Judge in 'dumpster baby' case writes letter to jurors
By Kat Russell, Reporter
The Paducah Sun
December 3, 2016
http://www.paducahsun.com/news/local/judge-in-dumpster-baby-trial-writes-letter-to-jurors/article_1f1ba1f8-5b14-11e7-b1bf-10604b9f0f42.html
McCracken Circuit Judge Craig Clymer wrote a letter to jurors who decided the Trevon Elmore and Casside Cherry trial this week, responding to criticisms and thanking the jury for its service.
After a three-day trial, Elmore, 18, and Cherry, 16, were convicted Wednesday of first-degree wanton endangerment, third-degree criminal abuse and tampering with physical evidence. The jury recommended a sentence of 18 months for Elmore, and Cherry, a minor, will be sentenced in February through the juvenile system.
The teens were originally charged with attempted murder, first-degree criminal abuse and tampering with physical evidence after they left their newborn baby girl in a dumpster near Fernwood Apartments on Berger Road in July 2015.
Criticism regarding the trial's outcome stems from a plea agreement reached about two weeks before trial that would have resulted in Elmore and Cherry pleading to first-degree criminal abuse and tampering with physical evidence. Clymer rejected the deal, taking issue with its recommendation to dismiss the attempted murder charges.
Following trial, Commonwealth Attorney Carrie Ovey-Wiggins said "the punishment did not fit the crime," and in this outcome, the "system did not work."
A copy of Clymer's letter was sent to The Sun on Friday and reads as follows:
"As the presiding judge in the Trevon Elmore and Casside Cherry trial, I feel compelled to write to you and the other jurors to address some criticism of the outcome of the trial.
"As you may now know, I rejected a plea agreement in this case in which Elmore and Cherry wished to plead guilty to eight years (Elmore) and seven years (Cherry) in exchange for dismissal of the attempted murder charges on each. I believed it was not appropriate to dismiss that charge, given the allegation that they had discarded their newborn in a dumpster.
"I knew none of the underlying facts, just that the charge was extremely serious. Because I rejected the plea agreement, I forced the parties to trial. At trial, we (the court, the parties, and the community) would all learn the facts.
"The jury found both defendants not guilty of the attempted murder charge and sentenced Elmore to eighteen months incarceration. Cherry's sentence as a juvenile will be determined later.
"The criticism has been that, had I accepted the plea the trial would have been avoided and the defendants would have been sentenced to a much more severe punishment; the more severe punishment was the appropriate punishment; and as a result, the system did not work. I am writing you to explain why I disagree.
"The criminal justice system is designed to determine guilt or innocence, and if guilt, impose an appropriate sentence. There is no better method than a jury trial to determine guilt or innocence, and if guilt, the appropriate sentence.
"The starting point for plea negotiations is the parties making their best guess as to whether a jury would likely find a defendant guilty, and if so, what penalty the jury would likely impose. It is essential to understand that it is the likely jury verdict that is the benchmark, the starting point in bargaining a case.
"Here, the jury found the defendants guilty of the charges to which they had previously desired to plead guilty. But the jury imposed a penalty of 18 months, rather than the eight years to which Mr. Elmore agreed.
"For three days you heard all of the evidence and all of the arguments. You deliberated for more than six hours. Finally, at near midnight on the third day all 12 jurors had agreed that both defendants were not guilty of the attempted murder charge and imposed a penalty of 1.5 years for Mr. Elmore.
"So in hindsight, we see that, in the plea-bargain process, the attorneys accurately identified the crimes of which the defendants would be convicted, but greatly overestimated the penalty the jury would impose.
"Volumes could be written, but I will briefly address why criticism of the lower penalty is inappropriate.
"The criminal justice system is based on the accepted premise that a trial by jury is a fundamental Constitutional right. That is so because it is well-established that a trial by jury is the ultimate procedure to determine guilt or innocence. The trial requires a great deal of time in preparation and presentation. But the facts are revealed and 12 citizens decide the case, all agreeing.
"Plea negotiation is an expedited, short-hand version of the system; created out of necessity because there are more criminal cases than there is time to take them to trial. It is guesswork, based on limited knowledge. It is an attempt to estimate what the outcome would be at trial, without having to go to trial.
"Because the trial is the ultimate determiner of the truth, it is not logical to say that the estimate of the result of a trial (the plea bargain) is the better outcome than the verdict at trial. An analogy would be, in a race, relying on a runner's estimate of the time he would finish the race rather than timing him running the race.
"Had Mr. Elmore pleaded to the far greater penalty (eight years) that he bargained for, he would have pleaded to over five times the jury verdict. And none of us would ever know.
"We took three long days out of your lives. You sat intently throughout all the evidence. You weighed the evidence among the 12 of you and you all agreed as to the outcome.
