “slut,” a “liar”. Jenny was scared and she was suicidal. She found herself at Donnell Miracle’s home. There was nowhere else to go. It turned out to be a terrible alternative to her father’s wrath.

B. The Crime

Pontiac Police Officer Craig Friedline was dispatched on August 30th regarding a person having witnessed a murder (T II 59).[2] He spoke with the Larry Ledger and with Jennifer Pruitt (T II 62). Jennifer was hysterical; she was crying and sobbing (T II 64). She directed him to 165 W. Cornell and upon entering the residence, the officers observed a body on the floor in a large pool of blood (TII 76-77).

The officer testified that Jennifer was distraught during his entire contact with her (TII 89). The more that she talked, the more upset that she became (TII 89). She told him that she had witnessed a murder, that she had gone to the rest room and when she exited the rest room, Ms. Miracle was stabbing the victim (TII 105-106). She told the officer that she and the Ms. Miracle returned to Ms. Miracle's room, and the knives were put in a dresser (TII 107). Ms. Miracle would not allow her to leave, and she left when Ms. Miracle fell asleep.

Lawrence Ledger testified that at 8:30 a.m. on August 30th, a strange girl (Jennifer Pruitt) came to his door and requested to use the phone (TIII 9-10). She was very upset and he overheard a portion of her conversation in which she referenced someone being killed (TIII 18). Mr. Ledger encouraged her to phone the police (TIII 25-26). She began to cry and walked away but subsequently returned and the police were summoned (TIII 31). The witness did not observe any injuries to Jennifer nor any blood on her person (TIII 47). She told him that her friend had killed someone and that she was afraid of this friend, and had waited until she fell asleep to leave the residence (TIII 47-48).

Officer Ron Kouri arrested Donnell Miracle (TIII 75). As a result of Ms. Miracle's statements, he took Jennifer Pruitt into custody (TIII 81). Jennifer advised the officer that she and Ms. Miracle had gone to 165 W. Cornell and that Ms. Miracle had stabbed the victim numerous times (TIII 83). Ms. Miracle later admitted the stabbing (TIII 92).

The cornerstone of the prosecution's case was Jennifer Lemus. Jennifer Lemus was thirteen (13) years old on the night of August 29th (TIV 89). She was friends with Donnell Miracle and Jennifer Pruitt (TIV 100-101). Donnell was twenty-three (23) and Jennifer Pruitt was sixteen (16) (TV 194). Donnell was renting a room at 146 W. Cornell, the home of Diane Terry and her children (TIV 94). Jennifer Pruitt lived several houses away, but had been staying at the Terry house for several days (TIV 99; TV 64).

Ms. Lemus testified that on August 29th, she, Jennifer Pruitt, and Donnell Miracle were at 146 W. Cornell, as Donnell was babysitting for Diane Terry's children (TIV 102). At 2:30 a.m., the witness went into Ms. Miracle's bedroom (TIV 115). Donnell Miracle said that she needed money and Jennifer Pruitt responded that Elmer Heichel had a lot of money (TIV 121). Ms. Miracle responded that she was gong to get some money (TIV 122, 124). Donnell gave Ms. Lemus $20.00 to watch Diane's children, and Ms. Miracle and Ms. Pruitt left through the bedroom window (TIV 125, 133). Ms. Lemus did not see any weapons (TV 126-127).

Ms. Lemus testified that the two returned one-half hour later through the bedroom window (TIV 138). The three girls returned to the Heichel residence to wipe up fingerprints. Later that night Jennifer Lemus asked what had happened (TV 11-12). Jennifer Pruitt was crying and Jennifer Lemus wanted to see a priest (TV 10, 13). Donnell Miracle said that it was she who stabbed Mr. Heichel in the head, neck and stomach (TV 31).

Detective Nolan Gottschall spoke with Jenny Pruitt on August 30, 1992 (TVI 58). Jenny told the detective that she could have stopped Donnell Miracle and that Elmer Heichel was helpless but she was scared (TVI 99-100). The detective said that Jenny was distraught and crying throughout her interview and her statements were disjointed (TVI 117). At the end of the interview he released her to go home. She returned the next day, August 31st, and gave a second taped statement (TVI 131). The second interview was terminated because the officer did not feel that Jenny was in any condition to talk (TVII 8). She instead sought psychiatric treatment and was arrested on September 9th (TVII 10).

Jenny Pruitt was convicted of murder-second degree on Count I, and of felony murder-robbery, felony murder-larceny, and armed robbery (T X 6). An appeal resulted in an order vacating all but one count of first degree felony murder - and an affirmation of the accompanying sentence of life without the possibility of parole.

