The court ruling Jacob Wideman was waiting for

[Automated voice: This call will be recorded and subject to monitoring at any time. Thank you for using IC Solutions. You may begin speaking now.

Jake: Hey, Beth.

Beth: Hey, there.

Jake: So, I have the decision.]

Hi folks. It’s Beth. Remember how I dropped in here in August to tell you the judge had held a hearing in Jake’s case, and we’d be back when he issued his ruling?

Jake: Under advisement ruling. On October 4th, 2023, this matter came before the court for argument on Wideman's second complaint for special action relief…

Well, here we are.

I was in Dallas reporting on a different story in October when the phone rang. It was Josh Hamilton, Jake’s attorney. He sounded like someone had died. I didn’t have a tape recorder on me in the car that day, but I called him back later.

Josh: I opened it up and the first thing that jumped off the page to me was that I thought it was very short. It was only about two pages long. And so as we went, as I quickly read through it, I just, you know, I was…shocked, I guess.

There’s a lot to say about the ruling itself, and we’ll get to that. But the upshot is this: the judge ruled against Jake. He’ll stay in prison, definitely for at least another year, possibly for the rest of his life.

Jake: I was really, uh, surprised is not the word for it. I was shocked. I really was. I, of all possible outcomes, I didn't think that one was very realistic.

I’m going to skip a thorough recap here because the backstory is long and complicated, and if you’re listening to this update, you probably already know it. If you haven’t listened to Violation, or our last update, please go back and listen to those first or this update won’t make much sense. But, long story short, Jake was waiting on a Maricopa Superior Court judge to rule on his second special action—which, because you can’t technically appeal a parole board’s decision, is a sort of sideways way to argue before a judge that the board’s actions were unfair. This time around, he was arguing that his second parole revocation hearing, which was ordered by a different judge in 2019, had been just as unfair as his first. Last year, Jake filed another special action, arguing that the second hearing had also been unfair, and actually the whole process raised red flags. Jake and his lawyers used that phrase, red flags. “The evidence shows” — and I’m quoting here — that the Arizona corrections department “was actively searching for a reason to violate Wideman” — that means to revoke his parole — “and suggests it may have even deliberately orchestrated the violation.”

The oral arguments for that second special action were held in August, and that’s when we brought you our last update.

(sound from hearing)

Remember we told you that, broadly, the judge had three options?

The first was to release Jake altogether. Jake and his lawyers knew this was a long shot, but they made the argument anyway. They said that when it comes to Jake’s case, the parole board has acted in a way that’s quote, “arbitrary and capricious” and “vindictive” and that because they can’t be trusted to be fair, the judge should take the decision making out of their hands and just reinstate his parole and release him.

The judge’s second option was to order a second do-over of Jake’s parole revocation hearing, with or without some additional guidance or guardrails. This is the outcome Jake thought he had a real chance of getting.

Jake: I thought the worst case scenario was that he would just simply send it back to the board with, you know, no instructions or anything like that and give the board carte blanche again to essentially do what they wanted to do. But I didn't. Uh, I didn't spend a lot of time even conceiving of the idea that he would shoot us down completely.

But that's exactly what happened. The judge's third option — the worst-case scenario as far as Jake was concerned — the one he says he didn't even spend much time thinking about, bc he didn't even think it was possible for the judge to find that he’d been treated fairly under the law. Judge Mark Brain chose that third option. He said that Wideman “failed to demonstrate a basis for relief.”

The entire decision, header and all, was two-and-a-half pages. Just as a point of comparison, the first judge’s ruling on Jake’s last special action was 16 pages.

Daniel Medwed: the brevity of this opinion was a little bit like an emphatic period at the end of a sentence. Reading this made me feel as though the court was signaling enough is enough.

Daniel Medwed is a professor of criminal law at Northeastern Law School. He has no connection to this case but I asked him to read the judge’s ruling and some of the related documents. Jake’s legal arguments to Judge Brain were 87 pages, the board’s reply was 101 pages with appendices, plus the parties went back and forth in additional dozens of pages about whether the transcript of the revocation hearing was reliable and accurate—all of which is to say, there were a lot of complex legal arguments to consider.

Medwed: There was an element of exasperation in the tone of this that I found a little bit. Disturbing. Because, of course, I think Mr. Wideman's claim is an eminently credible one to make, which is, ‘Arizona, tell me why I'm being recommitted. How possibly could my behavior here, my failure to set up this appointment, how could you go from that indiscretion to a finding of lapsing into criminal conduct? You know, show me the chain of inferences that led you there.’ And that strikes me as a very reasonable request. And if the board and the court had actually shown those, that chain of inferences more clearly and more transparently, I think I would have accepted this opinion more than I did.

But Judge Brain agreed with the Board that the reasons they had provided to support the idea that Jake was returning to “criminal ways” were good enough. In fact, at the hearing in August, it was almost as if he invited the board’s lawyer — her name is Kelly Gillian-Gibson — to explain why they were good enough.

