Assault on a Safeway Manager

A Restorative Justice Adult Felony Case Study

Tom Cavanagh

Copyrighted materials enclosed. May not be reproduced.

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Assault on a Safeway Manager: A Restorative Justice Adult Felony Case Study

Tom Cavanagh, MS

Affiliate Professor School for Professional Studies

Regis University Denver, Colorado

Copyright © 1998. Tom Cavanagh-Restorative Justice, Inc. All rights reserved. This publication is protected by copyright law and may not be reproduced in whole or in part by Photostat. Microfilm, retrieval system, or any other means, without prior written permission of the publisher.

Tom Cavanagh-Restorative Justice, Inc., Publisher PO Box 214 Fort Collins, CO 80522 www.restorativejustice.com

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About the Author

Tom Cavanagh is a scholar, writer, and facilitator of restorative justice. He

facilitated a private forum called, “A conversation about restorative justice in

Colorado,” as part of the Institute on the Common Good at Regis University in Denver.

He is currently a Ph.D. candidate in Educational Leadership at Colorado State

University. His studies are focused on education and research related to restorative

justice. He is an Affiliate Professor of Management for the School for Professional

Studies at Regis University and an Adjunct Professor of Management at Front Range

Community College in Fort Collins, Colorado. He worked as a court reporter for the

District Court in Fort Collins.

He is an honors graduate of Regis University in Denver, with a MS in

management. His undergraduate work was completed at Carroll College, Helena,

Montana, where he received a BA in English, and Lamar (Colorado) Community

College, graduating with an AA in Liberal Arts.

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Abstract Restorative justice offers fresh ideas to our criminal justice system. This values-

based approach to justice is based on healing the harm of crime, with a balanced focus

on the offender, victim, and community. Because this philosophy is new, quantitative

data are hard to find. Therefore, the qualitative method of case studies is appropriate

for reporting and analyzing the outcomes of restorative justice.

This case study looks at the use of restorative justice conferencing in an adult

felony case. To date the primary focus of this process is on juvenile cases. This case

study involves an adult case, believed to be the first such case in Colorado and one of

the first in the United States. The highlight of this case study is a conference that took

place between the entry of the plea of guilty and sentencing by the Court.

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Assault on a Safeway Manager: A Restorative Justice Adult Felony Case Study

Background

The principal people involved in this case study are Milton Brown, a young black

man from Cheyenne, Wyoming. While in jail for this case, Milton learned was awarded

a scholarship to play football at Missouri Valley University. Randy Davison was a clerk

at a Safeway store in Fort Collins, Colorado. His real passion in life was sound mixing.

Randy was married to Jeannine, and they had two young children, Danielle and

Michael.

The incident that brought these people together occurred June 7, 1998, at the

Safeway store in Fort Collins where Randy worked. The allegations in the case indicate

Milton and an acquaintance were shoplifting at the Safeway store. At the time they

were drinking in celebration of their recent graduation from high school.

As the two young men were leaving the store with a basket full of groceries,

without paying for them, Randy followed the two young men and confronted them to

ask if they forgot to pay. Milton became outraged and attacked Randy, knocking him

down and stomping on his head. Randy was unconscious immediately after the

incident and suffered injury to his face and head, which resulted in hospitalization and

some loss of hearing. Randy didn't remember the incident. Milton's recollection of the

events is different than those mentioned above.

After Milton’s arrest the case proceeded through the criminal justice system in a

manner common to most adult criminal cases in Fort Collins. On September 30, 1998,

Milton entered a plea of guilty to the Court based upon a plea agreement reached

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between the prosecutor and Milton's public defender. That agreement included a

stipulation that Milton would be sentenced to a cap of four years at the Colorado

Department of Corrections because of the viciousness of the attack, although he had no

prior record of violence. Milton's attorney at the time advised him to accept the plea

agreement, which represented a minimum prison sentence for the charge.

Later Milton asked the Court to withdraw his guilty plea. Special counsel was

appointed to look into the matter. After a hearing, the Court allowed Milton to

withdraw his guilty plea on January 14, 1999, and a trial was scheduled. If the matter

went to trial, and Milton was found guilty, a prison sentence was certain to result, with

no agreed-upon cap on the length of the sentence. Rather than going to trial, a

disposition was held April 1, 1999, and sentencing was scheduled for May 26, 1999.

The turning point in the case came when Randy met with Bill Jones, the

prosecutor for the case. At the request of the prosecutor, his named is changed for this

case study. The two people met to review Randy's testimony in the case in preparation

for the scheduled trial. During the meeting Randy expressed to Bill his desire to meet

face to face with Milton because he couldn't understand why this 19-year-old boy

would hurt him as he did. Bill explained to Randy the fundamentals of a restorative

justice conference and the wide range of possible outcomes from such a meeting.

