By Adam Geller, AP National Writer
YPSILANTI (AP) – More than 21 years after she went to prison, Barbara Hernandez enters the cinderblock visitation chamber at the Women’s Huron Valley Correctional Facility in the turquoise blouse she keeps for special occasions. Her makeup is carefully applied but can’t hide age lines spreading, thin but unmistakable, from the corners of her eyes.
“Thank you for coming,” the 38-year-old inmate says softly. Her eyes, chestnut and brooding, are offset by a gentle smile. She holds out a hand in welcome.
And in that moment it is up to the visitor to begin weighing the choice the gesture offers: Is this the hand of a criminal who lured a man she’d never met to a brutal death and must be locked away forever? Or does it belong to a long-ago girl, who left home in rural Michigan at 14 only to end up in an abandoned house with a boyfriend who pimped her, and who now deserves a second chance?
There are more than 2,000 people like Hernandez in this country, sentenced to live and die in prison for murders committed as teens. But last June the Supreme Court delivered a long-awaited decision, wrestling with whether teens convicted of such brutal crimes should be punished just like adults or if their youth should matter.
“Imposition of a State’s most severe penalties on juvenile offenders cannot proceed as though they were not children,” Justice Elena Kagan wrote for the court’s majority.
Despite the justices’ strong words, they declined to settle many questions, leaving it to Michigan and 27 other states to decide whether, and how, this new standard of fairness is supposed to confront the stern justice of the past.
That won’t be easy. At Hernandez’s trial, the prosecutor urged jurors to focus solely on her role in killing James Cotaling, a 28-year-old mechanic who, on a Saturday night in 1990, told his fiancée he was going out to buy a Mother’s Day card, but never came home.
“This would be the type of case where it would be easy to feel sorry for Barbara Hernandez, but you all promised me at jury selection that sympathy would play no role in your deliberations,” said the prosecutor, Donna Pendergast.
“You can’t look at who this defendant is. You have to look at what she did.”
More than two decades later, the Supreme Court says that is not enough. But to comply could well take more than a change in legal process. It could force the system to revisit the distant past and appraise its meaning, to again confront the details of terrible crimes and to take measure of childhoods left behind long, long ago.
In 1987, when Barbara Hernandez turned 13, her mother moved the family from New Mexico to Capac, Mich., set in farmland on the state’s eastern shoulder.
The move put fresh distance between the family and Theodore Hernandez, arrested in 1984 for molesting the oldest of his three daughters and their aunt. Records show he served three years in prison for criminal sexual penetration.
But another relative, who has never been charged, began molesting the two younger Hernandez girls, abuse recounted by all three sisters and noted by a state social worker who evaluated Hernandez before sentencing. The women say their mother knew what both men did, but denied the abuse or blamed it on her daughters.
“She said it was my fault,” Elizabeth Evans, the oldest, said. “I started my period when I was 10 years old and my mom beat me for that reason, stating that it was because I let my dad do things to me. I got hit with the wire part of fly swatters, with extension cords.”
Hernandez’s mother drank heavily, often leaving the children to care for themselves. The youngest, Andrea Waple, recalls being told in kindergarten to let herself in to the empty house. Hernandez skipped school to pick her up, stirring their mother’s anger.
“Barbara always tried to take care of me even though she didn’t know how,” Waple said. “Because my mom was mad, she’d come home from work and hit us with a belt. It got to the point where we’re pretending to be crying to make her stop.”
Hernandez enrolled in eighth grade at Capac Junior-Senior High School where junior Jim Hyde – four years older and repeating a year – passed her notes in the hall.
But Hyde was trouble, his stepsister, Deborah Erdman, said. She recalls a boy who blew up frogs and, later, a teen with a drug habit. Erdman said her mother worried about Hyde’s domineering relationship with his new girlfriend.
“If he had told her to walk out in the middle of the road and stand in front of a speeding semi, she’d have done it,” Erdman said. When her mother described the pair, “she says, `Debbie, that girl is just like his slave.”
Hyde, also serving life without parole for Cotaling’s murder, did not respond to requests for comment.
In 1988, Hyde went to live with his mother in Pontiac, a down-and-out factory town outside Detroit, and asked Hernandez, 14, to join him.
“I thought, `This is my way of getting out,”‘ Hernandez said.
