Saturday, Feb. 16, 2013 | 11:09 a.m.
YPSILANTI, Mich. — More than 21 years after she went to prison, Barbara Hernandez enters the cinderblock visitation chamber at the Women's Huron Valley Correctional Facility in the turquoise blouse with applique flowers she keeps for special occasions. Her makeup is carefully applied but cannot hide the age lines that spread, thin but unmistakable, from the corners of her eyes.
"Thank you for coming," the 38-year-old inmate says softly. Her eyes, chestnut and brooding, are offset by a gentle smile. She holds out a hand in welcome.
And in that moment it is up to the visitor to begin weighing the choice the gesture offers: Is this the hand of a criminal who lured a man she'd never met to a brutal death and must be locked away forever? Or does it belong to a long-ago girl, who left home in rural Michigan at 14 only to end up in an abandoned house outside Detroit with a boyfriend who pimped her, and who now deserves a second chance?
There are more than 2,000 Barbara Hernandezes in this country — men and women sentenced to live and die in prison for murders committed when they were teens. Last June, the U.S. Supreme Court delivered a long-awaited ruling, wrestling with questions that have confounded the justice system for years: Should teens convicted of the most brutal crimes be punished just like adults? Or should their youth matter?
The ruling was dense with legal references and focuses on faraway cases. But in its 64 pages, the court offered new hope to inmates in 28 states.
"Imposition of a State's most severe penalties on juvenile offenders cannot proceed as though they were not children," Justice Elena Kagan wrote for the court's majority.
Despite the justices' strong words, they declined to settle the many complex questions inherent in resolving these cases. Instead, they left it to people in statehouses and courthouses, in living rooms and law offices and prison cells. In Michigan and many other states, the challenge now is to decide whether, and how, this new standard of fairness is supposed to confront the stern justice of the past.
That won't be easy. In the closing hours of Hernandez's trial, the prosecutor urged jurors to focus solely on her role in killing James Cotaling, a 28-year-old auto mechanic who, on a Saturday night in May 1990, told his fiancee he was going out to buy a Mother's Day card at Kmart, but never came home.
"This would be the type of case where it would be easy to feel sorry for Barbara Hernandez, but you all promised me at jury selection that sympathy would play no role in your deliberations," said the prosecutor, Donna Pendergast.
"You can't look at who this defendant is. You have to look at what she did."
Now, more than two decades later, the Supreme Court says that is not enough. But to comply with the court's words will take more than just a change in legal process. It could well force the system to revisit the distant past and appraise its meaning, to again confront the details of terrible crimes and to take measure of childhoods left behind long, long ago.
• • •
In 1987, the year Barbara Hernandez turned 13, her mother moved the family from New Mexico to live near relatives in Capac, Mich., population 1,700, whose two-block downtown is set in farmland on the state's eastern shoulder.
The move put fresh distance between the family and Theodore Hernandez, arrested in 1984 for molesting the oldest of his three daughters and his wife's sister. Records show he served three years in prison for criminal sexual penetration.
But another relative, who has never been charged, soon began molesting the two younger Hernandez girls, abuse recounted by all three sisters and noted by a state social worker who evaluated Hernandez before she was sentenced. The women say their mother knew for years what both men were doing, but either denied the abuse or blamed it on her daughters.
"She said it was my fault," Elizabeth Evans, the oldest, said in a recent interview. "I started my period when I was 10 years old and my mom beat me for that reason, stating that it was because I let my dad do things to me. I got hit with the wire part of fly swatters, with extension cords."
Hernandez's mother drank heavily, often leaving the children to take care of themselves. The youngest, Andrea Waple, recalls being in kindergarten when she was given a key and told to let herself in to the empty house. Hernandez skipped school to come to pick her up, stirring their mother's anger.
"Barbara always tried to take care of me even though she didn't know how," Waple said. "We'd get into trouble about who knows what and because my mom was mad, she'd come home from work and hit us with a belt. It got to the point where we're pretending to be crying to make her stop."
Hernandez enrolled in eighth grade at Capac Junior-Senior High School where a junior named Jim Hyde — four years older and repeating a year after transferring from a nearby school — began passing her notes in the hall. Hernandez says she craved the attention and the two became a couple.