Randy wanted to meet Milton in person because he had no memory of seeing

him at the time of the incident. Randy was motivated to meet with Milton because he

didn't believe prison was the best solution and his wife, Jeannine, believed prison takes

a person to the wrong place and makes the “hardness harder.” Randy felt

uncomfortable giving input about the sentencing without seeing and talking with

Milton. He wanted to take away the fear resulting from the incident by learning more

about Milton's character, what he was like, and whether the incident was a stupid

mistake or an act of meanness.

Plea Bargain

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The week before trial Bill made a plea offer to Eric Vanatta, Milton’s attorney,

which included a restorative justice conference. The pivotal point in the plea was

Randy's willingness to forgo asking for a prison sentence in exchange for the

opportunity to meet and talk with Milton in a conference setting.

Bill had knowledge about and experience with restorative justice prior to his

meeting with Randy. Sensing Randy's desire to meet with Milton, the week before the

pre-trial meeting, Bill talked with local probation officer Bernadette Felix, who is a

trained conference facilitator. Bernadette was open to the idea of facilitating a

conference in the case.

At first Eric was reluctant to accept Bill's plea offer. He feared a meeting of an

offender and victim might be antagonistic because of the anger involved, particularly in

a case involving a severe assault such as this. In his experience Eric found victims and

offenders often don't empathize with each other. A victim and offender must be willing

to meet face to face for this process to be successful. Milton was also reluctant to meet

with Randy at first but later agreed to the conference.

Wednesday, March 31, 1999, the week before trial, Eric and Bill met with the

presiding judge for the case, Chief Judge John-David Sullivan. They explained the plea

agreement, and Judge Sullivan approved the agreement. The restorative justice

conference was the cornerstone of the agreement, according to Bill.

The disposition was formally presented to the Court on Thursday, April 1, 1999.

The Court, counsel, and the defendant were present. Mr. Vanatta announced to Judge

Sullivan, "We've reached a disposition. He's going to be pleading guilty to a class four

felony dueling charge, also a class one misdemeanor third degree assault charge. The

agreement is a stipulation to probation on each count, with terms and conditions left

open to the Court.”

"We're anticipating the case will be continued for a sentencing hearing so that

Mr. Brown and Mr. Davison, who's the victim of the offense, would be in a mediated

meeting with the probation department." As a result of the plea, the Court vacated the

trial date of April 5, 1999.

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The family group conference was held May 4, 1999, at the Fort Collins City Hall

conference room. Prior to the conference, Bernadette met with Milton and his mother,

Teresa Carter, on April 27, 1999, for a pre-conference. She explained the goal of the

conference was to repair the harm resulting from the offense. Concerns and desired

outcomes for the conference were discussed. The conference process was explained.

A similar pre-conference was held with Randy in person on April 28, 1999. His

primary concern surrounded safety of himself and his family. Bernadette talked with

Jeannine on the telephone. Bernadette followed up the pre-conferences with a letter to

the participants and a map with directions to the location of the conference.

Conference

Present at the May 4th conference were the offender, Milton, and his great-aunt

Bessie Westword. The victim, Randy, and his wife, Jeannine, were also present.

Bernadette was the facilitator for the conference, and she was assisted by Laurie Klith,

Community Liaison Officer for the Larimer County Probation Department. The

conference lasted approximately one and one-half hours.

Bernadette talked with the Davisons and Milton and Bessie separately before the

conference to answer any last minute questions and address any concerns. The

conference participants sat in a circle with Bernadette on one side of the circle, the

Davisons next to her, then Laurie, and Milton and Bessie next to Laurie.

At the beginning of the conference the participants appeared tense and fearful.

Bessie was teary-eyed, and Jeannine's hands trembled for the first 15 minutes. There

was a common sense of caring. The Davisons wanted Milton to learn from the

conference and make positive changes in his life. Bessie expressed to the Davisons her

family wanted them to be okay and to forgive her family.

The participants were able to talk about how the incident affected them, what

happened to them since the incident, and how they would like to see the harm resulting

from the offense repaired. Milton began by talking about his version of what happened

on June 7th. He said he thought about the incident since that night. He knew he was

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intoxicated and that he hit and kicked Randy. However, he thought he assaulted him in

the chest area and not the head. Despite what witness statements revealed in the police

report, Milton explained what he remembered.

Milton took responsibility for his behavior on June 7th, sincerely apologized right

away to Randy and Jeannine, and asked for their forgiveness. He also expressed

concern for Randy's hearing loss and the effects on the Davison family.

