[Sidebar] October 2 - 9, 1997

[Features]

Make one false move . . .

Take a ride on Rhode Island's revocation railroad

by Jody Ericson

[image] Arthur Greene was a free man -- free of a heroin addiction that had plagued him for more than two decades and free of the state prison whose corridors he'd roamed, on and off, for most of his life. Paroled in May 1996 into the MAP Alcohol & Drug Rehabilitative Services residential program in Providence, Greene, a tall, broad-shouldered man with a booming voice, says his life was finally on track.

A former drug hustler and chronic user, he was lecturing teens now as part of his training at MAP. He was reconnecting with his wife and two kids and learning about himself. "I'm stubborn. I had control issues. I didn't trust no one," he says. "I turned my life over to MAP, and they got into my head and turned all that around."

But seven months after Greene arrived at MAP, the key to his freedom was abruptly revoked when his seven-year-old grand-niece accused him of molesting her over the previous Thanksgiving weekend. Without a jury trial, or even a judge who was convinced beyond a reasonable doubt that Greene was guilty of the charge, the 47-year-old ex-convict was sentenced to 12 years in prison for violating his probation.

To his family in Newport and even the staff at MAP, the accusation and resulting conviction seemed almost Kafka-esque. "I was his counselor, and this just didn't sit right -- that he'd work so hard to blow it like that," says David Jennings, MAP's program supervisor. "Sexual abuse also didn't match the psycho-socials we'd done on Arthur. It didn't fit into anything we had on him."

As Greene's sister, Debora, points out, all of Greene's other crimes were drug-related. She suspects her brother was the victim of a long-simmering family feud.

But according to Rhode Island law, the circumstances of the allegation didn't matter as much as Debora Greene and the others thought they would. When Arthur Greene had been released from the Adult Correctional Institutions (ACI) in Cranston last May, he'd entered into an agreement with the state of Rhode Island known as probation. Busted the year before on drug charges, Greene had received 15 years in prison, 12 of those suspended. Once out of jail, he knew that if he made one wrong move, the state could send him back to prison for those 12 remaining years on merely the suspicion that he'd violated his probation.

Indeed, for alleged probation violators across the nation, the usual procedures and protections of the accused don't apply. At their probation-violation hearings, all the testimony can be secondhand (i.e., the cop who took the report), and unconstitutionally seized evidence is allowed. What's more, a judge must only be "reasonably" satisfied that a probation has been violated in order to convict. All that could take is the alleged victim's testimony.

Those advocating for reform say the due-process rights of those on probation are trampled on as a result, but law-enforcement officials argue that criminals such as Arthur Greene don't deserve an actual trial or a third chance -- their probation is a privilege, not a right. More important, society must be protected from people who have already proven themselves to be dangerous, so justice must be swift. A jury trial takes too long, the officials say.

But although the arguments on both sides of the issue are compelling, there is no doubt that Rhode Island's probation-revocation policy, rooted in state and case law, is open to abuse, allowing the Attorney General's office (whose spokesperson did not respond to a request for an interview about the Greene case or probation violations in general) to short-cut its responsibilities to fully investigate and present the facts of a case. While this could result in swift action against known criminals, it also gives state officials the power to jail those whose guilt may be questionable -- or even those who are probably innocent.

"A prosecutor will very often go forward with a charge that is bogus because he knows [probation] violation is an easy mechanism for incarceration," says deputy public defender Barbara Hurst. "It sometimes becomes a vehicle for a defendant to end up with a long sentence after a mini, relaxed hearing."

Indeed, after meeting the lower burden of proof at the probation-violation hearing, state prosecutors have no obligation to proceed with the actual criminal trial. The defendant, after all, is already where the state wants him or her, back behind bars.

State prosecutors also can use the probation-violation hearings as a form of harassment or coercion, says Hurst. By pointing out how easy it'll be to convict, the prosecutors often pressure defendants to agree to a plea -- and to possibly admit to something they didn't do. "The whole procedure encourages defendants to plead to felonies because of the expectations that they'll lose," says Hurst.

But what many violators don't realize is that a plea with a suspended sentence will have the reverse effect of what they intended -- it will all but ensure a ticket back to prison. If they commit even a minor infraction such as trespassing, the alleged violators are in for a ride on what is known among local inmates as "Rhode Island's revocation railroad."

