April 28, 2011

Fallin Quashes Henry’s Parole Rulings

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David Johns thought he was about to be a free man.

After serving 27 years in prison on a first-degree murder charge, Johns, 51, was approved for parole by Gov. Brad Henry on Jan. 9, with the stipulation that Johns successfully complete a 120-day work release program.

But about 2 1/2 months later, Johns was still at Lexington Correctional Center and hadn’t started the program.

His nephew soon called with the news—Gov. Mary Fallin had re-reviewed Johns’ parole file and decided not to grant him a parole.

“It was shocking because I don’t understand what legal authority one governor has to change what another governor has done,” Johns said. “I still have some questions about that.”

Johns is one of 38 offenders in Oklahoma prisons whose Oklahoma Pardon and Parole Board recommendation was approved by Henry but later denied by Fallin after she took office Jan. 10.

Rebecca Frazier, deputy general counsel, said Fallin and her staff have reviewed about 330 cases and have 85 cases left to review from Henry’s administration.

Fallin has approved 277 cases and denied 38 cases that Henry approved, Frazier said.

About 32 offenders who Henry had approved but Fallin denied had recent misconducts. Johns was not one of those offenders.

At least 36 of the offenders Fallin has denied for parole were offenders who Henry had placed stipulations on before they could be paroled, such as completing a GED or a vo-tech class.

Of the 85 cases left, 70 of those cases are of offenders in custody who are completing stipulations that were placed on their paroles, such as finishing a GED or vo-tech class.

Parole officials have said Fallin’s staff has 15 cases in its “miscellaneous” category because of various issues they discovered, such as an offender released while Henry was in office but whose parole certificate was never filed.

Alex Weintz, Fallin’s communications director, said he did not know a specific reason why Johns’ parole recommendation was denied but said it was worth noting the parole board approved Johns, 3-2.

How the situation with Johns and the other offenders arose stems, in part, from two administrations with differing opinions on when a parolee approved by the governor becomes official.

Terry Jenks, the pardon and parole board director, said once Henry approved a parole, he would tell the parole board it was OK to notify the Oklahoma Department of Corrections to release the offender. Over the next few days, the parole paperwork would be sent to the Secretary of State Susan Savage to be processed and filed.

Jenks said Fallin’s office has told the parole board it wants the secretary of state to certify the paroles before the Oklahoma Department of Corrections releases the offender.

Once Fallin took office, her secretary of state, Glenn Coffee, determined he could not certify the parole paperwork from Henry because by the time it reached his office, Henry was no longer governor. Henry and Coffee could not be reached for comment.

Jenks has been with the parole board for about 18 years and said he hasn’t seen a situation like this before.

During the last administration change, when Gov. Frank Keating left office, Keating didn’t finish signing all the paroles the parole board had sent over, Jenks said.

Savage said she was in her office over that weekend and in Oklahoma City on call until 12:30 the day of Fallin’s inauguration.

Savage said she did not recall when the paroles came down or if she was there when they did.

“The interpretation I had was that, when they were delivered to the secretary of state’s office, that in effect meant they had been received, so there was no reason for them not to be signed on a procedural basis,” Savage said.

Attesting to parole paperwork was one of the several routine procedural tasks Savage’s office handled, she said.

Savage said regardless of whether she was in her office, out of town or sick, there was a procedure in place for the eight years that she was in office for the staff to attest to any paperwork that needed to be processed.

“Certainly with the transition I was signing documents,” Savage said. “In fact, I checked early that morning to see whether I needed to come in and sign anything.

“Under the law, you can designate several people to sign in your absence because, again, you’re just attesting the governor’s signature. That’s the role the secretary of state in handling parole—attest to the governor’s signature and scan and file them.”

Oklahoma is the only state that requires the governor have final say on every parole recommendation submitted to him or her by the parole board.

When Henry first took office, he was reviewing paroles within 14 days, but his average time when he left office was 81 days. Henry approved at least 300 paroles the day before Fallin took office, sending them to the parole board late Sunday night.

Weintz said Fallin and her staff were not changing anything the previous administration had decided.

“Gov. Henry just didn’t finish his paroles,” Weintz said.

Fallin’s staff quoted two cases, Jones v. Sneed and Shields v. Sneed, that they say give Fallin legal grounds to deny paroles that were previously approved, primarily because the paroles weren’t sent to the secretary of state’s office before Henry left office.

Frazier said in an e-mail that the two cases refer to pardon, rather than parole, but are equally applicable.

Former state Attorney General Drew Edmondson, who was elected Muskogee County District Attorney in 1982, said he remembered the David Johns’ case.

Edmondson said he hadn’t looked over the details of the cases Fallin’s administration is using but the situation raises an interesting question.

“Assume, for instance, that Gov. Henry signed the parole in September, and the secretary of state that was in office at that time just never got around to filing it,” Edmondson said. “Would that defeat the parole? That would give the secretary of state stronger powers than the governor. It just happened that this was an 11th hour thing. What if it hadn’t been?”

Johns was previously recommended for parole in 2004 and 2007 by the parole board but was denied by Henry each time.

The board again recommended Johns in September, and Henry approved Johns for parole on Jan. 9 with the work-release stipulation, said J.D. Daniels, deputy director of the pardon and parole board.

Johns planned to enroll at Tulsa Welding School and sign up for a reentry program in Tulsa that helps offenders get back on their feet. He is at Lexington Correctional Center where he works in the mailroom.

Johns was sentenced to life in prison in 1983 along with William “Smokey” Warren, 58, for the first-degree murder of Tom Crossland from Muskogee.

Witnesses at the murder scene had differing accounts of who shot Crossland, with one witness saying she “saw a tall white man point a gun at a shorter white man,” and another witness, Roy Grayson, who was with Johns and Warren, who said Johns, a black man, shot Crossland, according to court records.

Crossland was a 68-year-old retiree who had owned the K Street Grocery store in Muskogee and lived in Muskogee since 1945, according to Muskogee Phoenix archives. The night he was killed, he had been at horse races at Blue Ribbon Downs and was carrying $2,700 when he was approached by the men, according to the Phoenix archives.

Johns said he has never met any of Crossland’s family but would apologize if he did.

“I would tell them that I’m sorry for the things that have happened,” Johns said.

Members of Crossland’s family could be reached for comment.

Warren, who also received a life sentence, was released on parole in January 2010.

Johns has had four misconducts while in prison. The last one came about 15 years ago.

In 1994, he received a misconduct for “attempting to pass a green, leafy substance to another inmate,” according to an investigative report presented to the parole board.

His other misconducts include battery of another in 1995, sexual activity in 1996 and possession of unauthorized money in 1996, according to his Department of Corrections file.

Ernest Little, a Department of Corrections psychologist, said he has spoken to Johns every work day for the past 21 years.

Little said Johns is the only offender he has gone to the parole board and supported.

“I believe in him, and I can’t say that about many,” Little said.