C. Jennifer’s Psychological Status in 1992

From the time of her first contacts with law enforcement Jenny expressed remorse and feelings of personal responsibility. She told Detective Gottschall on August 30th that she could have helped Mr. Heichel but she was scared. Later, Detective Gottschall told the pre-sentence writer that Jenny was cooperative from the start of his investigation and that she displayed immediate remorse.

On September 1, 1992, within two days of the homicide in this case, and after having been released by the police, Jenny was admitted to the child psychiatric unit of The Fox Center. She was diagnosed as suffering from acute Post Traumatic Stress Disorder:

"* * * She presents as overwhelmed by the trauma and unable to process stimuli. Regressive tendencies are evident as Jennifer's ego is confronted with an onslaught of affect. Intense, diffuse expressions of sadness and despair are pervasive in her presentation. Jennifer is engaging in massive efforts at constriction in an effort to forestall further decompensation. She attempts to narrow down and simplify stimuli to a more manageable level. However, this defense is performed at a cost to her perceptual accuracy. That is, Jennifer is vulnerable to distortions and misperceptions. Moreover, the avoidant defenses are essentially unsuccessful in warding off anxiety as the trauma pervades Jennifer's ideation."[3]

The subsequent forensic center reports reiterated the diagnosis of Post Traumatic Stress Disorder, and the independent psychologist testified that Jennifer was still suffering from Post Traumatic Stress Disorder at the time of the Waiver Hearing (WH 89).[4]

Dr. Karen Clark testified as an expert at the waiver hearing and indicated that she evaluated Jenny in preparation for the waiver hearing, as well as reviewing the forensic center reports, and interviewing Jenny's family (WH 66).[5] Dr. Clark found Jenny to be reality oriented and very remorseful (WH 70).

"Q With regard to remorse, how do you think that affects her in the future?

A I think that it is an indication of her feelings about the responsibility that she played in this heinous act. I see her as extremely remorseful and traumatized and admitting her guilt and participating in the act and in being responsible of this crime. It indicates that she has strong feelings about what occurred, that she has a strong commitment to rectifying her behavior, and to redirecting her behavior. I think that she recognizes that her behavior was on a collision path because of her truancy. She is capable of modifying her behavior. I think that it's helped her develop insight in to the seriousness of oppositional behavior and the seriousness of possible consequences." (WH 71).

Dr. Clark also stated that Jenny was in extreme emotional pain (WH 72). The doctor testified that Jenny possessed the emotional and intellectual attributes necessary for rehabilitation (WH 71, 72). She found Jenny to be a disturbed adolescent, not unlike other incarcerated youth, but not psychotic (WH 75). Dr. Clark's bottom line was that Jenny needed aggressive psychiatric and psychological intervention but that Jenny was certainly treatable (WH 94).

D. Jennifer’s Life in Prison

Part one - the rank ugliness of prison life

Jennifer’s life in prison can be broken down in to several components. The first is the ugly component. The events compromising this time in prison began almost as soon as Jenny was transferred from Oakland County to Scott Correctional Facility.

When Jennifer entered the prison system she was just shy of her eighteenth birthday. She was in for a very tragic lesson. When she arrived at the Scott Correctional Facility the other prisoners warned her to be careful of the male officers (App G, Neal Tr at 156). The other women said that some of the officers went “too far” during pat-downs. Jenny recalled that the officers would call the women names - slut, bitch, tramp and so on. They would perform pat-downs which included regular fondling, grabbing and squeezing of her breasts. The supervising officers were well aware of what was happening but never acted to prevent the activity (App G, Neal Tr at 163). It was simply institutionally accepted behavior.

While in quarantine Jenny was in a locked room with a window. There was no cover over the door and the shower was in the hallway. The officers would stare at her when she showered or used the toilet. Jennifer’s first sexual experience - aside from those involving her father - was at the hands of a prison guard who was charged with escorting her to the bathroom. He forced her to perform fellatio (App G, Neal Tr at 168). The sexual assaults continued and other officers became involved. Deputies would enter Jenny’s room to fondle her breasts. Another exposed himself to her and forced her to disrobe. And yet another forced her to engage in intercourse in a closet (App G, Neal Tr at 178-179). The abuse continued for years.

As a result of these incidents, Jennifer experienced significant psychological decompensation. She began cutting herself and attempted suicide on several occasions. She could not talk with the counselors because the information would not remain private. She was afraid of the consequences of speaking out. Ultimately, after other women began to talk about the prison attacks, Jennifer finally reported the assaults. A subsequent lawsuit was filed on behalf of the class of inmates at the Scott Correctional Facility who had suffered sexual assaults and molestations at the hands of the prison staff. The inmates were successful. Yet even in light of this result, none of the prison employees was charged with criminal conduct.

Part two - the road out of the darkness

The second component of Jenny’s incarceration story is a model of strength, courage and recovery. It is the part of Jenny’s story that defines the woman that she has become and illustrates her strength of character. In spite of all of her misfortunes and the historical trauma of her life, Jennifer Pruitt has never given up on herself .

