Judge: This is a heartbreaking situation

Background Info

Michelle Wheeler, initially charged with 2nd Degree Murder in the January 2009 death of her boyfriend of approximately 5 years Jerry Cisco, pled to Manslaughter in March. Her sentencing hearing was yesterday, and I left the courtroom with a renewed appreciation for how tough a judge's job can be. See also my earlier blogs about this case.

Cisco and Wheeler had a tumultous relationship that involved alcohol abuse and violence by both parties. Cisco had been arrested on at least 5 occasions for domestic battery against Wheeler. The Court heard testimony about the injuries she had sustained over the course of their relationship: cuts with a knife, numerous bruises, broken bones, and a busted eardrum. A search of the Orange County Clerk's records show 11 cases against Cisco going back to 2004 for the following charges:

• 3/22/04: Resisting Officer w/o Violence
  
  Case nolle prossed (dropped).
• 3/25/04: Driving Under the Influence
  
  Adjudicated guilty - 1 year probation.
• 4/28/05: Assault (2 counts)
  
  Pled no contest - adjudicated guilty 8 days jail w/credit 8 days time served; 160 days probation; no contact with victims (two of Wheeler's family members) - Cisco subsequently violated this probation in December 2005 and served 37 days jail.
• 5/14/05: Battery DV
  
  No Information (the formal charging document) was filed by State. Cisco violated terms of Home Confinement in this case, but since no Information was filed, there were no sanctions imposed.
• 6/24/05: Battery on Law Enforcement Officer; Threats Against Public Servant
  
  Pled no contest and was adjudicated guilty both counts - sentenced to 27 days in jail w/credit 27 days time served; 48 months probation (concurrent with other case); 100 hours community service; anger management seminar; substance abuse evaluation; apology letter. Cisco was subsequently found in violation of probation June 2007 and served 171 days in jail in spite of Wheeler's declination of prosecution.
• 6/28/05: False 911 Calls; False Reports of Commmission of Crimes
  
  Pled no contest and adjudicated guilty of both counts. Sentenced to 160 days w/credit 160 days time served.
• 7/11/05: Burglary of Dwelling w/Assault or Battery; Aggravated Stalking w/Credible Threat; Battery; Criminal Mischief
  
  Burglary charge was dropped, pled to all other charges and sentenced to 1 year jail w/credit 101 days time served; 42 months probation; anger management seminar; and 75 hours community service. Cisco was subsequently found in violation of probation June 2007 and served 210 days in jail in spite of Wheeler's declination of prosecution.
• 11/17/05: Aggravated Battery w/Deadly Weapon; Aggravated Assault w/Deadly Weapon; Aggravated Battery on Pregnant Person
  
  No Information was filed by the State.
• 6/20/06: Felony Battery
  
  Pled no contest & adjudicated guilty. Sentenced to 64 days jail w/credit 64 days time served, ordered to have no hostile contact with Wheeler (who had filed a declination of prosecution).
• 7/4/07: Battery
  
  No Information was filed by the State.
• 12/28/07: Battery DV
  
  No Information was filed by the State.

Wheeler's criminal record for the same timeframe:

• 12/14/04: Battery
  Case nolle prossed.
• 10/21/06: Disorderly Intoxication
  No Information was filed by the State.
• 9/28/08: Battery (4 counts); Disorderly Intoxication
  Pled no contest to one count and sentenced to 60 days jail with credit 42 days time served; substance abuse treatment while in jail. Other counts were nolle prossed.
• 1/16/09: 2nd Degree Murder (victim: Jerry Cisco)
  Pled to Manslaughter w/Deadly Weapon.

In addition to the above, Wheeler was sentenced in 2004 to 18 months prison for violating probation in a 2000 case where she pled to Burglary of a Conveyance. She was released from custody in August, 2004. This case occurred before her relationship with Cisco began.

Testimony Provided

Both sides of the courtroom had half a dozen or so family members present. The victim's family made the trip from Kentucky.

Media representatives were not in attendance.

Ms. Wheeler's mother, father and sister, who have been caring for the couple's children (ages 3 & 4), spoke on her behalf. They expressed their apologies to Cisco's family for the loss of their loved one. In addition to testimony about the victim's alcoholism and injuries inflicted upon Wheeler, they told the judge about the defendant's own alcohol abuse and did not sugarcoat her criminal history. Wheeler's sister testified that she and her husband had been very close friends with Cisco, but that after Cisco and Wheeler's relationship began, he became violent and threatened to kill Wheeler on several occasions. She told the judge that she and her mother had taken Wheeler to the hospital on several occasions after altercations with Cisco. She also stated that she always thought that the situation would be reversed, expecting that her sister would end up dead.

Dr. Allen Burns, court-ordered psychiatrist (one of three who had evaluated the defendant), testified that she was not insane at the time of the offense. He stated that she suffers/suffered from schizoaffective disorder, bipolar disorder, post-traumatic stress disorder, panic attacks, and had intermittent auditory hallucinations.  In addition to a history of being a victim of domestic violence, she was a victim of sexual abuse in the past. He found that she did not meet the criteria for involuntary hospitalization and that she was no imminent risk to herself or to others. He recommended that she continue on the medications that have stabilized her since her incarceration, that she undergo treatment for her alcohol dependency, and have therapy for the symptoms of PTSD.

