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Unequal JUSTICE
Two very different men commit two very different crimes. When both violate probation, there are wildly different results: The robber gets life; the killer remains free.
12:00 AM CDT on Sunday, April 23, 2006
By BROOKS EGERTON / The Dallas Morning News
First came the poor man, barely 17 years old too young to buy beer or vote, but an adult under the Texas penal code. He took part in a $2 stickup in which no one got hurt. He pleaded guilty to aggravated robbery and was put on 10 years of probation.
He broke the rules once, by smoking marijuana. A Dallas judge responded in the harshest possible way: He replaced the original sentence with a life term in prison.
There Tyrone Brown sits today, 16 years later, tattooed and angry and pondering self-destruction. "I've tried suicide a few times," he writes. "What am I to make of a life filled with failure, including failing to end my life?"
Now the flip side of the coin, also from Judge Keith Dean's court: A well-connected man pleaded guilty to murder for shooting an unarmed prostitute in the back and also got 10 years of probation.
The killer proceeded to break the rules by, among other things, smoking crack cocaine. He repeatedly failed drug tests. He was arrested for cocaine possession in Waco while driving a congressman's car, but prosecutors there didn't press charges.
Judge Dean has let this man stay free and, last year, exempted him from most of the usual conditions of probation. John Alexander "Alex" Wood no longer must submit to drug tests or refrain from owning a gun or even meet with a probation officer. He's simply supposed to obey the law and mail the court a postcard once a year that gives his current address.
The judge's written court policies say that defendants who have broken the rules are not eligible for postcard probation. But no one can make him obey his own standards. Indeed, judges in Texas and most other states have few limits on possible punishments when defendants violate probation, which sets the stage for lawful but extreme disparities.
And "you can't tell what the reasons are," said Kevin Reitz, a University of Minnesota law professor who is one of the nation's leading experts on sentencing guidelines. "I call this a black box system. You have someone with a lot of power and no burden of explanation."
Judge Dean, a widely respected 20-year veteran of the Dallas criminal bench, said he wouldn't discuss the two cases because he might have to rule on them again someday. In general, he said, he tries to evaluate "the potential danger to the community" when someone violates probation "and what, in the long run, is going to be in the best interest of the community and the person themselves."
The judge gave Mr. Wood his special privileges without receiving a formal request, court records show.
"This certainly undermines one's confidence in the judicial system around here," said Rick Jordan, who was the prosecutor on Mr. Wood's case and now is a defense attorney.
Mr. Wood, who is 46 and raises show dogs, said he has avoided prison by having top-flight legal counsel and building good relations with probation officers. His sentence is set to expire at the end of May.
One of his prominent lawyers, George Milner Jr., "had to go see the judge on something else" last year, Mr. Wood said, and agreed to seek early release from probation. Mr. Milner reported back that Judge Dean "couldn't do the early release but would do this other deal" postcard probation.
"We didn't ask for that," Mr. Wood said. "It was a compromise."
Judge Dean said such requests are generally handled informally, with prosecutors getting only an oral alert. He said he bases his decisions on recommendations from his probation officers.
Probation records show that Mr. Wood failed five drug tests, but public court files mention only two. It's unclear why there is a discrepancy or which records Judge Dean reviewed.
Letting a killer stay free after several failed drug tests is "unheard of with this judge," former probation officer Don Ford said. And "life in prison for smoking a joint that's harsh in any case."
Judge Dean usually let defendants like Mr. Brown off with a warning the first time they tested positive for marijuana, Mr. Ford said. A second such test failure typically meant two days in jail.
The Brown crime
Tyrone Brown's story began on a February night in 1990. A child-abuse victim and high school dropout from Oak Cliff, he was roaming the upper Greenville Avenue area with another 17-year-old.
They spied Bill Hathaway walking home from his restaurant job. According to police and court records, Mr. Brown's friend pointed a pistol at Mr. Hathaway and demanded money. (In an interview with The Dallas Morning News, Mr. Brown said he was the one who held the gun.)
The records say Mr. Hathaway handed his wallet to Mr. Brown, who removed the cash two $1 bills. The victim asked for his wallet back and got it.
The men parted ways. Mr. Hathaway called police, who quickly caught the two robbers nearby and returned his money.
There was no trial. Judge Dean soon accepted guilty pleas from both teens and assessed the same sentence: 10 years of deferred-adjudication probation.
Under this increasingly common approach to jurisprudence, a judge finds that there is evidence to convict someone but doesn't. Defendants who complete probation successfully end up with no criminal record.
However, if they break the rules of supervision, the judge can revoke their probation, convict them of the original charge and sentence them to prison.
Mr. Brown tested positive for marijuana in May 1990, a month after starting probation. Prosecutors filed a revocation motion the standard response but made no sentencing recommendation.
