Transcript:
Hey, it’s Beth Schwartzapfel.
It’s been a minute. I know. But there’ve been some updates in the case, and I want to share them with you.
This August, in a courtroom in Phoenix, a bunch of lawyers met to talk about Jacob Wideman. Wideman, remember, served thirty years in prison after killing his summer camp roommate Eric Kane in 1986 when both boys were 16. And then, after being released on a strict form of parole called home arrest in 2016, Jake was yanked back into prison after less than nine months. And he’s been there ever since.
Why?
Because he failed to make an appointment with a particular therapist on a particular day. Jake’s lawyers say the way it all went down “ignored and trampled on” Jake’s constitutional rights.
This event is called an oral argument. It was a conversation about the law, among lawyers, in front of Maricopa Superior Court Judge Mark Brain.
Jake was listening in from prison. Eric’s parents dialed in too. But none of them spoke. We won’t be hearing from Jake or the Kanes in this update either. But we are going to nerd out on some behind the scenes legal stuff that will help you understand how the system of parole really works — at least in this case, which has taken a turn that few parole cases ever do.
If you haven’t listened to Violation yet, I strongly encourage you to go back and listen before you listen to this. I’m going to start with a tiny refresher but without knowing the history this won’t make a lot of sense.
Here’s the backstory: After Jake spent decades in prison — and faced the Arizona parole board multiple times, telling them about the countless hours of therapy and programs and self-reflection he did behind bars, the board released him in 2016. He was 46 years old.
According to his parole officer, while Jake was out he followed all the rules of his home arrest, earning praise from his therapists, his employers, and his landlords. But less than a year later he was sent back to prison.
Why?
Michael Johnson: Ms. Garin, let me just interrupt because his violation is not that he refused to go to counseling, and his violation was that he did not make the appointment or did not go see Dr. McCaine.
He was sent back to prison because his parole officer told him to make an appointment with a particular psychologist on a particular day. Jake called that psychologist — twice — on that day, but he was out of the office and didn’t call Jake back in time. Parole officers said this was more sinister than a missed connection. They said he was purposely avoiding getting counseling — which, given his past, made him dangerous.
Patty Garin: He attempted to make the appointment.
Johnson: Okay. That’s that’s the violation. That’s that’s the violation.
We promised to bring you updates when there was news in Jake’s case. I’m here to tell you that there’s a little bit of news now, but bigger news is coming.
The oral arguments in August, in Maricopa County Superior Court, were about a petition Jake filed in court late last year arguing that Arizona officials violated his rights when they revoked his parole and brought him back to prison. The petition is called a special action.
Jake’s lawyers made a lot of points, but the main one was this: even if you were to consider Jake’s failure to reach the psychologist that day a parole violation — which they don’t concede it was — but even if it was — there is another consideration.
Josh Hamilton: The United States Supreme Court has specifically said in Gagnon v. Scarpelli. . . quote “revocation is to be used only as a last resort when treatment has failed or is about to fail.” That’s the law. That’s what was not followed.
That’s Josh Hamilton, one of Jake’s lawyers. He said that sending Jake back to prison for failing to make an appointment was like “killing a fly with a bazooka.” In the Supreme Court case he mentioned there, the justices in 1973 said that parole should be “rehabilitative rather than punitive.”
Hamilton: This is real, this — He’s been in prison for six years ‘cause of that? That’s the best they could come up with? This court knows what it needs to do. I beg this court. . . You should grant relief. You should release him. And if you’re not willing to do that, at a bare minimum, he needs to be given what the law demands he be given before he be stripped of that, before he be stripped of that conditional liberty. This is not a game. This is his life.
So what Josh is arguing there is that the judge should set Jake free. The thing is, that almost never happens. If the judge rules in Jake’s favor at all, he’s more likely to order another hearing before the parole board.
Yes, another hearing. That would be Jake’s 11th time appearing before the parole board, in case you’re counting. But what Jake’s lawyers argued to the judge is that the board has proven in prior go-rounds that when it comes to Jake’s case, they have acted in a way that’s — and I’m quoting here — “arbitrary and capricious,” “vindictive,” and “constitutionally impermissible,” and that there’s no reason to believe another hearing would be any different. They said the Judge should just reinstate him on parole and order him released.
Now there are a lot of types of hearings before the board, and I don’t want to confuse anyone, so bear with me for a minute while I explain. There are release hearings, where the board decides whether or not to release someone from prison. Jake had seven of those before the board released him in 2016. There are also revocation hearings, where if someone who is out on parole is accused of violating the terms of their release, the board decides whether they did in fact violate the rules and whether to send them back to prison. Jake has had two of those since he was re-arrested in 2017.
Jake had his first revocation hearing in 2017. That day, the board decided that yes, he had violated his parole and yes, he should go back to prison. That’s when Jake’s lawyers filed their first special action.
The judge, in the first special action, said he was “troubled” by the way the board handled several aspects of the process. That judge ordered a new revocation hearing where the board would decide again whether Jake had violated his parole and should be sent back to prison. The second revocation hearing was held in 2020.
