The power to pardon in Minnesota should be the governor’s – continued – a reprise

Since this story was written, a Ramsey County district judge ruled that the statutory requirement of unanimity in Pardon Board decisions was unconstitutional. That decision was appealed, and it was heard by the Supreme Court on September 15th. Chief Justice Gildea did not participate. Why? Because she had a conflict of interest. She was the Pardon Board member who vetoed a pardon for Amreya Rahmeto Shefa, a person deserving of a pardon if ever there was one.

Brian Baskt wrote a story about the Supreme Court hearing today.

The chief justice had a conflict of interest today, but she had one when she sat in consideration of Shefa’s pardon petition, too.

In the briefest recital of the facts: Shefa was convicted of manslaughter in a bench trial for stabbing her abusive husband after he threatened her and cut her with a knife. She got control of the knife and stabbed him. After the stabbing, the husband was still ambulatory; he walked into the bathroom and locked the door where he bled out. Shefa called the police.

The case was appealed and the conviction affirmed in the Court of Appeals; review of that decision was denied by the Minnesota Supreme Court. Guess who signed the order denying the review? Chief Justice Lori Gildea.

I believe the conviction of Ms. Shefa was a complete miscarriage of justice. The judicial system failed her every step of the way, up and including the chief justice’s summary order of the denial of a review by the court.

At the pardon board hearing, which I watched, the chief justice was obviously bored, having announced how she would vote before the hearing. With her effective veto of the pardon petition, the chief justice was really covering for her judicial colleagues, from the trial judge, a former colleague of the chief justice in the Hennepin County Attorney’s Office, and the Court of Appeals. Judges always think they did it right. That’s what pardons are about in the first place.

According to the linked story, Justice Barry Anderson seemed skeptical of Shefa’s case. Of course, that is covering for a colleague, too. And it’s a failure to parse the constitutional language in a careful way.

-oOo-

A Community Voices op-ed that I wrote about the pardon power in Minnesota and the pardon petition of Amreya Rahmeto Shefa, convicted in a bench trial of manslaughter for defending herself against a violent, abusive, and sadistic husband (I won’t even use his name), was published in MinnPost on January 25th. You must read it to understand this story. Space limitations did not permit me to say there all I had to say. Here is most of the rest of it.

The Community Voices piece links to a filing by Ms. Shefa’s lawyers in the lawsuit brought by Ms. Shefa to challenge the constitutionality of the legislature’s attempt to remake the pardon power; that link is repeated here for readers’ convenience, as I will refer to facts in the underlying criminal case that you can read about at the link.

After marrying him in 2006 in Ethiopia and proving that she was fertile by bearing him two children there (he divorced his first wife in Minnesota after a childless marriage), Ms. Shefa’s husband finally brought her to live with him in Richfield, Minnesota, in 2012. You can read about what happened to Ms. Shefa thereafter in a summary (starting at page 4 in the linked memorandum) of an agreed record of the parties to the suit; these facts were also in the record in the pardon proceeding and available to members of the pardon board.

After arriving in Minnesota, Ms. Shefa became the victim of unremitting abusive, vicious, and criminal assault, including sexual assault, by her husband and his friends. She was threatened with a knife on multiple occasions of sexual assault. On the night of his death in December 2013, Shefa’s husband, high on drugs and alcohol, raped Shefa again, including penetrating her anus with a dildo, and he cut her hand with a knife. In self defense, she stabbed him. According to law enforcement authorities, there was substantial evidence of a violent struggle, and Ms. Shefa stabbed her husband many times. However, he was still able to get up and walk to the bathroom. Ms. Shefa called 911; her husband bled out in the bathroom.

For this, Hennepin County Judge Elizabeth Cutter, formerly employed by the Hennepin County Attorney’s office – just as Chief Justice Lori Gildea had been – sitting as a trier of fact in a bench trial, convicted Ms. Shefa of first-degree manslaughter for meeting deadly force with deadly force (which the law entitles you to do, by the way), and sentenced her: Ms. Shefa served five years in prison, followed by a couple of years of supervised release.

The scene in the bedroom and bathroom, the evidence of a struggle, Shefa’s injuries, and the fact that the decedent was still ambulatory all show the reasonableness of Shefa’s defense of herself. On top of that, she was in her home where the Castle Doctrine applies; Ms. Shefa was absolutely entitled to use deadly force; she couldn’t retreat from her husband, and she didn’t have to.

