Free H.H.! Prosecutorial Persecution and Pitfalls

[Submitted by Friends of H.H.]

We can all take a deep breath, avert our gaze, and rest easy. Washtenaw County now has a progressive prosecutor—Eli Savit, whose platform claims that (1) coercive plea bargaining, (2) over-prosecution, (3) prolonged pre-trial detentions, (4) aggressive prosecution of drug possession charges, and (5) racial inequity are things of the past. (6) Justice-involved people of color will no longer be treated unfairly, disrespectfully, or inhumanely. (7) Families will not be torn apart without serious cause, and (8) those at higher risk of harm from COVID will be released or new sentences delayed until after this deadly pandemic.

That’s what we’re supposed to believe. So why has every one of those harms occurred in just one person’s case? No doubt these injustices have happened and are happening to many others too.

Let’s trace some of the outrages of this one case, the case of our friend and comrade, community organizer H.H. Gonzales. He’s a Black man, a father, and a fearless fighter for social justice for his people. You may know him from the retaliation he suffered following the 2016 Kinross uprising in MDOC, or from the Free the Green campaign he began in the summer of 2020.

It’s no coincidence that only after he began the campaign against oppressive management and policing in the Green, a low-income housing development in Superior Township, that his parole officer turned on him. It was also around this time that he refused to cooperate with a police investigation in the Green, one in which—to his surprise—he was the purported victim.

The PO soon began to tighten her net. After nearly a year with no violations since his release from prison, he was put on an ankle tether for a single curfew violation and told he could only leave his home with permission—even in the daytime, and especially to attend organizing meetings for Free the Green. The restriction was so patently ridiculous the PO soon had to relax it.

But then on September 8, 2020, H.H. was arrested at a retail store by an MDOC “absconder unit” and taken back to prison where he’s been ever since. He was wearing his ankle monitor and obviously not absconding. Only weeks later did he learn what parole violations he was actually being charged with and that he was also facing new criminal charges from Washtenaw County. The charges stemmed from accusations from one individual. To date no corroborating physical evidence or eyewitnesses have been produced. Nevertheless, the Washtenaw County prosecutors’ office elected to file and pursue multiple felony and misdemeanor charges based on the accusations. H.H. continues to deny all charges.

In this country, much less this county, people are innocent until proven guilty, right? And since Eli Savit ended cash bail in most cases, no one has to rot in jail or prison while they wait for trial, right?

Wrong. In the system, there is a glaring exception to this most basic of due process rights (6th and 8th amendments). If someone on parole or probation faces new charges, they can be held on a detainer (“parole hold”) indefinitely without respect for their due process rights to a speedy trial. In this Twilight Zone of law, if the defendants go ahead with a hearing for their alleged parole violations, they’re likely to be found guilty no matter what the evidence or lack thereof. This is because the standard of proof is only “preponderance of the evidence” (not “beyond reasonable doubt” as in trial courts) and the MDOC literally plays the roles of judge, jury, prosecution, witness, and defense. However, if someone is found not guilty in the county courts, then the corresponding parole violations are also dropped.

This kangaroo court system, along with the lack of accountability for parole officers, is why in this country: “On any given day, 280,000 people in prison—nearly 1 in 4—are incarcerated as a result of a supervision violation.” In Michigan, 52% of state prison admissions are due to parole or probation violations.

Recently there’s been more public attention paid to how many people are thrown back in prison for technical violations, things like missing a curfew or failing to report a stop-and-frisk by police or popping wheelies. ICE also issues detainers for scores of immigrants, leaving them in city and county jails indefinitely.

But the injustices experienced by parolees and probationers facing new charges is far less known. At first, Kalief Browder (Rest In Power) couldn’t afford the cash bail to get out of Rikers Island when he was charged with stealing a backpack at age 16 and refused to take a plea for something he didn’t do. But it was actually a probation hold that kept him locked up for 3 years without a trial until the charges were dropped. The ordeal led to his later death by suicide.

