The Case for Clemency

By William DiMascio

It was, indeed, a thing of beauty -- though not for all the obvious reasons - a clash between a nuanced and compassionate public and the absolutist titans of justice who almost never view punishment as excessive.

Six elderly, hobbled and unsophisticated men and women were arrayed in the well of the Commonwealth's highest courtroom beneath a magnificent, stained-glass dome that signified the supremacy of the decisions reached there.  Before and above this simple band of common citizens, in the almost throne-like, elevated seats reserved for Pennsylvania's Supreme Court justices, sat the five scrubbed, shorn and well dressed members of the state's Board of Pardons - men and women of significant academic, professional and political accomplishment.  

These unevenly matched groups came face to face at a rare public hearing where the Board would decide if it should recommend to the governor that clemency be granted to a prisoner who was convicted of first-degree murder in 1970 when he was barely 15 years of age. 

At stake were sharp edged issues such as these: 

·      Should adolescents be held to the same standards of criminal culpability as adults?

·      Should the state ever show mercy to a prisoner based on his or her conduct while incarcerated?

·      How much influence should victims or their survivors have in determining punishments?

·      Should prosecutors be so blinded by their commitment to a sound-bite philosophy of life-means-life that they lose sight of the need for equity and compassion in justice?

And, more deeply, this incident highlights another concern about the criminal justice system in America where millionaires can win courtroom absolution for their most savage acts while the state applies its fullest force and fury against lonesome, confused and impoverished children.

All these issues surfaced in the case of Jackie Lee Thompson, which began in western Tioga County, north of Pennsylvania's largest concentration of forest and game lands, along the New York State border. Jackie was born in Blossburg in 1954, the eleventh of 14 children whose mother died in 1965.  His father, George, was a trucker and had difficulty keeping the family together and making ends meet financially.  Eventually, Jackie and the other younger children were split up in foster care arrangements.

After a succession of foster homes, including one he ran away from four times in six weeks, Jackie was placed in the home of Wesley Whipple and family in the tiny village of Gaines, nestled between the steep, wooded mountains that form Pennsylvania's Grand Canyon.  There were only a handful of kids in the village and they tended to stick up for one another.  Jackie, who had not had anyone he considered a "protector" since his mother died, became a close friend of Dennis Ellis who was the same age and also lived in Gaines.  In 1969, Jackie was 5-foot-6 and weighed 114 pounds; Dennis was 6-foot-3 and weighed 205 pounds.  When the kids at school teased Jackie because he was in special education class, Dennis stepped in to protect him.  The two boys spent a lot of time together, talking about girls and playing cowboys and Indians with live rounds of .22 caliber ammunition.

Jackie also established himself with others in the rural community as "an honest boy" and "a good little kid."  For the first time, he began to feel comfortable in a foster home:  he liked the Whipples and did not want to risk having to move again.  That winter, the court gave the Whipples another 15-year-old foster child, Charlotte Goodwin.  Soon after her arrival, Charlotte and Jackie began having sex.

 The night before New Year's Eve, 1969, Jackie and Charlotte and Dennis and another local girl, Viola Hoppe, had a party in a vacant trailer.  They smoked cigarettes, drank beer and had sex, and, Jackie recalls, the girls told him and Dennis they were pregnant.  Charlotte wanted Jackie to run away with her to New Mexico. Jackie appeared to be furious but now thinks he was afraid he might lose what little he had.  He says, "When you're a kid and scared, it comes out as anger."

The following morning, Jackie and Dennis went to the woods to hunt rabbits. Eight to ten inches of new snow covered the ground.  Nearby, Pine Creek, normally some 35 feet wide at that point, was reduce to about 20 feet of open water; a 15-foot shelf of ice extended out from the north bank.  The boys soon noticed that Charlotte and Viola were following them.  In the course of their encounter, Charlotte told Jackie again that she was three months pregnant and that he was the father.  At the time, Charlotte had only been at the Whipples for one month.