Rhode Island's revocation railroad

Peter LeBlanc was convicted of violating his probation two years ago on drug charges. His original conviction stems from a kidnapping and an aiding in an armed robbery charge from 1987. For the last two years, LeBlanc has been researching the state's revocation policies, trying to get himself and other prisoners out of the probation-violation maze.

During a telephone interview, the inmate comes off as a fast talker, or maybe just a slick attorney -- someone who finesses the truth when it serves him. LeBlanc, for instance, maintains that he was wrongly convicted of possessing drugs in 1995 -- even though the cops say they caught him sitting on a toilet and flushing down plastic bags filled with cocaine when they busted in on him. (LeBlanc says he was in the Pawtucket apartment to sell someone a car.)

Still, with a rap sheet dating back into the distant past, LeBlanc certainly has had time to figure out the judicial system. Describing himself as a "certified legal researcher and a prison law clerk," he has even served as his own legal counsel (much to the Superior Court's chagrin, judging from the thickness of his file). As a result, LeBlanc has become a kind of unofficial spokesman for local prisoners on the subject of probation violations. Citing case numbers and rules of criminal procedure, he can summarize, better than anyone else in the state probably, what Rhode Island's revocation rules really mean.

"Once people take a ride on the Rhode Island revocation railroad, their suspended sentences just escalate," says LeBlanc. "A lot of these cases evolve from basically nothing, but because the signatures keep going down on the nolo [no-contest] pleas, they keep building and building. Then these guys look like habitual offenders, menaces to society. Meanwhile, I'd say 80 percent of the people in here [at the ACI] are probation violators."

Because of this high risk of reincarceration, Andrew Horwitz, head of the criminal-defense clinic at Roger Williams University School of Law, says he urges all of his clients to "think very carefully" before taking probation or a suspended sentence.

"There's such a fine line between that and jail, particularly for those clients of mine who are involved in domestic disputes," says Horwitz. "I'll often say that they're handing the key to the jailhouse door to their domestic partner if they remain in the relationship, because the next allegation of abuse will almost certainly result in prison time."

Indeed, the threshold of culpability is so low at probation-violation hearings, defendants can be violated on something other than their alleged crime. Working in New York City in the early '90s, Horwitz had a client who was arrested on a drug offense while on probation. At the hearing, the prosecutor decided to not even try the man on the "new, entirely unproven criminal offense," says Horwitz, but on the fact that the defendant had failed a drug test and had missed some counseling sessions.

After the judge concurred that the man's probation had indeed been violated as a result, Horwitz's client committed suicide. "I tried to say, `If he's acquitted of the criminal charges, then let's see if he deserves a few more years for dirty urines,' " says Horwitz. "But the use of a non-issue was particularly offensive."

In a similar case in 1991, Rhode Island Superior Court Judge Henry Gemma convicted Richard Wiggs of violating his probation not for his original charge of breaking and entering, but for trespassing and relieving himself near some garbage cans at the scene of the crime. "There is not sufficient evidence, it's true, to prove even beyond a reasonable satisfaction standard that Mr. Wiggs was present at the time the apartment was broken into . . . by [Wiggs's friends]. However, Mr. Wiggs had no legitimate purpose to be on those premises," Gemma said. "Probation is not a joke. A person can be violated for hanging around with the wrong people."

If that's true, says LeBlanc, it almost would be more humane to do away with probation and suspended sentences altogether than to continue to subject people like himself to the constant worry of making even the slightest false move. No doubt, those on probation need to stay out of trouble, but how far out of their way should they go to avoid it? More important, will society ever believe they have rehabilitated themselves enough to be trusted again?

The revocation racket

According to LeBlanc, everyone but the defendant makes out in the state's revocation process, which is why so few have pushed to change it. Indeed, probation-violation hearings can be so lucrative, even for a defendant's own attorney, many local law firms advertise in the Yellow Pages as specialists in this.

"Violations aren't tough. You don't have to prove much. They involve no research, no nothing. It's a day of negotiations -- `Give me another $500, and I'll try to get [the sentence] down from 18 to 16 months,' " says LeBlanc. "The prosecutors, meanwhile, have a high success rate, and they've done nothing."

Of course, one way to avoid the potential for abuse would be to postpone the probation-violation hearing until the conclusion of the criminal trial. The state, after all, has bail and a host of other restrictions at its disposal to keep ex-prisoners behind bars while they await trial. The alleged violators, on the other hand, would then have a full and fair opportunity to prove their innocence before returning to prison to serve a lengthy sentence.

