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Lawyer's Letter of Explanation to 34 Year Inmate

Story ID:7681
Written by:jim rambo (bio, contact, other stories)
Story type:Letter
Location:Wilmington delaware USA
Person:Inmate, Robert Martin
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November 14, 2011

Robert J. Martin, Inmate
Delaware Correctional Center
Smyrna, Delaware

Re: Your Request for Explanation

Dear Bob,

As you know, I was born in Delaware 70 years ago, raised in Wilmington, and have now been a member of the Delaware Bar for 36 years. In all of that time and experience, I have never been as shocked and disappointed in a decision as I am today, having learned of Governor Markell’s denial of your petition for a commutation of your sentence. It was not a request for release but a petition to allow some “light at the end of the tunnel.”

You have done everything possible during your 34 years in jail here in Delaware, and during transfers to Virginia and Marion, Illinois, to rehabilitate yourself and assist others to do the same. Because of donations of your art work to churches and Governor Carper’s various charitable activities, your work with the Delaware State Police in designing and building auto test dummies, your teaching other inmates computer skills and HIV avoidance, your proven care for young offenders by your participation in the Scared Straight Program, and other works for the community, I have been proud to represent you in what I suggest has been the tradition of Delaware lawyers. As head of the Attorney General’s Office in Dover and the state’s representative before the Board of Pardons from 1987 to 1995, I have, incredibly, seen no other inmate as deserving of a commutation of sentence as you. And yet, in spite of all of your accomplishments and the character and experience of your many supporters, Governor Markell has chosen to reject the Board of Pardons’ unanimous recommendation in your favor and deny your application. In view of your record of no inmate infractions since 1995 and your obvious rehabilitation, the stated statutory goal of Delaware corrections, you understandably now ask your lawyer, “Why has this happened to me?”

I have represented you pro bono since my retirement from the Attorney General’s Office in 2005 because although you were convicted of murder, you were not a killer. If you were, as I’ve told you and Governor Markell, I would not represent you. Instead, you were an accomplice to a 1977 burglary that tragically “went bad” when your co-defendant was surprised and confronted by the woman who owned the burgled home. He killed her with a weapon found in her home while you waited for him in a truck filled with stolen goods. Neither of you having brought a handgun to the crime, you had no expectation that a murder would occur. Following your later arrest, you took, and passed, a polygraph examination administered by Fran Green of the Wilmington Police Department that indicated you did not participate at all in the murder. That was why you were offered a plea of 11 years in jail if you would testify against the killer. You foolishly refused the state’s offer that would have resulted in your release in 1989, out of some misguided sense of friendship. You have even asked me to arrange for another polygraph if I think it could change the Governor’s mind.

I suspected that something unusual was in the wind this time in 2010 when I was advised by the Chairman of the Parole Board that Lt. Governor Denn was denigrating your petition even before your hearing before the Parole Board. Denn had reportedly claimed that in spite of your approval by the Board of Pardons in 2006, you were still undeserving of a commutation of sentence. I was, therefore, not surprised when the Parole Board reversed its 2006 decision in your favor and voted against you in 2010 when you had done absolutely nothing wrong in the interim. Somebody was talking to the Board and changing minds, for sure. Otherwise, their reversal of position in a case as serious as yours makes no sense whatsoever. The Chairman of that Board is without an explanation. Governor Minner had rejected the Board of Pardons’ favorable recommendation in 2006. The 2006 Board of Pardons was comprised of now-Governor Markell, Chancellor William Chandler, now-U.S. Representative John Carney, Teasurer, Tom Wagner, and others. The point is: Governor Markell was on the Board of Pardons that recommended relief five years ago and he then heard testimony from your supporters, who included three time Attorney General Charlie Oberly, the originally-assigned prosecutor in your case. Another of the original prosecutors, and later a hard-nosed sentencing judge, Norman Barron, declared himself unopposed to your cause, citing your lesser role in the burglary/ homicide case in an email made a part of the Pardons file.

I was compelled, for obvious reasons, to ask Lt. Governor Denn, Chairman of the Board of Pardons, to recuse himself from the hearing in October, 2010. The Lt. Governor then denied making any negative statements about you but recused himself from the hearing anyway. The hearing proceeded without further incident and the Board unanimously recommended a commutation to Governor Markell. Even the Chairman of the Parole Board testified in support of your petition before the Board of Pardons! He, a former Wilmington policeman who speaks his mind, also believes in your rehabilitation.

Following your approval by the Board of Pardons in 2006 many, many months passed without Governor Minner making a decision. I learned later that the paperwork had been “lost” before it finally reached the Governor’s office. When it did arrive, she rejected the Pardons Board recommendation and denied you relief anyway. This time, after the hearing in October, 2010, nothing was heard from Governor Markell through Christmas, 2010, Easter, the summer, and Labor Day of 2011. It was all very unusual under the total circumstances. My patience, you will recall, was exhausted because you had already spent 33 years in jail and couldn’t seem to get a decision from the same Governor who had heard your petition approved by the Pardons Board five years before. In view of Governor Markell’s rejection, a full year after the 2010 hearing, I see the method of processing of your petition as not only unusual but cruel as well. Under Delaware law, the Governor is not obligated to attend the Board of Pardons hearing or even review a transcript of it.

