The third time was not the charm.
Oops I did it again.
The Michigan Supreme Court threw out convicted murderer Robert Schwander’s sentence. If that gives you deja vu, it’s because it’s the third time that a higher court threw out Schwander’s sentence.
Let’s review the series of unfortunate events:
- Schwander convicted of second-degree murder.
- A pre-sentence investigation suggests a sentence of 13.5 to 22.5 years.
- Judge Power of the 13th Circuit Court sentences Schwander to 40-70 years.
- The appeals court says Power didn’t articulate why he gave Schwander a higher sentence. They send it back to Power to try again.
- Judge Power sentences Schwander to 38-70 years.
- The appeals court says Power still didn’t articulate why he gave Schwander a higher sentence. They send it back to try again. Only this time, they’re out of faith in Power and they send it back to the other Circuit Court Judge, Judge Rodgers.
- Judge Rodgers imposes the original 40-70 years.
- The appeals court says Rodgers’ reasons for imposing the higher sentence are bogus. They send it back to try again.
When the higher court sent the case back to Judge Power the first time, he imposed a 38-70 year sentence instead of the 40-70 year sentence he imposed at the original sentencing. And then he got snarky. He called the two-year reduction “substantial” and said that he hoped it was “satisfactory to the Court of Appeals.” In other words, there, I hope that’s good enough for you. Pretty inappropriate for a judge to make a sarcastic comment like that, IMHO, especially since I’m sure Judge Power thinks attorneys and the public should respect his court rulings.
Well, Power’s “substantial” reduction wasn’t good enough for the Court of Appeals. They would have preferred that the court follow the rules, which is to articulate why the court isn’t following the Michigan Sentencing Guidelines. You know, rules.
Back Up – What Are Sentencing Guidelines?
When a person is convicted of a crime, before their sentence, a court employee conducts an investigation into the criminal’s background and the nature of the offense. There’s a point system created by the State of Michigan for coming up with a general range of what a sentence should be based on the person’s criminal history and the exact circumstances of the offense. The guidelines give an answer of a range of an appropriate sentence. In the Schwander case, the guidelines came up with a range of 13.5 years to 22.5 years.
Generally, judges should follow the guidelines. If they’re not going to follow the guidelines, they have to have a good reason why not.
In the Schwander opinion dated May 22, 2018, the Court of Appeals reiterated that the court’s sentence must be proportional to the conviction and to the background of the offender. They say that repeat offenders should receive harsher sentences. When the court deviates from the guidelines for a sentence, the deviation must be reasonable.
Why Wasn’t Rodgers’ Sentence Reasonable?
Judge Rodgers said that he based his departure from the guidelines in part on community fear. He said that during the 12-day search for the victim, community members were fearful for the safety of their children. The appeals court said that there isn’t proof that this was the case. They say that it’s inappropriate to depart from the guidelines based on a generalized, unverifiable community fear. The court went on to say that it’s not appropriate to sentence based on anger or fear.
Rodgers also hypothetically assessed fake sentencing points for Schwander’s behavior that would have constituted criminal sexual conduct in the third degree if it had ever been charged. Essentially Schwander had a Romeo-Juliet relationship with an underaged person, but he was never charged with it criminally. The Court of Appeals opined that Romeo-Juliet criminal sexual conduct convictions generally result in probation. They said that it didn’t make sense that Rodgers tacked on an extra 17.5 years in prison for offenses that usually come with probation.
Finally, Rodgers went upwards on the guidelines because he believed Schwander’s actions constituted first-degree murder instead of second-degree murder. The problem the Court of Appeals had with that is that the jury found Schwander guilty of second-degree murder, not first degree. The Court said that Judge Rodgers had to sentence based on the actual conviction, not what he wished the jury would have found for their verdict.
What Happens Now?
The case goes back to the 13th Circuit Court for yet another sentencing. We’ll see if Judge Elsenheimer can get it right.
I think the real issue is that the judges believe that public opinion is that Schwander deserves a life sentence. They’re trying to find any way to impose it despite there really not being the legal backing for it. I agree that a sentence of 13.5 years is not enough for taking a life in the way that Schwander did. However, it doesn’t sound like there’s any basis for upward departure that is one, genuine, and two, acceptable to the Court of Appeals. Perhaps an explanation that your hands are tied before imposing a sentence that consists of an upward departure of only a handful of years to account for the failure to seek medical attention and treatment of the victim’s body? Just a thought.
And did I mention that Schwander is the son of a Grand Traverse County Sheriff’s Deputy? Where there’s stink, there’s rot.