Philadelphia civil rights attorney Mark Schwartz has issued an open letter to the federal attorney for Washington DC, in the matter of potential charges in the wake of the U.S. Capitol invasion of January 6.
The letter is below, as I believe his recommendations are timely and should be part of the discussion of legal responses to the insurrection.
Schwartz’s letter also refers to a case in which he successfully aided an incarcerated African American prisoner seeking pardon after serving 44 years for a related offense. Excerpts from news reports about the case follow the letter.
MARK D. SCHWARTZ
Attorney at Law
Bryn Mawr, Pennsylvania
AN OPEN LETTER TO THE US ATTORNEY FOR THE DISTRICT OF COLUMBIA
January 9, 2021
The Honorable Michael R. Sherwin, Esquire
US Attorney for the District of Columbia
555 4th St NW
Washington, DC 20530
Re: Five Counts of Felony Murder for Trump, Trump, Jr. , Ivanka, Giuliani , Hawley, Alex Jones and others
Dear Mr. Sherwin:
I am an attorney with over thirty-five years of experience in representing Robert Wideman, who was incarcerated for life without the benefit of parole; i.e., felony murder. As part of a botched robbery in 1975 where an accomplice shot an individual who died of medical malpractice. Notwithstanding Mr. Wideman was knowingly in the wrong place at the wrong time. He spent 44 years in jail until we accomplished a pardon by Pennsylvania’s Governor. Mr. Wideman happens to be an African-American.
I was pleased to read that your First Assistant US. Attorney has been quoted stating that “Felony murder is always in play in something like this”. (WSJ , January 9, 2021.
Indeed, it should be. Those who spoke at and underwrote (Alex Jones) Trump’s rally of last Wednesday clearly advocated violence and combat. There was nothing subtle about it.
There would be nothing at all novel or creative in bringing five counts of felony murder against each. As you know, the doctrine of felony murder, originating from England, has been a part of American criminal jurisprudence since the country’s founding.
Simply stated, one who participates in a felony is responsible for any death that eventuates therefrom, regardless of the actual cause. Exhortation of an assault on the Capitol and the elected officials who work therein, brought about five deaths at this early count.
As a matter of long-established law, it matters not whether those who died, were killed by Trump’s assault force, were killed by Capitol police, or even died by natural causes. They died during the course of felonies being perpetrated by Trump and those affiliated with him who advocated the violence that took place.
Your hybrid status as U.S. Attorney as well as chief prosecuting attorney for the District of Columbia is unique and important. Mr. Trump and his fellow insurrectionists might somehow be pardoned when it comes to federal charges. However, felony murder charges brought on behalf of the District would not be defeated by any pardon.
Let’s please not limit ourselves to the smaller stuff; charges like destruction of property and trespassing. Let’s instead show that the white and privileged people are subjected to the same justice that Robert Wideman and other African Americans have long be subjected to.
Kindly elevate felony murder charges from being “in play” to the requisite indictments.
Thank you for your service.
Very truly yours,
/s/ Mark D. Schwartz
Mark D. Schwartz, Esquire
Mr. Schwartz practices civil rights law in Bryn Mawr, Pennsylvania.
DEB ERDLEY | Tuesday, July 16, 2019 7:37 p.m.
Last winter, after seven unsuccessful appeals to the Pennsylvania Board of Pardons, Robert Wideman had given up hope of ever leaving the state prison system that had been his home for more than four decades.
On Wednesday, Wideman, who finally was released from prison last week after a final appeal succeeded, just shook his head as he recounted his long journey in an interview with the Tribune-Review.
“I’ve been telling myself I’m the luckiest man alive,” Wideman said. He and his longtime lawyer Mark Schwartz, a Bryn Mawr lawyer and Pittsburgh native, spoke of their efforts in an Uptown office near the Pittsburgh halfway house that will be Wideman’s home for the next year.
Wideman’s youthful life of crime, poverty and drug abuse is chronicled in his brother John Edgar Wideman’s award-winning 1984 book “Brothers and Keepers.”
The 68-year-old Homewood native served nearly 44 years of a life sentence for his role as an accomplice in a 1975 Pittsburgh robbery that culminated in the shooting and death of Nicholas Morena.