Jackie again felt confused, threatened and angry.  He was carrying Dennis' 12-gauge shotgun.  In his clemency application, Jackie wrote: "During this conversation my anger broke loose and I shot Charlotte Goodwin.  After the shooting I don't think I realized what I had done.  I was so scared and afraid."

At his interview with the Pardons Board the day before the public hearing, Jackie was peppered with questions about the crime for which he had been convicted more than three decades earlier.  He said he fired the pump action shotgun three times and would have continued but ran out of ammunition. 

 

In a statement to police at the time of the arrest, however, Jackie reportedly said:  "I must have shot her the first time, because I had the gun in my hand.  I don't remember aiming it.  When the first shot went off and I saw her go down, my mind just went blank and when I came back, she was still laying on the ground." 

Testimony from the pathologist at the trial seemed to substantiate that the shots were not aimed to kill.  The doctor said Charlotte was shot at close range, "within a few feet," yet the 12-gauge scattergun caused no damage to any vital organs.

According to Jackie's account, Charlotte lay motionless on the ice and did not respond to Viola's attempts to talk to her.  Dennis told them to put the body in the partially frozen creek and said he would find a rock to weight it down.  Jackie and Viola dragged the body twenty feet toward Pine Creek.  The ice broke and Jackie fell into the waist-high water along with Charlotte.  Dennis laid a stone on top of the facedown body and it submerged a bit but the rock fell off.  Then they pushed the body under the ice cover.

In testimony at the trial, Dennis confirmed most of Jackie's account but denied saying anything about putting the body in the creek, getting a rock or pushing the body under the ice.  On the advice of counsel, Viola refused to answer any questions, invoking her right of protection against self-incrimination.  In the end, no charges were pursued against Dennis Ellis.  Viola was adjudicated as a juvenile and held until June 1973, presumably when she turned 18.

The police were onto the case within hours, tipped by a call from Kenneth Ellis who got the story from his son soon after Dennis returned home in his wet clothes.  State troopers arrived at Gaines, met up with the sheriff and district attorney and proceeded to the Ellis home to interview Dennis before heading to the scene of the shooting.  A short time later, they went to the creek where the Galeton Fire Company recovered Charlotte's body. 

Two weeks later at the office of the public defender but with no parent or family member present, Jackie gave the state police a statement detailing his role in the incident.  An arraignment and indictment followed.  Despite the confession, Jackie originally entered a plea of not guilty.  He recalls his lawyer telling him he was too young to get the death penalty.  Days later, however, the attorney advised changing the plea so the court would go easier on him.  Eventually, Jackie entered a plea of guilty to a general charge of homicide, which is the equivalent of second-degree murder. 

Then, the Wellsboro Gazette reported, for the first and only time in Tioga County, the president judge, the late Charles G. Webb, petitioned the state Supreme Court to name a three-judge panel to sit en banc for a hearing to determine the actual degree of guilt.  The high court complied by naming to the panel Judges Evan S. Williams of Bradford County and Otto P. Robinson of Scranton, in addition to Webb.  

Charlotte's death was big news throughout the county.  Nevertheless, few people were aware of the hearing, and the courtroom was virtually empty except for the principals, according to a reporter who covered the story.

Given the focus on close range shotgun blasts in this incident, the testimony of pathologist Merle G. Colvin was jolting.  After describing in great detail the wounds to Charlotte's arm, leg and torso, Dr. Colvin said there was not enough bleeding, organ damage or shock to cause death.  Instead, he said, she died from drowning.  The medical examination also showed that Charlotte was not pregnant.

Sixteen days after the trial, Judge Webb, announced that the three judges found Jackie guilty of first-degree murder and that the penalty for this crime was fixed by law as "imprisonment for life."  Then the judge added:

"I might say this to you, Jackie.  You will always have hope in a thing of this kind.  We have found that in the past, quite frequently, if you behave yourself there is a good chance that you will learn a trade and you will be paroled after a few years.  That depends on you and how you behave yourself down there."

Judge Webb misspoke by failing to mention that all life-sentenced prisoners - children and adults, shooters and accomplices, drowners and those who help put bodies in the water and keep them submerged -- are precluded by Pennsylvania law from parole consideration unless they first receive a commutation from the governor.

