December 10, 2014 at 4:35 p.m.
England asks court to void sentence
England asks court to void sentence
The action comes as England remains confined in the Oneida County jail and faces several years of probation.
In January, England entered guilty pleas to two counts of misconduct in public office for taking human tissue and other body parts of deceased persons without permission. She used the remains to train her dog to search for corpses and for a law enforcement exercise.
While England and the prosecution had struck a plea deal proposing just 10 days in jail and three years of probation - and dismissing several other felony counts - the judge in the case imposed a longer jail term.
Now, England is challenging the propriety of that plea deal. In documents set to be filed, including a motion to vacate her sentence, England claims Forest County District Attorney Charles Simono, who served as special prosecutor, misrepresented how victims' families felt about the plea agreement.
England's attorney, Joel Hirschhorn, claims Simono violated the terms of the plea agreement by "explicitly encouraging" family members of deceased victims to be openly critical of the deal.
Hirschhorn points to what he describes as newly discovered evidence - a deposition given by a member of a family of a deceased person whom England is alleged to have taken tissue from. The deposition occurred in September as part of a civillawsuit the family filed against England and Oneida County.
In the deposition, one of the plaintiffs, Walter Olejnik, claimed his family and other families of deceased victims "disapproved" of the plea agreement, and he testified that Simono told the families they could criticize the prosecution when making comments to the court in the sentencing phase of England's case.
According to a transcript of the deposition, Olejnik said Simono told the families they could "throw him under the bus, so to speak."
An attorney for the county's insurance company then asked, "You could throw who under the bus?"
Olejnik responded: "The special prosecutor, because we have the right to say - voice our dismay at the trial - or at the sentencing[.]"
In the motion, Hirschhorn claimed Simono had assured England that while the victims' families were "not happy" with the plea agreement, they would "go along with" it and were "fine" with it. Indeed, at England's sentencing hearing, in February, Simono said the families had unanimously agreed to the plea deal and wanted it accepted.
But in testimony at the sentencing hearing, those same family members expressed a desire for a harsher penalty.
Forest County Circuit Judge Leon Stenz then decided to stray from the plea deal. Calling the recommended 10-day jail sentence "woefully inadequate," Stenz increased the jail term to one year.
Though judges have such authority, Hirschhorn argues Stenz rejected the plea agreement because of the "emotional and highly charged written statements and oral testimony of the relatives of the deceased victims in this case and the two dismissed cases, vehemently expressing disapproval of the parties' negotiated plea."
Hirschhorn argues that Simono promised to recommend the 10-day jail sentence, and while he made that recommendation at the sentencing hearing, the promise was actually broken.
According to Hirschhorn, Simono violated the plea deal and joint sentencing recommendation, "by, on the one hand, assuring the defendant and her attorney he had agreed to recommend a period of incarceration of 10 days, and, on the other hand, undermining the very same plea agreement by instructing families of the deceased victims that they could 'throw him [Simono] under the bus.'"
In other words, Hirschhorn contends, Simono concocted "a classic 'bait and switch,'" and consequently, England is entitled to have her sentence vacated.
"The district attorney's disingenuous conduct cannot and should not be sanctioned by this court," Hirschhorn wrote. "Vacating the plea and sentence and permitting the defendant to plead anew and proceed accordingly is mandated. It is one thing to be outsmarted, out strategized, out maneuvered, within the confines of our noble profession. It is quite another to be conned by a huckster or tricked in a prosecutor-sponsored 'Shell Game.'"
In an interview, Simono said he had not yet read Hirschhorn's motion to vacate England's sentence, but he denied any wrongdoing. Simono said he anticipated filing a formal response in the coming weeks.
Simono noted that state law gives crime victims the right to be heard at a sentencing hearing.
After Simono files a formal response, oral arguments will likely be heard before a judge renders a decision.
The civil suit against England and Oneida County remains unresolved. England is scheduled to answer questions at a deposition in January.
Jonathan Anderson may be reached at [email protected].
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