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A Killer Goes Free Part 2: Judge who released woman who killed baby is familliar with shock probation

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Senior Judge Steven Mershon has had a long and distinguished career

By Lisa King

In October 2010, the lawyer for Tonya Nicole Brown, in prison for delivering a full-term baby and leaving it to die, petitioned Senior Judge Steven Mershon and asked him to release Brown under the state’s shock probation program.

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Brown had admitted that she had thrown her child, wrapped in a tied plastic bag, into a garbage receptacle in a public restroom on Mount Eden Road just after giving birth in April 2008 and, four months earlier, Mershon, working this case in his part-time role in Shelby County Circuit Court, had sentenced her to 15 years in prison for second-degree manslaughter and related charges, an agreed plea to a reduction from the murder charges she originally had faced.

Brown had served 15 months and 14 days in county and state facilities before Mershon reviewed a petition on her behalf by attorney James Lowry, who included letters of recommendation from family and friends and psychological evaluations of Brown.

And on Nov. 18, Mershon agreed to let Brown go home and resume her life in Lexington as a wife and mother of a now-4-year-old daughter.

Police and prosecutors have expressed dismay about Mershon’s decision to release Brown. Her little girl, later named Bailey, was a full-term infant who weighed 7 pounds, 6 ounces. She had died of asphyxiation, according to a report from Dr. Amy Burrows-Beckham with the Office of the Chief Medical Examiner in Louisville.

Shock probation is available in only seven states, and its application is only at the discretion of the judges. The law specifies that the applicants must be first-time offenders and have served at least 30 days but not more than 180 days following sentencing.

And Mershon, a 23-year veteran of the bench and a former prosecutor, is very familiar with shock probation requests – although it’s difficult to determine just how many such cases he has handled and which ones might have involved a death.

The Administrative Office of the Courts in Kentucky does not keep detailed rulings by judge, but a sample of his record from 2007 in Jefferson Circuit Court, obtained by The Sentinel-Newsshows, that in that one year Mershon handled 25 shock probation felony cases that ranged from first-degree sexual abuse to burglary to drug charges to theft of mail matter.

He approved shock probation in eight of them, including first-degree sexual abuse and first- degree wanton endangerment.

Those he denied dealt most often with drug charges, escape and mail theft.

None of those considered in that data sample included a death.

In interviews with The Sentinel-News, Mershon said that he has seen motions for shock probation quite often – “We get them [shock cases] pretty regularly,” he said – and that he typically approves shock probation for first-time offenders who have never faced jail time.

“The idea is that that experience has shocked them so much that we can now place them on probation, and hopefully, they’re not going to be a danger to themselves or others, and they can now become a productive member of society again,” he said.

“Different judges look at this differently, but many times, I’ll have somebody make a motion for shock probation, and then when I get the file and review it, I see where they have been granted shock probation before on another case,” he said. “And it’s always been my philosophy – and I don’t think I’ve ever made an exception to this – I tell people, if you were granted shock probation in the past, I don’t think it’s appropriate to grant it to you again because they’re only supposed to get the benefit of that statute one time.

“I think most judges share that philosophy.”

And Mershon was more specific about how he applied the case to Brown.

“The bottom line with Ms. Brown is that she had no prior record at all, she had never been in trouble. She had worked almost from the get-go with a counselor and a psychiatrist and was committed to keep doing that.”

Shelbyville attorney Benjamin Salyers, who has been practicing criminal law for 10 years since graduating from the Salmon P. Chase College of Law at Northern Kentucky University, said he shared Mershon’s assessment that shock probation requests are fairly common at the circuit court level.

“We see those motions often, and the whole premise of shock probation is to sort of shock the conscience of the person,” he said.

Salyers said that whether or not those requests are granted has a lot to do with both demographics and the nature of the offenses.

“It’s highly case-specific and jurisdiction-specific,” he said. “Different populations and different areas of the state are going to have different attitudes toward different crimes.

“And that’s going to be reflected in who they elect to be judge. I practice in several different areas of the state, and in the very same case, I might get shock in one county, but if I took that very same case to a different judge, I might not get shock.

“And the commonwealth can argue against it, but it’s a hundred percent within the judge’s discretion. “

That may require those who wonder about Mershon’s ruling in Brown’s case to understand a little more about the judge himself.

 

Who is Steven Mershon?