In a written Opinion and Order issued by the court at the same time, Judge Webb did refer to the clemency process.  He wrote commending the public defender for "saving the life of his client, and creating a climate which will be favorable to commutation of his sentence after suitable imprisonment for the crime has been served."

But, that was 1970, a time when commutations were much more readily granted and lifers were serving and average of 17 years.  Raymond Shafer, a Republican governor who served from 1967 to 1971, granted clemency to 95 lifers.  He was followed by Milton J. Shapp, a Democrat, who was governor for eight years and extended clemency to 251 life-sentenced prisoners.  Successive governors were far less lenient, however.  Richard Thornburgh commuted just 7 lifers; Robert P. Casey, 27; Tom Ridge, zero; and Mark Schweiker, 1.  

In 1994, Ridge was a little known congressman from Erie running a lackluster campaign for governor against the sitting lieutenant governor, Mark Singel.  Then a commuted lifer, named Reginald McFadden, was involved in a high-profile rape and murder in New York.  Singel chaired the Pardons Board that recommended McFadden's commutation to Governor Casey.  Using McFadden as a campaign mantra, Ridge quickly turned the governor's race into a tough-on-crime contest and won handily.

In buffing his image as a law and order official, Ridge convened a special legislative session to toughen the state's anti-crime laws, and he spearheaded a referendum to change the rules for commutations.  Among those changes was a requirement that clemency applications from life or death sentences had to have the unanimous endorsement of the five-member Pardons Board before they could be considered by the governor.  Given the political realities facing two of the five Board members who are elected officials as well as the inclinations of appointees such as the victims advocate, these changes virtually shut the door to clemency releases.

Beyond the new law, the Ridge administration made it clear that commutations would be granted only in the rare case where innocence could be proven.  That position seemed to fly in the face of the very concept of clemency, which many view as a reward for good behavior and recognition of personal rehabilitation or transformation.  Nevertheless, there was no way of forcing the governor to use this centuries-old authority, and lifers stopped applying during those years.

Jackie Lee Thompson is now 50 years old and has spent twice as many of his years in prison as he spent on the outside.  And, while he was not thought to be much of an achiever in his early years, he has put together an impressive record of development and good conduct during his incarceration.   So much so, in fact, that the Department of Corrections endorsed his appeal for clemency.  Moreover, a retired DOC employee who supervised Jackie on work details, Kenneth Chubb, told the Pardons Board that he would personally provide free room and board at his home for Jackie for as long as it might take for him to get established on the outside. 

Chubb, who was facilities maintenance manager at SCI Camp Hill, testified at Jackie's clemency hearing and said that his son was a plumbing contractor who would employ Thompson if he were released.  Chubb had written the Board earlier to describe Jackie's proficiency handling heavy construction equipment, and operating and repairing large coal-fired boilers and water treatment facilities. 

Chubb's endorsement of Jackie was so glowing, in fact, that it seemed to shock Barbara Walrath, an assistant superintendent at the Delaware County prison and the Board's corrections expert.  She appeared stunned by the strength of the relationship that had developed between the prisoner and the staff member, but Chubb, who was one of several prison employees to recommend Jackie, was unabashed by her questioning.

In addition to construction skills, Jackie also obtained a General Equivalency Diploma and an Associate Degree in Business Management, and he has assisted instructors and taught basic and advanced computer classes in the prison school.  Educational opportunities in prisons are limited at best, but many inmates take advantage of what is available.  So, Jackie's accomplishments in learning are not unique, but his psychological development is worth more than a passing mention.

A psychologist and a psychiatrist testified at Jackie's trial in 1970.  Both labeled him a sociopath - someone who acts on the basis of his own benefit with no regard to the consequences on others.   Psychiatrist Thomas R. Downey told the court:  "He shows very little in terms of true conscience.  In other words, he is extremely adapted knowing what is expected of him by other people, but he does not internally feel and share their values.  He shows very little remorse or concern of a true nature . . . an anti-social act would bring realistic grief, grief about getting caught, not about having harmed, let's say, another human being."

