By Tom Eldred,
Delaware State News
DOVER - The question of whether 200 or more murderers, rapists and kidnappers are to be set free from Delaware prisons took a strange and unusual turn Tuesday.
A court official said the "mandate'' that would open the gates for the prisoner release doesn't exist - yet.
In response to a question from the Delaware State News, state Supreme Court Administrator Steven B. Taylor said the mandate directing a lower court to change the conditional prison release date for rapist Ward T. Evans from life in prison to 45 years - less good time credit - was incorrectly docketed.
"We never issued the mandate,'' Mr. Taylor said Tuesday shortly after 1 p.m. "That's because we couldn't locate the lower court record until about a half-hour ago. We found it in Wilmington.
"I don't know what the status is now since the mandate was never issued. It remains the (Supreme Court's) decision as to when it could be issued.''
Mr. Taylor said the mandate was not issued as of 5 p.m. Tuesday.
According to documents released by the Supreme Court and the state Department of Justice, a Supreme Court "mandate'' in the Evans case was docketed by a court clerk on Jan. 21.
The paperwork was completed after the high court refused a motion for re-argument filed by the attorney general's office.
The document said the case was to be remanded to Superior Court for corrections to Evans' conditional prison release date. It said the case was "closed'' as far as the Supreme Court was concerned.
Copies of the docketing were sent to Supreme Court Justice Henry duPont Ridgely, who denied Evans' appeal for correction of sentence when he was a Superior Court judge; Superior Court President Judge James T. Vaughn, and Loren C. Meyers, chief of the appeals division in the attorney general's office.
Evans was sent a copy at the Delaware Correctional Center.
On Jan, 24, after receiving notification of the mandate, Attorney General M. Jane Brady warned that hundreds of other lifers, sentenced under the same guidelines as Evans, could be eligible for quick parole because the high court had changed "life'' in prison to 45 years.
With good time credits, she said some life sentences for crimes committed before June 30, 1990, could be cut to as little as 26 years. She said sentences for crimes committed after that date would not be affected because Truth in Sentencing laws eliminated parole and good time credits in life sentences.
The General Assembly reacted quickly. House Bill 31, declaring the Evans ruling "null and void,'' was drafted two days later. The measure was passed by both chambers, and sent to Gov. Ruth Ann Minner for her signature.
On Friday Mr. Meyers filed a "motion to recall mandate'' with the high court. He cited HB 31, saying that because of the lawmakers' quick action, the court should recall the mandate and reconsider the Evans decision since it clearly went against the intent of the legislature.
But also on Friday, according to court records, Supreme Court Chief Justice Myron T. Steele told Clerk of the Court Cathy L. Howard in Dover that the Jan. 21 docket entry was "erroneous'' because Evans' Superior Court record had turned up missing.
"Since this entry is incorrect, please strike it or otherwise correct the docket,'' the chief justice said in a memorandum to Ms. Howard. "The court further orders that the mandate not (be issued) until further instruction.''
Court records show Ms. Howard sent a letter within the hour to the rest of the Supreme Court justices, Mr. Meyers and Evans, explaining the situation and enclosing Chief Justice Steele's memo retracting the mandate.
Mr. Taylor said the error occurred after the high court met in Dover and declined to hear the state's motion for re-argument, which effectively ended further appeal at the state level.
He said a clerk in the Dover office then docketed the court's decision.
"They had a sign-out sheet indicating the (Superior Court) record was in Wilmington,'' he said. "The docket entry was then sent to Wilmington to be attached to the record.''
However, the record could not be located. That meant it could not be returned to Superior Court with a mandate directing the lower court to correct Evans' prison release date.
"We're going to have to take a look at this procedure to make sure something like this doesn't happen again,'' Mr. Taylor said.
Lori Sitler, a spokeswoman for the attorney general's office, said Mr. Meyers had not received Ms. Howard's letter Tuesday and that the office, including Ms. Brady, was unaware of the retracted mandate until contacted by the Delaware State News.
"Apparently it's still in the mail,'' Ms. Sitler said. "You would think that something this critical would not be put in the regular mail or in the state mail system either.''
Ms. Sitler acknowledged that Mr. Meyers' "motion to recall mandate'' could be moot with the news no mandate exists. She said the motion would be re-filed, assuming the mandate is eventually issued.
In the meantime, she said Evans and other inmates could not be released because the Superior Court cannot entertain motions for release without a mandate.
"The matter is still in the jurisdiction of the Supreme Court,'' she explained.
Chief Justice Steele declined comment for this article, citing the explanation given in court documents.
House Majority Leader Rep. Wayne A. Smith, R-Wilmington, sponsored HB 31.
"This is the most serious public safety issue we have faced in Delaware in a couple of generations,'' he said when advised of the absence of a mandate from the Supreme Court.
"HB 31 is the best chance we have for the safety of Delaware citizens. When the governor makes HB 31 law, it will give the attorney general the best possible chance to keep these dangerous murderers, rapists and kidnappers behind bars.''
Gov. Minner has until Feb. 8 to sign or veto the bill. If she does nothing, HB 31 becomes law. Gregory B. Patterson, a spokesman for the governor, said Tuesday that she had not taken any action yet.
Mandate or no mandate, Rep. Smith said HB 31 should go forward. The bill says the Supreme Court incorrectly interpreted the Delaware Code in deciding the Evans case.
"HB 31 is designed to assert the General Assembly's ability to be the lawmaking body in Delaware in a timely manner,'' he said. "HB 31 contemplates the state retaining the chain of custody regarding these prisoners because the mandate has not been issued and received as expected.
"Therefore HB 31 recognizes the continued chain of custody of these inmates so as to render the legislation immune from ex post facto (after the fact) attack.''
Although unaware until Tuesday that a mandate had not been issued, Ms. Brady said no prisoners would be released until the matter is settled.
"When we filed that motion to recall the mandate, that meant no one gets released until that motion is decided,'' she said.
Ms. Brady said her great concern is that if the mandate is issued and the recall motion fails, dangerous offenders could be released almost immediately without going through pre-release programs.
Although she said some inmates have been paroled over the years because of the 45-year conditional release window, she said the releases were processed through Board of Parole deliberations and specified pre-release programs aimed at conditioning offenders for their return to the community.
"The process gives victims, prosecutors and others an opportunity to be heard,'' she said.
"Now the parole process will not be the same because these inmates will have already maxed out,'' Ms. Brady said.
"The process is bypassed by this Supreme Court's ruling.''
Senior writer Tom Eldred can be reached at 741-8212 or teldred@newszap.com.
Reprinted with permission from newszap.com
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