Fed Up!

After years of digging in its heels, the criminal justice system in Texas is beginning to try to fix some of its own mistakes. But the federal system remains maddeningly unresponsive. Just ask Richard LaFuente.

January 2012By Comments

Imagine that you’ve just been arrested for a murder you didn’t commit. You’re innocent, but there’s been some kind of mix-up, and the cops haul you in. You know it’s just a matter of time before they figure out their mistake. But they don’t, and before you know it, you’ve been indicted. The prosecutor offers you a deal: Confess, and we’ll go easy on you. Confess? You’re not going to confess to something you didn’t do. You go to trial, still certain the truth will come out and you’ll be vindicated. But the prosecutor tells a convincing story, and the jury decides you’re guilty. Next thing you know, you’re in prison, counting the days and then the months and then the years. You keep appealing your conviction, and eventually the prosecutors come back to you with another deal: Confess and show a little remorse, they say, and you can go home. But you can’t confess. You know you didn’t do it, and at this point, the truth is all you have. So you go back to your cell. Finally, decades later, the truth does come out, and you are freed.

Unimaginable, right? Except this is just what happened to Michael Morton, who was convicted in 1987 of killing his wife, in Georgetown, and given a life sentence. Morton steadfastly claimed his innocence, and in 2009 he was told that if he confessed and showed remorse, he could go home. He refused. Two years later, he was exonerated. The same thing happened to Anthony Graves, a Brenham man who was put on death row back in 1994. In 2008 he was offered a life sentence in return for a guilty plea. He told prosecutors, “You either free me or kill me, but I’m standing on what’s right.” In October 2010 Graves walked free.

In 1994 Richard LaFuente, from Plainview, was given the same offer. All he had to do was confess and show remorse for a murder he had been convicted of eight years before. He refused. “I can’t show remorse,” he told his attorney. “I won’t ask forgiveness for something I didn’t do.” At five subsequent parole hearings, LaFuente was given a chance to confess and show remorse. Each time he refused. And each time he was denied parole.

Like Morton and Graves, LaFuente is innocent. I’ve been convinced of this since 2006, when I spent four months reporting a story about his case. And I’m not the only one who thinks so. The murder victim’s own mother, brother, and sister have testified to parole officials that LaFuente didn’t kill their son and brother. Two federal courts ruled that LaFuente’s trial was unfair and recommended he get a new one (they were each later overruled, a turn of events one judge labeled a “gross miscarriage of justice”). The newspaper that covered the trial 26 years ago recently called the verdict “scandalous.”

The case is a complicated one, but the short version is this: In the summer of 1983, LaFuente, then just 25 years old, went with his brother-in-law, John Perez, to visit some relatives on the Devils Lake Sioux reservation (now the Spirit Lake Nation), in North Dakota (LaFuente is half Sioux, half Mexican American). While they were there, on August 28, a former policeman named Eddie Peltier was found dead on a rural highway, the apparent victim of a hit-and-run.

Two and a half years later LaFuente was arrested for Peltier’s murder. Witnesses at the rez said that on August 28 there had been a big party that led to a big fight. Four witnesses said they had seen a mob of men beat Peltier, while one said she had seen LaFuente, with assistance from Perez, run Peltier over in his souped-up El Camino. LaFuente, Perez, and nine local men went on trial for murder. Not a shred of physical evidence tied any of them to the crime, and all but one of the defendants had an alibi, but the four witnesses carried the day. All eleven men were found guilty, and the two Texans got the longest sentences: twenty years for Perez and life for LaFuente.

Soon, though, the truth began to come out. There had been no party that night and no fight. Two of the witnesses recanted and said they had been threatened by James Yankton, a Bureau of Indian Affairs cop whose large family basically ran the rez. Within four years of the verdict, nine of the defendants had their convictions thrown out because of insufficient evidence. In 1999 Perez was paroled, and only LaFuente remained in prison (by then he’d been transferred to a federal facility in Fort Worth). Thirteen years later, he’s still there.