Dr. Downey said that sociopathic behavior typically surfaces by age 12 and reaches its peak during adolescence and early 20s with improvements generally following in the 30s and 40s.

In the years since Jackie's trial, neuroscientists have made significant strides in understanding how the human brain develops and grows.  With the help of magnetic resonance imaging (MRI) scientists have been able to track the actual functioning of different parts of the brain.  One significant finding by researchers at the National Institute of Mental Health, as well as some of the top universities in the United States and Canada, has to do with the development of the prefrontal cortex, the area that sits just behind the forehead and has been called "the area of sober second thought."  This area influences individuals ability to reason, control impulses and make judgments.  It is an area of the brain that in the case of most people is in a formative stage of maturity at 15 and is not fully developed usually until the person reaches early adulthood in his or her early to mid 20s.

One study published by the Society for Research in Child Development in 2003 in the Social Policy Report suggests that immaturity should be considered when determining if youths should be tried in adult criminal courts.  The study concluded:

"The doctrine regulating competence in court has focused on adult criminal defendants impaired by mental illness and mental retardation.  Yet basic research on cognitive and psychosocial development suggests that in some youths will manifest deficits in legally-relevant abilities similar to deficits seen in adults with mental disabilities, but for reasons of immaturity rather than mental disorder."

Ruben C. Gur, professor of psychology and director of the Brain Behavior Laboratory at the University of Pennsylvania School of Medicine, has testified in criminal proceedings that brain scan techniques demonstrate the scientific grounding for mental health professionals' observations that individuals under 18 should be considered less morally blameworthy.  In The Pennsylvania Gazette, Dr. Gur wrote: 

"The cortical regions that are last to mature, particularly those in the prefrontal areas, are involved in behavioral facets germane to many aspects of criminal culpability.  Perhaps most relevant is the involvement of these brain regions in the control of aggression and other impulses . . . therefore, from the perspective of neural development, someone under 20 should be considered to have an underdeveloped brain."

John R. Wilcox was sheriff of Tioga County when Jackie was arrested.  In a highly unusual letter to the Pardons Board from a law enforcement officer, he urged that Jackie be recommended for commutation. He mentioned that Jackie came from a broken home and had "little guidance or continuity in his life."  He added:  "He never had a reasonable childhood, no one to provide direction and advice.  The few friends he had spoke against him during the legal process in an effort to endear themselves to the district attorney who was prosecuting the case."

The district attorney who prosecuted Jackie in 1970, Robert M. Kemp, left office years ago and moved away from Tioga County.  The current district attorney, John Cowley, appeared at the Pardons Board hearing as the only party to object to Jackie's plea for clemency.   Cowley said he was there to answer any questions that might be in the minds of the members about the facts of the case.  And, he added later, he wanted to refute the assertion by one of Jackie's support groups that the shooting was accidental.

"It is a legitimate question about whether he should spend the rest of his life in prison because of his age and circumstances at the time," Cowley said in an interview without divulging his own opinion.   

Cowley and the attorney general had a brief exchange about the fact that the boy pumped and fired three rounds; nobody bothered to inquire about efforts to ensure Jackie was competent to assist in his own defense or to make the decisions that were in his own best interest.  Nor was anything said about the actual cause of death.  It seemed these prosecutors were dwelling on limited aspects of the crime itself, which was the focus of the original trial, and, oddly, not on rehabilitative strides made by the prisoner during the years since the crime was committed.

The District Attorneys Association has been one of Pennsylvania's most powerful lobbying groups and recently the organization decided to assert itself vigorously in support of the life-means-life position.  Members were told to appear in opposition whenever a life-sentenced prisoner from their county reached the public hearing stage of the clemency process.

In recent years, opponents of commutation have based their positions on the finality of the victim's plight.  In most cases, the victims' families are so emotionally distraught that they become prime actors in prosecutors' arguments.  In this case, however, the situation was much different.

Among the strongest proponents of clemency for Jackie are Duane and Jean Goodwin, Charlotte's father and stepmother; and Catherine Starkweather, Charlotte's sister.  Ms. Starkweather sent a short note to the Board before the clemency hearing and said:  "I feel that Jackie has paid his dues.  I feel it is time that he is allowed to be free.  Our mother is deceased, but before she passed away we had a discussion and she felt the same way."