Kelly Gillian-Gibson: it would be improper, um, for me to attempt to explain why a decision maker's decision was correct.

Judge Brain: I don't even think you need to argue It's correct. I think you need to argue it's plausible.

Kelly Gillian-Gibson: what you can say is plausible is that the delay of time, how often Mr. Weidman delayed getting done, what the probation, or excuse me, the parole officer asked him to do, suggests that he was avoiding, um, complying and trying to manipulate the system.

And in his ruling, he wrote, quote, “the Court is not authorized to substitute its judgment for the Board’s judgment, but instead merely to determine whether the Board acted within its discretion. Here, there was evidence that Wideman’s parole officer had prodded Wideman to begin counseling with Dr. McCaine for some time, and he had failed to do so.” Dr. McCain is that therapist who Jake was supposed to make an appointment with.

And so, Jake and his attorneys are back to square one. Except for the nine months he was out on home arrest, he’s now been behind bars for 37 years — and he has very few avenues out.

He could appeal Judge Brain’s decision to the Arizona Court of Appeals, and then to the Arizona Supreme Court. If they deny him, he could move over to federal court and start a chain of appeals there. All of this could take years.

Like any prisoner who was convicted in the 1980s, before Arizona abolished parole, he ALSO has the option of having a parole board hearing each year and asking for release, just like he did for years.

But legally speaking, said his lawyer Josh Hamilton, doing that would mean he accepts the way things have gone down so far and gives up his chance to appeal it.

But legally speaking, said his lawyer Josh Hamilton, doing that would mean he accepts the way things have gone down so far and gives up his chance to appeal it.

Beth: At a certain point, does Jake just, you know, throw up his hands and just start going before the board every year?

Josh: Do I put myself back in front of this parole board and explain to them why I'm an appropriate candidate for release on parole? Putting my faith in the same board that twice previously kept me in custody where I didn't deserve to be and wouldn't give me a fair hearing that adhered to the law. But do I trust that I can have a fair hearing on the merits of us to re release on parole? Or, do I continue to advance my very real, very well established legal arguments as to my initial detention in the first place? That's a decision that only he can make.

And so far he’s made the decision to continue with his appeals. So, Jake’s lawyers are working on crafting the next appeal an appeal, and Jake is trying to figure out a way forward. He says he’s still doing all the things he did for years to stay positive and productive. He’s working as a peer mentor, he’s reading, he’s nurturing his relationship with his family and his wife Marta, who he married while he was in prison and who has been a source of constant support. But he’s angry.

Beth: I, you know, remember you expressing anger when they brought you back, and that being wielded as a weapon against you in front of the parole board, are you worried about saying that you're angry?

Jake: if it's inappropriate for me to be upset and angry, uh, in this circumstance, then I don't know what circumstance it would be appropriate for me to be angry in. Or, or on the other hand that I'm a sociopath who doesn't feel anything, you know, right.

Jake’s dad, the writer John Edgar Wideman, has no qualms about being angry, either. During my conversation with him last winter, he was trying to make sense of how the situation had come to this, after everything Jake had done to win his freedom.

John Edgar Wideman: Of course, Jake had no idea. that, uh, the possibility of five years incarceration, six years, endless, really, a lifetime of incarceration was at stake in terms of how he, how he responded to this allegation that he had missed an appointment

I can’t know what the parents of Eric Kane, the boy Jake killed in 1986, are feeling right now. They haven’t wanted to speak to me for this project, and also asked me, through their attorney, not to contact other people in their lives who might be able to speak to their perspectives. I know they spent years advocating to the parole board to keep Jake behind bars forever, and then once he was out, encouraging corrections officials to arrest him and bring him back in. So I imagine this ruling comes as a relief to them, but a bittersweet one, because it won’t bring Eric back. Nothing will.

What are you feeling? After going on this journey with us, through Jake’s childhood, Eric’s terrible murder, through seven appearances before the parole board, two special actions, three decades in prison, do YOU think something went wrong in Jake’s case? Or did everything go exactly right? Was justice served?

We’d like to hear from you. If you have questions you’d like to ask me, or Jake, or his attorneys, or a victim’s right advocate, or a legal expert, please call and leave your question in a voicemail, at (347) 391-3431.

We’re working on one final episode as we watch this case unfold. We’ll hear from Jake, from his wife Marta. We’ll be talking to state corrections officials working for Arizona’s new democratic governor. The governor came in promising reforms, but so far the state’s posture towards Jake’s case — at least in court — has not changed. One thing that HAS changed is that the new administration is willing to talk to us, and we’ll bring you their perspectives. We’ll answer as many of your questions as we can, and of course we’ll continue to dig into the big questions that have animated us all along:

Is there anything Jake can do to deserve to be free again? Is there anything he could say to convince the board, the courts, the people who loved Eric Kane, that he has served his time and is ready for another chance? Let us know what you think, and we’ll see you soon for one last episode of Violation.