Jennifer has evolved into a truly amazing woman. Notwithstanding the fact that she was serving a life sentence without the possibility of parole, she did not give up on herself. She was determined to improve herself and she found ways in which to help others. She moved past the years of sexual abuse by the prison guards and past the years of childhood struggles. Her family life did not provide her the tools necessary to set boundaries or to trust. She taught herself.

And Jennifer’s accomplishments have not gone unnoticed by the system. Jenny is classified as a Level I inmate at the Huron Valley Women’s Facility. This classification is reserved for those inmates requiring the least amount of supervision and those individuals who do not represent a management difficulty. It is highly unusual for an inmate serving a life without parole sentence to reach a Level I classification. This alone speaks highly of Jennifer. Similarly, in 2009, the warden of the institution filed an initial request that Jennifer Pruitt be considered for a commutation of her life sentence. And while that petition was ultimately denied, the testimony given on that date was in stark contrast to the conclusion of the Commutation Board (see Appendix H, transcript of Public Hearing; Appendix I, Petition for Reconsideration of Commutation Denial).

The documents submitted and testimony given at the public hearing were reflective of Jennifer’s model behavior. She was defined as a model inmate with no management issues (See Appendix J - letter from attorney Deborah LaBelle; Appendix K - samples of various inmate work records and evaluations). She was consistently as an excellent worker in her employment capacity. She is described by MDOC personnel as dependable, honest, sincere and reliable.

Ms Labelle, in writing to the Michigan Parole Commutation Board noted:

“Jennifer Pruitt has grown up in prison. She has completed every single rehabilitation program that was made available to her. She has maintained a minimum security classification level, worked full time and completed the following mental health programs: Substance Abuse Education Program, AA/NA, Heritage Program, Individual Psycho Therapy Program, Group Counseling, Self-Care Grooming Group, Healing the Trauma, Substance Abuse Awareness, Domestic Violence, Understanding Bi-Polar Disorders, Self-Esteem Group, Managing Depression. * * * Assaultive Offender program.

Ms. Pruitt has been on the Warden’s Forum and completed every recommendation given to rehabilitate herself. She took any work detail assigned to her: laundry, kitchen, porter, and she worked hard at each of these, with excellent work reports. She obtained a vocational certificate in custodial maintenance technology, participated in HIV/AIDS Peer Training, obtained medication management, blood borne pathogens-clean up,, and blood borne pathogens in the work place certificates. She earned her GED in 1997 and she took as many college credits as she was able. Jennifer Pruitt’s RG&C recommended that she take remedial education and vocational training, get a work assignment and individual therapy. She has complied with all of that and more.” (Appendix J at 2).[6]

Jennifer Pruitt did not give up on herself even when the parole board denied her relief. She kept moving forward. She now has received an open invitation to attend her grandmother’s church should she obtain release (Appendix L). In 2012 she completed training at the Stratford Career Institute in both book-keeping and drug and alcohol counseling (Appendix M). She competed a counseling program at Eastern Michigan University (Appendix N) and has remained actively involved in MDOC programming as well.

Jennifer has certificates from “Beyond violence: A Prevention Program for Women,” and from the Residential Substance Abuse Treatment Program (RSAT) (Appendix P). Jennifer has been living in the RSAT Unit since August 2010. At that time she entered the residential unit as a patient but she has remained on the unit as a mentor to other inmates. She is also active on the HYTA unit for mediation purposes and is invited to speak to the younger women sentenced to that area.

ARGUMENT

I. JENNIFER PRUITT’S MANDATORY LIFE WITHOUT PAROLE SENTENCE IS UNCONSTITUTIONAL UNDER THE EIGHT AMENDMENT PROHIBITION ON CRUEL AND UNUSUAL PUNISHMENT.

On June 25, 2012, the United States Supreme Court ruled that the Eight Amendment prohibition on cruel and unusual punishment bars life without parole sentences for youth convicted of homicide offenses. See Miller v Alabama, 132 S Ct 2455 (2012). The Miller Court found mandatory life without parole to constitute cruel and unusual punishment for youth, not because mandatory punishment schemes are always unconstitutional, (see Harmelin v Michigan, 501 US 957; 111 S Ct 2680 (1991)), but, rather, because the punishment was imposed on a specific category of persons, children, who are inherently less culpable than adults. Miller, 132 S Ct at 2464 (“[C]hildren are constitutionally different from adults for purposes of sentencing [and] they are less deserving of the most severe punishments.”) (internal citations omitted).

