ST. JOSEPH — Two defense witnesses testified Wednesday that Tommy Richards would be unlikely to re-offend if released from prison.
But Jeffrey Taylor, chief trial attorney for the Berrien County Prosecutor’s Office, believes they can’t possibly know that.
“If he doesn’t know why he did what he did, how do we know he won’t do it again?” Taylor said during a hearing for Richards, who is seeking a resentence. Trial Court Judge Angela Pasula is hearing the case.
Richards, now 49, was 17 when he raped and killed 10-year-old Shimika Hicks and dumped her body at a vacant lot near his home in Benton Harbor. A Berrien County jury convicted him of first-degree felony murder, and he was handed the mandatory sentence of life without the possibility of parole.
In 2012, the United States Supreme Court ruled that the mandatory penalty of life without parole for a juvenile is unconstitutional. The remedy is for a judge to have the discretion to sentence to life without parole or some other sentence, such as life with the possibility of parole or a term of years.
In 2014, the Michigan Legislature enacted a law saying that if a judge chooses term of years, the minimum sentence must be between 25 and 40 years, with a maximum of 60 years. Richards has served 32 years in prison.
In 2016, the U.S. Supreme Court ruled that the unconstitutionality of mandatory life without parole for juveniles is retroactive. So Richards and others who were sentenced as juveniles can seek a new sentence. Prosecutors, however, can appeal to a judge to again sentence the person to life without parole, and Berrien County Prosecutor Michael Sepic filed motions to do so in Richards’ case and several others.
On Wednesday, the second day of Richards’ hearing, Taylor cross-examined Richards, who was called to the witness stand Tuesday by his lawyers, Sofia Nelson and Claire Ward, both with the state appellate defender office.
“Do you agree you’ve been untruthful about everything in this case until you knew you had a chance to be re-sentenced?” Taylor asked Richards. “You lied under oath at trial, you lied to friends and family from the very beginning.”
In an interview with police, Richards at first denied any involvement. Later he said the girl had died accidently during oral sex. But at his trial and since then, he had again denied any involvement, Taylor said.
“It wasn’t until 2016 that you decided to take responsibility. You said (in a recorded phone call from prison to his girlfriend) that you were going to do what you need to do and say to get free. Isn’t it true that you only started taking responsibility as a legal strategy now?” Taylor asked Richards, who answered, “No, sir.”
Richards testified that he does not know why he raped and killed Shimika, but now is a changed man.
“Why should we believe you now? If you can’t explain why you did what you did, how do we know you’re not going to do it again?” Taylor asked.
Following Taylor’s cross examination of Richards, Nelson and Ward called Dr. Michael Caldwell, a forensic psychologist who is an expert in adolescent brain development; and Richard Stapleton, a retired Michigan Department of Corrections administrator as witnesses.
Caldwell testified that he reviewed Richards’ case, spent 71/2 hours with him administering testing and evaluating him, and prepared a summary of his findings. He said Richards had suffered several instances of childhood trauma during adolescence, at a time when people already are more likely to take risks and be unable to control impulses, even if they know a behavior is wrong.
“This level of trauma would distort their sense of what’s appropriate,” the doctor testified. “His perception of what’s normal would be distorted.”
Caldwell said Richards now has demonstrated remorse and taken responsibility. He said teen-aged offenders usually do not re-offend, and “Juveniles who commit even heinous murders can change.”
He said Richards still has scars from a traumatic childhood and he will be prone to depression or anxiety, but he currently has no personality disorders or mental health disorders.
While in prison, Richards was written up on two separate occasions, in 1991 and in March of this year, for sexual misconduct with female visitors, according to earlier testimony. Caldwell said those incidents are not indicative of a sexual compulsion. He described Richards as having “a desire to do something in the world,” being “somewhat dependent on others,” having “an intact capacity for empathy” and “a desire for a normal relationship.”
Caldwell said in his opinion, the risk of future violent behavior by Richards is “very low.” He said Richards today has all the characteristics of someone who is capable of returning to society and being a law-abiding person. He said at the time Richards raped and killed Shimika, “he lacked an internal moral compass. Now he has that.”
Taylor asked Caldwell in cross examination whether it’s possible Richards fooled the doctor.
“Is it possible that he’s lying to you like he’s lied about so many things, so you’ll say it’s OK for him to get out, that it’s safe to let him out?” Taylor asked. Caldwell responded, “I guess it’s possible. I think it’s unlikely but it’s possible.”
Stapleton, the retired MDOC worker, reviewed Richards’ prison record and said in his opinion, he is at low risk of re-offending. He said based on his prison record, Richards has maintained the lowest possible risk classification for more than 20 years.
Taylor, in cross examination, asked Stapleton if his opinion was based strictly on a review of a prison file. Stapleton admitted he had never met Richards. He said that in forming his opinion that Richards is a good candidate for release, he considered only the inmate’s behavior in prison, and not the details of the crime, what he did or why he did it.
Contact: jswidwa@TheHP.com, 932-0359, Twitter: @HPSwidwa