But Hyde was trouble, his stepsister, Deborah Erdman, said in an interview. She recalls him as a boy who blew up frogs with firecrackers and, later, as teenage drug addict.
Erdman said her mother spoke worriedly about Hyde's domineering relationship with his new girlfriend.
"If he had told her to walk out in the middle of the road and stand in front of a speeding semi, she'd have done it. It was almost like she was hypnotized by him," Erdman said. When her mother described the pair, "she says, 'Debbie, that girl is just like his slave."
Hyde, also serving life without parole for Cotaling's murder, did not respond to requests for comment.
In 1988, Hyde went to live with his mother in Pontiac, a down-and-out factory town north of Detroit, and asked the 14-year-old Hernandez to come with him.
"I thought, 'This is my way of getting out,'" Hernandez said.
Hernandez followed, but a week or two later she gave in to her mother's instructions and moved in with her older sister, Evans. She stayed most of a year, until one night when Hyde climbed to the balcony of the second-floor apartment. Hernandez says he told her unless she came with him, he would hurt her sister's children.
The 15-year-old Hernandez moved in with Hyde and his mother on a Pontiac block notorious for drug dealing. Both found work, Hernandez at a Burger King. But the money wasn't enough to feed Hyde's crack cocaine habit. Hernandez says Hyde urged her to pose as a prostitute, demand men give her money before sex, then run. That began a routine confirmed by Hyde's older sister in trial testimony.
By then, the sidewalk in front of the Spot Light Market had become an open market for prostitution.
"The pimps used to have their chicks walking down the street and they would watch them when people came to pick them up," says Linda Nembhard, who has owned a house across from the store since the late 1980s. "And they used to have some young kids, not even 18."
Hernandez says Hyde told her to put aside pretending and to trade sex for cash. His mother kicked them out of the house when Hyde stole her welfare check. But Hyde knew a place to go — an abandoned two-story house a block over where they slept in blankets on the floor. By then, the relationship had devolved into open abuse, Hernandez says, with Hyde grabbing her by the hair and beating her if she did not follow instructions.
The night before the murder, Hyde's sister testified he told of a plan to leave town by having Barbara steal a car from one of the men who picked her up. When that didn't work, Hyde instructed Hernandez to walk to Kmart and buy him a knife, then lure a man to the house so he could rob and kill him.
Hernandez, two months past her 16th birthday, says she did as she was told.
"All these years later it's like watching somebody else, but the horror of realizing that was me," she says. "There's just so many things I could've done and mostly I'm asking myself, 'Why didn't you run? Why didn't you go to the police? Why did you just blindly go to the store? Why did you bring Mr. Cotaling into the house? Everything is whys and question marks."
• • •
When the phone rang on Mother's Day morning 1990, it awakened 17-year-old Jody Cotaling. Downstairs in her family's lakeside house she could heard her mother on the line with her brother's girlfriend, talking about a "missing persons report" and urging the younger woman to just calm down.
By nightfall, the house had turned into a family command center. Across the state line, police had arrested a 20-year-old man and a 16-year-old girl, found with the car Jimmy Cotaling had been driving. The oldest of the seven Cotaling siblings, Jeff, grabbed one of his brother's sweat shirts and headed out with his hunting dog to search the fields around Kmart, Jimmy's last known destination.
Running off was not like Jimmy Cotaling, who was 28, with hooded blue eyes and kind of quiet. He was devoted to teaching skiing alongside his dad at the Alpine Valley slopes and to tinkering with engines, a vocation that turned into a job at Mr. Muffler.
Police searched three days for Cotaling before finding his shoeless body folded in a blanket inside an abandoned house. He'd been stabbed 25 times, his head nearly severed. Searchers found his body using a map drawn for them by Hernandez, who initially declined to talk to police without a lawyer, then did so on her mother's advice.
What happened that night became clearer at trial. Even as Cotaling left home, Hernandez bought a knife, receipts showed. When she returned, Hyde sent her back out to find a customer for sex. Hernandez testified that she saw a man in a silver Pontiac drive by, watching her. He pulled over and followed her to the house on Howard Street.