The Miller Court reasoned that “youth matters in determining the appropriateness of a lifetime of incarceration” and found that such mandatory penalties are unconstitutional because, by their very nature, they “preclude a sentencer from taking account of an offender’s age and the wealth of characteristics and circumstances attended to it.” Id. at 2467. Accordingly, a sentencing judge “must have the opportunity” to consider these circumstances so that the judge has the power to choose “rather than a life-without-parole sentence, a lifetime prison term with the possibility of parole or a lengthy term of years.” Id. at 2474-2475. The Miller Court further instructed that “appropriate occasions for sentencing juveniles to this harshest possible penalty will be uncommon” and limited to “the rare juvenile offender whose crime reflects irreparable corruption.” Id. at 2469, 2475. [7] Life without possibility of parole is the most severe punishment available in Michigan for both children and adults. In fact, imposing a life without parole sentence on a child is particularly harsh in that he or she will spend a greater portion of his or her life behind bard than and adult issued the same sentence. [8]

The Miller decision reflects the Supreme Court’s increasing level of recognition over the last decade that “children are different” when it comes to sentencing, because they have “diminished culpability and greater prospects for reform.” Id. at 2469. As the Court explained:

“First, children have a lack of maturity and an underdeveloped sense of responsibility, leading to recklessness, impulsivity, and heedless risk-taking. Second, children are more vulnerable . . . to negative influences and outside pressures, including from their family and peers; they have a limited control over their environment, and lack the ability to extricate themselves from horrific, crime-producing settings. And third, a child’s character is not as well formed as an adult’s; his traits are less fixed and his actions less likely to be evidence of irretrievable depravity.” Id. at 2464 (internal citations omitted).

The Court based these findings not only on “common sense,” but on developments in psychology and neuroscience to show the “fundamental differences between juvenile and adult minds.” Id. The Miller Court cited a number of scientific studies in which it has become “increasingly clear that adolescent brains are not yet fully mature in regions and systems related to higher-order executive functions such as impulse control, planning ahead, and risk avoidance.” Id. at 2465 n 5. To appreciate these differences is to appreciate that “youth is more than chronological fact. [. . .] It is a moment and condition of life when a person may be most susceptible to influence and to psychological damage.” Id. at 2467. For these reasons, the Supreme Court rules that “imposition of a State’s most sever penalties on juvenile offenders cannot proceed as though they were not children.” Id. at 2466.

A. Jenny’s Life Sentence is Unconstitutional Under Miller

Miller held that mandatory life without parole sentencing schemes, like Michigan’s, are unconstitutional when imposed on a child. Miller, 132 S Ct at 2467. There is no question that Jenny was sentenced under a mandatory sentencing law forbidden by Miller. Following the jury trial, cognizant of its legal constraints, the Court sentenced Jenny to mandatory life without parole. As such, the Court was precluded from considering Jenny’s age and the characteristics and circumstances attendant to it.

B. Miller Requires That a Court Consider the Mitigating Factors of Youth Before Imposing Punishment

Before imposing a sentence of life without possibility of parole, the court is required to hold a hearing to take into consideration a defendant’s child status and attendant characteristics (the “Miller factors”) in crafting the appropriate proportional sentence. Miller, 132 S Ct at 2455, 2466 (youthful status plays a central role in considering a sentence’s proportionality). Under Miller, when sentencing a child the court must conduct an individualized sentencing hearing to consider all mitigating evidence before imposing the most sever punishment. At a minimum, mitigating evidence must include review of:

1) The youth’s “chronological age”;

2) Hallmark features of youth - “among them, immaturity, impetuosity, and

the failure to appreciate risks and consequences”;

3) “[T]he family and home environment that surrounds [the child], and from

which he cannot usually extricate himself - no matter how brutal or

dysfunctional”;

4) “[T]he circumstances of the homicide offense, including the extent of [the youth’s participation in the conduct”;

5) “[T]je way familial and peer pressures may have affected him”;

6) The possibility that the child might have been “charged or convicted of a lesser offense, if not for the incompetencies associated with youth - for example, [the] inability to deal with police officers or prosecutors (including on a plea agreement) or [the] incapacity to assist his [or her] own attorneys”; and

7) “[T]he possibility of rehabilitation.” Miller, 132 S Ct at 2468.

The Miller Court ruled that a judge “must have the opportunity” to consider these factors, and presumed after which “appropriate occasions for sentencing juveniles to this harshest possible penalty will be uncommon.” Id. at 2475, 2469. The Miller factors enumerated above are present in Jenny’s case and support re-sentencing.

1. Jenny’s age, maturity and mental capacity

Jenny was sixteen at the time of the offense and seventeen at the time of sentencing. While this is certainly an age at which Jenny could appreciate the difference between right and wrong, there is also little doubt that Jenny’s actions that night were the consequence of her immaturity and failure to appreciate the risks and consequences of her actions. See Miller, 132 S Ct at 2468.