At both revocation hearings — in 2017 and in 2020 — Jake said he was trying in good faith to follow the parole officer’s instructions. Parole staff said Jake was being manipulative and pretending to make an effort while actually trying to avoid following instructions. Though, I will add it was parole staff who actually said at that hearing, “It is commonplace for our officers to be evasive and vague.”
Anyway, after hours of testimony, the board found, again, for a second time, in 2020, that Jake had violated the terms of his parole by not scheduling that appointment, and he should stay in prison.
Michael Johnson: My motion is going to be to move to revoke the continued supervision of Mr. Wideman, to find that he was in fact delinquent and violated the terms and conditions of his release and he had lapsed or was about to lapse, into criminal ways or company.
You might have noticed that bit of legal jargon: “had lapsed or was about to lapse into criminal ways or company.” There was a lot of arguing about that phrase at the oral arguments in August. Because here’s the thing. In Arizona, it’s not enough that you break one of the many, many rules of your release. The board also has to find that you were returning to your “criminal ways or company,” or were about to return to those criminal ways. The law doesn’t specify what exactly that means.
Kelly Gillilan-Gibson: He did find that Mr. Wideman’s conduct in not making an appointment was intentional and that he did lapse or was about to lapse into criminal ways.
Judge Brain: Because my recollection is he found the lapse . . .
Jacob Lee: She was concerned that by being evasive and manipulative, Mr. Wideman was about to lapse into criminal ways, putting public safety at risk.
That was a lawyer for the board, and the judge, and a lawyer for the corrections department at the oral arguments in August. Jake’s lawyers, of course, argued that the board had never adequately found a lapse because there wasn’t one.
Hamilton: That lapse didn’t exist, that evidence didn’t exist.
When the state replied, in documents and at the oral arguments that day in August, they said that Jake had already made many of these points during his first special action, so he couldn’t make them again. The judge in the previous special action had identified a few issues that needed to be addressed and they were addressed back in 2020.
The main issue now is whether Jake got due process in that 2020 hearing, attorneys for Arizona said — whether, legally speaking, the t’s were crossed, the i’s were dotted, all the rules were followed. Kelly Gillilan-Gibson, the lawyer who represented the parole board at the hearing, said questions like whether Jake should have been revoked in the first place? Those are not for the judge to decide.
Kelly Gillilan-Gibson: The Arizona case law is very clear that this court cannot substitute its judgment for the board, that this court cannot act as a super parole board. If you find it’s a due process violation, you can direct the board. You didn’t give ‘em due process. You gotta have a hearing that complies with due process. But you can’t tell the board that ‘you’re wrong and I disagree with your decision.’
Throughout the hearing, which lasted about an hour and a half, the judge asked pretty tough questions of all sides. He played devil’s advocate, posed hypotheticals, and generally seemed to be treating this case with a lot of thought and care. Because Arizona abolished parole 30 years ago, it’s rare for someone to be eligible for parole in the first place. And then exceedingly rare for parole decisions to be challenged in court.
So you got the sense Judge Brain wanted to make sure he understood all the nuances and possibilities in this rarely-visited corner of Arizona law. He pressed both sides on what a “lapse into criminal ways or company” might look like and how the board or a parole officer would know it if they saw it, and what they’d have to do to prove it.
When the hearing was over, Judge Brain said he’d “take the matter under advisement and sort it out in due course.” Which means what exactly? It means he’ll think about it and issue a ruling at some point, likely in the next month or two. And we’ll do another update with the news once he does.
In the meantime, I wanted to leave you with one phrase Judge Brain used in the course of that hearing.
Listen to this question he asked of the attorney representing the corrections department:
Judge Brain: At some point, the allegation is that the board keeps messing it up. And as a court of equity, at some point, don’t I have authority to say that’s enough and do something more than ordering another hearing? Surely?
The question seems to imply that Judge Brain is at least considering his ability to release Jake outright. And maybe he is.
But remember, he posed all kinds of hypotheticals and asked tough questions of both sides. So when you take it in context, I wouldn’t read too much into it beyond the fact that the judge is thinking about all his options. But there’s a phrase in there that really jumped out at Jake’s lawyer, Josh Hamilton. It flew right over my head, but to Josh, it’s a high-minded law school kind of phrase that you don’t usually hear in the halls of an everyday criminal court.
Judge Brain: As a court of equity don’t I have the authority to say that’s enough?
A court of equity. A court that considers not just the finer points of the law but fairness. Now, back in the day, courts of equity and courts of law used to be two different things. By the turn of the 20th century, there was no longer any such thing in the United States as a standalone court of equity. All courts of law are also technically courts of equity. But as a concept, as a theory — that Judge Brain said he considered his court a court of equity — well, Josh said that’s something. That means he’s thinking about whether the i’s are dotted and the t’s crossed not as an end in itself, but in service of a loftier ideal — of fairness, of decency, of humanity. Those are synonyms of “equity,” by the way, according to the thesaurus.
What exactly that looks like in this case, we’ll find out.
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