The plot called for Wideman and two associates to rob Morena, a car salesman whom they had lured to a meeting with the promise of a truckload of stolen TVs.
Like the gunman who shot Morena as he ran away, Wideman was convicted of second-degree murder and received a mandatory sentence of life in prison without parole. A third member of the group was convicted of third-degree murder and sentenced to 10 to 20 years in prison.
In prison, Wideman — known to family and friends as Robbie — matured from the angry, rebellious 24-year-old arrested after fleeing across the country in the wake of the shooting.
The tall, slim man now walks slowly. “I have a steel rod and 12 screws in my back,” he explained. Wincing in pain as he flexed fingers riddled with arthritis, Wideman said the turning point for him was his son Omar’s murder in 1993.
“I decided after my son died that I had to change and do something to help someone. By the grace of God and effort, I just began to change and held on to hope,” he said.
In the years before the state ended an education program for inmates, Wideman earned an associate’s degree in engineering, took courses in computer engineering and instructed his fellow inmates in algebra and trigonometry classes.
He kicked the drug habit that had followed him to prison and became a Narcotics Anonymous sponsor to other inmates trying to get clean. He mentored at-risk youth that local police brought to the prison and helped launch a program with Duquesne University that paired Pittsburgh police officers and police recruits with inmates for a series of face-to-face meetings.
But, when the pardon’s board rejected his appeals for the seventh time last year, Wideman ran out of plans and lost hope.
“I was truly at my wit’s end,” Wideman said.
He said at one point, while in pain from back surgery, he prayed for God to take him.
Schwartz had other ideas.
Gov. Tom Wolf had signed off on pardons for several other inmates who had turned their lives around while serving long sentences for murder.
So, Schwartz began scouring court records to ensure salient details of Wideman’s case were included in a petition for reconsideration.
There was Dr. Cyril Wecht’s testimony that Morena’s death was the result of a hospital error rather than a gunshot wound as well as the hospital’s ultimate decision to settle a lawsuit with the Morena family.
Then there was Allegheny County District Attorney Stephen Zappala’s last-minute intervention to halt Wideman’s release on bail two decades earlier after Judge James McGregor had granted him a new trial.
Schwartz insists Zappala overstepped his authority on that count.
Zappala appealed McGregor’s order for a new trial and had it overturned.
Ultimately, Zappala and Morena’s younger sister would once again argue against Wideman’s release when the Pardons Board convened in May.
Wideman said he can’t forget Morena’s sister and the pain she continues to feel.
“I can’t just say that I’m sorry, without it seeming that it’s not enough. I pray for her. She doesn’t have to forgive me. I just pray that she finds some kind of peace,” he said.
And then there was Allegheny County Judge Jeffrey Manning.
Manning, known as a law and order judge, had been a young assistant district attorney when he prosecuted Wideman. As early as 1977 he wrote a law review article decrying as “draconian” the law that called for mandatory life imprisonment without parole for those convicted of second-degree murder even though they were not directly responsible for the death of another person.
Schwartz said as he was preparing Wideman’s appeal for reconsideration early last spring when Manning called and said, “Mark, I think it’s time.”
Manning later joined him at the Pardon Board’s hearing and advocated for Wideman’s release.
This time, the board that had rejected Wideman’s last appeal 4-1, voted 5-0 to recommend him for clemency.
Deb Erdley is a Tribune-Review staff writer. You can contact Deb at 724-850-1209, email@example.com or via Twitter .
Wideman, In His Own Words
Pittsburgh PA Post-Gazette
Robert Wideman: I would have died in prison without commutation
It is time to do away with ‘death by incarceration’
ROBERT WIDEMAN – JUL 9, 2020
I’d been in prison 44 years, serving life without parole (LWOP), when an officer woke me up one morning in the prison hospital and informed me I needed to meet with my counselor.
It was May 2019, and I had just returned to the prison after spending eight days at an outside hospital recovering from a back operation. I was disabled and in great pain. I had to take a wheelchair.
After an extremely bumpy, painful ride, I learned I had a call from the commutation board. My immediate response was it had to be a mistake. The board had turned me down just six months prior. I had requested commutation seven times — beginning in the 1980s — and it had been denied seven times.
But this time, an appeal to the board helped reverse the denial, and the governor signed off on the board’s decision. That turn of events is why today I am delivering food to elderly and other homebound residents in local high rises during the COVID-19 pandemic — even though I was slated to die in prison.