Milton said while he was in jail he drew upon his faith in God because he was

informed 1) a friend died, 2) his mother was hospitalized, 3) he was offered a football

scholarship but was not able to accept because he was incarcerated, and 4) he lost his

girlfriend.

Bessie, Milton's great aunt attended and informed the victims of his past because

she raised him and his siblings. She said, “To strike anyone is wrong. I teach him

better. Nobody has the right to hit anyone."

Milton's mother, Teresa, was unable to attend the conference because she was in

California attending to her health needs. She wrote a letter, which moved Milton when

it was read aloud, and explained she was sorry she couldn't attend and meet the victim.

She said, "To the victim, I am very, very sorry that my son, Milton, hurt you. I hope that

one day you could find it in your heart to forgive him. I also know that deep down

inside me, my son didn't mean to hurt you at all. Milton also feels very sorry for

hurting you. If he could change that day, he would."

Teresa's letter went on to explain how her current medical problems were the

result of being injured by a drunk driver. Interestingly, Milton was intoxicated at the

time of the June 7th incident. Teresa ended her letter, "I hope the meeting between you

and my son gives you both a chance to talk about what happened, so you both have an

understanding of what happened."

The key to Randy's willingness to participate in the conference was being able to

see Milton face to face. Due principally to Randy's introverted nature, he was pleased

he could bring someone with him to the conference, namely, his wife, Jeannine, and that

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Bernadette used an outline which included questions asked of Randy. Randy felt the

questions kept the dialogue on track, and Milton could hear the answers.

Randy accepted Milton's apology and forgave him. Randy explained how the

incident affected him, particularly the hearing loss and his recently developed fear of

people and reluctance to trust them. He said this change in attitude toward people

bothered him. Recently Randy turned down an opportunity for a promotion in

management because of his fears of being in charge when a similar incident happened

again, and this decision affected his family. Milton encouraged Randy to take

advantage of these opportunities. Randy said most of his hearing returned. He still

gets headaches, especially when he first awakes.

Until she attended the conference, Jeannine had not cried and did not grieve. She

was busy from the time of the incident taking over all the duties of caring for her

family, putting aside her own emotions. Jeannine was called early in the morning

following the incident and was informed her husband was being taken to the hospital.

She was unable to go immediately to be with her husband because she needed to take

care of her two young sleeping children.

At the conference Jeannine cried profusely, and her feelings were flooding, she

explained. She appreciated the opportunity for resolution and closure. Jeannine

accepted Milton's apology, and regardless of what he said, Jeannine decided to forgive

Milton, as a gift she could give.

The harm to Jeannine resulted from Milton's "choice" to hurt Randy, which

resulted in Milton "almost killing my husband." For a while Jeannine experienced fear,

and Milton took something away from her. Yet Jeannine persisted in her desire to

forgive Milton, based largely on her faith in God, saying, "I forgive you; God forgives

you." She saw forgiveness as a choice, and the details of the actual act of forgiveness

would be worked out after the choice was made to forgive. Before the conference,

Jeannine said she prayed and will continue to keep Milton in her prayers.

Jeannine wanted to know more about Milton's history, and she didn't want to

help release someone who would cause more harm in the community. On the other

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hand, she did not want Milton to be sent to prison if he had no prior record. Her

emphasis was on restoring Milton rather then putting him in a cycle of involvement

with the criminal justice system. Yet Jeannine emphasized conferencing does not

provide complete resolution in itself. Consequences are needed to demonstrate to the

offender the cause and effect process.

Jeannine explained she grew up in Detroit and developed a hypersensitivity

towards people. This hypersensitivity diminished when she moved to Fort Collins and

returned when her husband was assaulted, particularly in terms of feeling safe.

Randy and Jeannine met in a sound engineering class, and technical sound and

lighting work was Randy's dream. Jeannine explained if Randy lost his hearing, he

wouldn't be able to realize his dream. She and Randy thought the hearing loss

jeopardized Randy's dream.

Jeannine noticed that since the assault Randy was more leery of people,

particularly customers who were intoxicated. She thought Randy's perception of

people changed, and he was not more apprehensive and expectant that intoxicated

people were going to do something harmful. Jeannine knew she didn't want to hate

Milton. Instead she chose to offer forgiveness to Milton and thereby let go of hate and

fear. She felt to not forgive is to somehow let Milton continue to own her and her

family.

Jeannine talked about the effects of alcohol on a person's life and quoted the bible

as saying, "Everything in moderation." She told Milton, "God doesn't want you to be

destructive."

