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The Law Blogger is a law-related blog that informs and discusses current matters of legal interest to readers of The Oakland Press and to consumers of legal services in the community. We hope readers will  find it entertaining but also informative. The Law Blogger does not, however, impart legal advice, as only attorneys are licensed to provide legal counsel.
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Sunday, December 30, 2012

Tale of Two Parole Boards

Jacob Trakhtenberg
Sitting on a parole board must be tough.  When reviewing a convict's petition for parole, the board member has an enormous amount of pressure to "get it right".

One option is to take the easy route by erring on the side of caution and letting the petitioner's sentence "run it's course".  Eventually, if flopped enough times by the parole board, a convicted felon simply gets released from the penitentiary by serving a statutory maximum period of incarceration.

That is what happened to two convicted felons that have been making headlines this month: one local; the other from Upstate New York.  This post takes a look at the circumstances of the cases, addressing the challenges of the parole system presented in each.

First, the Michigan case.  In 2005, Jacob Trakhtenberg, a former Chief Engineer for Chrysler, was charged in Oakland County Circuit Court with 5-counts of criminal sexual conduct.  The charging instrument did not specify dates of the alleged sexual assaults against his minor daughter, 8-years old at the time, and was silent as to the specific nature of alleged sexual contact.

His initial court-appointed lawyer elected to conduct a bench trial before former Oakland Circuit Court Judge Deborah Tyner, who found the accused guilty on 3 of the five charges.  One of the alleged deficiencies of Trakhtenberg's court-appointed defense counsel was that she did not conduct any investigation whatsoever relative to the prosecutor's disclosed witnesses.

Trakhtenberg was in prison during the years in which his appeals have [twice] traveled the gamut of the Michigan appellate courts.

Although his appeals have finally gained some traction thanks to our friend, appellate specialist Robyn Frankel, this relief may have come too late for the convicted felon.

In November, the defendant was placed on parole, having served 2/3 of his maximum 10-year sentence, and being eligible for release under the applicable Michigan statute.  His second appeal, known as a "6500 appeal" after the specific court rule that provides for such a last bite at the procedural apple, was decided in his favor last week in a Michigan Supreme Court opinion that remanded the case to the Oakland County Circuit Court for a new trial.

In a 4-2 decision [Justice Hathaway abstained], our High Court held:
In this case, defense counsel failed to exercise  reasonable professional judgment when deciding to forgo particular investigations relevant to the defense, including her
failure to identify the factual predicate of each of the five charged counts of criminal sexual conduct, her failure to consult with key witnesses, and her failure to sufficiently develop the defense presented at trial.  Accordingly, her representation fell below an objective standard of reasonableness.  Defendant was unfairly prejudiced by counsel’s deficient performance.  The key evidence against defendant was the complainant’s testimony.  Therefore, the reliability of defendant’s convictions was undermined by defense counsel’s failure to introduce impeachment evidence and evidence that corroborated defendant’s testimony that defense counsel was unaware of because she decided to forgo those investigations.  Had the impeachment evidence and the evidence that corroborated defendant’s testimony  been introduced, there was a reasonable probability that the result of the trial would have been different.  [Syllabus, page 2]
The effective assistance challenge to Trakhtenberg's conviction, ultimately successful in this case, is a critical component of an accused's basket of Sixth Amendment rights guaranteeing a fair trial.

No word yet as to whether the Oakland County Prosecutor will go forward with a second trial considering Defendant has already served a maximum sentence.  Since the completion of his first set of appeals, the initial trial judge, Judge Tyner, resigned from the Oakland County Circuit Court bench and was succeeded on the case by Judge Daniel O'Brien.

The tough part of criminal sexual assault convictions is that the Michigan Department of Corrections has a bright-line policy whereby the offender must complete sexual abuse counseling prior to achieving eligibility for parole.  Often, convicted offenders maintain their innocence, adhering to a campaign of total denial.  This renders them ineligible for an early parole.

While the resulting extended prison stay is justified for a properly convicted abuser, it is a tragedy if the person is wrongly convicted as concluded by the Michigan Supreme Court in Trakhtenberg.

Meanwhile, in Webster, NY, the criminal justice system attempts to make sense of how William Spengler should have been handled.  Spengler, a paroled murderer, allegedly killed two first responders to a fire he started as a decoy prior to killing himself on Christmas Eve.

It has now come to light that Spengler was paroled after serving a 17-year prison sentence for murdering his grandmother with a hammer.  Prior to his release from prison, 4 consecutive parole boards denied Spengler parole despite finding him to be well-spoken, well-behaved and intelligent.

After being released from prison, Spengler kept to himself for about a decade, until he apparently solicited the assistance of a young neighbor's daughter to purchase a shotgun and an assault rifle.  We now know that these were the weapons used in Spengler's murder-suicide.

Comparing these two cases brings the difficulty of the parole process into focus.  Once a person has been warehoused in prison for several years, what does the justice system do with them upon release?

What about persons wrongfully convicted [or unconstitutionally convicted] such as Trakhtenberg?  If ultimately acquitted, he may be entitled to millions in civil damages.  Will this potential exposure play into the Oakland County Prosecutor's decision to re-try the former automotive engineer who has already served all the prison time he could serve?

Are hardened killers such as Spengler ever truly rehabilitated?  Apparently, there is always a significant risk in allowing such killers to walk free among us.

This blog does not claim to have the answers to these tough questions.

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