Some call a LWOP sentence “death by incarceration” because that’s what it is — a life sentence with no possibility of release, a second chance, ever. You live out your life and die in prison.
I committed the crime that landed me in prison in 1975. It was a robbery gone bad. My two accomplices and I had agreed to use guns to threaten, not shoot, but it all went south in a matter of seconds. The man we tried to rob ran, a scuffle ensued and my co-defendant fired a shot. The victim, Nicola Morena, was hit in the shoulder. He survived for several hours, until the bandage over his wound was removed. Because it wasn’t done properly, he died suddenly.
I had no intention or expectation of anyone being killed that day, and I was not the shooter, but I was still sentenced to LWOP because under Pennsylvania law that’s the mandatory sentence for felony murder, regardless of your part in the crime.
Because the court later determined during an earlier appeal that Morena would have lived if the hospital had applied his bandages correctly, I was granted a new trial in 1998, after I had served 22 years.
Maybe I deserved to serve those 22 years. A man lost his life because of my actions. But during those 22 years, I did a lot of work to recognize the wrongness of my actions, I dealt with substance abuse issues I had at the time I committed the robbery, and I began to work on projects and with organizations that help people who are formerly incarcerated. I became a member of Narcotics Anonymous, in which I still participate. I began giving speeches to drug therapy groups. I helped form a program that invited college students into prisons to work with people pursuing college courses. I thought I deserved a second chance.
Unfortunately, the new trial never came to be. Because of the prominence of my case — partly because my brother is a well-known writer who had written a famous book about my case titled “Brothers and Keepers” — political interests intervened and my retrial never happened.
But that prominence cut both ways. No doubt it also played a role in the governor commuting my sentence, which was the only way I was not going to die in prison. The public attention on my case and the advocacy it generated helped secure a release for me that is out of reach for so many other people I know serving a “death by incarceration” sentence.
I believe I deserved a second chance, but I was not released because I was the most deserving. I was just lucky that so many people wanted to help me. But I left behind many, many people just as deserving of a second chance as I was.
Since my release, I have continued my work with the prison college program, as well as with an organization that provides job training, child care assistance and other support to people coming out of prisons. I am also working to help others have their sentences commuted — something that has become exceedingly rare even while the population of people serving DBI sentences increases.
During this coronavirus pandemic, a mandatory DBI sentence is even more cruel. These days, DBI not only guarantees death in prison — it threatens an early death in prison. Prisons are crowded, unsanitary places where physical distancing is impossible, unless you’re locked in solitary confinement.
Like lots of places, Pennsylvania prisons are also filled with aging prisoners. There are over 10,000 people over 50 years old incarcerated in Pennsylvania, the fourth-highest aging prison population in the country. The majority of these people are serving sentences for crimes committed in their late teens and early 20s, like me. Many have serious health issues. A COVID-19 infection means they might die in prison not after a life sentence, but in the coming weeks and months.
And this cruelty is meted out most often against Black people. We make up 76% of DBI sentences in Allegheny County and 65% of DBI sentences in Pennsylvania, despite being only 11% of the state’s population.
Many of these people did not kill anyone. Instead, they, like me, played a role in a tragic but unintended death. And yet, regardless of their secondary role, and any of their efforts for rehabilitation while incarcerated, their mandatory LWOP sentence means they can never see a parole board to show how they’ve changed. Because of time, age and a lot of self-work, many of them have made great strides in rehabilitation and do not pose a risk of reoffending. Many of them could engage in the kind of community work that I have participated in since my release.
On Wednesday, the Abolitionist Law Center, Amistad Law Project and the Center for Constitutional Rights filed a lawsuit challenging “death by incarceration” as unconstitutionally cruel punishment. Were I still incarcerated, I would eagerly join their efforts. The courts should do away with a sentencing scheme that condemns people to die in prison from the start, that gives no one ever a second chance.
Robert Wideman served 44 years of a life without parole sentence before his sentence was commuted by Gov. Tom Wolf in 2019. The lawsuit filed by the Abolitionist Law Center, Amistad Law Project and the Center for Constitutional Rights is Scott v. Pennsylvania Board of Probation and Parole.
First Published July 9, 2020