Monday, October 20, 2014

Sometimes, the Law is Not Enough

Kelli Stapleton was a wife and mother living in Benzie County, Michigan. For some time, she had been blogging about her and her daughter’s lives and her fight to obtain services for Isabelle, called Issy, on her blog, The Status Woe (google it, I refuse to give it any more hits). On it, she went into detail about the treatment Issy was subjected to, ABA (Applied Behavioral Therapy, which is essentially “normalization”) and other Lovaasian therapies being the primary cornerstones of the treatment plan. She also allegedly debated more “creative” therapies – such as buying a shock collar, intended for dogs, to use on her daughter.
On Sept. 3, 2013, Stapleton took her 14-year old nonverbal daughter into the family van. She brought two gas grills and put them in the van, and turned them on. Her alleged intent was to kill herself and her daughter via carbon monoxide poisoning. Both survived, though Issy was hospitalized for a long time afterward with alleged brain damage.
Kelli was arrested and charged with attempted murder.
Today, almost exactly a year to the day after the crime, Kelli pled guilty to first degree child abuse. Not attempted murder, but child abuse. Judge James Batzer will sentence her.
I am an autistic adult, and a licensed attorney. I am originally from Michigan.
This case hits me in a very visceral way.
I am going to try and explain why the legal stuff happened the way it did. Inasmuch as I can read the mind of a prosecutor who thinks that a plea bargain for attempted murder is okay.  Most people in autistic circles are uncomfortably familiar with the facts of the case (hence my very brief recap of the relevant facts). But a lot of people are not attorneys. And believe it or not, there’s one tiny good thing about this plea bargain. In amidst all the bad things.
Kelli was allowed to plead guilty to Class A first-degree child abuse. Child abuse is defined in the Michigan Penal Code as “knowingly or intentionally caus[ing] serious physical or serious mental harm to a child.” Serious physical harm is defined as “any physical injury to a child that seriously impairs the child’s health or physical well-being” and it specifically includes internal injury and poisoning. Legally, the cause of action is solid. Let me make that clear. Kelli knowingly caused serious physical harm to Issy – she is of average intelligence and there is nothing in any court record I can find to indicate that she was mentally impaired enough to think that carbon monoxide would not cause injury.
Kelli had been arrested for the crime of attempted murder. The Michigan Penal Code is much less wordy about attempted murder. In its entirety, the relevant section of code says: “Any person who shall attempt to commit the crime of murder by poisoning, drowning, or strangling another person, or by any means not constituting the crime of assault with intent to murder, shall be guilty of a felony, punishable by imprisonment in the state prison for life or any term of years.”
Image description: A pair of wire-rimmed, gold-colored glasses on a deep blue backround, lying next to a charm which bears the scales of justice.
Image description: A pair of wire-rimmed, gold-colored glasses on a deep blue backround, lying next to a charm which bears the scales of justice.
The maximum sentence for both attempted murder and first-degree child abuse is life in prison. However, and this is the thing that scares me the most – there is no real mandatory minimum. Some states have a set-in-stone mandatory minimum amount of time that must be served upon conviction of any specific crime. Michigan has recommended minimums, but there is a lot of precedent for ignoring them. Indeed, the trend in Michigan right now is to drop mandatory minimums – in 2003 they were jettisoned for some federal crimes completely, and even now people are agitating for greater flexibility in federal sentencing guidelines.
There are several reasons why I am very afraid that Kelli will be sentenced to a term far closer to the minimum than the max.
  • The presiding judge is the 19th Judicial Circuit Court’s chief judge, the Hon. James M. Batzer. Batzer is 70 years old, having served on the bench for nearly thirty years. However, he is unable to serve any longer – there is a rule which bars those over 70 from running for new terms, though they can complete their current term if they turn 70 during that time. That means that whether he decides to throw the book at her or let her go after a year, there is no backlash that can hurt him. He has no career to lose and no political allies to please. This could turn out to be a pleasant surprise, but it’s just too hard to tell. Batzer has a tough record on killers (his best known case is probably that of Mark and Florence Unger, where the husband was convicted of letting his wife drown after she fell into Lake Michigan), but none of the killers he has ever sentenced before has had a neuroatypical victim, as far as I can divine, and attempted murder cases simply aren’t covered as much as murders. 
  • Media attention. No judge is immune, and it doesn’t help that a hack Beverly Hills psychologist named Carole Lieberman has been yapping about the case. She was quoted in an Associated Press story about the sentencing, stating that Kelli “has been living in a war zone” and was legally insane when she committed the crime. Lieberman, however, has a middling-to-low rating on HealthGrades, and describes herself as a “TV/radio host and speaker” before she mentions psychiatry. I’d be willing to bet she wouldn’t know legal insanity from her elbow. In Michigan, legal insanity is defined as “lack[ing] substantial capacity either to appreciate the nature and quality or the wrongfulness of his or her conduct, or i[inability] to conform his or her conduct to the requirements of the law.” In other words, did you know your actions were wrong? You bet Kelli did.