At a hearing in early June, Mr. Brown's court-appointed lawyer asked Judge Dean to send the youth to boot camp, where defendants typically spend a few months under military-style rules before returning to probation.
The judge, according to a transcript, did not address that proposal. Nor did he mention Mr. Brown's juvenile record (he was charged with exposing himself to a woman, for example, and got caught riding in a stolen car).
Judge Dean simply reminded the teen that prosecutors initially recommended a five-year prison sentence instead of probation, "and I told you ... that you wouldn't see anything like that five years if you got in more trouble." Then he pronounced the life sentence and added, "Good luck, Mr. Brown."
Defense attorney Matt Fry did not protest, the transcript shows.
In an interview, he said he did not remember the case and had no record of it. Renie McClellan, a court-appointed lawyer who represented Mr. Brown in a failed appeal, said she, too, had no memory or record of the matter.
Mr. Brown's family did not attend the hearing and did not believe him when, in a phone call from jail, he explained what had happened.
"He told me they gave him life and I said, 'Life for what?' " recalled his mother, Nora Brown. "I almost had a heart attack."
Mr. Hathaway, the robbery victim, knew nothing about the case's outcome until contacted recently by The News. He, too, was astounded.
"Goodness gracious," he said in a phone call from Virginia, where he now lives. "You have got to be kidding me. ... Nobody touched me at all."
Meanwhile, Mr. Brown's co-defendant, Lewis Bivins, also got in trouble while on probation he pleaded guilty to car theft. Judge Dean sent him to boot camp and let him return to probation.
Only after Mr. Bivins committed two further crimes burglary and another robbery did the judge send him to prison. He, too, is now serving a life sentence.
The Wood crime
John Alexander Wood's journey toward Judge Dean's courtroom began on a March evening in 1995. He picked up a 22-year-old hustler named Larry Clark on an Oak Lawn street, and they went to Mr. Wood's nearby home.
Police reports, citing Mr. Wood's statements and physical evidence, say the two men had sex, for which Mr. Wood paid $30. Afterward, Mr. Clark asked for a ride home, but Mr. Wood balked and demanded his money back. A fight ensued.
Mr. Clark ran into the back yard, which was enclosed by a high fence. Mr. Wood, using a small semiautomatic pistol, fatally shot him from behind and took the money from Mr. Clark's pocket.
Mr. Wood, who had no criminal history, initially pleaded not guilty to murder and went to trial in 1996. As jurors were about to conclude deliberations, the prosecution and defense cut a deal that Judge Dean approved: The defendant pleaded guilty to murder in exchange for 10 years of deferred-adjudication probation.
Jury forewoman Dana Toney said the plea bargain didn't change much. Jurors, she said, believed the killing was an accident, were close to convicting Mr. Wood of negligent homicide and would have been happy to put him on probation.
There is no court transcript of the case because there were no appeals, but Ms. Toney said the defense argument went like this: Mr. Wood feared Mr. Clark, who was high on drugs, and fired a warning shot that he hoped would scare the man off. He stumbled when pulling the trigger, making the gun point toward Mr. Clark.
Mr. Wood largely agreed with this summary, although he told The News that he shot Mr. Clark in the side as the man turned toward him.
"It was sort of a self-defense type of situation," Mr. Wood said. "Judge Dean understood this."
The official autopsy shows that Mr. Clark was shot in the back.
Mr. Jordan, who was the prosecutor, said he agreed to the plea because he sensed that jurors were sympathetic to Mr. Wood. And indeed they were.
"Alex came across as very boyish a little-boy haircut, combed over, and big glasses," Ms. Toney said. "He didn't look like the kind of guy who would go around shooting people in the back."
Ms. Toney said she attends Prestonwood Baptist Church and was swayed by prominent Baptist defense witnesses. They included Mr. Wood's father, John Alvin Wood, who was a former pastor of First Baptist Church in Waco; and the Rev. O.S. Hawkins, who was pastor of First Baptist Church in Dallas.
"You see O.S. Hawkins, a pillar in the community, stand up and put his own reputation on the line," she said. "It carried a lot of weight."
The prosecution had no such star witnesses. Mr. Clark, the slain man, was orphaned as a little boy in Alabama his father drank himself to death; his mother, after remarrying, died of injuries from a car accident. He had maternal grandparents in rural North Texas, but the prosecutor's efforts to get them to court failed.
So to establish the victim's identity for jurors, Mr. Jordan had to summon a Dallas police officer who once arrested Mr. Clark for prostitution.
That opened the door to questions about criminal history, which led back to a sordid tale that the grandparents hadn't told the prosecutor about.