How did this play out in H.H.’s case? At his preliminary hearing for the parole violations, his PO appeared on the video screen seated next to his accuser in the accuser’s home, coaching the accuser on what to say. The officer for the hearing, who by MDOC policy is supposed to be someone neutral and unfamiliar with the case, was in fact the PO’s own supervisor. They laughed and joked, and the hearing officer gleefully reminded H.H. that the standard of proof in parole violation hearings is only preponderance of the evidence. Of course, he had no choice but to request a deferment of the parole violation hearing pending the outcome of the county charges. And as they almost always do, MDOC placed a detainer on him allowing them to keep him locked up until trial, “innocent until proven guilty” be damned.

There is a fig leaf of legislative protection for people in this predicament. It’s known as the “180-day rule,” and it specifies that if someone is facing new charges while already imprisoned, they “shall be brought to trial within 180 days.”

In reality, though, judges grant any delays the prosecution claims are justified for “good cause,” and COVID can and has been used to delay trials all over the country—even though in Michigan the 180-day rule specifies that good cause does not include “delay caused by docket congestion.” Even worse, in contrast to cases where charges are brought against a defendant who is not a parolee or probationer, and who is found guilty, parolees and probationers do not even get credit for time served. The time of imprisonment before trial is just put down to the parole hold. How long has H.H. been locked up so far waiting for his day in court? Fifteen months, or 461 days and counting.

How is that fair or just? How is that possible? Because the system only works for those with the money to hire private attorneys. Because you can only win a speedy trial or 180-day rule challenge if you can prove that the delay prejudiced the outcome of your case, by which time you’ve probably already done the time. Because COVID can be used as an excuse for repeated delays in hearings, by both MDOC and the county prosecutor, without any evidence or accountability or even a reason apart from “COVID.” Because the system doesn’t care about fairness or due process. Because judges work closely with prosecutors. Because so many other people are being held beyond their rights to a speedy trial, it must be okay, right?

What’s happened during the last 461 days? H.H. was finally served charges and arraigned on 10/23/20. After that, MDOC failed to bring H.H. to his probable cause conference three times in a row, claiming COVID—even though the conference ended up happening by phone, and they continued to hold their own MDOC video hearings without interruption.

The bitter truth is that during that same period, H.H. himself contracted COVID while trapped in a MDOC cell Christmas week of 2020. He struggled to breathe and his blood oxygen dropped to the low 80s. MDOC solved the problem—not by taking him to the hospital by ambulance, but by not recording the low oxygen and simply not going to his cell anymore to check it. He was given vitamins. H.H. has a diagnosed heart condition, making him one of those at higher risk of COVID complications whom Eli Savit said should be released early or have the start of their sentences delayed—at least that’s what he said in his campaign.

The probable cause conference was finally held on 1/21/21. In theory, a probable cause conference is a hearing at which the prosecutor should provide enough evidence to justify going to trial. But in practice it’s just one more chance to pressure the defendant into taking a plea. Even though no witnesses apart from the accuser appeared and Eli Savit’s prosecutor presented no corroborating evidence, the judge moved the case along to trial court. H.H. was not interested in any plea deals, and in any case the only deal offered was to plea up to the felonies and have only the misdemeanors dropped.

After that came the preliminary exam on 2/23/21, also postponed when MDOC claimed “COVID.” Meanwhile, throughout H.H.’s entire incarceration, MDOC has not met its obligation to facilitate phone calls with attorneys who can’t safely visit facilities due to COVID.

Beginning with the 2/23/21 exam, H.H. was now in Judge Archie Brown’s court. Washtenaw County has a quaint law called “judge for life.” Whoever came up with the idea was a genius at systemic racism. This law says that any time someone faces felony charges in the county, they are automatically assigned to the same judge they faced for any past charges. So H.H. was assigned Archie Brown when he was charged as an adult for robbery as a 17-year-old foster kid, and he was automatically assigned Archie Brown over three decades later.