Hernandez followed, but soon gave in to her mother’s instructions and moved in with her older sister. She stayed most of a year until she says Hyde climbed to the apartment balcony, threatening to hurt her sister’s children unless she came with him.
Hyde’s mother’s house sat on a block notorious for drug dealing. Hernandez says that to feed a cocaine habit, Hyde urged her to pose as a prostitute, demand men give her money before sex, then run. Soon he told her to put aside pretending, a routine confirmed by Hyde’s sister at trial.
Hyde’s mother kicked them out when Hyde stole her welfare check. But Hyde knew a place to go – an abandoned house a block over where they slept on the floor. By then, Hernandez says, Hyde was beating her if she did not follow instructions.
The night before the murder, Hyde’s sister testified, he talked of leaving town by having Hernandez steal a car from one of the men who picked her up. When that didn’t work, Hyde instructed Hernandez to buy him a knife, then lure a man to the house so he could rob and kill him.
Hernandez, two months past her 16th birthday, says she did as she was told.
“All these years later it’s like watching somebody else, but the horror of realizing that was me,” she says. “There’s just so many things I could’ve done and mostly I’m asking myself, `Why didn’t you run? Why didn’t you go to the police? Why did you just blindly go to the store? Why did you bring Mr. Cotaling into the house? Everything is whys and question marks.”
By nightfall on Mother’s Day 1990, the Cotaling house had turned into a family command center. Across the state line, police had arrested Hyde and Hernandez, found with the car Jimmy Cotaling had been driving. Running off was not like Cotaling, quiet, with hooded blue eyes, devoted to skiing and fixing cars.
Police searched three days before finding his shoeless body in an abandoned house. He’d been stabbed 25 times, his head nearly severed. Searchers found his body using a map drawn by Hernandez, who asked for a lawyer, then talked without one on her mother’s advice.
What happened that night became clearer at trial. As Cotaling left home, receipts showed Hernandez bought a knife. When she returned, Hyde dispatched her to find a customer for sex. Hernandez testified she saw a man in a silver Pontiac watching her. He pulled over and followed her to the house on Howard Street.
Hernandez maintains that after entering the house, Cotaling began touching her. She knew Hyde lay in wait and when Cotaling began undoing his pants in the dark, she became scared and told him she needed to use the bathroom. Hyde attacked Cotaling from behind. The medical examiner testified that the first three wounds inflicted were to Cotaling’s lower back and two – piercing his left lung and heart – were fatal.
But the prosecutor argued Hyde was too small to overcome Cotaling alone, pointing to two strands of Hernandez’s hair in Cotaling’s bloody hand.
Reexamination, though, raises questions. While Cotaling stood just over 6 feet, photos show he was stringy compared to a then-muscular 5-foot-8 Hyde. More importantly, the prosecutor and defense lawyer neglected to mention Hyde was trained to fight — he was a highly ranked high school wrestler, placing sixth in the state finals.
Joe Remenap, who was Capac’s principal and officiated high school matches, said Hyde’s talent lay in a hard-nosed detachment.
“When you looked him in the eyes you could see right to the back of his head, there wasn’t anything in there,” he said. “You almost have to be that way to be a wrestler sometimes.”
A point made at trial, and emphasized by a state attorney at a 2010 commutation hearing, is that Hernandez admitted joining the attack. That argument hinges on testimony by Ralph Monday, a police detective present when Hernandez was questioned after arrest.
“She said Hyde did all the stabbing. She might have helped hold him,” Monday testified.
But interviewed recently, Monday says Hernandez never made such an admission.
“My memory right now is that she had no role in even touching the guy,” said Monday, 69, now a Findlay, Ohio councilman. “Why I testified to that, who knows?” he said.
Two decades later, the Supreme Court says juvenile defendants’ lives must be weighed at sentencing. But that has hardly settled debate.
Lawyers for prisoners seek resentencing to consider factors set out by the court, including lack of maturity at the time of the crime, family background and the teen’s role in the killing. States have taken widely varying paths to resolution.
California Gov. Jerry Brown signed a bill allowing judges to reduce sentences to 25 years to life if an inmate shows remorse and is working toward rehabilitation. Iowa Gov. Terry Branstad commuted all juvenile life sentences to 60 years, a decision criticized for flouting the Supreme Court’s directive.
In Michigan, the issue is being hashed out on three fronts.
