Dec. 1, 2005 Attorneys for Michael Salaz are challenging Superior Court Judge Ive Swan's ten-year sentence for second-degree rape he imposed on Salaz.
Salaz is now serving the second year of his sentence at the Golden Grove Adult Correctional Facility on St. Croix. He has been behind bars since August 2004. ( See Community Members Asking for Clemency in Salaz Case).
The court document was filed Tuesday by James Casner III and Michael Fitzsimmons of the firm Stryker, Duensing, Casner and Dollison.
On Aug. 18, 2004, Swan sentenced Salaz to the maximum allowable time for having consensual sex with a minor who was 16 at the time. Salaz was 32. His friends, family and even the prosecuting attorney were shocked at the severity of the sentence. Swan based his sentence on documents he was given a pre-sentencing report and a detective's report.
The 17-page appeal states that the harsh sentence imposed on Salaz was an abuse of the judge's discretion by relying on unreliable allegations, (the victim's report as taken down by the detective), by the judge's failing to consider any and all mitigating circumstances, and by allowing bias to color the sentence.
Basically, the brief says that both Swan and the government, in its Statement of the Case, relied only on statements made by the victim, which are alluded to as "facts." "[The victim's] statements in the pre sentence report are irrelevant to the Statement of the Case," the brief states. It continues, "and yet the government spends an entire paragraph explaining how the victim was feeling emotionally and physically after the incident."
The document also states that the sentence is in violation of the Eighth Amendment prohibition against sentences grossly disproportionate to the crime. It says the government agrees that this gross disproportionality principle requires reversal in "exceedingly rare and extreme" cases.
The brief contends this is one of these cases because it imposes the maximum sentence of 10 years to a first-time offender: without consideration of the totality of circumstances; without consideration of the reliability of the victim's statements and her credibility; without consideration of any mitigating factors; and without consideration of any of the appellants's statements.
In addition, "this is an extreme and exceedingly rare case in comparison to the sentences in the Virgin Islands for other offenders of the same crime," the brief states, and includes examples of similar cases and their sentencing.
"In contrast," it continues, "the appellant had no criminal history, was not a repeat offender, did not use a weapon of violence, and had reason to believe that the victim was 18."
The brief enters various comments from Salaz's sentencing appearance by Swan. It states, "The judge appears to have his mind already made up before the sentencing began." It quotes Swan in answer to Salaz's attorney's attempt to enter the victim's use of a fake ID into the proceedings as saying: "All right. But you know it doesn't really matter because I'll tell you, I take a fundamental position, and Mr. Salaz is 35 years of age. Long before I was his age, I could discern no matter how physically mature a young female is, I'm always appalled and flabbergasted that men can't seem to tell the difference."
The brief also says Swan refused to deliver a five-year sentence, "even though both the government and the victim agreed that five years would be acceptable. The sentencing judge [Swan] very quickly dismissed this and instead found the government's agreement to five years (despicable)."
Discussing the statues regarding statutory sex with minors, the brief says that it agrees with the "protective function" of these statutes for "naive young females," but adds, "they were not created to be manipulated and conveniently used by a young woman to cover up consensual sex that she later regrets due to either embarrassment or fear of getting in trouble with her parents, especially when she knowingly portrayed herself as an adult, i.e., possessing a fake ID card, and going to a bar to drink and dance past the curfew imposed by V.I. law." This should have been considered by the judge, the brief states, in determining the victim's credibility.
The document concludes that because of "abuse of discretion and suggestion of bias on behalf of the sentencing judge," the court should vacate his sentence and remand the matter for re-sentencing by a different judge in the Superior Court of the V.I.
When the District Court will act on the appeal is not known. An attorney in Casner's office said Wednesday it could take a long time, there are different factors to consider. Some appeals are decided on the basis of the brief, and some for oral arguments. The judges in the Appellate Court can decide to act on the brief, itself, or they could want to hear more argument before a panel of judges.
For her part, Ketchi Salaz, Michael Salaz's wife, is hoping the many letters that have been written to Gov. Charles W. Turnbull will result in some form of gubernatorial clemency. She says that over a period of months, more than 250 letters have been written to the governor asking for a commutation of Salaz's sentence, or for a pardon. "The attorneys have told me the court appeal could take years," she said.
She said she still cannot understand Judge Swan's reasoning in her husband's case. Ketchi Salaz is from French Guyana. She was educated in England, and has only recently lived under the U. S. flag. "To me, it's scary," she said Wednesday. "I'm new here and I'm new to the legal system, and Judge Swan has been a judge for a very long time. I just don't understand. He didn't want to listen to anything Michael had to say in his own behalf."
Ketchi Salaz met Michael Salaz while she was vacationing on St. Thomas with her family. Salaz was out on bail at the time. Though both recognized Salaz had a court date coming up, and that he would probably have to do time in prison, neither had been prepared for the 10-year sentence.
Their wedding took place Dec. 30, 2004 in the prison.
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