Tuesday, July 1, 2008

Judge opts to depart from trying sex cases

About 70 protesters gather in opposition to recent sentences granted by Dowd

By Barbara Hollingsworth

The Capital-Journal

Published Tuesday, July 01, 2008
Four floors below Judge Matthew Dowd's courtroom, the mother hardly could believe the words she was reading.

The written transcript laid out the sentencing of the 76-year-old family member, Harold Spencer, who pleaded guilty to the aggravated sexual assault of her daughter. There were compelling reasons to depart from state sentencing guidelines, said Dowd, who on Monday disqualified himself from hearing any more cases involving sex offenses.

For one, the man was elderly and he had family support, the judge said. All of that, he said, "would lead the court to believe that this might have been an aberration or a momentary lapse in an otherwise good life, so I am going to depart."

The woman, standing among about 70 protesters of Dowd, clutched her sign and seethed.

"How is it a one time mistake when it happened to her for three years?" she part shouted, part cried.

The anger made her body shake and then clinch.

"Oh my God," said the woman, whose name the newspaper isn't using to avoid identifying her daughter.

Then quietly, she added about the judge who sentenced her child's abuser to probation, "I don't understand him at all."

Upstairs in Dowd's chambers — past the waiting area with scales of justice that sit on a cabinet with a framed picture of two babies — Dowd declined to comment on the uproar and the protestors who gathered outside the Shawnee County Courthouse on Monday afternoon.

"I can't," he said, leaned back in his chair near the wall lined with law books. "The case is on appeal."

Still, later in the day Chief Judge Nancy Parrish said Dowd would no longer hear sex offense cases. Typically, cases of all types are shared among judges.

"Judge Matthew Dowd has disqualified himself from hearing cases involving allegations of sexual offenses due to the appearance that his impartiality might be questioned because of the intense public reaction to some of his prior sentencings," Parrish said in a short statement. "Judge Dowd previously announced that he would be retiring on September 1, 2008."

The e-mailed message continued: "Due to the potential for appeal, Chief Judge Parrish will not be commenting beyond this statement."

Dowd became a target of anger last year for his sentencing in three cases. Among them, he sentenced Orlando Paul Cisneros to probation after the 38-year-old man was convicted by a jury of 17 felony counts of raping and sodomizing a 14-year-old girl in 2006.

The furor boiled over again late last week when District Attorney Robert Hecht promised to appeal two sentences Dowd issued last week — both instances of the judge departing downward from state sentencing guidelines.

Of the sentencing of the 76-year-old man, Hecht said, "I tried my first criminal case 50 years ago and have been extensively involved ever since. I have never seen nor am I aware of any case, anywhere, where the proscribed sentences are two life sentences and the court grants three years of low level probation."

Harold Spencer

Attorneys for the men sentenced last week say there is more to the story.

Spencer's attorney fired off an e-mail to the newspaper with the subject line "Typical media witch hunt…" She contended that Hecht's statements didn't tell the full story.

"Why would one want to depend on a political creature (who wasn't even in the court room) to learn the facts of the case?" wrote attorney Cindy Sewell, who declined to be interviewed for this story. "Why would one only have a partial transcript printed that misleads the public?"

Sewell pointed out that the assistant district attorney Jason Hart stood silent during the sentencing, per a plea agreement.

In May, Spencer agreed to plead guilty to aggravated indecent liberties with a 6-year-old and aggravated indecent liberties with a 7-year-old for incidents that took place in December 2007. There were no agreements about sentencing, only that the prosecution would "stand silent" at sentencing. In the agreement, it also was noted that the sentencing range was a life sentence with the possibility of parole after 25 years. The presumption was that Spencer's sentence would be served in prison and if he was paroled, he would be supervised on parole for the rest of his life.

But at sentencing, Dowd said that sending the 76-year-old Spencer to prison for a significant amount of time — as called for in sentencing guidelines — would amount to a life sentence. He instead handed down a sentence of nearly 13 years, but said he would order Spencer to serve only three years of probation.

"I think that it would not, it would not serve the end of justice to incarcerate the defendant," he said in the transcript.

According to the partial transcript of the sentencing posted on the Shawnee County District Court Web site (www.shawneecourt.org), Hart said little after Dowd departed from the sentencing guidelines. When Dowd considered how Spencer would serve his probation, he asked Hart what he thought.

"Your Honor," Hart replied, "given the departure is from an off-grid offense, I am at a loss as to give the court any direction as to community corrections or court services."


Hecht said that the 325-pound Christopher Henderson-Brown inflicted such devastating injuries on a 5-year-old girl during the course of raping her that surgery was required to reconstruct and repair physical damage.

Still, Brown's attorney feels assured that Hecht won't win on appeal of Dowd's ruling, which shaved about a year of prison time off of her client's sentence.

Sentencing guidelines in Kansas take an offender's prior record into account. Brown had two prior convictions, but they were both misdemeanor convictions — one for theft and another for furnishing alcohol to a minor, according to court documents.

With the convictions, he faced between 13 years, 10 months and 15 years, 6 months in prison. Without the convictions, guidelines called for a mid-range sentence of 12 years, 11 months, said Brown's attorney Julia Spainhour.

Spainhour said it isn't unheard of for a judge to not consider the full criminal history in sentencing. She said the age of the convictions — both about 10 years old — were another reason it made sense to depart.

"This was not an unusual departure," she said.

In announcing he would appeal last week, Hecht said a harsher sentence was justified and called for under the law.

"It is a terrible reality that we prosecute evermore sex offenses committed against children," he said in his statement last week. "This case was one of the worst — given the relationship, expectations of trust and protection, the gross disparity in size and the terrible injuries inflicted."

Spainhour, however, feels confident that Hecht won't win the sentencing appeal.

"I'm certain it will be upheld on appeal — or as certain as an attorney can be," she said.


Outside the courthouse Monday afternoon, attorneys' arguments probably would have done little to sway the protesters. There was some relief that a new law that goes into affect today could stop judges from departing as significantly as Dowd did in the Spencer case from state sentencing guidelines.

"I'm just tired of criminals getting away with crimes," said Cheri Renfro, who stood with her husband, son and daughter.

Sherry Blede said she kept thinking the same thing couldn't happen again after Cisneros — the man who raped her granddaughter was granted probation. His probation was later revoked after he violated its terms.

"Do you think I ever thought I would be standing here today," she asked. "No."

The Capital-Journal typically doesn't identify the names of sex crime victims and close family members when it makes clear the identity of the victim. However, the names of family members of Cisneros' teenage victim have been used widely in the media.

Blede said her stomach turned when she read about the newest sentences.

"It all comes back," she said. "It's never ending."

Link to story ... with video and more pics ...

CJOnline / The Topeka Capital-Journal - Judge opts to depart from trying sex cases

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