Posted: April 8, 2014
"I HAVE CONCERNS ABOUT THIS"
By Celia Cohen
Maybe a set of quotation marks could have avoided the frenzy engulfing Judge Jan Jurden in the Richards case.
Not to mention more information about what actually happened in the sentencing hearing in the Superior Court for Robert H. Richards IV for fourth-degree rape of his four-year-old daughter.
The five-year-old case, noted without ado in courthouse dockets at the time, has turned incendiary because of its connection to a new lawsuit, filed by Richards' ex-wife for money on behalf of the daughter and a younger brother, also allegedly abused.
Richards got probation, not prison, as the sentence suggested to the judge by the prosecution and defense as their first recommendation. With the fixation these days on the "one percent," it was a snap the sentence would provoke a stinking suspicion that Justice peeked under her blindfold to see who was standing there and cluck-clucked he would "not fare well" behind bars.
Richards comes from a fine legal lineage in Delaware.
Robert H. Richards Sr., his great-grandfather, founded the venerable law firm Richards Layton & Finger, served as attorney general and advised T. Coleman du Pont, the road builder, on U.S. 13.
Robert H. Richards Jr., his grandfather, also practiced at Richards Layton & Finger and provided the counsel to get the Delaware Memorial Bridge built.
Robert H. Richards III, his father, was a lawyer at the family firm, too, and married a du Pont. Richard III's sister is Jane Roth, the federal judge whose husband was Bill Roth, the Republican senator.
Now the family name is connected to a registered sex offender, whose ex-wife filed a lawsuit seeking compensation for their children.
A sex offender who is a Richards and a du Pont and a Roth nephew-by-marriage. Throw in an attorney general named Biden, and this case was destined to be a viral sensation.
The main cause of the furor seems to be the remark that Richards would "not fare well" in prison. It has been widely assumed this sentiment issued from Jurden herself.
Actually it came from Eugene Maurer, the defense attorney for Richards. A transcript from the sentencing hearing shows it did, and furthermore, Maurer said Tuesday in a telephone interview the words were his.
"They are, as they were from the start," Maurer said.
From there, the wording was incorporated by Jurden in her written sentencing order in a section labeled "Notes," described by lawyers as a place for the judge to include comments from the prosecutor and defense attorney.
Jurden never spoke the words from the bench during the sentencing hearing. She fatefully connected herself to them, however, since they do appear in the last line of her sentencing order, and her signature flows right through it.
Nor are the words set inside quotation marks or show any other sort of attribution to Maurer.
"She unfortunately thought enough of what I was saying to put it in her order as a mitigating factor," Maurer said.
The case was a difficult one. The Attorney General's Office had doubts about how it would fare before a jury and eventually decided to accept a plea and proceed to sentencing.
"A loss at trial was a distinct possibility. The only eyewitness to the crime was the four-year-old victim. There was no medical or forensic evidence of any kind. The defendant did not make a statement to the police, although he made an ambiguous apology to the victim's mother," wrote Beau Biden, the attorney general, in a posting on his office's Web site.
The sentencing hearing in 2009 was a painstaking procedure, as the 16-page transcript shows.
Richards could have been sentenced to prison for zero to 22 months, according to the Attorney General's Office, but Maurer argued against jail so Richards could get treatment, not only as a sex offender but for other psychiatric issues, with the prospect of rebuilding a relationship with his daughter someday.
Those other psychiatric issues, referenced only generally in court but explained more fully by Maurer in the interview Tuesday, included adult attention-deficit/hyperactivity-disorder and depression for a picture of someone who was developmentally disabled.
"Anyone that had anything to do with him would have reached that conclusion," Maurer said.
The transcript quotes Maurer as saying, "I hope with all those factors the court would conclude that he is not a suitable candidate for incarceration. I would not think he would fare well there. In fact, I know he would not fare well there. . . . He has a supportive family, and I would ask the court to consider all those factors in deciding what the appropriate sentence should be."
The prosecutor was Renee Hrivnak. With caveats, she did not oppose a sentence involving treatment and was willing to consider Maurer's recommendation for a five-or-six month in-patient program in Massachusetts.
Hrivnak was quoted in the transcript as saying, "The state does not think that this is a case that would be appropriate for flat-out probation. Typically we would be asking for jail time. I think that this Massachusetts program is a viable alternative to jail, if the court were willing to sentence him to successfully complete that program. . . .
"The first option that the state would present is that this jail time will be suspended for completion of that program, followed by a lengthy period of probation. If the court is not inclined to send him to the Massachusetts program, then the state would be asking for some period of jail that the court would feel would be appropriate."
Jurden sentenced Richards to eight years in prison, suspended for what would turn into eight years of intense probation with treatment, and ordered him to register as a sex offender, stay away from children younger than 16, do community service and take all his medications.
Jurden, a respected judge who was recently in the running for chief justice when Leo Strine Jr. was named, displayed sternness when she sentenced Richards, as the transcript shows.
Jurden: "I have concerns about this, because arguably you should be at Level Five [prison] for what you did, and I hope you understand the gravity of what you did."
Richards: "Yes, I do, Your Honor."
Jurden: "But I think that you have significant treatment needs that have to be addressed, and you have very strong family support. So, unlike many other unfortunate people who come before me, you are lucky in that regard, and I hope you appreciate that."
As matters turned out, Richards never did get to Massachusetts. Jurden called to check on the program herself and was unsatisfied it offered sufficient safeguards and supervision, Maurer said, so instead, Richards has remained on intense probation without violations.
The case has taken on a life of its own. Jurden had concerns then, but little did she know.