Wednesday, January 25, 2012

Jailhouse Rock

Federal prosecutors today (yesterday by the time you read this) released their sentencing memorandum for Colton Harris-Moore’s upcoming hearing. Interesting reading… both the memo itself, as well as what the feds have had on their reading list, which included possibly more than 1,000 pages of emails and phone transcripts of communications Colt has had while in federal custody.

Prisoners and the people they communicate with are informed that they should have no expectations of privacy in any letters, emails or phone conversations between inmates and the outside world. Those in custody are often especially careful about what they say prior to their trials or sentencing because that’s when prosecutors pay particular attention, hoping to find useable nuggets.

Going through Colt’s transcripts, the feds found passages that they’re using to counter part of Colt’s defense presentation. They say these statements, when seen side-by-side with Colt’s letter to WA State Superior Court Judge Vicki Churchill, cast doubt on the idea that Colt feels remorse and accepts responsibility for his actions. For example...     

Colt wrote to the judge:
“Your Honor, the term of my sentence which you hand down, I will serve with humility. I was wrong and I made mistakes beyond what words can express.”

Then from an email Colt wrote two weeks after Judge Churchill gave Colt the lowest sentence possible within the standard sentencing range:
 “So the citizens (and sheriffs) are appeased, justice is served. It’s all political. I’m thankful for the judge saying what she did, but at the same time her words were greater than her actions - she had the ability as invested in her by the people to create change, and the opportunity to stand up with compassion, but didn’t reach that potential.”

The feds quoted a portion of Colt's letter to the judge regarding his aircraft thefts, and “glamorizing” his crimes:
 “I will continue to write and correspond with the individuals who have been inspired by my story . . . not to view me as a role model or what the media has created, but instead to learn form my mistakes and follow their own dreams . . . I hope that nothing I have said [in this letter] is misconstrued - though I described in detail my first flying experience, in no way whatsoever am I ‘glamorizing’ that event or anything else I have done.”

Then they show part of an email Colt sent in August 2011:
“[T]he things I have done as far as flying and airplanes goes, is amazing. Nobody on this planet have done what I have, except for the Wright brothers.”

Colt’s attitude toward the police was spelled out in his letter to the judge:
“I would also like to extend my apologies to . . . the Island County and San Juan County Sheriffs Office, who I know were only doing their jobs.”

And here’s Colt talking to his mom a week before his state sentencing hearing:
“the more people I have from my camp the better, because that’s just one less seat that will be filled by the media vermin or the swine, the king swine himself, [Island County sheriff] Mark Brown.”

In Colt’s defense memo for Friday's federal sentencing, his attorneys mention his fetal alcohol spectrum disorders, “poor impulse control” and “defective judgement,” as factors in his 27-month crime spree. They’re now saying that those same things, plus his youth, contributed what he’s said in these emails and phone conversations. The most important thing, according to Colt’s attorney Emma Scanlon, is that although Colt may be mad at the sheriff of Island County and the state prosecutors, while digging through his communications, the US Attorneys “…seem to have been unable to find an email that shows a lack of remorse towards his victims.”

As it stands, the US Attorney is asking for a sentence of 78 months to run consecutive with the state sentence Colt skipped out on back in 2008, but concurrent with the new Washington State sentence imposed last month. This  means the federal sentence would start when Colt turns 21 in March, just like his state sentence. In addition, the US is asking for the maximum three-year term of probation once Colt is finished his federal sentence.

Colt’s attorneys are arguing that his sentence should be 70 months.

The press reported heavily and sympathetically on Colt when the mitigation package recounting his childhood was released just prior to his state sentencing. With the release of this memo from the prosecutors’ side prior to his federal sentencing, headlines from the “media vermin” have so far had a decidedly less sympathetic take, with each article illustrated by photos of Colt smiling or looking shifty in court:

The Whidbey News-Times from Island County, WA: “Insults show Barefoot Bandit as two-faced as sentencing nears”

LA Times: “Barefoot Bandit calls authorities ‘fools’ and ‘swine.’”

Daily Mail: “Barefoot Bandit… brags about his crime spree from prison, labeling authorities as ‘fools’”

In a case that's gotten so much media attention, attempting to use Colt's own words against him was a smart tactic by the US Attorney's office. Colt's boasts and insults are going to be what gets the most attention during this round, and part of this is indeed a PR battle, with the authorities trying to counter the public image of Colt as a sympathetic or even heroic figure. But I'm not sure these things will do much real damage to him in court. As far as we know, Colt did not say anything imprudent about his victims, only the cops, prosecutors, and the press--all frequent targets. Judge Jones has a lot of discretion with the sentencing even with a plea deal in place, but it'd be a huge leap for him to go beyond the 78 month upper range or to make the federal sentence consecutive on top of the state sentence. 

Outside of court, those who have always rooted for Colt as an anti-authority hero will eat up this latest twist, while those who've always thought he was a punk will find his attitude reinforces their view. Others may say these sound like the headstrong things a 20 year old would say. 

What do you think? 