Hernandez maintains that after entering the house, Cotaling began touching her. She knew Hyde lay in wait and when Cotaling began undoing his pants in the dark, she became scared and told him she needed to use the bathroom. When she stepped away, Hyde attacked Cotaling from behind. The medical examiner testified that the first three wounds inflicted were to Cotaling's lower back and that two of the three — one piercing his left lung and another, his heart — were fatal.
The prosecutor argued Hyde could not have acted alone. Along with Hyde's hair, two strands of Hernandez's hair were found in the blood on Cotaling's hand, she noted. What's more, Cotaling was too big to be taken alone, she told jurors, and Hyde was too small to overcome him without help.
But reexamination raises questions. While Cotaling stood just over 6 feet, old photos show he was stringy compared to a then-muscular, 5-foot-8 Hyde. More importantly, both the prosecutor and defense lawyers neglected to mention that Hyde was trained to fight — he was a highly ranked high school wrestler, placing sixth in the state finals.
Joe Remenap, who was the principal at Capac and officiated at high school matches, said Hyde's talent lay in a hard-nosed detachment and singular focus.
"When you looked him in the eyes you could see right to the back of his head, there wasn't anything in there," he said. "You almost have to be that way to be a wrestler sometimes."
A point made at trial, and seized on by a state attorney at a 2010 commutation hearing for Hernandez, is that she once admitted joining Hyde in the attack on Cotaling. That argument hinges on testimony by Ralph Monday, a police detective present when Hernandez was questioned after arrest.
"She said Hyde did all the stabbing. She might have helped hold him," Monday testified.
But interviewed recently, Monday says Hernandez never made such an admission.
"My memory right now is that she had no role in even touching the guy," said Monday, 69, now retired and a city councilman in Findlay, Ohio. Monday said that after a reporter called, he double-checked the written statement Hernandez gave police and that there was no mention of her saying she'd helped Cotaling.
"Why I testified to that, who knows?" he said.
• • •
More than two decades later, the Supreme Court says juvenile defendants' lives must be weighed when they are sentenced. Critics and supporters of the ruling agree it will change sentencing of juveniles in the future. But what should judges do with those already serving life? If the new ruling applies to them, too, what should happen next?
Lawyers for prisoners want resentencing hearings to consider factors set out by the court, including lack of maturity at the time of the crime, family background, vulnerability to negative influences and the role the teen played in the killing. But officials in state after state have taken widely varying paths to resolution.
California Gov. Jerry Brown signed a bill allowing judges to reduce sentences to 25 years to life if an inmate shows remorse and is working toward rehabilitation. In Iowa, Gov. Terry Branstad commuted all juvenile life sentences to 60 years, a decision widely seen as flouting the Supreme Court's directive. Pennsylvania lawmakers set minimum sentences of 25 years for defendants 14 or younger convicted of first-degree murder, while those 15 to 17 would have to serve at least 35 years.
In Michigan, the issue is being hashed out on three fronts.
In the legislature, state Rep. Joe Haveman introduced bills late last year allowing for possible parole of juvenile lifers after 15 or 20 years, depending on their age at the time of the crime. But Michigan's parole board has a reputation for releasing very few lifers and Haveman said he's not sure how to address that. He chose not to pursue passage and is meeting with a group, including prosecutors and defenders, to propose new bills for this year.
"I think the public is ready to look at alternative thinking and alternative sentences, than to just say let's throw people in prison and not think about them again," Haveman said.
A federal judge ruled in January that Michigan laws mandating life sentences for teens convicted of first-degree murder are unconstitutional. But state Attorney General Bill Schuette contends the ruling applies only to five inmates who brought the case.
Without a new law, the issue has also landed in state courts.
When a bailiff calls the Michigan Court of Appeals to order on a Tuesday morning in mid-October, so many people rise from the often empty gallery, Presiding Judge Michael J. Talbot's eyebrows dart up in surprise. Technically, today's only case is that of Raymond Curtis Carp, 22, convicted with his older half-brother of a 2006 armed robbery that led to the killing of a St. Clair County woman. Carp was 15; his lawyer is contesting Carp's life sentence, citing the Supreme Court's Miller ruling.