In fact, even residents in Shelby County who don’t frequent the courtroom may recognize Mershon’s name as the man who in 2010 reduced a 10-year prison sentence for admitted embezzler Jody Wills to 9 months, despite a plea agreement.

As a senior judge who will have an office in the new Shelby County Judicial Center, Mershon handles hundreds of cases a year in Shelby County alone, filling in for other circuit judges and handling half the civil court docket.

But his career was developed and largely served in Louisville, his hometown and a place he has been honored for his service.

Born in Louisville in 1951, the fifth of Dot and Ollie Mershon’s eight children, Steven K. Mershon spent 10 years in private practice and as an assistant Jefferson County attorney before being elected Jefferson District Court judge in 1988.

He was elected to the Jefferson Circuit Court in 1991, and he presided over Kentucky’s first family court, dealing with cases involving divorce, child custody and child abuse and neglect.

He was educated in Kentucky and Texas, earning a bachelor’s degree in philosophy from Bellarmine University in Louisville in 1973 and his law degree in 1979 from the University of Louisville’s Brandeis School of Law.

He has served on a variety of boards – including the YWCA Spouse Abuse Center and Children First – and in 2007 was named Judge of the Year by the Louisville Bar Association in 2007. In 1994 he was Family Court Judge of the Year.

 

A famous case

But his most famous moment on the bench perhaps was in the trial of Brown & Williamson vs. Dr. Jeffery Wigand, the man who became one of the most famous whistleblowers in America after disclosing damaging secrets about the cigarette industry to 60 Minutes.

Wigand was a vice president at Brown & Williamson Tobacco Company in Louisville in the early 1990s when he discovered that the company was manipulating nicotine in cigarettes to make it more addictive and that employees also were adding unsafe indigents to enhance flavor.

He protested and was fired, but his disclosures to federal regulators and the media ultimately cost the tobacco industry more than $245 billion.

A film was made about his story, called The Insider, starring Al Pacino and Russell Crowe.

Wigand testified extensively against the company in 1997 and 1998 at the trial presided over by Mershon in Jefferson Circuit Court, and the company finally dropped the suit in 1998.

 

Senior judges

Since retiring in Jefferson County in 2007, Mershon has been a senior judge, which according to the AOC, is one of a group of 48 retired judges who continue to work for a set amount of time in return for an enhanced retirement benefit but no other pay.

They assist sitting judges with congested dockets and fill in when a sitting judge dies or retires, among other duties.

Leigh Anne Hiatt, public information officer for the AOC, said the program, passed by the General Assembly as House Bill 439 in 2000, has enabled the judicial branch to fill vacancies in a timely manner that was not possible when sitting judges were the only resource to handle dockets statewide.

Judge William J. Wehr, former chief senior status judge for Kentucky,  said that in the past, chief regional or vice chief regional judges who were appointed by the chief justice were responsible for finding sitting judges to cover dockets in circuit and district courts.

“That program was at the brink of being unable to provide for all contingencies,” he said, “but its guidelines were revised to incorporate the senior status program for special judges.”

Wehr said that under the guidelines, sitting judges are called upon to handle routine situations, such as disqualifications, recusals, vacations and short illnesses, and senior judges are reserved for vacancies because of death or retirement and extraordinary circumstances leading to unusually congested dockets.

Hiatt said senior judges are assigned by the chief senior judge, who for Shelby County is Joseph E. Lambert, who joined the senior judges program after retiring from the Supreme Court of Kentucky in 2008.

Mershon said senior judges must work for 600 days, which averages out to about five years.

 “I tell people I’m sort of like the substitute teacher of the court system,” he said. “I mean, I might sit in Jefferson Circuit Court one week and in Jefferson Family Court the next. I’m supposed to be in Harlan County today, but it got cancelled. Yesterday, I handled a family court proceeding in Bullitt County, and the last couple of weeks, I’ve handled family court proceedings in Hardin County, and I do a lot in Shelby, Spencer and Anderson.

“Because I’ve been a district judge, and sat on the family court when it started in Kentucky, and I’ve been a circuit judge for more than ten years, I’m sort of a jack-of-all-trades, so they use me for a number of different things. But some day, I will have completed my 600 days, and I’ll be done with this and just receive my retirement check,” he said in a humorous tone.

Mershon also is involved in a move to restructure a portion of the Jefferson County court system.