The highlight of the conference, mentioned by most participants, was when

Jeannine showed Milton a picture of Randy, herself, and her two children, Danielle and

Michael. Jeannine described herself as a survivor, and she wanted Milton to look at the

picture and understand the gravity of what he did. She wanted to get to Milton's heart,

to get through his pain, the barriers, and help him see the devastation he caused to the

Davison family. The desired result would be repentance, not merely Milton saying he

was sorry.

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Jeannine said her heart's desire was to reach Milton so he could realize the effects

of his actions and decide to change his behavior. Both she and Randy expressed their

concern that Milton not "throw his life away." and they wanted him to succeed in life.

Jeannine hoped 20 years from then Milton would have a family, a college degree, be

working and doing his best, and realizing a life that blossomed.

The results most important to Jeannine were: 1) She was happy to look into the

eyes of Milton and speak about forgiveness, regardless of what he said, and 2) Milton

realized that the Davison children were almost left fatherless by a young man who grew

up without a father.

The participants made a conference agreement, which was signed by Randy,

Milton, and Bernadette, in an effort to "repair the harm that has taken place." The

agreement went on, "It is understood that these agreements may be used by the Court,

but are designed for reparation, not retribution."

Milton and the Davisons made the following agreements:

1. Milton Brown apologized to Randy and Jeannine Davison.

2. Randy and Jeannine forgave Milton.

3. Milton promised Randy and Jeannine that he not do anything like that again,

and that he will better his life.

4. Milton agreed to look for a Christian fellowship.

5. Milton agreed to do community service or volunteer work with

underprivileged children.

The participants were embracing at the end of the conference and promising to

pray for one another. The Davisons offered to write a letter on behalf of Milton in

support of his re-application for the football scholarship.

After the conference, Bernadette met with the participants separately to

determine how they felt after the meeting was over. Milton said coming to the

conference was hard for him but he felt good that he did it. Bernadette then prepared a

report to Judge Sullivan outlining the pre-conference, conference, and written

agreement.

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Sentencing

Milton's sentencing took place Wednesday morning, May 26, 1999. Milton's

attorney, Eric, presented Judge Sullivan with letters of support and a document from

Missouri Valley College confirming his football scholarship. The Court recognized the

report from Bernadette and made it part of the probation file.

Randy Davison.

The prosecutor, Bill, called Randy to come before Judge Sullivan. Randy said, "I

just wanted to come here and kind of express that I have had a meeting with Milton and

his great aunt, and my wife and I had a meeting with him, and I just want you to know

that, you know, everybody — first of all, that we forgive him, and we let him know this.

We let him know what he did was wrong and how it affected us and what could have

happened also, and — but at the same time, he needs to pay restitution for what he did,

but I guess mainly what I want you to know is I have no, I guess, desire for him to go to

jail or prison or anything like that. I just don't see that as any kind of — I just don't see it

as any help.

"I've looked at his record; that he didn't have anything else happen before this.

Then he also, you know, has a football scholarship, and my wish is that he would

succeed in his life, and this would help him to get along and to maybe better himself

and to achieve some things for his life, and that it would be a point where he can look

back, and he could always remember it, and it would make him a better person, and I

guess that's all I wanted to say."

The Court pointed out Milton did have some other criminal offenses as a juvenile

before he was 18, shoplifting and theft and asked if that made a difference. Randy said

no.

Eric Vanatta.

In his argument, Eric said, "Your Honor, this case, I think, is unique one for

several reasons. One, because Mr. Brown assaulted Mr. Davison. He's never assaulted

anybody before. Another is because Mr. Brown was, in essence, one of the only

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witnesses who actually cooperated and told the truth or his version of the truth when

the police contacted him. I think third, and probably most importantly, was because

Mr. Brown and Mr. Davison met in kind of a restorative justice type meeting with a

probation mediator.

"The Court may recall the facts in this case. There was a group Mr. Brown was

with and some of his friends, and they had been drinking. They were over at Suite 152.

They decided to go to Safeway to kind of meet to see if there was going to be any other

parties that night or anything going on, and Mr. Brown was walking out of Safeway

with Mr. Wright; kind of a questionable situation as to whether Mr. Brown was

involved in the theft part — that is the allegation — or whether he was basically walking

with Mr. Wright, and Mr. Brown indicated that he was grabbed by Mr. Davison. He

didn't know who it was. He turned around and punched him, and the question, I think,

at the trial would have been whether he punched him, and he fell to the ground and hit

his head on the ground and, therefore, caused the fractures or whether Mr. Brown

actually had stomped on his head, as indicated by one of the witnesses.

"I think the question of whether Mr. Brown hit his chest or kicked him in the

chest, as Mr. Brown told the police, or whether