A review of the psychological records and evaluation conducted within several days of the offense support a conclusion that Jennifer’s maturity level interfered with her ability to make adequate risk assessments and to adequately understand the consequences of her behavior at the time of the offense. Almost immediately after the events culminating in Mr. Heichel’s death, Jenny completely fell apart. The initial evaluation described a teenager unable to process the events which she had witnessed (See psychological evaluation at Appendix D).

Upon her admission at the Fox Center, the examiner noted that Jennifer was crying, guilt-ridden and remorseful. She was in “acute decompensation” and “unable to assimilate the experienced trauma.” Jenny was fragile and the examiner recommended “[i]mmediate and intensive treatment * * * to stabilize her functioning level.” She required assistance in processing the events of the murder. Her emotional maturity prevented her from adequately functioning on her own.

2. Jenny’s home and family environment

It is impossible to separate Jenny’s crime from her horribly dysfunctional home life. There was never a time in her youth during which Jennifer was in a safe environment. She was subjected to brutality from her father and a failure to protect from her mother. The entire family was at the mercy of her alcoholic, drug addicted violent father. He instilled fear in the entire family and subjected them to regular abuse. When he subjected his young daughter to acts of sexual abuse, it was virtually ignored - the resolution being to ban Jennifer from the house when she would otherwise be alone with her father. She was twelve years old at that time.

Jennifer’s father refused to acknowledge the sexual abuse. Instead he called Jennifer a liar. He began calling her a bitch and a slut. She started to run away. But there wasn’t really anywhere for a adolescent girl to go on the streets of Pontiac. She found other adults to help her. Unfortunately, the 23 year old Donnell Miracle was not the right “adult” help.

Jenny was a child and had “limited control over her environment and lack[ed] the ability to extricate [herself] from horrific, crime producing settings.” Miller, 132 S Ct at 2464. These conditions certainly do not excuse Jenny’s conduct in the instant case but they do stand as a mitigating factor that the sentencing court ought to consider.

3. The circumstances of the offense

Each and every participant in the criminal justice system that was involved in the investigation and trial of this matter agreed that Jennifer Pruitt never took a weapon in her hand or struck a blow to Elmer Heichel. The prosecution never proposed such a theory at trial. The trial judge never assumed such a fact at sentencing and to the contrary, he recognized Jenny’s limited involvement: “I am satisfied that she did not take a knife in hand and stab Mr. Heichel any of the numerable times that the medical examiner testified indicated.” (WH 117-118). Even the investigating officer told the pre-sentence report writer that Jenny was not an active participant in the stabbing of Mr. Heichel.

Certainly, Jenny is well aware that it was her choice to steal from Mr. Heichel and she carries the knowledge that she chose him as the target, regardless of the fact that she did not ever intend to cause him harm (see Appendix H, Public Hearing at 70). Nonetheless, If Jennifer had the capacity to appreciate her actions and the foresight to measure the consequences on August 29, 1992, she would never have started down the path to Elmer Heichel’s house.

4. The possibility of rehabilitation.

Most importantly, over the course of the past twenty years, Jennifer Pruitt has become an amazing woman. She has illustrated perseverance and intellect. She has overcome the horrors of her institutional rape and the added sexual abuse by her father. She has learned to stand up for herself and to be a leader rather than a follower. She has taken and succeeded in every opportunity presented within the confines of the walls of the MDOC.

Jenny has used the last twenty years precisely as Judge Mester hoped that she would use the time. She has availed herself of the programming available in the prison system to grow and to become a better person. She has come to grips with the abuse of her father and the unpleasantness of the streets of her youth. She has spent innumerable hours learning about how the pain of her family abuse had affected her even as a child and she learned how to process that pain. She learned to stop hiding all of the unpleasantness of her past and how by recognizing it and exposing it, she could control it and could control herself. She learned to trust her own instincts and she began to understand what led her to Donnell Miracle and why she ever permitted herself to be a part of causing harm to Elmer Heichel.

Jennifer gave a speech at her graduation from RSAT and she said, in part:

“Through Beyond Violence, a group that was just recently offered for the first time in the RSAT Program, I discovered my past trauma’s connecting the dots of the impact they had on my life and how they helped shaped and form me into who I had become. I was able through this group and the entire RSAT Program to fully allow myself to open up my diary, turning the pages and becoming aware of who I am. Taking the initiative to learn about my co-dependency and need to please others out of fear of rejection. I got real with my abandonment issues and began working daily through problems and seeing the role I am responsible for. I set healthy boundaries in my relationship with others.