"Some will question the outcome of this case, as some do in all cases. But you knew everything there could be known about the case and you discussed it extensively among the 12 of you. No others did so.
"You did your job. We respect your decision. You can be proud that you served your community. You need not concern yourselves with criticism.
"The system worked because of you. Thank you so much for your service."
After a three-day trial, Elmore, 18, and Cherry, 16, were convicted Wednesday of first-degree wanton endangerment, third-degree criminal abuse and tampering with physical evidence. The jury recommended a sentence of 18 months for Elmore, and Cherry, a minor, will be sentenced in February through the juvenile system.
The teens were originally charged with attempted murder, first-degree criminal abuse and tampering with physical evidence after they left their newborn baby girl in a dumpster near Fernwood Apartments on Berger Road in July 2015.
Criticism regarding the trial's outcome stems from a plea agreement reached about two weeks before trial that would have resulted in Elmore and Cherry pleading to first-degree criminal abuse and tampering with physical evidence. Clymer rejected the deal, taking issue with its recommendation to dismiss the attempted murder charges.
Following trial, Commonwealth Attorney Carrie Ovey-Wiggins said "the punishment did not fit the crime," and in this outcome, the "system did not work."
A copy of Clymer's letter was sent to The Sun on Friday and reads as follows:
"As the presiding judge in the Trevon Elmore and Casside Cherry trial, I feel compelled to write to you and the other jurors to address some criticism of the outcome of the trial.
"As you may now know, I rejected a plea agreement in this case in which Elmore and Cherry wished to plead guilty to eight years (Elmore) and seven years (Cherry) in exchange for dismissal of the attempted murder charges on each. I believed it was not appropriate to dismiss that charge, given the allegation that they had discarded their newborn in a dumpster.
"I knew none of the underlying facts, just that the charge was extremely serious. Because I rejected the plea agreement, I forced the parties to trial. At trial, we (the court, the parties, and the community) would all learn the facts.
"The jury found both defendants not guilty of the attempted murder charge and sentenced Elmore to eighteen months incarceration. Cherry's sentence as a juvenile will be determined later.
"The criticism has been that, had I accepted the plea the trial would have been avoided and the defendants would have been sentenced to a much more severe punishment; the more severe punishment was the appropriate punishment; and as a result, the system did not work. I am writing you to explain why I disagree.
"The criminal justice system is designed to determine guilt or innocence, and if guilt, impose an appropriate sentence. There is no better method than a jury trial to determine guilt or innocence, and if guilt, the appropriate sentence.
"The starting point for plea negotiations is the parties making their best guess as to whether a jury would likely find a defendant guilty, and if so, what penalty the jury would likely impose. It is essential to understand that it is the likely jury verdict that is the benchmark, the starting point in bargaining a case.
"Here, the jury found the defendants guilty of the charges to which they had previously desired to plead guilty. But the jury imposed a penalty of 18 months, rather than the eight years to which Mr. Elmore agreed.
"For three days you heard all of the evidence and all of the arguments. You deliberated for more than six hours. Finally, at near midnight on the third day all 12 jurors had agreed that both defendants were not guilty of the attempted murder charge and imposed a penalty of 1.5 years for Mr. Elmore.
"So in hindsight, we see that, in the plea-bargain process, the attorneys accurately identified the crimes of which the defendants would be convicted, but greatly overestimated the penalty the jury would impose.
"Volumes could be written, but I will briefly address why criticism of the lower penalty is inappropriate.
"The criminal justice system is based on the accepted premise that a trial by jury is a fundamental Constitutional right. That is so because it is well-established that a trial by jury is the ultimate procedure to determine guilt or innocence. The trial requires a great deal of time in preparation and presentation. But the facts are revealed and 12 citizens decide the case, all agreeing.
"Plea negotiation is an expedited, short-hand version of the system; created out of necessity because there are more criminal cases than there is time to take them to trial. It is guesswork, based on limited knowledge. It is an attempt to estimate what the outcome would be at trial, without having to go to trial.
"Because the trial is the ultimate determiner of the truth, it is not logical to say that the estimate of the result of a trial (the plea bargain) is the better outcome than the verdict at trial. An analogy would be, in a race, relying on a runner's estimate of the time he would finish the race rather than timing him running the race.
"Had Mr. Elmore pleaded to the far greater penalty (eight years) that he bargained for, he would have pleaded to over five times the jury verdict. And none of us would ever know.
"We took three long days out of your lives. You sat intently throughout all the evidence. You weighed the evidence among the 12 of you and you all agreed as to the outcome.
"Some will question the outcome of this case, as some do in all cases. But you knew everything there could be known about the case and you discussed it extensively among the 12 of you. No others did so.
"You did your job. We respect your decision. You can be proud that you served your community. You need not concern yourselves with criticism.
"The system worked because of you. Thank you so much for your service."
