SI talks Luke Heimlich; Washington attorney responds

Washington attorney Martin Meyer shares his response to the recent  Sports Illustrated cover story, and to some of the comments made by Brenda Tracy.
Those wishing further background on lawyer Meyer and his views can follow these links to his previous articles on Luke Heimlich and some commonly held misunderstandings of the juvenile justice system.

http://angrybeavs.com/baseball/13696   and   http://angrybeavs.com/baseball/13815

Here is his article:

Response to Sports Illustrated S. Price 16 May 2018
By Martin D. Meyer, WSBA #18338
(360) 357-6335
Admitted to WA State bar 1988
17 May 2018

As someone who has followed the Luke Heimlich story for almost a year I write in response to the recent story by S. Price of Sports Illustrated. I have finally met Professor Carolyn Frazier, in print, of Northwestern School of Law who gets what I’ve been saying all along. The story is written in a provocative way that made it hard to stop reading, at least on a first reading.

It should be clearly understood, we are talking about the lives of two very young persons who are related by blood and have their whole lives ahead of them, victim & offender as well as other collateral family members. How do they move forward? As professor Frazier notes, it not just about the victim here, it’s O.K. for us to care about and think about the offender too.

It doesn’t help that the article doesn’t contain much information about relevant WA state law as it related specifically to Mr. Heimlich’s case. There is no reference to the May 9, 2016 “Beyond the Box” article written by U.S. Department of Education’s then Secretary of Education John B. King, Jr. This is a well written article on increasing access to higher education for justice involved individuals as well as access to housing and employment. The SI article makes scant reference Michael Caldwell’s work as well as others that has been published by the National Juvenile Justice Network’s July 2016 publication of his policy recommendations regarding the effects on youthful sex offenders having to register and be subject to community notification laws.

It doesn’t help that pejorative and stigmatizing terms like “criminal” record, “crime and punishment, new rule re: “felony convictions” terms that are wholly inapplicable in WA juvenile offender proceedings, keep creeping back into the narrative. New highly inflammable words get added like “pariah” and “monster” having the effect of adding gasoline to the fire and inhibiting critical thought to how do these young persons move on with their lives. It makes for a good read and may sell a few copies of SI, but it wholly inhibits thoughtful discussion when the emotions get inflamed and run too high. Other than the offense itself, I’ve not read or seen anything that would portray Mr. Heimlich as a social outcast.

This type of stigmatization is what the WA Juvenile Justice Act specifically tries to avoid when it comes to addressing youth who commit offenses and why we have a separate system of law to deal with youthful offenders. Secondly, the author ignores the effect  community registration and notification laws have on youthful sex offenders set forth in the “Caldwell Study” mentioned above.

In the fourth attempt in the State of WA to convince our Supreme Court to grant Juveniles jury trials because of the detrimental effect of these community notification provisions, our Supreme Court wrote in 1999 “The adult sex offender registration statute does not constitute punishment, but rather is a regulatory measure. It follows that community notification requirements for juvenile offenders are likewise not punitive, and do not affect a juvenile offenders right to a jury trial.”

Seventeen years later, the Caldwell study reveals that the exact opposite is true. Not only do these registration laws provide no community safety or reduce recidivism rates, they profoundly affect youth and their families subjecting them to greater harm, ostracizing, ridicule etc. I can predict, without having discussed the matter with Mr. Heimlich, that he has acutely experienced and continues to experience severe ridicule from strangers since this story originally broke. It’s time state legislatures re-evaluate the necessity of these registration requirements for youthful offenders.

As to the U.S. Department of Education report, reading it would give Brenda Tracy and others a simple explanation and understanding why Dr. Ray re-admitted Mr. Heimlich to OSU. Clearly, Dr. Ray conducted his own risk analysis and quickly determined Mr. Heimlich’s presence on campus posed no risk whatsoever to the student body. Any major league executive, putting emotion aside, with a clear understanding of WA state law, the DOE report, the Caldwell Study, and perhaps most importantly, getting to know the whole person of Luke Heimlich, will “know how to do it” from a public-relations standpoint if they decide to draft him.

The DOE report highlights the growing trend in employment across the nation, public and private sector, at the state and federal levels, to remove criminal justice information questions in the hiring process in the growing “fair-chance-hiring practices and policies to reduce barriers of employment for people with criminal histories.” While employment law is not my specialty, this report notes at p. 20 that the Equal Employment Opportunity Commission has “endorsed removing the criminal history question from job applications as a best practice in its 2012 guidance, and made clear that certain employment practices on the use of criminal histories could violate federal civil rights laws.” As Mr. Heimlich now stands before the law, he doesn’t have any prior criminal history or adjudication.

A simple reading of this report by Ms. Tracy would further reveal to her why she shouldn’t be flummoxed by not being invited to participate in the development of OSU’s new policy regarding admitting students with prior involvement in the justice system. She is on record of stating she is in favor of justice involved individuals receiving higher education, just so long as it’s on-line. What constructive and useful input could she provide? Her statement that Mr. Heimlich’s appearance “normalizes child sexual abuse” is beyond preposterous and only stirs the flames of emotion which in turn inhibits thoughtful discussion and dialogue.