In the legislature, state Rep. Joe Haveman introduced bills late last year allowing for possible parole of juvenile lifers after 15 or 20 years, depending on age at the time of the crime. But Michigan’s parole board has a reputation for releasing very few lifers and Haveman said he’s not sure how to address that. He chose not to pursue passage and is meeting with a group, including prosecutors and defenders, to propose new bills this year.
A federal judge ruled in January that Michigan laws mandating life sentences for teens convicted of first-degree murder are unconstitutional. But state Attorney General Bill Schuette contends the ruling applies only to five inmates who brought the case.
The issue also has landed in state court.
When a bailiff calls the Michigan Court of Appeals to order on a mid-October morning, so many people rise that Presiding Judge Michael J. Talbot’s eyebrows dart up in surprise. Technically, the only case is that of Raymond Curtis Carp, contesting a life sentence for the 2006 killing of a St. Clair County woman when he was 15.
But the courtroom is full because all acknowledge Carp is a proxy for more than 360 Michigan inmates sentenced to life as teens. After nearly four hours of arguments, the judges sound stumped.
“I can’t ignore the fact that there’s a crisis pending that requires action,” Talbot, the judge, says. “What are we going to tell them (inmates), that we’ll see you in a year or two and maybe something will happen?”
A month later, Talbot’s panel rejected Carp’s request; the state Supreme Court is expected to weigh an appeal.
“Whether it be the state court or the federal court or the legislature … the clear injustice of someone being held under a cruel and unusual sentence won’t continue in the state,” said Deborah LaBelle, an Ann Arbor attorney challenging Michigan’s juvenile sentencing laws. “I think it’s too bad we’re not there. But I’m still hopeful.”
Eight Novembers ago, Jody Robinson picked up a newspaper topped by a headline, “Children facing life.” She studied a photo inside of Barbara Hernandez – jailed at 16 for killing her brother.
The prospect of releasing Hernandez infuriated Robinson, who launched an intensely personal campaign, testifying at a legislative hearing that reducing sentences of teen killers risked re-traumatizing victims’ families.
When Hernandez was denied commutation in 2010, “my little guy said `Mom, why are you crying?”‘ Robinson says. “I said, `They’re tears of happiness, honey. The bad person’ – that’s what we call her – `is going to stay in jail.”‘
Robinson’s certainty about Hernandez is bolstered by testimony that Hernandez might have admitted holding Cotaling down. She points out Hernandez has been written up 17 times for misconduct in prison, but does not mention the worst violation was for punching another inmate, or that the last violation was in 2007.
“If you ask some of my brothers and sisters they’ll probably tell you I’m obsessed,” Robinson says.
She is not alone in her insistence of Hernandez’s guilt. The prosecutor, Pendergast, emphasizes that Cotaling had strands of Hernandez’s forcibly removed hair in his hand.
“Contrary to her assertion that she’s cowering around the corner under some sort of influence of her boyfriend, quite the contrary. She’s right in the mix and the evidence shows that,” says Pendergast, now a Michigan assistant attorney general.
It’s not clear what courts will do if asked to re-examine cases like Hernandez’s. Her mother died more than a decade ago. Hyde’s mother is dead, too. So are Hyde’s sister, father, stepmother, and the judge who tried the case.
But when a prison administrator chose lifers to mentor inmates in a drug treatment program, Hernandez stood out as the one who would not make excuses for her crime.
“It struck me at the time that she, in no way, was putting blame on anybody else,” says Anne Benion, the prison’s clinical manager until last year. Benion said Hernandez had given back to the program as much as she’s gained.
“She’s sort of like the gentle giant. She has this unbelievable calming effect on women, but it’s very subtle,” Benion says.
Rebecca Gaffney, a retired college employee who has volunteered to meet with Hernandez since 2007, said the inmate reminds her of her daughter.
“I think she is growing in knowledge and a little bit in – you can’t say self-esteem – but in forgiving herself a little bit and in trying to figure out a purpose for her life,” Gaffney said. “She needs a second chance. She needs it, but she deserves it.”
Hernandez, reluctant to make that case, asks that people decide for themselves.
Every afternoon, she goes for a solo run, providing time to think. She mulls her long-ago relationship with Hyde and how she repeatedly ceded responsibility for her own choices, seeing a pattern she continued long after Cotaling’s murder.
She runs for more than an hour, repeatedly circling a recreation yard in the prison where a judge decided she should spend the rest of her life. Then, alone with her thoughts, she walks back to her cell.
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