According to legal experts, state law already allows the Attorney General's office to move to schedule a jury trial first, but reform advocates like LeBlanc -- and even some judges -- say the laws should be rewritten to mandate this.

Otherwise, the result can be a "Heads I win, tails I flip again" proposition for the prosecution, said one California Supreme Court judge who ruled on a probation-revocation case in 1990. "The state, with all its resources and power, should not be allowed to make repeated attempts to convict an individual for an alleged offense, thereby subjecting him . . . to live in a continuing state of anxiety and insecurity, as well as enhancing the possibility that even though innocent, he may be found guilty," said the judge.

Increasing the burden

Another way to tackle potential abuses would be to toughen the legal standards at probation hearings. According to deputy public defender Hurst, there is no formal discovery process at probation revocations, and the rules of evidence are so relaxed, "I sometimes find [probation hearings] an empty promise," she says. "It's like saying, `You can defend against this, but we're not going to give you the tools to do it.' "

As a result, the so-called burden of proof is so illusory, so "subjective," says Hurst, a doubt of innocence can convict.

Arthur Greene, of course, knows this only too well. Relaxing with his two grandchildren one evening last December, he was hauled back on the state's revocation railroad before he even understood what he was being charged with. (As Hurst points out, the state doesn't need any evidence to arrest and jail violators suspected of breaking the law.)

And even after Greene's violation hearing, it remained fuzzy as to his alleged crime, because his grand-niece`s story changed. According to her statement to police, she and her great-uncle were sprawled out on the couch, under a blanket and watching television, one Sunday morning when the alleged molestation occurred. Greene pulled his long johns down and "put his penis in my . . . vagina," the girl said, while the rest of the family dressed for church.

While friends and family say the child and her grandmother (who is Arthur and Debora's sister) moved to South Carolina following the incident, efforts by the Phoenix to reach the grandmother, whose last known telephone number has been disconnected, were unsuccessful. But during her discussion with police, the girl's grandmother said the child never mentioned anything about rape to her -- only that Uncle Arthur had touched her inappropriately. And that is what the alleged victim eventually told Newport Superior Court Judge Francis Darigan at Greene's probation hearing.

Afterwards, assistant public defender Christine O'Connell stuck to the probation-revocation routine and suggested a plea agreement to Greene. "She wanted me to roll over," he says. This time, though, Greene couldn't do it. "For years, I've plea bargained," he says. "For years, I've been guilty, and I don't want to be guilty anymore."

But when he expressed those feelings to O'Connell (who refused to be interviewed for this story), she suggested he find another attorney -- which didn't sit well with Darigan. Not only did the judge deny Greene's request for new counsel, but Darigan chastised him for even bringing up the possibility, says Debora Greene.

In other words, the system, in the form of Greene's attorney and the judge, wanted the case dispatched. Accusing the defendant of stalling for time, Darigan revoked his 12-year suspended sentence, and Greene was led away in handcuffs. Process, not justice, seemed to prevail.

For Greene, what is particularly disturbing about the alleged molestation is that he was staying with the victim's grandmother that Sunday to honor an agreement he'd made with MAP. "I couldn't be alone in the house," he explains. "My wife and son had gone out, so I went to [my sister's] to spend the night."

At the time, Greene knew his sister held a grudge against him for an incident that happened a few years ago, when her daughter (the alleged victim's mother) moved into his family's apartment.

"Arthur was living in Tonomy Hill [a public-housing project in Newport] at the time, and wasn't supposed to have any extra people," says Debora Greene. "So eventually, he asked [his sister's daughter] to leave. Well, the young woman started going around saying he threw her and her two kids out onto the street in the snow."

But whether the charges are merely a vendetta against Arthur Greene will probably remain a mystery, because the state prosecutor has agreed to drop the case, saying too much time has passed since the alleged crime. While Greene is relieved to have avoided a lengthy criminal trial, he knows his chances of proving his innocence now are slimmer. All that is left for him to do is appeal the judge's decision to revoke his probation. If he loses on that count, he will be a prisoner of the state for as many as 12 more years.

"In my heart and mind, I know that my brother is innocent, and I know my sister knows that as well," says Debora Greene.

The question is, What if she's right?

Jody Ericson can be reached at jericson@phx.com.

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