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Former prosecutor takes on clemency case

Senior Editor Regular News

Former prosecutor takes on clemency case

Senior Editor

All across the United States on August 3 around 1:30 p.m., 214 inmates were summoned from their cells in federal prisons and taken to rooms to wait for phone calls. They weren’t told why, and usually phone calls bring bad news — like the death of a family member.

But this time, the news was good: “You’re going home.”

“There are whoops of joy and crying all across America,” said Donna Elm, federal public defender for the U.S. Middle District of Florida, as she described the build-up to the largest single-day grant of commutations in the nation’s history.

President Barack Obama commuted the sentences of 214 more federal inmates, bringing the total to 562 nonviolent offenders who had served at least 10 years, had never violated probation, and had good behavior records behind bars.

As Elm described, all the lawyers handling the cases got a call between 10 a.m. and noon from the U.S. Office of Pardon Attorney, if their grants were successful. But it’s a secret until President Obama holds a press conference at 1 p.m.

“So all across America, 214 lawyers are calling their clients to convey the news at the same time,” Elm said.

When Elm couldn’t locate one attorney handling a case, she made the call herself.

Holding the phone in prison, the female inmate blurted out: “Who?”

“I said, ‘Oh, honey, this is a good call. Relax. Breathe. Nobody died. Listen, the President granted you clemency, and you are going home.”

“She started sobbing. All across America, people are crying,” Elm said.

Matt Mueller, a former federal prosecutor now in private practice at Wiand Guerra King in Tampa, agreed to take on a case pro bono when Elm put out the word she needed help.

“I answered the call. I spent some years sparring with Donna Elm’s assistants as a prosecutor,” Mueller said. “Now I’m on her side and I respect them very much. It’s a testament to them that they didn’t forget these folks.”

Mueller got to make that happy call to 50-year-old Titus Jerrard Mobley, from Groveland, Florida, who uses a wheelchair and has served 12 years on a 17.5-year sentence for peddling crack cocaine on the street.

“It’s a matter of fairness,” Mueller said. “Even as a prosecutor, your first instinct is to make sure justice is done. As a criminal defense lawyer, it’s a different approach.”

The laws in place when Mobley was sentenced for nonviolent, street-level crimes brought a sentence greater than what he would have gotten for the same crime today, Mueller said.

“The War on Drugs brought enhanced, and, in my opinion, a little over-aggressive sentencing regimes that were mandatory. This was an opportunity where I enjoyed using my experience and some of the knowledge I’ve gained to help someone,” Mueller said.

“When I look back on it, it will be one of the highlights of a legal career.. . . It was a great experience to deliver that great news.”

Though he declined to share many details about his client, Mueller said, “He’s looking forward to getting back to his family and children in Groveland.”

Elm praised Mueller for his good work on this “sad case,” one of roughly 700 inmates who applied for clemency just in the U.S. Middle District of Florida.

“We may not still be there, but for a while the most clemency grants in the country came to this district,” Elm said.

Those 700 cases were screened and whittled down to close to 200 who met the criteria, she said, and of those, 14 have been granted so far. Nationally, as of June, there were 11,861 commutation petitions pending, and Mark Osler, a law professor at St. Thomas University, told USA Today that at least 1,500 of them are eligible for commutation under the administration’s criteria.

“It’s been quite the undertaking,” Elm said. “Here we are saddled with this huge number of cases. We can help. We can’t write and file. But we can gather records. We give the analysis to another lawyer to get it further along. Several times, I hit up the Criminal Justice Act attorneys; these are private lawyers who are regular federal practitioners who know what they’re doing. We hit them up: ‘Guys, I have another 30 cases; can someone take a case?’”

That’s how Mueller got involved representing Mobley.

The federal bar took cases, as well as a bunch of volunteer lawyers without criminal-defense experience, who “may need handholding,” Elm said, adding there has been a huge movement of pro bono attorneys stepping up to help.

Are lawyers volunteering to take cases because they want to right past injustices?

“Absolutely! Those among us in the criminal practice have seen where this is so wrong. A guy gets life and he’s only dealing a couple of rocks. OK, so he had some priors, but they were dealing a couple of rocks,” Elm said.

She acknowledges some inmates deserve their harsh sentences, if they were members of cartels, gangs, and had violent histories.

“But a number of the cases are a real miscarriage of justice. Today, they would be getting six years, and at the time they got 20. This isn’t right,” Elm said.

“Like a lot of criminal practitioners, this is something we wished would happen for a long time. A number of CJA attorneys started to go back to their old clients. You always remember the ones who got under your skin, the ones who didn’t get a fair shake. A number did clemency with their prior clients.”

When inmates get the good news, the last four months of their sentences are spent in halfway houses to help prepare them for reentry into free society.

Mobley’s release date is December 1.

While President Obama will continue to grant commutations throughout his term, Elm said because it takes four months to wend cases through the system, “We are slowing down and will be stopping soon.”

Now, drug offenders’ sentences range “from very little to life,” Elm said, but there are many fewer draconian sentences for lower-level people since former U.S. Attorney General Eric Holder’s memo about the unfairness of mandatory sentencing. In 2010, Congress passed the Fair Sentencing Act that removed what used to be high disparity between crack and powder cocaine, Mueller added.

“A lot of past presidents from both parties have used this [constitutional clemency] power to benefit largely those who have been favorable to a particular party. We can think of names of individuals pardoned or commuted who were politically aligned. Here’s someone with no political pull,” Mueller said.

“It’s historic, and I imagine history will judge it more favorably.. . . It’s a great mechanism to go back and correct situations where the law did an injustice in giving someone a sentence that was overstated from what their conduct was.

“On a macro level, this process is not perfect. There are petitions being denied. But it is a way to at least start to go back and make corrections to sentences that Congress and judges now agree were unfair.”