Sunday, November 13, 2011

This is not a "clerical error". But what is it?

James Willie today. The picture links to the Channel 2 story.
Channel 2 reporter Dan Tilkin did a public service with his story about the outrage over a "clerical error" that might let a four-time killer out of prison more than three years earlier than the judge ordered. But the judge didn't make the "clerical error," as Channel 2 has reported. The Department of Corrections (DOC) did.

On Sunday, July 18, 1999, Martin and Angela Ferlitsch drove their granddaughter Jennifer to the beach.  As they neared the coast their car was met by James Willie. Head on. Martin and Jennifer were killed instantly in the crash. Angela was severely injured but survived. 

James Willie was high on cocaine and alcohol, and not for the first time. He had already served two years in prison for killing his wife and a friend while loaded.

The judge in the second deadly case ordered Willie to serve, by plea agreement, just over 15 years in prison. Here is her order, dated January 11, 2000:
IT IS THE JUDGMENT OF THIS COURT that the defendant is convicted of Count 4, Manslaughter In The Second Degree and is sentenced to the Legal and Physical Custody of the Oregon Department of Corrections for a period of 75 months. 
IT IS FURTHER ORDERED that the defendant is convicted of Count 5, Manslaughter in The Second Degree and is sentenced to the Legal and Physical Custody of the Oregon Department of Corrections for a period of 75 months, to be served consecutive to Count 4. 
IT IS FURTHER ORDERED that the defendant is convicted of Count 3, Assault in The Second Degree and is sentenced to the Legal and Physical Custody of the Oregon Department of Corrections for a period of 70 months. 40 months are consecutive to Count 4 and 30 months are concurrent with Counts 4 and 5. 
The Defendant shall receive credit for time served. 
The term of post prison supervision is 36 months.
The judge's orders are prepared by the court and then sent to my office. We review the orders and if we think they are unclear we can ask that they be amended. There is nothing unclear about this order. Willie was to serve 75 months for killing Martin Ferlitsch, 75 months for killing Jennifer Ferlitsch, and 40 more months for severely injuring Angela Ferlitsch. 

Let's do the math. Willie was sentenced on January 11, 2000. He had been in jail since July 18, 1999, so his "time served" was 6 months minus about 7 days. The judge ordered him to serve 190 months minus those 6 months = 184 months = 15 years and 4 months. Willies' release date would be around May 11, 2015. 

On October 17th of this year my office received a list including about a dozen inmates the DOC plans on letting loose in the next few months.  One name was James Willie, with a  release date of January 2012.  The named and the date jumped at me. I remember the case very well, including the sentencing. The plea bargain I offered under Measure 11 was that Willie had to serve at least 15 more years from the date of sentencing before he could be eligible for release.

The DOC has so far not responded to my November 1 letter explaining the error. The DOC has refused to answer KATU's questions on camera. The DOC apparently has not checked the original proceedings. I have my suspicions about why.

People who have been affected by the James Willies of the world understand the need for truth in sentencing and the reasons for Measure 11. Oregon voters in general understand. A growing chorus of "experts" think they know better.

They don't.

[Part 1 of 2]


  1. It appears they have reduced his sentence by 20%. What makes this case any different from others that apply "good time" when setting a release date? 15 years minus 20% equals twelve years. Is that your suspicion?

  2. One more comment about the sentence order. It reads in part "40 months are consecutive to Count 4","30 months are concurrent with Counts 4 and 5." Count 4 is the is the first 75 months sentenced. Month 76 of imprisonment is the start of the second 75 month sentence AND the 40 months consecutive to count 4. The remainder 30 months that are concurrent with 4 and 5 are served from the start. You are right, there is nothing unclear about this order. The math computes to 150 months total. It is not a clerical error. Am I missing something here Mr. Marquis?

  3. I,m sure that you will use this as a point for you taking the drunk driving cases from astoria courts.

  4. Well, Brian, in Measure 11 cases there is no such thing as "earned" or "good time" (which apparently is given even to inmates serving time in the Intensive Management Unit (IMU) - which is described by DOC officials as the "prison within the prison."