After his mother died, Mr. Clark was raised in Oxford, Ala., by his stepfather, whom relatives today describe as an abusive drug dealer. When Mr. Clark reached his mid-teens, he killed the man and buried him in a shallow backyard grave.
Oxford Assistant Chief Ron Herbowy, who investigated the killing, said: "You couldn't help but like the boy. You almost felt sorry for him."
A juvenile judge concurred, first refusing to send Mr. Clark to adult court for trial and later sentencing him to probation instead of detention.
But jurors in Dallas came to see Mr. Clark as the predatory half of the equation, even though Mr. Wood was the only armed party. Ms. Toney's conclusion: "You almost feel like [Mr. Wood] did the world a favor" by killing Mr. Clark.
Mr. Clark's grandmother, Jane Peel, said she didn't attend the trial because she was overwhelmed by grief. Her grandson, who'd lived with her and at other area locations in the months before his death, was her last living link to her daughter.
Ms. Peel, now a widow, said she has come to believe that Mr. Wood got probation for murder because of his prominent father.
And "it was two gays," she added. "According to everyone, [her grandson] was a nobody.
"But that's not true. He was somebody who was loved."
The Wood aftermath
The prosecutor, Mr. Jordan, said he made his peace with the plea bargain because he expected Mr. Wood to break the rules of probation. That's because witnesses such as John Orr, the killer's landlord and employer, told authorities he had an explosive temper and once threatened to kill a co-worker.
Mr. Jordan was right about the rule breaking. But "it looks like somebody turned a blind eye," he said.
Mr. Wood successfully completed nearly three years of probation before testing positive, in March 1999, for cocaine use. It was the first in a long series of troubles, probation records show.
Two months later, at 5 o'clock in the morning, Waco police stopped Mr. Wood for a minor traffic violation and found crack cocaine on the floor of the old Ford Crown Victoria he was driving. The license plate was HOUSE 11A one of the numbers assigned to U.S. Rep. Chet Edwards.
Mr. Edwards, a Waco Democrat who remains in office, is married to Mr. Wood's sister. He told The News he was in Washington at the time and had left the car in a friend's care; he said he didn't know whether Mr. Wood had asked to borrow it. The friend, real estate agent Cindy Evans, said she didn't recall.
The police reports say Mr. Wood, when asked what he and a passenger were doing in the neighborhood where he was arrested, claimed that a maid had asked him to bring her a prescription from a 24-hour pharmacy. The woman he identified was a drug dealer, according to the reports.
But Mr. Wood told The News that he was in the area to pick up the passenger, a male friend who "was in all kinds of trouble." He said that he hadn't known there was crack in the car and that the friend must have put it there.
At the time, Mr. Wood was living in Waco. Probation officials there had been supervising him, as a courtesy to their Dallas County counterparts. Now they washed their hands of him.
Dallas County took over supervision but, contrary to state standards, let Mr. Wood keep living in Waco. He was assigned to a program in which a probation officer is supposed to make surprise visits to high-risk offenders instead of letting them report to a county office yet records show that Mr. Wood, 100 miles away, got no visits.
Dallas prosecutors asked Judge Dean to revoke his probation, citing the arrest and the cocaine test failure. But there was no quick ruling, as there had been after Tyrone Brown tested positive for marijuana.
The judge, a Republican, left the matter pending for several months, with Mr. Wood free on bail. Meanwhile, he failed two more drug tests in the summer of 1999 both times after denying that he was still using cocaine, according to probation records.
Such false denials are supposed to lead to revocation of probation, the judge's written policies say. But Judge Dean let him go to a private inpatient treatment center instead of prison.
Mr. Wood's next break came while he was at the center, in Minnesota: The district attorney's office in Waco dropped the possession case against him and his friend, Steve Canuteson.
Prosecutor Antonio Piña said his records show that he lacked evidence to convict Mr. Wood. He said he let Mr. Canuteson go because he pleaded guilty to an unrelated charge.
When arrested, each suspect had told officers that the drugs belonged to the other, police reports say. Most such cases result in the conviction of both defendants, prosecution and defense experts told The News.
"When they point fingers at each other, I prosecute them both if I've got a good case," Mr. Piña said. He said he didn't have records that detailed the evidence problems and didn't recall the matter.
Mr. Canuteson, who lived with Mr. Wood in 1999, told The News that they both avoided prosecution because "it was Chet Edwards' car." He did not elaborate beyond saying that "Alex had extreme political ties. I met Chet Edwards so many times."
Mr. Piña said the Edwards connection "never came into the picture. ... I would remember that."
Mr. Edwards said he didn't recall meeting Mr. Canuteson and had no contact with authorities on the matter.
"I have never made a single phone call, talked to a single official or testified in any way in behalf of Alex," he said. "It would be totally inappropriate."