I cannot understand why a judge could not herself understand why a woman who’d been cut with a knife by her husband and had a dildo stuffed in her anus, and after a year and a half of abuse, would continue to stab a man who could still walk, to make sure his assault would not continue.

I wrote in the MinnPost piece in explaining why a jurist should not sit on our pardon board:

Prosecutors and judges always think they did a good job. But pardons, those prerogatives of mercy, exist because that isn’t always true, and because sometimes the law isn’t fair, or it’s unfairly applied.

That’s manifestly true here. Chief Justice Lori Gildea, pardon board member, and the one who vetoed Ms. Shefa’s pardon petition, was also Minnesota’s chief justice who signed the order declining review of Ms. Shefa’s appeal of her criminal conviction to the Supreme Court. The chief justice apparently thought Judge Elizabeth Cutter, a former colleague in the county attorney’s office, did a good job. But it gave the chief justice a conflict of interest on the Pardon Board.

You will recall that in the recent grant of clemency by the Pardon Board to Myon Burrell, Chief Justice Lori Gildea recused herself from consideration of Burrell’s petition because she had a conflict of interest from her days working in the Hennepin County Attorney’s office. Would Burrell have received clemency if the chief justice had voted on its consideration? The Shefa petition presents a conflict that differs perhaps in degree but not in essential kind from the Burrell case.

You must wonder how many times a clemency petitioner has appeared before a chief justice on a pardon board who had earlier voted to deny the petitioner’s criminal appeal? In the eighty years [over a century, actually, Ed] since the statute giving the attorney general or chief justice an effective veto over a pardon petition? They are legion, I’m sure.

Ms. Shefa now faces deportation as a felon, which a pardon would ameliorate: deportation to Ethiopia where her husband’s family is waiting and thirsting for revenge.

Amreya Shefa applied for a pardon, hopeful, I suppose, that a country in which her experience had shown her only abuse and violence, might actually provide her with the “prerogative of mercy.” Then she encountered the chief justice for a second time.

I tried to get the video of Shefa’s Pardon Board online hearing. But I got a voicemail message from the Pardon Board saying, Gosh, Steve, we don’t record those hearings. So, you will have to take it from me what it would have shown.

At the beginning of the hearing, you would have heard the chief justice say that she wouldn’t vote for the pardon, even before hearing from anybody. That was an act of prejudgment, or prejudice, from the Latin praeiudicium. As we’d say today: without due process.

You would have seen the chief justice display a studied boredom and distaste while Ms. Shefa and her attorney made their presentations. Then, you would have seen three hysterical, spittle-flecked, fist-waving relatives of Shefa’s husband shrieking (not kidding about the shrieking or the fist waving) justice, justice, justice! Meaning revenge, revenge, revenge!

It was pretty chilling. Anybody, including the chief justice, who was tempted to dismiss the blood revenge concern in this case just wasn’t paying attention.

You would have also seen, after the governor and the attorney general explained why they thought a pardon was appropriate, the chief justice look briefly into the camera and deliver a curt “No.”

I really wish I had that video.

But now, all we can do is look forward and try to figure out how to avoid sending Amreya Shefa to face the knives of her former in-laws.

We should recognize that Chief Justice Lori Gildea, or any chief justice, for that matter, should not have been anywhere near consideration of a veto of Ms. Shefa’s petition for a pardon. The present lawsuit to void on constitutional grounds the statute that requires unanimity of Pardon Board votes is a step in that direction.

Correction:

I say in the article that unanimity in parole board decisions was introduced by the legislature in 1941, and indeed the legislative history shows 1941 statutes as a reference for Minn. Stat. § 638.02. A friend of mine pointed out an earlier reference to a legislative pardon board unanimity requirement in the laws enacted in 1905.

The Shefa case is still a case of first impression and it doesn’t change the constitutional arguments.

I regret the error.

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Update: Many people have observed that Minnesota’s bench is former-prosecutor heavy. There were two judges here, graduates of the Hennepin County Attorney’s office, Judge Elizabeth Cutter and Justice Lori Gildea, who were instrumental in depriving Amreya Shefa — unjustly — of her freedom, her children, and possibly her life.

I am completely appalled by this case. Regardless of what the courts ultimately do with Ms. Shefa’s lawsuit to have Minn. Stat. § 638.02 subd. 1 declared unconstitutional, the legislature ought to take up legislation to repeal it and replace it with a statute that declares and confirms the power of the governor alone to issue pardons without interference by the chief justice or the attorney general.