  • Michigan sentencing guidelines. Holy hell, they are complex, involving point scoring and grids – but the upshot is that the sentencing guidelines state that Class A first degree child abuse can result in a term up to life – but depending on the judge’s discretion and the sentencing guidelines, she could be out in as little as four years. Yes, four years. If you do the math after going through the grids and the categories, you get a figure between 75 and 115 points – depending on whether you think Kelli deliberately intended to kill Issy, and did so with premeditation. If you think she didn’t, she gets 75 points, which is a minimum of 4 1/4 years. If you think she did, she gets 115 points, which means a minimum of 15 years. (Big warning for math in that link.) It might confuse you if you look at the chart, but since Kelli has no prior convictions of any kind (at least, not that I’ve been able to find), the box that tells us what her sentence could be are the bottom left three (depending on whether you think she committed the crime with premeditation). For example, if you think the crime was not premeditated, you’d use the fourth box in the first row. The recommended minimum is 51 months – four and 1/4 years, but could be up to 85 – seven years. If you think the crime was premeditated, you’d use the bottom box on the left. The recommended minimum there would be 108 months (9 years), and could be up to 18-0 (15 years). It’s important to notice that these are minimums, not maximums.
    • TL;DR – depending on whether or not you think the crime was premeditated, the minimum sentence she could get is 4 1/4 years, and the max is life. My gut says the sentence will likely fall somewhere around 15 years. And no, that’s nowhere near enough.
  • The usual anti-autistic hatred. And yes, it is hatred. The complete lack of give-a-crap evinced by the attorneys on both sides. The hateful comments on articles that betray a complete and utter lack of understanding and sympathy for Issy and other autistics. All the defense has to do to get Kelli a light sentence is to portray Issy as an animalistic monster – which shouldn’t be hard, given the way she’s described by some of these experts. The main issue seems to be the beliefs, in tandem, that (1) nonverbal means noncommunicative in any respect, and (2) that an autistic raging means nothing – that there’s no rhyme or reason to it. Both of them are completely and utterly wrong.
However, all of this is in the hands of Judge Batzer. There will be no jury, no trial. No expert testimony. Because Sara Swanson, the prosecuting attorney, saw fit to take a plea.
There are times when a plea bargain is appropriate. This, in my personal and professional opinion, is not one of those times. Attempted murder of a child should never be pled out. Ever. News outlets have said that Kelli “wanted to save her family the stress of a trial” and while I don’t know if that’s the case, I would never take that plea as a professional. Never mind as an autistic. I don’t know how Swanson will be able to live with the possibility that Kelli will get out and want to be in Issy’s life again. Because she just might.
Oh, right. One good thing about this plea-bargain.
Benzie County, Michigan is extremely rural and conservative, with populations identifying asCatholic, Evangelical Lutheran, and even some Mormon adherents. The most well-represented occupation is cleaning/building maintenance. The total population is around 18,000. Those who don’t normally live there are rich vacationers (it’s right next to Traverse City, which is a popular vacation spot). In short, you have blue-collar and white-collar conservatives – most of whom likely only know autism either from the media, or from throwing money at “afflicted” relatives to make them “normal.” Getting a jury with the slightest understanding of Issy’s life would have been an absolute nightmare.
As an attorney, I’m required to be impartial and calm, as well as not give any kind of specific legal advice. I have not given any specific legal advice here. And I am calm. But there’s no way I can be impartial. I’m sick over the idea that my profession will not protect people like Issy as well as it should. I feel as though I’ve let her down, as silly as that might be. I want to do better. I want us to do better.
For a while I wasn’t sure why I was so angry about the plea-bargain – the penalty for first-degree child abuse is actually more severe in Kelli’s case than it would be for attempted murder; it’s not like she was going to be acquitted, and it’s not like she was going to get life – come on, I’m not that optimistic. But I realized that I was furious, just downright livid, that Issy wouldn’t get her day in court. That no one would hear the gory details of just what Kelli tried to do to her own flesh and blood, the daughter she ought to have protected but instead tried to “make normal.” Yes, we got Kelli’s soppy, self-serving recounting, complete with tears and references to “going to Jesus” (that link makes me sick to my stomach, but I include it in the interests of being thorough). But we didn’t get Issy’s side. We didn’t get how terrifying and awful it must have been. Even in pleading guilty, Kelli kept control. Issy didn’t get a say. Even on her way to prison, Kelli kept Issy from having a voice. (That level of manipulation, domination and control is indicative of what used to be called sociopathy.) And I will never forgive that evil, narcissistic woman for that. Ever. I do believe there is evil in the world. 
I’m just praying to whatever G-d may be there, or whatever fate controls the universe, that Judge Batzer does the right thing. 
By Cara
(This post can also be found on The Fool on the Hill blog here.)

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