The Goodwins say they have a letter from Charlotte in which she said Jackie was the only friend she had in Gaines.  In an interview with the Elmira, N.Y. Star-Gazette, Duane said Jackie "made a bad, bad mistake.  But there's no way to bring Charlotte back, and there's no sense forcing Jackie to waste any more of his life in prison.  He has done enough time."

In a handwritten letter to the Pardons Board in 1993, Duane and Jean wrote:  "We can forgive him.  Why can't you?"

The Board did recommend clemency in 1993 and in 1991, too, but the governor failed to grant it.  Then in December 2004, with the Board operating under the new Ridge rules that require a unanimous vote of all five members, Jackie was denied a favorable recommendation.  The vote was four votes in favor and one vote against.  That's all it takes, a single vote, and the authority reserved for chief executives - sometimes referred to as the right of kings - is thwarted.

The final player in this saga is Jerry Pappert, unelected attorney general of Pennsylvania and the lone vote against recommending Jackie for clemency.  He was appointed a year earlier to fill the unexpired term of Mike Fisher as the state's top legal officer.  Fisher had run for governor, lost and then secured a presidential appointment to the U. S. Third Circuit Court of Appeals.  Pappert had been First Deputy Attorney General under Fisher for seven years and was named by Governor Rendell to fill Fisher's unexpired term; part of the deal was that Pappert would not run to succeed himself.  At the expiration of his term in January 2005, Pappert joined a Philadelphia law firm.

Pappert graduated from Villanova University and studied law at the University of Notre Dame.  To be sure, not everyone who attends Catholic schools buys into the clemency concept.  Yet the irony of Pappert's position is compelling considering the fact that the church contends the most important aspect of the life of Jesus was his suffering and death to redeem mankind.

"My feeling was that he doesn't believe there is any forgiveness," said Betty Frazier, a reporter for the Wellsboro Gazette who covered the original hearing and later befriended Jackie.  She drew Pappert's attention at the clemency hearing when she said Jackie was treated "unjustly." 

"Did you say unjustly?" the attorney general asked.

Perhaps "unjust" was the wrong word, she responded, but the sentence certainly was "excessive."

"All they knew at the time was that a child was dead and someone had to be blamed," she said later.  "The general feeling was that there was more to it and more people should have been held accountable."

Before he left office Pappert, who wanted it known that he had voted in favor of commutation in a different case, refused requests for an explanation about why he voted against Jackie's plea for clemency.  Nothing in state law requires such an explanation.  Similarly, nothing required Judge Webb or other county authorities to explain why they dealt with Viola Hoppe and Dennis Ellis as juveniles under the seal of Family Court while trying Jackie as an adult.

Transparency has become a popular demand with respect to the machinations of businesses since the eruption of scandals following the Enron case.  Clearly, increased visibility and accountability have been deemed essential to protect our investments.  And, just as obviously, though in a far simpler fashion, Jackie's appeal for mercy shows that transparency is at least that critical in ensuring our fundamental rights to fairness and equity in the criminal justice system.

A cloud of doubt still lingers in Tioga County about the incident.  Jackie Bosek, who was a teenage friend of Jackie Thompson in Gaines, recently wrote to a group of commutation supporters expressing her doubts about the proceedings.  "No one in our neighborhood was ever called as character witnesses, no one was interviewed, there was never a trial," said Ms. Bosek.  "Something never added up right in that whole mess.

"Jackie came from a children's home and...had no one to back him or no money to obtain lawyers.  On the other hand, the other boy's family had lots of money, hired a top-notch attorney, and walked away from the whole situation with no punishment at all!"

After Jackie's commutation hearing in Harrisburg, Betty Frazier called friends in Wellsboro to relay the disappointing news.  People were stunned, she recalled.  And worried.  She and other supporters of Jackie's commutation are in their 70s and 80s and fear they may not live long enough to see him freed and their version of justice served.