Why have Morton and Graves found justice while LaFuente has not? It’s simple, really. The first two were convicted in Texas state courts; LaFuente is in the federal system. The Texas criminal justice system, despite its reputation for being harsh, can be quite responsive to criticism. In part, this is because it is run by elected politicians or—in the case of the Texas Board of Pardons and Paroles—political appointees who are subject to, and sometimes swayed by, public opinion. If enough attention is drawn to an injustice, something eventually gets done. After Morton’s case became front-page news, not only did district attorney John Bradley dismiss the charges, but the attorney general launched an investigation into what happened.

The federal parole system, by contrast, is a confusing, unresponsive, patched-together scheme run by bureaucrats of the U.S. Parole Commission who are accountable to no one. Technically, their jobs shouldn’t even exist. During the tough-on-crime eighties, parole was abolished, at least for inmates who committed their crimes after November 1, 1987. The Parole Commission was supposed to have been abolished too, but Congress found it necessary to keep extending its life, just to deal with all those pesky “old law” inmates like LaFuente.

These poor bastards—there are about nine hundred of them—are at the mercy of a commission that pretty much does what it wants. “The commission doesn’t even follow its own rules, let alone the statutory rules,” says Mark Varca, a former inmate who now runs FedCURE, a national organization trying to reform federal parole. Atlanta attorney Linda Sheffield, who has been representing federal convicts (including John Gotti) since 1978, says, “The hearings are meaningless. The ultimate decision is made in the commission office.” And if the inmate was convicted of murder, she adds, forget it. The commission will not bend. It’s a major problem, says Sheffield, but nobody cares, because so few inmates are actually affected.

LaFuente’s most recent hearing took place on June 8 via video conference. The examiner, Scott Kubic, who was in Washington, D.C., appeared to be wholly ignorant of the case. He didn’t know how to pronounce LaFuente’s last name, had clearly never heard of either James Yankton or John Perez (whom he called “Don Perez” in his report), and hadn’t seen a video of Peltier’s mother proclaiming LaFuente’s innocence.

“I’m not guilty of this crime,” LaFuente told him.

“If you’re not even willing to admit any involvement, I presume you have no remorse,” said Kubic. “You’re not sorry for your actions.” Once again, LaFuente refused to show fake remorse.

Kubic went over LaFuente’s spotless discipline record—not one disciplinary infraction in more than 25 years. He heard from LaFuente’s case manager, Tonya Wilson, who told of his excellent work evaluations and how he’d been on the captain’s detail since 2003, a position for only the most trustworthy inmates. Toward the end, Kubic asked, “Do you think you deserve to be paroled?” LaFuente said yes. Kubic left for a few minutes, then returned and delivered his judgment. “My recommendation is that you be continued to expiration in your case, which will result in you staying in custody until your two-thirds date.” That would be January 5, 2016.

Kubic’s “Notice of Action” used the kind of doublespeak the federal government is notorious for. “Based on the subject’s failure to acknowledge his guilt in this case and based on the severity of the crime itself, this Examiner believes to grant the subject parole now would promote disrespect for the law. One of the principals [sic] of parole is that an offender demonstrate sincere remorse and insight into why they committed the crime that they did. The subject has neither.”

“Disrespect for the law”? I found the phrase in Title 28 of the Code of Federal Regulations, which states that an inmate may be granted parole by the commission if three prerequisites are met: if he has “substantially observed the rules of the institution”; if his release would not “jeopardize the public welfare”; and if his release would also not “depreciate the seriousness of his offense or promote disrespect for the law.” Let’s see: LaFuente has followed every rule in prison for more than 25 years. As for the public welfare, LaFuente does have two previous convictions, for larceny and DWI, but both were committed before he was 21. He’s 53 now and a grandfather. He has done every single thing asked of him, except show false remorse or admit to something he didn’t do. How would releasing this man be disrespectful in any way at all?

I visited LaFuente in October, and we sat in the same small room where his two daughters and their four young children have visited him. He looked much older than he had in 2006—his hairline had receded farther and his hair was half gray—but just as he had been before, LaFuente was cheerful, even chipper. I don’t know how he does it. Each day he awakens to find himself living the nightmare of every free person in a civilized society: being wrongfully imprisoned.

“It’s so overwhelming what they’ve done to me,” he said. “But I’m not gonna let them ruin me or destroy my life any more than they already did. You don’t know how many people came up to me after they heard about the hearing and shook my hand because I didn’t show false remorse. I said, I can’t do it. I came this far, I’m not gonna give up.”

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