  1. I agree with you, Bob; it won't do much damage to him in court. His judge is in an intelligent man. And absolutely NOTHING in these emails contradicts anything he has written in his Letter of responsibility regarding his remorse, his desire to change his life, and the likelihood of his rehabilitation. It is also very telling that the prosecutors were unable to find a SINGLE line where Colton expressed anything else but remorse towards his victims. You know they would have jumped on it.

    Here's my take on it, for what it's worth: When you're awaiting sentencing in prison, where shame and humiliation is the name of the game, you have to hang on with all your might to your self-esteem, and hide your vulnerability as much as possible...until the lights turn off. When the stress keeps growing every day, private correspondence to friends is a space where one, in theory, should be able to vent frustrations, express all kinds of opinions, be mad, sad, happy or silly. These excerpts from his emails were certainly handpicked beyond belief. By his own account, Nov-Dec 2011 was the most difficult and most stressful time of his whole life, and unsurprisingly, almost all of these email quotes are from that time.

    I am a polite, generally law-abiding citizen, and I've used terms that are way, way more insulting than Colton's "swine" and "vermin" to describe the cops and media in my private conversations with friends. What do you expect him to say? "The police has hounded me for pretty much my whole life. I think the police is... unkind." "The media slanders me any chance they get, post extremely private reports and documents about me. The media is... not very nice." Also, how can anyone read a line that essentially says, "I have no equal, save perhaps for the Wright Brothers!" and be unable to see the playfulness, the deadpan sense of humor, the possible inside-joke? Also, sometimes, boasting can be soothing; a defense mechanism to hide your pain. He's 20 years old, FFS.

    I have no doubt that his supporters will keep supporting him, and his detractors will keep spitting venom. These "damning evidences" won't change anything to anything.


  2. He had email in prison? ...still trying to figure out how he even got internet access in the first place!

  3. Yep, federal prisoners have access to an email system (G-Man Gmail?). Most state prisoners do, as well. These are controlled systems that, as everyone now knows, are not private. They are also invitation-only.

  4. Hi Bob,

    I've been piecing together, through the handy-dandy internet, what happened in Colton's federal sentencing hearing yesterday so now I have a couple questions for you, our resident expert.

    You've informed us in previous posts that the State of Washington permits as much as 30% reduction in sentence for good behavior. Since Colton will be serving his concurrent federal sentence in a Washington State facility, can the 30% also apply to his federal time? Or do potentially less lenient federal guidelines still apply to his 6 1/2 US years?

    I also read, but only in one article, that Judge Jones is allowing Colt's time served already in SeaTac to count toward his federal sentence. Do you know if that's accurate? If it is, then my calculations suggest that by the time Colt gets to Washington prison he'll actually only have about 4 3/4 years left on his federal time, which would be fairly close to the approximately 4 1/2 years of Washington time he'd have to serve if he takes advantage of the state's time- off-for-good-behavior policy.

    I also saw somewhere that there will be yet another hearing to determine a final total of the restitution payment Colton will be assessed. Do you know anything about that and how that whole process works?

    I was interested to hear that Colton, for the first time, spoke (and at some length) in court yesterday...that his mom was there, also for the first time. I can't help but think how nerve-wracking that must have been for him. The stress was probably relieved a bit by not having cameras in the courtroom (it looked like the cameras in Coupeville caused him almost physical pain), but still it must have been an extraordinarily difficult day for the kid. I wonder if speaking yesterday was his idea or a suggestion from his lawyers.

    Finally, one last question. I've heard about a fund being established to help pay for some of Colton's counseling expenses over the next few years. In fact, you might have mentioned that a few posts ago--I'm losing track. Can you tell us anything more about what services he may be able to get through the state Department of Corrections, and what he may be allowed to get outside of the system while he's in jail?

    As always, thank you for being a great source of reliable factual information about Colton, and an equally valuable source of reasoned, rational opinions.


  5. We’re getting into legal high calculus at this point.

    Washington State allows up to 40% credit for “good behavior.” But then we have the 7 federal crimes, and mix in all the “truth in sentencing” legislation, which, however, usually applies only to certain crimes. My calculations including both state and federal time, have had Colt walking out of state prison free, on probation, around his 26th birthday.

    John Henry Browne said yesterday, though, that he estimates that if Colt behaves himself, he’ll be out in 4.5 years when he’ll be about 25 and a half. John Henry is a top flight defense attorney (and plays one on TV) so I have to believe he’s got this figured out.

    The feds have said the total time is up to the Bureau of Corrections, but I believe what they’re saying is that you don’t count your “good behavior” chickens until they’ve hatched and spent their time in the pen following the rules and not getting into any more trouble.

    There will be one more hearing for the judge to fix the restitution amount. There have been a lot of figures on that front as well. In the federal plea, Colt took responsibility for $1.4 million in costs and agreed to pay back just under $1million. The state added around $292,000, for a total of $1.3. The court system is nothing is not deliberate, though, so apparently the federal judge needs to delve into the payback plan one more time.

    Yes, there is a fund set up for Colt. I’ll be discussing that in a later post. Briefly: the fund was set up to pay for a special program of therapy designed to help Colt with what the forensic psychologist, Dr Richard Adler, diagnoses as PTSD as well as the persistent effects of Fetal Alcohol Spectrum Disorder.