Mr. Edwards said he was angry with his brother-in-law over the arrest and believes that "Alex should be treated by the judicial system in the same way as any other citizen. ... [It] should not give preferential treatment to anyone for any reasons."
In early 2000, Judge Dean dismissed the probation-revocation request at Dallas County prosecutors' request. Rachel Horton, District Attorney Bill Hill's spokeswoman, said it is not clear why the office sought the dismissal.
By April of that year, Mr. Wood was back in trouble. A police report says he broke a glass door to enter the Rowlett home of Margaret Worth, whom he knew from dog-show circles, and demanded a puppy they both claimed to own.
Dallas County prosecutors filed another probation-revocation motion, then withdrew it after Ms. Worth decided to drop charges. She told The News she backed down after Mr. Wood's father proposed a deal: "I'd keep the puppy if I dropped the charges."
Ms. Worth's take on the son, who has long lived off his parents' wealth: "Rules just don't apply to him."
In January 2001, Mr. Wood failed a drug test for the fourth time again after denying that he was using cocaine. Records show that a probation officer then warned that if he "even had the belief that [Mr. Wood] was still using drugs," a motion would be filed recommending a prison sentence.
It turned out to be an idle threat. In March 2001, a probation officer found evidence that Mr. Wood had diluted his urine to pass a test, but there were no consequences.
And in early 2002, he tested positive for the fifth time. Judge Dean let him stay free without even paying cash bail, let him go to another drug-treatment center instead of prison, and afterward even let him travel to Italy.
Probation officials apparently didn't touch base with Waco police, where there were emerging and persistent danger signs.
Mr. Wood, for example, had been living with at least two men who had multiple criminal convictions. One rule of probation was that he avoid people of "disreputable or harmful character."
Probation officers "never knew about it," Mr. Wood said. "Basically [the men] were homeless, and I was too nice and let them camp out here, and it caused me trouble."
At different times in recent years, he has accused the men of stealing from him, then told Waco police that he didn't want to prosecute. He accused one of the men of threatening him in an effort to collect a debt.
Last summer, shortly after Judge Dean gave him the one-postcard-a-year deal, Mr. Wood and one of the housemates vanished for a time. So did an SUV and a credit card belonging to Mr. Wood's father.
The father complained to police but didn't follow through on pressing charges. Instead, he called an officer and said "his son had been dropped off at his residence [with the SUV] and was heavily sedated and couldn't talk."
Early this year, Mr. Wood summoned police because the same housemate had tried to kill himself with a drug overdose. The man, Mr. Wood told officers, had recently stepped outside their home with a gun "hoping that the police would show up and shoot and kill him."
Mr. Wood told The News he is now volunteering as a drug counselor at Mission Waco, a high-profile charity. But the agency's executive director, Jimmy Dorrell, said Mr. Wood hasn't even gone though the application process and, because of the murder, couldn't pass a background check.
The Brown aftermath
All the while Mr. Wood has been free, Tyrone Brown has been behind bars. He hasn't been a model prisoner.
He started taking classes to finish his high school education, but quit. He joined a gang "the closest thing to my family," he said. He fought with guards, which led to solitary confinement. He flirted with suicide.
And he found out he has a daughter his girlfriend in Dallas, it turned out, had been pregnant when his probation was revoked. His little girl is now a teenager, almost as old as he was back when Judge Dean wished him luck in prison.
"She got past the stage where she'd cry every time she'd think about him," said her mother, Omika Saulters. Still, "she talks about her daddy all the time. She asks, 'Is he ever coming home?' "
Mr. Brown has learned to talk a little about his own father, who has never visited him in prison.
"He beat us so bad," the prisoner told The News. Juvenile court records say he and a brother spent a year in foster care because of the father's violence toward them and their mother.
The mom, Nora Brown, tells him that Christian faith is the way to survive prison's hell.
"Where's your God at now?" he once fired back at her in a letter. But they've patched things up some since then.
"I tell him, 'You've got to show those people you're not there to make it your home,' " said Ms. Brown, who can show you the scar near one eye where her ex-husband hit her with a candlestick. " 'You've got to show them you want to get out of there.' "
In the last couple of years, Mr. Brown has cleaned up his act and renounced his gang ties, prison officials said. He spends much of his time reading everything from Stephen King to self-help books to a thesaurus and he writes poetry.
He's eligible for parole in 2009. The only way to get out sooner, state officials said, would be for Gov. Rick Perry to commute his sentence.
"I am on the verge of giving up completely," Mr. Brown admitted, "because I am tired of holding on to nothing. I've been trying to hold on for over 15 years, but for the most part I've been by myself."
E-mail begerton@dallasnews.com