“The chief supreme justice, John Minton, appointed me to be the facilitator for all of our district court judges in Jefferson County because they’re reorganizing the way they handle district court there,” he said. “So every Monday, I meet with the district court judges to plan this transition into, hopefully, a more effective way.”

Mershon is actually the first and last of a breed. The senior judge program is ending after the current group complete their tenures, and he said he’s glad it will be done.

“The legislature decided to take it away, and for good reasons, regrettably,” he said. “I think if they would have written it differently from the get-go, it would have been different, but there were just some problems with it.”

“Some judges, when they were defeated in the election, decided to enter the program in order to stay on the bench. They got defeated in November, but their successor didn’t take over until January, so they retired and went into senior status during that window of time when they could still do it.

“There are a lot of experienced judges like me that could go around and help out, but there were just too many bumps in the road in the program.”

 

His performance

Whether or not she agrees with Mershon’s ruling on Brown, Shelby County Commonwealth Attorney Laura Donnell said she believes Mershon does a good job as a senior judge.

“Judge Mershon is a hard-working, honest judge, and he does not take advantage of the system, where many others have,” she said. “As far as senior status judges go, he works hard, he’s always available, and I will always defend him in that way.

“I butt heads with him sometimes, but he continues to put up with me, which I appreciate,” she said with a chuckle. “But seriously, I think he understands that I feel strongly about always trying to do what is best for the community, and I think he respects that.”

Kentucky State Police Det. Luke VanHoose, the officer who found Brown’s baby in the Dumpster, said he has worked with Mershon on a number of cases. He added that although he was stunned that Mershon granted shock probation to Brown, he does not question his decision.

“I do my job, and then I turn it over to the commonwealth and let them handle it from there,” he said. “And the judges, they do their part in that, and they have to live with the decisions they make.”

 

His record

As a senior judge, Mershon frequently travels to many different counties and has worked a wide variety of cases, including five death-penalty trials.

Mershon’s former secretary of 17 years, Maggie McGrath, who is secretary for Jefferson Circuit Judge Audra J. Eckerle, recalled one of the most high profile murder trials Mershon presided over.

That case involved a Louisville tavern owner who was killed in a murder-for-hire situation in which Gerald Monroe was found murdered in June 2002. His wife, Vicki, was convicted of paying her son, Leslie Emerson, $2,000 to kill him, with a $50,000 life insurance policy as a potential motive. She is currently serving a 25-year prison sentence.

“I remember Vicki Monroe, because we had to end up trying her three times,” she said. “The first time ended up in a mistrial, and the second one got reversed. We finally tried the case a third time, and now she’s tucked away in the penitentiary.”

McGrath said that in jury trials, Mershon “always went along with the jury’s recommendation.”

How would she describe his practice on the bench?

“I would say that he is a very fair, middle of the road judge,” she said. “He was tough when he needed to be.”

Mershon’s record:

 

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A sample

 

Here’s a sample of Judge Steven Mershon’s decisions on 25 requests for shock probation in 2007 in Jefferson Circuit Court:

Shock granted

Flagrant non-support

Second-degree burglary, 3rd-degree burglary and possession of marijuana: shock granted

Receiving stolen property over $300 and 1st-degree criminal possession of a forged instrument

Second-degree robbery

Third-degree burglary, theft by unlawful taking over $300 and 2nd-degree fleeing or evading police

Second-degree robbery

First-degree wanton endangerment and 3rd-degree criminal mischief

First-degree sexual abuse

Shock denied

Second-degree escape

Second-degree escape

Second-degree escape

Theft by unlawful taking over $300

Second-degree assault and first-degree fleeing or evading police

Second-degree escape

Receiving stolen property over $300

Illegal possession of a controlled substance (cocaine)

Illegal possession of a controlled substance (cocaine) and  illegal possession of drug paraphernalia

Second-degree escape, illegal possession of drug paraphernalia, second-degree criminal possession of marijuana and giving a false name to an officer

First-degree wanton endangerment, 1st-degree stalking, and terroristic threatening

Trafficking in a controlled substance (cocaine) and tampering with physical evidence

Second degree robbery

Third-degree assault and possession of a firearm by a convicted felon

Second-degree forgery, 2nd-degree criminal possession of a forged instrument and theft by unlawful taking over $500

Theft of mail matter

Second-degree escape