“A judge should respect and observe the law.” ~ Michigan Code of Judicial Conduct
If a judge told you to do something, and you said “no, I won’t,” and then you didn’t, on four different occasions, you’d go to jail.
But with the Robert Schwander resentencing on February 28 2020, the 13th Circuit Court has said “no, I won’t” to the Michigan Court of Appeals for the fourth time.
This latest round, it was Judge Elsenheimer’s turn to refuse to follow the law and bow to political expediency.
40-70 years (Judge Power)
38-70 years (Judge Power)
40-70 years (Judge Rogers)
33-50 years (Judge Elsenheimer)
Based on Michigan laws currently in place, Schwander’s minimum sentence should be 13.5-22 years.
Michigan uses something called the sentencing guidelines. A group of people already, in advance, went through and made judgment calls about who should get what length of sentence. They already take into account factors that differentiate between what makes a crime better or worse. The purpose of the sentencing guidelines is to prevent judges from issuing wildly different sentences for similar offenses — including sentences that don’t equally value all lives in society, for example, when the victim is a pretty, white, teenage girl and not an old, homeless, alcoholic man.
For Robert Schwander, the sentencing guidelines come up with a 13.5-22 year sentence. In other words, the current state of Michigan law is that we don’t do lifetime or nearly-lifetime sentences for 17-year-olds convicted of second-degree murder. If Judges Power, Rogers, Elsenheimer and prosecutor Not-elected-Noelle have a problem with that, they need to take it up with their uncles Larry and Wayne, and not legislate from the bench, which all good Republicans promise not to do.
In the third Court of Appeals opinion striking down the previous Schwander sentences, the Court of Appeals gave some vague suggestions about what might justify a slightly higher sentence than the guidelines. They said,
We are left with only a handful of legitimate reasons justifying Judge Rodgers’s
departure sentence, none of which were tethered to an explanation of why a minimum sentence
exceeding the guidelines maximum (22½ years) by 17½ years was imposed. While we agree
that a departure may have been warranted based on Schwander’s lack of remorse, his
relationship to the victim’s family, his failure to summon help for the victim, or his treatment of
the victim’s body after her death, Judge Rodgers failed to explain how the extent of the departure
corresponded to these facts.
Judge Elsenheimer paraphrased the opinion in an attempt to justify his 33-50 year sentence:
“This lack of sincerity coupled with the several explanations that the defendant provided, when he ultimately admitted involvement in this killing, and some of his behavior while he was incarcerated during that period, lead me to have serious concerns about his potential for rehabilitation,” Elsenheimer said.
What Elsenheimer didn’t do, which the Court of Appeals called on him to do, is articulate how those factors justify a shocking double sentence for someone who was 17-years-old at the time of the offense, and when the sentencing guidelines have already spoken. The Court of Appeals noted that, if Schwander had been convicted of first-degree murder, his minimum sentence would have been no more than 40 years. The Court of Appeals said, “We find it unreasonable and disproportionate to sentence Schwander to the same minimum term for a conviction of second-degree murder.”
Maybe Judge Elsenheimer believes that more than double the appropriate sentence with a few sweeping platitudes about “behavior” and “explanations,” without any real explanation at all, will be enough for the Court of Appeals. Or maybe he knows the sentence won’t hold water and he cares about political pressure more than he cares about what’s to come from the Court of Appeals.
And now, the long wait for the appeal. If I were the Court of Appeals, I would just take superintending control and impose a guideline sentence of the maximum minimums. I don’t think they will do that, but I do think we’re all going to be talking to Kalkaska County (or wherever) for sentencing No. 5.
I believe that all three of the judges – Power, Rogers and Elsenheimer, should be brought up on ethics charges for willfully failing to follow the law. Their knowing behavior has cost the public needless judicial time and resources and increased the horrific suffering of the victim’s family.