Archie Brown has had more instances of racial disparities in sentencing than any other county judge, according to the CREW Report.

H.H. could have opted for a bench trial with Archie Brown, but given this judge’s record, he chose to exercise his right to a courthouse trial with a jury of his peers. He was assigned a trial attorney by the public defender’s office who agreed to prepare pre-trial motions and twice requested adjournments (a total of 2 months’ delay) in order to prepare said motions. Then without discussion or explanation, at a 6/2/21 hearing, he filed no motions at all. This supposed advocate for H.H. repeated at each and every hearing that H.H. had refused the prosecutor’s one plea offer, and then had little else to say. Even the prosecuting attorney seemed surprised and once pointed out that they’d already had that discussion. This attorney also assured H.H. that the trial would be scheduled for late July and seemed puzzled when Archie Brown instead scheduled it for November 29. Maybe he thought Archie Brown would prioritize H.H.’s case since he’s already locked up, but apparently that isn’t a concern of Archie Brown’s.

After multiple strenuous efforts, in September 2021, H.H. was able to convince the public defender’s office to assign him a different attorney to replace the one who, from February to September, had done nothing but cause his case more harm than good. More time was wasted when the prosecutor’s office failed to let MDOC know about one of H.H.’s hearings in order for him to appear by video. Nevertheless, with the encouragement of a new attorney, he held out for trial at the end of November, hoping to be home by Christmas.

The new attorney requested that H.H. be transported to the county at least three days before trial so they could meet in person at least once before trial. The prosecutor filed this order 10 days before trial. When did MDOC bring him to the county? At 10 a.m. on the same day his trial was scheduled to start at 8:30 a.m. And then the prosecuting attorney requested an adjournment because she had some “COVID symptoms” for five days, but for some reason had been unable to get tested (even though home tests were widely available in every drug store at that time as well as at numerous sites offering rapid antigen tests). The judge found this credible.

Maybe the real reason for the request for adjournment was that the prosecution said their “star witness” had COVID. Did they finally find someone claiming to be an eyewitness? No. This so-called star witness is the self-same parole officer who cannot claim to be an eyewitness to any one of the allegations. If this is who they describe as their star witness, the prosecution’s case must be very, very weak.

Archie Brown granted the adjournment of the trial—to January 31, 2022. H.H. spent another Christmas away from his son.

A few weeks later in December 2021, the county arraigned H.H. on a new felony charge of alleged possession of “analog” drugs (analogs refer to synthetics like Vicodin, bath salts, Molly, or synthetic cannabinoids), a charge stemming from the day of his arrest. If the prosecutor’s office intended to pursue this charge, they could have served it in September of 2020, and the clock on the 180-day rule would have begun to run then, but now it has started ticking all over again on this new case. By waiting 15 months to arraign him, the prosecutor’s office is flagrantly violating due process in a transparent effort to pressure him into taking a plea on the other case.

Eli Savit promised he would not over-prosecute drug charges stemming from pretext stops, especially against Black drivers. That’s great news. But apparently Savit supports the use of recreational drug charges as a pretext for coercive plea bargaining in cases against Black men where it looks like the prosecution is about to lose.

Eli Savit is aware of H.H.’s case. The due process issues were brought to his attention by multiple community supporters of H.H. back in January 2021, with no acknowledgment or response.

As we begin to see and celebrate some changes in positive directions in the criminal injustice system, we need to remember that the entire system in and of itself is a tool of oppression, torture, profit, power, and racist genocide. That is why we, in solidarity with H.H. and all common people behind bars, are abolitionists.

We demand that Eli Savit and the Washtenaw County prosecutor’s office admit they can’t win at trial, drop the baseless charges, and give H.H. a chance to fight his parole hold and return to his son and his community. Stay tuned for details.

Free H.H.!

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