Defense Counsel Chung-Wook Kim then called Michelle Wheeler to testify. She told the judge about the afternoon that led up to the fatal event, but never once spoke about the actual incident (in the bond hearing last year, there was testimony that Cisco had threatened to kill her several times throughout the day and once he grabbed a knife, she begged for her life, convinced him to drop it, and then picked it up and stabbed him). She told the judge that she had personally contacted law enforcement 5 times for help during their relationship, and her neighbors and sister had also called on several occasions.

When asked why she didn't leave the relationship, her reply was something every domestic violence advocate hears from victims - he promised to stop hitting her, she feared for her life if she did leave (there were threats to kill her and burn down the house), and she wanted to keep her home intact for their children.

As she read a prepared statement to Cisco's family, Judge Adams suddenly seemed to lose interest in what the defendant had to say. He began to look away as he searched for something in file drawers and on top of the bench. It struck both of the courtwatchers as disrespectful. It was the only time he did not appear to give the person testifying his full attention.  Wheeler apologized to Cisco's family, said she never meant to hurt him and that she still loved him. She told of the pain and grief she is experiencing in losing both Jerry and not seeing her children.

She told the judge that she has completed all the programs offered to her at the jail and that she is pursuing her GED. She indicated that she is willing and able to comply with any conditions of release that might be imposed upon her. She admitted that she had injured Cisco in the past, but that any violence she perpetrated upon him was a result of him being the aggressor.

Assistant State's Attorney Les Hess elicited testimony about the defendant's previous record (above) as well as some older incidents from the 1990s. He focused on the fact that their relationship often involved "mutual combat." Wheeler also told the Court that every time she had had a brush with law enforcement, alcohol had been a factor.

The most compelling witness was the victim's older sister, Trina Penny, who read a victim impact statement that was well written and delivered with passion. As one who has lost a child to murder, I saw myself in the family's shoes, particularly those of the victim's mother, as they described the shock and grief they experienced when learning of Cisco's death, as well as the struggle they face to accept the reality of the situation in those first few days and weeks.

Her anger at the defendant was evident, yet I was surprised that neither she nor her mother (who called in from North Carolina), were willing to admit that Cisco had played any part in the violence in the relationship. She idealized her little brother, never once conceding that he had a problem with alcohol. She talked about Wheeler's "questionable children" as if to imply that Cisco was not their father. She blamed Wheeler for causing her brother to lose hope, his health, integrity and enthusiasm for life. She accused Wheeler for being responsible for isolating him from his family, ruining him financially, and claimed that he was unable to move back to Kentucky because he feared for the safety of their children. She asserted that her brother was a victim of domestic violence, but because he is a man, there are no domestic violence groups supporting his side of the story (I'll write more about that tomorrow). She told the judge that Wheeler deserves to die for what she did.

Attorney Arguments

The Defense requested a Downward Departure from the sentencing scoresheet of 10.5 years because of several mitigating factors per Florida Statute 921.0026(2):

(c) The capacity of the defendant to appreciate the criminal nature of the conduct or to conform that conduct to the requirements of law was substantially impaired.

(d) The defendant requires specialized treatment for a mental disorder that is unrelated to substance abuse or addiction or for a physical disability, and the defendant is amenable to treatment.

(f) The victim was an initiator, willing participant, aggressor, or provoker of the incident.

(g) The defendant acted under extreme duress or under the domination of another person.

The judge needed only to find that one of the above applies.
From where we sat (in the cheap seats), I would have to say that both (f) and (g) above would apply, perhaps even (c), but there was no testimony about whether she was impaired, even though she did indicate they had both been drinking that night.

The State requested no Downward Departure, claiming that this is not the first time that Wheeler had faced prison time and lied (she initially claimed Cisco had committed suicide when law enforcement was called to the scene).

The Sentence

Judge Adam's first comment was that "This is a heartbreaking situation." He recognized that everyone in the courtroom was suffering as a result of what transpired on January 16, 2009. He commented that both parties contributed to the environment and that alcoholism takes a terrible toll on everyone involved. He did not find it surprising that the defendant initially lied about what happened because addicts often lie to themselves and others about their addiction as well as the situations in which they find themselves.

The judge did not find grounds to downward depart, stating that Wheeler was a willing participant. The notion that Wheeler willingly participated in the violence indicates a terrible misunderstanding of the dynamics of domestic violence. I'll explain why tomorrow.

The sentencing guidelines called for a minimum 10.5 year sentence. She could have received a maximum of 30 years.

Judge Adams ordered that Wheeler serve 20 years in DOC plus an additional 10 years of probation upon release. She was ordered to consume no alcohol and participate in substance abuse treatment with random urinalysis. She was given credit for the 1 year 150 days time served.

As he announced his sentence, Wheeler turned around with a panic-stricken look on her face and asked her sister to take care of her children. Whether or not Cisco's family has any interest in them is unclear.

It was indeed a heartbreaking (nearly 2-hour) hearing for everyone concerned.

Further comments to follow.