    Beyond that, a number of lawyers - in and out of my office - read the judge's order to mean 190 months. IF the judge had intended - as DOC contends - that Willie serve not ONE day extra for the Assault 2 on Angela Ferlitsch, then why on earth would she have designated 40 months of that 70-month mandatory as "consecutive?"
    Of course all it would have taken was a call to my office or a review of the court proceedings to know what the judge intended.

  5. Sorry to ask this here, but I could not get your "ask the DA" to work.
    The Governor has halted the execution of all death penalities. Yet, he took an oath, just like the one you, cops and lots of other public officials take to uphold the Oregon Constitution and laws.
    By halting executions, has has violated his oath to uphold Oregon law, which includes the death penality. I understand he has to power to halt executions on a case by case basis, but I do not understand how he can generally stop the enforcement of certain laws just because he does not like them.
    So, if yes, he has likely violated his oath, what state officials can file charges against him?
    How does one get these officials to do their jobs?

  6. Unfortunately he has not broken a law.
    Oregon's Governor has what is called plenary power of commutation and can either grant reprieves (which is what he did) or commutations or even pardons. Gov. George Ryan commuted all 167 people on Illinois's death row just hours before leaving office and shortly before he went to federal prison, where he still is.
    Over at the anti-Death penalty types are crowing about the governor's "great courage" yet they avoid the moral issue of someone who runs for office and does NOT tell voters "Oh by the way I intend to act on my strongly held moral belief despite the law..." to either stop the execution of a narcissistic double killer or in another world say ban the use of state money to pay for contraceptives.
    It is very unlikely the Governor will get any DIRECT political blowback. He'll be wined and dined by the glitterati and told how brave he is when moral courage is something you do that costs you something. It strikes at the core of the concept of a"Nation of Laws, not a Nation of Men."

  7. Josh,

    I did not realize this was a measure 11 case when I posted my first comment. I composed a reply acknowledging the mistake, but it did not post.

    I agree that designating the 40 months as "consecutive" would imply that the judge meant to extend his time behind bars. You should have included that question in your blog and other media releases to explain your argument. Until I read your reply, I had not considered that point. The judge probably did intend that he serve 190 months. If that is the case then the sentence order should have designated that the 40 months run consecutive to count "FIVE." The fact you and several other lawyers read the order to mean 190 months is beyond me. I am assuming the order posted in your November 13 blog is exactly the same as the original that the D.O.C. received. If the court proceedings indicate the judge did say "FIVE", then the written order is in error.(probably clerical) If the written order is exactly what the judge said in handing down the sentence, the she is in error IF she intended him to serve 190 months. The bottom line is you, or someone in your office, should have asked for the order to be amended before it was sent to the D.O.C. Instead you blame them(D.O.C.)12 years later, claiming it should be obvious what the judge intended. In the Nov 11 KATU interview you read the response you received from the D.O.C.(funny...your Nov 13 blog claims they have not responded to your letter. another clerical error?) They said you need to go to a judge to get an amended order. Glad someone at the D.O.C. is seeing things clearly. Orders that are clear about the intent require no interpretation. The D.O.C. used the term "compute" which, in my opinion, best describes how to determine the intent of a sentencing order. So what's up Josh? Do you expect me to believe that the D.O.C. should check the proceedings and just keep him locked up another 3 years. What are your suspicions as to why they have not responded to your Nov 1 letter? Wait, they did respond, telling you to go to court an amend the order. They must have some reason to give you that response. I suspect it is the proper and legal course of action. I recall a statement you made that was broadcast on KAST several years ago, regarding Kris Kaino and Astoria Muni court applying the new diversion law you helped create. You said they are interpreting the law exactly how it is written instead of how it was intended. WTF?