I am so appreciative and blessed that I was unexpectedly placed in a program that I so unknowingly desired. I am no longer consumed with thoughts of confinement and guilt. Today I am freer that I have ever been because I am free on the inside. This program has given me hope ad the wisdom to know that I am a good person and that I do deserve to have a good life; no matter where I am at. I now believe that I am entirely capable of both closing or leaving my diary open for anyone to read, because they are no longer secrets I am holding in. * * * I will forever hold guilt for my role in taking a man’ life. However, I will not allow these circumstances and feelings to dictate who I am. Through my experiences I hope to reach out and share my life so that I can make a difference in someone else’s story.”

Jennifer has never stopped growing. She has pursued every opportunity for education and self-improvement and she has done so even though her sentence did not allow any possibility for release. She continued to press forward even after the denial of her commutation. She has evidenced a commitment to herself and a commitment to society - even if she is limited by the prison walls.

On October 28, 2012, a letter was received authored by Carl Heichel (attached as Appendix Q). Carl Heichel is Elmer Heichel’s grandson. In his letter he offers forgiveness to Jennifer from himself and his parents (Elmer Heichel’s son and daughter-in-law) and his hopes for her return to society. He states in that letter, in part:

“Jennifer’s age, abuse and lack of love and guidance played a major role in the horrific murder. We have and do believe that if Jennifer has made the strides while in prison, Education, Drug counseling and has an institutional record that reflect a changed life, that she should be given a chance at a new start and that she would take full advantage of a life of love and compassion, she has a lot to offer young children, and she has our blessings.”

Even Mr. Heichel’s family recognizes that years may bring change and growth and that Jennifer’s actions were a result of her extreme youth. The Miller Court noted that “imposition of the State’s most severe penalties on juvenile offenders cannot proceed as though they were not children.” Miller, 132 S Ct at 2466. This is precisely the error of the sentence imposed in this case. And, as to Jennifer Pruitt it is time to correct the error and sentence her as an individual.

II. JENNIFER PRUITT’S MANDATORY LIFE WITHOUT PAROLE SENTENCE VIOLATES THE MICHIGAN CONSTITUTION’S PROHIBITION AGAINST CRUEL OR UNUSUAL PUNISHMENT.

Because sentencing youth to life without possibility of parole is unconstitutional under the Eighth Amendment, Michigan’s life without parole sentencing scheme as applied to children also violates article 1, § 16 of the Michigan Constitution’s ban on “cruel or unusual punishment.” Const 1963, art I, § 16 (emphasis added).3 Michigan’s highest court has determined that this provision should be interpreted more broadly than the Eighth Amendment of the U.S. Constitution. See People v Bullock, 440 Mich 15, 30 (1992). Applying Michigan Supreme Court precedent in light of Miller, Jenny’s sentence is unconstitutional under state law and must be remedied.

Michigan courts consider four factors in evaluating sentences under the state constitution’s Cruel or Unusual Punishment Clause: (1) the severity of the sentence relative to the gravity of the offense; (2) the sentences imposed in the same jurisdiction for the same offense; (3) sentences imposed in other jurisdictions for the same offense; and (4) the goal of sentencing, especially rehabilitation. Bullock, 440 Mich at 33-34; (citing People v Lorentzen, 387 Mich 167, 177-81 (1972)). Applying these factors, in light of Miller, the mandatory life without parole sentence imposed on Jenny is impermissible under the Michigan Constitution.

First, Jenny’s life without parole sentence is disproportionately severe considering Jenny’s culpability. In Miller, the Supreme Court concluded that, because children as a class have diminished culpability, the mitigating factors of youth must be considered, and predicted that imposition of a state’s harshest punishment for youth would be “uncommon.”  Miller, 132 St Ct at 2475. This consideration of a youth’s lesser culpability has also been long-recognized as relevant to the Michigan constitutional analysis of severity. See Lorentzen, 387 Mich at 176 (finding twenty-year sentence unconstitutional as applied to first-offender high school student convicted of selling marijuana).

Under the second factor, Jenny’s sentence is both unusual and disproportionate in Michigan. As there is no death penalty in Michigan, Jenny, as a child, received the exact same sentence as the most culpable adult offender, In fact, Jenny’s sentence is more severe given the proportion of Jenny’s life and the amount of time Jenny will spend behind bars. Further, because of an adult’s better ability to navigate the criminal system, adults are more likely to take plea agreement to avoid this harshest punishment; meaning adults who committed similar offenses are actually serving lesser sentences.4

Application of the third factor also finds in Jenny’s favor, as Michigan’s life without parole sentencing scheme for children is an anomaly, and both unusual and disproportionate compared to other states Nationwide, only a small percentage of youth convicted of homicide crimes are sentenced to life without possibility of parole, and these sentences are heavily concentrated in a small minority of states including Michigan. While most states provide for discretion in sentencing and life without parole is rarely, if ever, imposed on a child, Michigan is an outlier in that its sentencing scheme is mandatory, applies to premeditated and felony murder, and it has the second highest number of youth in the United States serving this sentence. See Human Rights Watch, State Distribution of Youth Offenders Serving Juvenile Life Without Parole (2009).

