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.

Washington attorney Martin Meyer shares his response to the recent piece in the New York Times.
Those wishing further background on lawyer Meyer and his views can refer to the thread posted here on Feb 14, 2018.
Here is his article:

Epilogue: NYT 8 May 2018: “All the News That’s Fit to Print” Was it?

Any writer taking on the subject of writing about Luke Heimlich other than just his baseball skills, ought to have at least a rudimentary understanding of Washington state law, specifically its Juvenile Justice Act (JJA) as it would relate to a juvenile charged with a sex offense, the 2016 US Department of Education report (“Beyond the Box”), and the Caldwell Study Sex Offense Registration and Related Laws: Treating Youth Fairly, National Juvenile Justice Network, 2016 before undertaking an attempt to write about, let alone formulate an opinion about, this complex case.

Curiously, the NYT article was completely devoid of any content of these extremely relevant subject areas. The article was simply a regurgitation of old news made worse by the fact there was no reference to the WA JJA, the DOE report or the Caldwell study. The most important news to print wasn’t printed at all.

Washington Law: First of all, Mr. Heimlich’s record is SEALED by Court Order. Once sealed, the effect is that the proceedings in the case shall be treated as if they never occurred.  Thereafter, the subject (Mr. Heimlich) may reply accordingly about the events and records that are sealed.  See RCW 13.50.260(6)(a).

Our state constitution guarantees jury trials in criminal prosecutions and this right to a trial by jury shall remain inviolate. We have a separate system for dealing with juveniles accused of committing offenses and they are not afforded jury trials. According to our Supreme Court, Washington has been avoiding accusing and convicting juveniles of crimes for more than 100 years.

Under the Juvenile code “An order of court adjudging a child a juvenile offender or dependent under the provisions of this chapter shall in no case be deemed a conviction of crime.” RCW 13.04.240. Our Supreme Court has written: Thus, “An act which would be a crime if committed by an adult is not a crime, and thus not a felony, if committed by a juvenile.” We treat youth here in Washington differently than adults charged with the same offense. We use a completely different vernacular. Our Juvenile Justice Act operates under the philosophy to rehabilitate, correct and direct errant youth.  It appears Mr. Heimlich did not require much redirection. We don’t rehabilitate youth to 95% and say “you may now resume your pursuit of life, liberty & happiness.  Oh, except you can’t play professional baseball.  Sorry.”  If that were the case, what else couldn’t he do?  Where would you draw the line in the sand?

The reason our Supreme Court denies juveniles the right to a jury trial lies in the distinction between the adult and juvenile systems. It is the rehabilitative purposes and lesser penalties of the JJA which stand in contrast to the punitive purposes and much more serious penalties of the adult criminal system. It is the nature of the penalty, not the criminal act committed that distinguishes the juvenile from the adult system. Our Supreme Court has written in justification of the denial of jury trials to juveniles as follows:

The purpose of the juvenile justice system is ostensibly to establish a system of having primary responsibility for, and responding to, the needs of offenders, as well as to hold juveniles responsible for their offenses. The critical distinction between the two systems lies in the Juvenile Justice Act of 1997’s (JJA) policy of responding to the needs of juvenile offenders. We have in the past found such a policy as rehabilitative in nature, whereas the criminal system is punitive. Such difference has led us to consistently conclude the right to jury trial does not extend to juveniles adjudicated in juvenile proceedings.

This highlights the complexities an accused juvenile faces. Especially in cases involving allegations of sexual abuse where the evidence is nothing more than “he said” “she said.” The principle function of a jury is to find facts, not determine punishment. Our Supreme courts answer to this is, if a juvenile wants a jury trial, then they can decline Juvenile court jurisdiction and be tried as an adult. The trouble with this is if convicted, one would face the consequences an adult would receive.

This further complicates the difficulties of a 15 year old accused of a sex offense faces. Although the standard of proof of beyond a reasonable doubt is the same in an adult criminal proceeding as in a juvenile offender proceeding, it is not the same standard of proof. Who would you want to decide your fate? A jury of one judicial officer wearing a black robe or a jury of 12 of your peers who must be unanimous in their decision?

So yes, youth do often plead guilty to things they didn’t do to avoid likely much worse consequences. And yes, false accusations exist. The Department of Education report references plea bargains and collateral consequences for anyone who would care to read the report.

Beyond the Box: Finally, this notion that Luke Heimlich is “controversial” needs to be put to rest. He is just one of thousands of youth across this country who have been involved with the justice system. I’ve already answered the question of whether or not he’s “paid his debt” above. However, I can’t ignore this quote from Judge Sterling Johnson, Jr. from the Eastern District of the United States District Court of New York speaking at a national summit on lowering barriers of access of adult ex convicts to housing, securing public benefits, employment, etc. “If you borrow money from a bank and you pay it off, your debt is forgiven. If you get convicted of a crime in the criminal justice system, be it federal or state, you pay for the rest of your life.” With understanding and a little compassion, it’s time to turn the tide.

The best advice I could glean from the DOE report regarding admissions counselors making decisions to admit a justice involved individual for enrollment in their institution was this quote from p.28 of the report: “Perhaps the most powerful tool an admissions counselor or officer can have is the ability to use his or her own human experience in assessing the person behind the paper. Institutions should seek to create an admissions process that respects human dignity and is fair and equitable by design.” Why shouldn’t this also be true for landlords considering an applicant for housing, or an applicant for employment, i.e. major league baseball?

This is the second article I have tendered for public consideration regarding the Heimlich case. Though I have been happy to provide my thinking as a kind of amicus curiae (friend of the court of public opinion) it is truly unfortunate that OSU, other than Coach Casey, has failed to offer such information or the full range of support that Mr. Heimlich deserves as a student athlete especially in light of their newly announced policy increasing their commitment to student success. There was so much more that was fit to print.