  8. Well, "Brian" - when the law can be clearly be interpreted, as it could be checking with the COURT, then I shouldn't have to chase down DOC, who refuse to see it any other way than would ensure that prison would be cleared out SOONER.
    Every lawyer - outside my office - I showed the sentence order to thought to said 190 months. The Judge was very clear in her order, even clearer in court on the record - where those of us in the law normally go if there is possible confusion - and it was only on 10/17/11 that DOC told us that they intended Willie serve only 150 months. I find it strange that in 25 years of reviewing these orders I have NEVER seen DOC mistakenly try to keep someone LONGER, only turn them loose early, and unfortunately this isn't the first time. We've had murderers in Clatsop County where we had to fight [previous] parole boards to keep in prison.

    As to Mr. Kaino and the DUII court where "special" DUIIs go to vanish, there is a lawsuit currently underway to take enforcement of DUIIs away from defense lawyers acting as judges and prosecutors.

    What you were referring to is that every other judge in this county interpreted SB 302 one way, but defense lawyer/"Judge" Kaino (who is NOT subject to the Canons of Judicial Fitness) apparently sees it another way.
    What a coincidence.

  9. Why not change the law to make municipal judges subject to the Cannons of Judicial Fitness? While it does not appear that the judicial cannons are applied very often or very well considering the quality of Oregon judges, asking someone, perhaps Debbie Boone, since you have a good relationship with her, to introduce a Bill should be a slam dunk.
    It would also enable you to address your issues with Kris Kaino.

  10. I tied that in 2007 the League of Oregon Cities shot it down.

  11. If at first you don't suceed, try, try again. With all your poltical connections it is hard to believe that you would not eventually suceed in making municipal judges subject to the judicial code.
    How about petitioning the Supreme Court? It seems to feel it oversees all courts and is not subject to legislative mandate on these matters. Could it not issue an order that all judges are subject to its oversight?
    If this is as important as you believe, it it not worth the effort of some outside the box measures?

  12. Make no mistake, Astoria Judge Kris Kaino was brought up on ethics charges unrelated to the DUII issue
    The Oregon Commission on Judicial Fitness sought to discipline him. Kaino challenged the Judicial Fitness Commission's power to do ANYTHING to a Muni Court judge. In a decision filed 8/14/03 the Oregon Supreme Court ruled that "the commission lacks jurisdiction to proceed against [Kaino]"
    This is exactly the problem.
    No checks and balances.
    No oversight.
    No election of judge or prosecutor.

  13. So, the problem is not the Astoria Municipal Court, it is that that the State does not oversee its courts.
    Why then, would you try to address this situation with a law suit specifically directed to the Astoria Municipal Court? If Astoria is a problem, that problem must be in some other municipal courts. How about a law, or administrative rule that deals with the administration of courts throughout the State?
    Additionally, if the Oregon Bar has any teeth, it should be involved in this, since at least the Astoria judge is a lawyer. So, why has the Bar not addressed the illegal conduct you ascribe to lawyer Kris Kaino?
    Is the Oregon Bar really this toothless?

  14. This post is about an injustice wreaked by the Department of Corrections, not my lawsuit against the City regarding DUII cases.
    Unlike some lawyers I do not resort to filing a Bar Complaint (which normally takes about 6 months to a year to adjudicate)every time I think a lawyer is out of line.
    (No Bar complaint against me has ever been sustained in 31 years of practice).
    The Oregon Attorney General speaks for me on this and as they made clear in court in Salem on January 6 my complaint is SOLELY with Astoria's Municipal Court, not the other 4 municipal courts in Clatsop County.

  15. More importantly, justice won in the end.
    As this story by Dan Tilkin shows in this story that ran on KATU on Jan. 6

    the original sentence was re-imposed in such a way that the Department of Corrections (DOC) has to make him serve the full 15 years.
    What was even more disturbing was testimony at the hearing that the victim's daughter-in-law that she had been checking DOC's website yearly to check Willie's projected release date. It had always been 2015 (the right date) and then within the last year it suddenly changed to 2012.