Finally, the court must apply a “fourth criterion, rooted in Michigan’s legal traditions...the goal of rehabilitation.” Bullock, 440 Mich at 34. A life without parole sentence foreswears any opportunity of rehabilitation, a decision incompatible with childhood. Miller, 132 S Ct at 2469; see also Bullock, 440 Mich at 39 n 23 (“only the rarest individual is wholly bereft of the capacity for redemption”).5 Because Jenny’s sentence precludes the possibility of rehabilitation, Jenny must be given the opportunity to demonstrate Jenny’s maturity and capacity for change.

III. PAROLE ELIGIBILITY UNDER MICHIGAN LAW DOES NOT PROVIDE A MEANINGFUL AND REALISTIC OPPORTUNITY FOR RELEASE.

Graham and Miller do not mandate that release actually be granted in any particular case, however, these decisions do require that the opportunity for release not be illusory or arbitrary. Miller, 132 S Ct at 2469 (a mandatory sentence imposed on a child may not result in a lifetime imprisonment without “some meaningful opportunity to obtain release based on demonstrated maturity and rehabilitation.” (quoting Graham, 130 S Ct at 2030)). Further, a child’s life sentence may not be enforced in a manner that “disregards the possibility of rehabilitation even when the circumstances most suggest it.” Id. at 2468.

Michigan’s parole system, as currently implemented, will not provide Jenny with the meaningful opportunity for release required by Graham and Miller. While Michigan’s statutory scheme differentiates between prisoners serving “life” who are parole eligible, MCL 791.234(7), and those who are not, MCL 791.234(6), implementation has resulted in little distinction. Federal and state courts have acknowledged the Michigan Parole Board’s de facto “life means life” policy, and that the chance of parole for any prisoner serving a “life” sentence is extremely unlikely. See Foster v Booker, 595 F3d 353 (6th 2010); People v Scott, 480 Mich 1010 (2008). For this reason, as applied to children, the “life means life” policy is unconstitutional under both Graham and Miller.

IV. JENNY IS ENTITLED TO A RE-SENTENCING HEARING UNDER MCR 6.500 ET SEQ BECAUSE SHE WAS SENTENCED AS IF SHE WAS AN ADULT WITHOUT CONSIDERATION OF HER YOUTHFUL STATUS AS REQUIRED BY MILLER.

Jenny is challenging the constitutionality of her sentence. She has illustrated that her mandatory sentence of life without parole is unconstitutional under Miller, which requires that a court consider the mitigating factors of youth before imposing punishment. Because Miller was not decided until June 25, 2013, and because it represents a retroactive change in the law, Jenny is entitled to a new individualized sentencing hearing at which mitigating evidence is presented. MCR 6.508(D).

MCR 6.500 et seq. provides for review of judgments in criminal cases no longer subject to direct appeal to the Court of Appeals or the Michigan Supreme Court. People v Reed, 449 Mich 375, 407 (1995). Under MCR 6.502, a defendant may move to set aside or modify a judgment. People v Swain, 288 Mich App 609, 629 (2010). The decision whether to grant a motion for relief from judgment is within the trial court’s discretion, Swain, 288 Mich App at 628, and a defendant has the burden to establish entitlement to relief. MCR 6.508(D). While the rule does not set forth which grounds are required for relief to be granted, it does set forth when relief should be denied. MCR 6.508(D). As established below, none of the grounds set forth for denial are present here.6

A motion for relief from judgment is typically denied if it alleges grounds for relief which were decided against the petitioner in a prior appeal, or if it alleges new grounds for relief which could have been raised on a prior appeal. MCR 6.508(D)(2)-(3). Neither bar is applicable here. Jenny’s case is not subject to direct appeal; the conviction and sentence are final. Further, Jenny has not previously challenged the constitutionality of the mandatory sentence under Miller and, therefore, this issue has not been decided against Jenny. MCR 6.508(D)(2). Finally, MCR 6.508(D)(3) is also inapplicable because Miller was not yet law at the time of Jenny’s direct appeal.

Jenny acknowledges the Michigan Court of Appeals holding in People v Carp,298 Mich App 472 (2012), which found that Miller is not retroactive. An application for leave to appeal is pending before the Michigan Supreme Court.