Some will, of course, say that you deserve this rebuke. A few years ago, without having heard the evidence of your rehabilitation, I might have accepted that position. But I have seen your growth since 1977 with my own eyes and, like so many others who have now learned of your accomplishments, you have my continuing support. Those close to the criminal law on a daily basis, and not those in the tall buildings bordering Rodney Square, know that your limited role in the burglary/ homicide case would not be treated nearly so harshly under the law today.

Governor Markell commuted the life sentence of Judith McBride, represented by the son of former Chief Justice Wolcott, a fine lawyer, earlier this year. Unlike you, she actually participated in the planning of a murder. Unlike your 34 years in jail, she had been jailed for 27 years and most importantly, unlike you, she had not made numerous contributions to society, both in and outside the prison. So when you ask me to explain Governor Markell’s action in your case, I have to say, candidly, that I am at a total loss. McBride did not escape from jail, as you did when you were shot in the leg. But neither was she stabbed in the chest, to near death, as you were when transferred to the prison in Marion, Illinois. You had honorably refused to join the Aryan Brotherhood, as I recall, and that prompted the vicious attack on you. And finally, she was not suffering with a bone cancer, like you, when released.

My meeting with the Governor on November 1, 2011 held the promise of justice fulfilled. I traveled to Delaware from Mexico, where I now reside, at my own expense, to be there again on your behalf. Chief Deputy Attorney General, Charlie Butler, attended, representing the state and Michael Barlow, Governor’s counsel, was also there. Although the meeting began comfortably enough, I was soon struck by Barlow’s rat-a-tat recitation of the facts of the original crime. He even implied, in spite of your police polygraph exam and Richard Massey’s admission to the killing, that you were, somehow, more involved and that Massey might be just lying about being the sole assassin. In spite of clear evidence to the contrary in your file, Barlow seemed more intent on hammering on the trial transcript. I finally raised my hands and begged to differ with him. You were undoubtedly a “bad guy” 34 years ago. You did commit stupid criminal acts 34 years ago. However, your application for relief was grounded in your remarkable rehabilitation which, interestingly enough, was never mentioned by either Governor Markell or his counsel. That might have been because neither one had heard the evidence or examined a copy of a transcript from your Board of Pardons hearing. Charlie Butler, the consummate advocate, and one whose experience in criminal law is legendary, didn’t need to oppose during our meeting. Barlow did it for him.

Over the weekend, following my return to Mexico, I received an email copy of Barlow’s letter to you, advising that the Governor had denied your application. I was then, and remain, dumbfounded. So now I must sincerely apologize to you, Bob, for what I have done over the past five years as your lawyer and even before as your friend. You see, I believed wholeheartedly in Delaware justice. I saw Bobby Golson, serving the same sentence as you and having played the same role as accomplice in a robbery/ homicide many years ago, get his life without parole sentence commuted. He was eventually released from prison. Without exaggeration, Golson had done little, if anything for the community during his incarceration. As a result, I always believed that your honest rehabilitation would have its wonderful reward, an eventual Governor’s commutation. Because he had been on that Board of Pardons that recommended you for relief in 2006, I also firmly believed that Governor Markell would be the man, wise enough and courageous enough, to do that. I preached to you about it and encouraged you to continue with your good works, and spotless inmate record since 1995, because I was, as is now evident, clearly naïve. Like every hearing body since 1997 that has heard your case, I ran up the “just keep up your good behavior” flag/ line. It all seems a cruel lie now that I, unwittingly, gave my entire support. I’m sorry for that. Very sorry.

I once witnessed the execution of a man that I had prosecuted. He deserved it. The state has a monopoly on the legal imposition of death. But that was merely the taking of a man’s body. After our recent communication over the weekend, I have come to realize that such an execution is far less painful than the gradual tearing away of a man’s heart and spirit, such as has clearly resulted from Governor Markell’s decision in your case. Your agonized “why?’s” must be left without a rational answer.

By copy of this letter I am advising Governor Markell of my attempt at explaining his decision based on “the total circumstances.” He had reserved decision following our recent meeting and, because he had not taken an active role such as his counsel, I had no idea he would decide against you, particularly in view of the one year delay in coming to a decision. I had assumed that he would balance out his young counsel’s experience against that of your supporters, including me. ( You have likely been in jail longer than Mr. Barlow has been alive.) I was clearly wrong. I now ask the Governor to re-consider his decision in an effort to encourage other inmates to follow your rehabilitative example and remove the inevitable chill that will envelop the parole and pardons process should he not do so.

In the meantime, stay strong.

Sincerely yours,

Jim Rambo

Cc: Charles Butler, Chief Deputy AG
Michael Barlow, Esq.