Her whole premise of responding to youthful sex offenders runs one hundred eighty degrees opposite to the WA philosophy of redirecting, rehabilitating and reintegrating justice involved youth back into society so that they can have productive lives. Incidentally, this new OSU policy is a good start but a terrible product which should be addressed in a separate article. OSU would be well served to re-write it and follow the suggestions of the DOE report from pp. 22-28.

As to the drama of creating these two personas of Luke Heimlich, it is a fiction created to sell a good read. Again, as Professor Carolyn Frazier points out and I’ve written about elsewhere, it is not unusual to be innocent and plead guilty to something in order to avoid harsher consequences. Mr. Heimlich’s statements in this regard are instructive. At the time to decide to enter his plea, neither he nor his attorney could have envisioned the collateral consequences of the same 7-8 years later when he becomes a major league prospect, a matter the DOE report also addresses at p. 8.

At the time he was considering what to do, he was staring directly down the barrel of two counts in the charging document, which if adjudicated, would have given him a sentencing range of 30-40 weeks commitment on each charge for a total score of 60-80 weeks commitment to a Juvenile Rehabilitation Administration’s detention center. There’s that pesky “Rehabilitation” word again. If adjudicated, the judge handling the disposition hearing must run the dispositions consecutively. There is no discretion to run them concurrently. Also, the judge only sets the range i.e. 60-80 weeks. Thus, if Mr. Heimlich had proceeded to trial and been adjudicated on both charges, he would go into JRA at 80 weeks with the Juvenile Rehabilitation Administration to determine his actual time spent. He would have the ability to be released at 60 weeks if he behaved himself, or the maximum if he didn’t. His statement explaining his course of action makes complete sense for doing what he did at that time.

What about the little girl? Yes, what about her? I was very uneasy reading material obviously obtained from court documents that have been sealed under RCW 13.50.260(6)(a). The effect of sealing is to treat the proceedings in the case as if they never occurred. The remedy to anyone who disagrees with this or the policies of our state’s treatment of youthful offenders is to address the matter before our state legislature and try and convince them to change the law.

A quick review of our sealing statute explains clearly why Mr. Heimlich’s attorney never returned the SI author’s phone calls. The defense attorney falls within the definition of “Juvenile justice or care agency” as defined at RCW 13.50.010(1)(b) as do police agencies, diversion units, the court, prosecuting attorney etc. Our code provides, as it relates to sealed documents, that “Persons and agencies that obtain sealed juvenile records information pursuant to this section may communicate about this information with the respondent, but may not disseminate or be compelled to release the information to any person or agency not specifically granted access to sealed juvenile records in this section. RCW 13.50.260(11).

Nowhere is “persons” defined. In thirty years I’ve never seen sealed records publically disseminated, nor have I ever litigated this provision of the JJA. Again, this begs the question, what about the little girl if she googles her uncle 5, 10 or 15 years down the line and this article comes up triggering an avalanche of remembrances, true or false? Will SI be there to pick up the pieces?

Finally, as I read this article for the fifth time, an unwritten theme began to come in to focus for me. That is, the healing power of baseball. The impact of reading Ms. Gorchels experience is so powerful. She should be offered every encouragement in her continued recovery from her own horrible experience. I would never presume to tell her how to feel but I would hope she continues to attend baseball games, a game she appears to enjoy.

Mr. Price adequately captures the emotions of the game, the sounds of the game, the rivalries etc. I can only relate to the game through my own experience as a fan and father of a 12 and 13 year old who made it to the World Series in Cal Ripken and again in Babe Ruth. I have had the privilege of attending the first two games of each of OSU’s series between WA, OR and Stanford. What I observed was a progression of excellence in the play of the game with each successive series.

Who couldn’t enjoy the level of play of the first two Stanford games? Error free baseball and total domination of OSU pitching against a powerful Stanford lineup. Mr. Heimlich was the sharpest I’d seen him perform of the 3 times I watched him pitch. I particularly enjoyed Dr. Fehmel surgically dissecting Stanford’s lineup coupled with his heads up play to cover first base on an incredible stop by Nick Madrigal in the 8th inning. It has also my observation from a distance watching these 6 games that it is obvious Mr. Heimlich is a well liked team mate and has the full support of his coaches. Mr. Price’s article confirmed my observations.

That being said, there is still a path forward. Putting roadblocks in front of Mr. Heimlich to be successful in life is not helpful. Research has shown over and over that justice involved individuals who cannot get jobs, housing or higher education simply return to crime as a last resort. Is this what we want as a society? This is where the DOE report is so helpful to understand the challenges justice involved individuals face. Which path do people want to choose to address this subject? It is my hope that Mr. Heimlich will indeed be drafted “around where his ability lies.” He deserves to be drafted. It is baseball after all that got two brothers into the same stadium at least. I remain hopeful that it will be baseball that gets two brothers back together on a personal level.