Updated Mon, Sep 30, 2013 9:29 am
The death of a man who was awaiting sentencing in an assault case has created debate between law enforcement, attorneys and judges about whether someone convicted of a crime should be allowed a furlough before being sentenced or having to report to prison.
Tuesday, a week after he had agreed to a plea deal in a felonious assault case, Jerry Lewis, 60, formerly of Athens County, took his own life in a West Virginia apartment, according to law enforcement reports.
Police were at the apartment to serve Lewis a warrant for allegedly threatening the man from whom he had purchased a gun while free on bond, according to the temporary protection order filed against him by the man.
The protection order was also part of an affidavit in a motion by the prosecution to revoke Lewis’ bond and request an arrest warrant, filed the day before Lewis was found dead.
The prosecution had recommended a four-year prison sentence in the Sept. 17 agreement that came less than 24 hours after Lewis was taken into custody on a charge of possessing a weapon under disability.
He was scheduled to be sentenced on the original charges on Friday.
“All occasions have to be treated their own way,” said Athens County Prosecutor Keller Blackburn. “In that case, the victim, the investigators and the prosecutors all agreed (that he could be released.)”
For cases like Lewis’, Blackburn said, it is important not only for the prosecution to have a say, but also for the victim and the investigators in the case to put in their recommendation on whether a convicted individual should be allowed to be released until his sentencing date.
“We can’t create a hard and fast rule based on one case,” said Blackburn, noting that investigators that are closest to the case would know whether release would be a safety issue or flight risk.
The investigator’s job, according to Athens County Sheriff Patrick Kelly, should not — and in the future will not — include making recommendations to the prosecutor.
“From this point on, my office will make no recommendations to the prosecutor,” Kelly said. “Law enforcement’s job is to build a case with evidence that (the prosecution) can present in court. It doesn’t make a difference what we say about it, it’s just a nicety, asking us what we recommend.”
Kelly said the prosecution told the investigator that the victim agreed that Lewis could be released. After that, the investigator didn’t feel comfortable going against the wishes of the victim, according to Kelly.
“There are some instances where (the convicted individual) is not a danger, but when you’re told he has access to a weapon that is a totally different thing. He could have gone after his ex-wife, he could have gone after law enforcement,” Kelly said.
Kelly said he has questions based on the Lewis case, about the decision to release an individual from jail.
“The judge needs to be up there asking if they are a danger to the public,” Kelly said.
That question is always a part of the decision, according to Athens County Common Pleas Court Judge L. Alan Goldsberry, who said he has had second thoughts since he was notified of Lewis’ death.
“I questioned it at the time, but the prosecutor reiterated that it was okay (to release him),” Goldsberry said. “He had been out, but every time he was there was some sort of problem.”
Goldsberry said he has changed his mind over the years as to whether to grant a respite to those who are convicted or not. There was a period in his judgeship when he did not release anyone before sentencing because of a rash of three or four defendants who had been released and not returned.
“After that, I was told I shouldn’t be so arbitrary and I should let the parties give a feeling one way or the other,” Goldsberry said.
Ultimately, release is a judge’s decision after consideration of the facts and the stance of the two parties, Goldsberry said. There is no particular law determining it.
But even before the Lewis case, the judge said he had rarely been in support of release before sentencing. He is not sure whether there will be changes in the way releases are decided in light of Lewis’ case, though, especially since Lewis seemed sincere in his appearances in front of Goldsberry.
“He had skilled counsel as well,” Goldsberry said. “Sometimes there’s just no way of knowing. Nobody has a crystal ball about these things.”
Members of the Athens County Public Defenders Office and Lewis’ defense attorney Kirk McVay could not be reached for comment on this story.