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April 9, 2010

Girls convicted in 1997 Jeffersonville stabbing seek reduced sentence

Prosecutor wants judge Fleece removed after comments at hearing

JEFFERSONVILLE — Two teenage girls convicted in the 1997 gang-related stabbing of a pizza delivery man are seeking a new sentencing hearing, but the Indiana Supreme Court may first be asked to decide whether a judge should be removed from the case for remarks he made in chambers.

Shayla L. Shackleford, then 14, and Devonna T. McDonald, then 15, lured a 41-year-old pizza delivery man to a Jeffersonville home to steal his car and drive to Alabama, according to court records. The girls each stabbed the man twice with butcher knives before driving off with his car.

The victim, Albert Yeager Jr., survived the wounds.

Investigators said at the time that the girls were trying to impress members of the Lady Thugs gang that they wanted to join.

They were tried as adults and convicted by a jury of class A felony attempted murder, class A felony conspiracy to commit murder and class A felony robbery.

Former Clark County Superior Court No. 1 Judge Jerry Jacobi sentenced them to 60 years in prison — 30 for attempted murder and 30 for robbery. After exhausting their appeals, a petition for post-conviction relief was filed in February 2009.

In the petition, Chicago-based attorneys for the girls argued the consecutive 30-year sentences violated Indiana’s common law double-jeopardy principles since both were enhanced by the same act of the stabbing.

The attorneys also argue that the judge failed to consider any mitigating factors, such as the defendants’ youth, remorsefulness and lack of prior criminal history.

“The original trial court only paid lip service to the fact that these girls were among the youngest girls in the country to receive such harsh sentences,” said Steven Drizin, a professor at Northwestern University School of Law in Chicago, who is part of a team representing Shackleford and McDonald pro bono.

Presiding Judge Vicki Carmichael recused herself from the case because she had represented McDonald on appeal. She appointed Senior Judge Steven Fleece to preside over the post-conviction relief proceedings.

During a status conference in judge’s chambers in May, Fleece reportedly made comments about the case that prosecutors believed showed bias. Prosecutors filed a motion to change judges, asserting that Fleece described the trial is “divisive” and said the girls had to be released from prison in order to accomplish “healing” in the community. He also was accused of saying the girls had spent enough time in prison and that “everybody” believed the sentences were too harsh.

Fleece denied the motion, responding that the prosecutors had mischaracterized his statements and took them out of context.

“The state has correctly inferred that the judge now views sentence-modification as desirable,” Fleece stated in his ruling. “This is a preliminary conclusion not based on any bias or prejudice or outside influence, but upon analysis of the pleadings and undisputed facts of the case.”

Also at issue was a discussion between Jacobi and Fleece that was described by Fleece as being brief and by accident at a funeral visitation both attended. Fleece said Jacobi told him he would not be “personally offended” if the sentence was modified, according to court records. Fleece reported that conversation, but said it would not affect his objectivity.

The attorneys for the girls opposed the motion to change judges, and the Indiana Court of Appeals agreed in a decision published last month, stating that Fleece had not shown bias or prejudice.

Although what went on in chambers was not recorded, the Court of Appeals found that prosecutors has misconstrued Fleece’s statements.

“In short, Judge Fleece should not have initiated the conversation or entertained Judge Jacobi’s opinions on the matter ... (but) we cannot conclude that the conversation with Judge Jacobi renders a fair judgment impossible,” the opinion states.

Prosecutors filed a motion this week notifying the court of its intention to seek a rehearing from the Court of Appeals and a transfer to the Supreme Court if that rehearing is denied.

“I think it’s astounding anyone could conclude the state is going to receive a fair hearing,” Clark County Prosecutor Steve Stewart said. “It is admitted that [Fleece] told both parties the girls deserve to be released from prison.”

He compared Fleece’s statements to a judge saying before a trial concludes that he believes the defendant is guilty.

“Both a trial court and Court of Appeals have already ruled on the state’s motion and both courts have rejected its claims,” Drizin said. “We’re very disappointed by what appears to be the state’s decision to prolong this case further and to prevent a hearing on the merits.”

If post-conviction relief is granted, Stewart said the judge would order a new sentencing hearing.

“It would be like going back in time and having the sentencing hearing all over again,” Stewart said.

He said he believes the 60-year sentence was fair. Drizin said there is enough evidence to support the defendants’ immediate release.

Fleece said he would let the Court of Appeals opinion speak for itself, but added, “I was a little surprised the state wants to try to refer this to the Supreme Court.”

The Indiana Attorney General’s Office, which handled appellate cases, is expected to file its request for a rehearing today. The hearing for post-conviction relief had been scheduled for Wednesday, but is on hold pending a decision by the Court of Appeals.

Shackleford and McDonald are both being held in the Indiana Women’s Prison. Their earliest release date without any post-conviction relief is May 2023.

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