Miller will, once the issue is fully litigated, be applied retroactively for the following reasons: (1) Miller’s companion case, Jackson v Hobbs, announced a new rule on collateral review; thus, the new rule applies retroactively to all similarly situated individuals like Jenny, see Teague v Lane, 489 US 288; 109 S Ct 1060 (1989) (stating that new rules will be applied to those “similarly situated”); (2) Miller applies retroactively because it is a substantive rule that “prohibit[s] a certain category of punishment for a class of defendants because of their status” as juveniles, Penry v Lynaugh, 492 US 302 (1989), in that a court may not impose the harshest penalty without an individualized hearing that considers youth and the required range of possible punishments is greater; (3) Miller is a new “watershed” rule of criminal procedure which calls into question the “fundamental fairness and accuracy of the criminal proceeding,” Saffle v Parks, 4994 US 484(1990); and (4) Miller is retroactive under Michigan law. See People v Sexton, 458 Mich 43 (1998). As such, there has been a retroactive change in the law that invalidates her prior sentence.

Ms. Pruitt respectfully requests the ability to further brief this question, if she desires, after the final outcome of People v Carp or other binding decisions.

CONCLUSION

WHEREFORE, for the reasons stated and those to be advanced at the evidentiary hearings, Defendant Jennifer Pruitt respectfully requests that this Court grant her motion for relief from judgment of sentence of mandatory life in prison without the possibility of parole, enter an order holding all proceedings in abeyance pending a final binding resolution by the United States Supreme Court or the Michigan Supreme Court or the Michigan Legislature with respect to the retroactive application of Miller, and upon the issue of binding precedent finding Miller to be retroactive, hold a hearing at which the Court examines mitigating evidence relevant to the Miller factors, and re-sentence Ms. Pruitt to time served, or a term of years that is proportional to Ms. Pruitt’s lesser culpability and demonstrated capacity for rehabilitation.

Respectfully submitted,

________________________

ROBYN B. FRANKEL (P43629)

` Attorney for Defendant

DATED: June 25, 2013.

-----------------------

[1] Transcript of Jennifer’s testimony in Neal v MDOC, Washtenaw County Circuit Court No. 96-6986-CZ, resulting from lawsuit brought on behalf of prison inmates who suffered sexual abuse at the hands of prison staff is attached as Appendix G. Transcript will be referenced as Neal Tr)

[2]Transcript references are to the jury trial held in 1993 (T) and the subsequent waiver hearing (WH) where necessary. If these are unavailable in the court records then counsel can provide them upon request.

[3] Fox Center Psychological Review, dated September 8, 1992, by Mary Scher, Ph.d. attached as Appendix D.

[4] Subsequent Forensic reports attached as Appendix E.

[5] Report attached as Appendix F.

[6]The Assaultive Offender Program was not completed until after the date of the letter. The “Therapy Termiantin Report” is attached as Appendix O).

[7] See Proper v Simmons, 543 US 551; 125 S Ct 1183 (2005) (invalidating the death penalty for youth in light of their inherently lessened culpability); See Graham v Florida, 130 S Ct 2011, 2026 (2010) (in barring life without parole sentences for non-homicide offenses juveniles, following the teachings of Roper, the Court explained “juveniles have a lack of maturity and an underdeveloped sense of responsibility; they are more vulnerable and susceptible to negative influences and outside pressures, including peer press; and their characters are “not as well formed.” (internal quotations omitted)); and see JDB v North Carolina, __ US __; 131 S Ct 2394, 2404 (2011) (holding that a suspect’s age is relevant under Miranda’s custody analysis, the Court acknowledged that, “our history is replete with laws and judicial recognition that children cannot be viewed simply as miniature adults.”) (internal citations and quotations omitted).

[8] In addition to the added number of years a child is likely to spend behind bars, research indicates that their life expectancy decreases as well. While the average life expectancy for a child born today is 77.8 years, it is significantly lower for incarcerated persons. See United States v Taveras, 436 F Supp 2d 493, 500 (EDNY 2006) (life expectancy within federal prison is considerably shortened). Based on a review of Michigan data, the average life expectancy for those who began their natural life sentences as children is just 50.6 years. See LaBelle & Ubillus, Michigan Life Expectancy Data for Youth Serving Natural Life Sentences (2013).

3 Article I, section 16 of the Michigan Constitution provides: “Excessive bail shall not be required; excessive fines shall not be imposed; cruel or unusual punishment shall not be inflicted; nor shall witnesses be unreasonably detained.” (1963).

4 In Michigan, 62% of adults initially charges with first-degree murder were plea bargained by the prosecutor to a lesser term of years or a parolable life sentence. The average prison term served by an adult originally charged with first-degree homicide but offered a plea by the prosecutor is 12.2 years. See Basic Decency: Protecting the Human Rights of Children 8

5 According to experts, 90% of youth who commit antisocial acts in their adolescence age out of that behavior upon maturity. See Hill v Snyder, Case No. 10-cv-14568 (ED Mich January 30, 2013), Steinberg Aff., Ex. 4, ¶¶25-26.

6 Additionally, Jenny satisfies all of the procedural requirements for a motion for relief from judgment as set forth in MCR 6.502(C).

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