But the courtroom is full because all acknowledge Carp is a proxy for more than 360 other Michigan inmates sentenced to life as teens.
After nearly four hours of arguments, the judges sound stumped.
"I can't ignore the fact that there's a crisis pending that requires action," Talbot, the judge, says. "What are we going to tell them (inmates), that we'll see you in a year or two and maybe something will happen?"
When he adjourns, the room buzzes with talk about what the court will do. A month later, Talbot's panel ruled that the Supreme Court decision does not apply retroactively and rejected Carp's request; the state Supreme Court is expected to weigh an appeal later this year.
"Whether it be the state court or the federal court or the legislature ... the clear injustice of someone being held under a cruel and unusual sentence won't continue in the state," said Deborah LaBelle, an Ann Arbor attorney leading challenges to Michigan's juvenile sentencing laws. "I think it's too bad we're not there. But I'm still hopeful."
• • •
On a Sunday morning eight Novembers ago, Jody Robinson picked up a local newspaper topped by the headline, "Children facing life." Inside the fold, she stared at a photo of Barbara Hernandez — jailed at 16 for killing Robinson's brother.
Robinson says she had never been interested in politics and was unaware until then of a push to change the way courts treat teens offenders. The prospect of releasing Hernandez infuriated her. Weeks later, she started an intensely personal campaign, testifying at a legislative hearing that reducing sentences of teen killers risked re-traumatizing victims' families.
When Hernandez was denied commutation in 2010, "my little guy said 'Mom, why are you crying?" Robinson says. "I said, 'They're tears of happiness, honey. The bad person' — that's what we call her — 'is going to stay in jail.'"
At her kitchen table, Robinson opens a folder full of documents. Her certainty that Hernandez is lying about what happened 22 years ago is bolstered by the argument that Hernandez might have admitted holding Jimmy Cotaling down. Robinson points out that Hernandez has been written up 17 times for misconduct in prison. She does not mention that the worst of the violations was for punching another inmate, or that the last violation was in 2007, or that Hernandez has since been chosen to mentor fellow inmates in a drug treatment program.
"If you ask some of my brothers and sisters they'll probably tell you I'm obsessed," Robinson says.
She is not alone in her insistence that Hernandez is guilty. The prosecutor, Pendergast, emphasizes that Cotaling had strands of Hernandez's forcibly removed hair in his hand.
"Contrary to her assertion that she's cowering around the corner under some sort of influence of her boyfriend, quite the contrary. She's right in the mix and the evidence shows that," says Pendergast, now a Michigan assistant attorney general. "At 16 years old, when you're involved with a scheme of that (kind of) deadly ramifications, you know what you're doing."
It's not clear what courts will do if asked to re-examine cases such as Hernandez's. Consider that her mother died more than a decade ago. Hyde's mother, the first person to see the couple after the murder, is dead, too. So are Hyde's sister, who testified about Hernandez's prostitution, Hyde's father and stepmother, and the judge who tried the case.
Without them, how does a court weigh how far Hernandez has come since she was a teen sleeping on the floor of 16 W. Howard St.?
When a prison administrator interviewed lifers to work in the drug treatment program, Hernandez stood out as the one who would not make excuses for her crime.
"She never even mentioned a co-defendant. ... It struck me at the time that she, in no way, was putting blame on anybody else," says Anne Benion, the prison's clinical manager until last year. Benion said mentoring had bolstered Hernandez' self-esteem, but that she had given back to the program as much as she'd gained.
"She's sort of like the gentle giant. She has this unbelievable calming effect on women, but it's very subtle," Benion says.
Rebecca Gaffney, a retired college employee who has been meeting with Hernandez as a volunteer since 2007, said the inmate reminds her of her own daughter.
"I have watched her grow," Gaffney says of Hernandez. "I think she is growing in knowledge and a little bit in — you can't say self-esteem — but in forgiving herself a little bit and in trying to figure out a purpose for her life. She needs a second chance. She needs it, but she deserves it."
Hernandez is reluctant to make that case, hoping instead that people will decide for themselves.
Each afternoon, she goes for a solo run that she says gives her time to think. She mulls her long-ago relationship with Hyde and how it fit a pattern of ceding responsibility for her own choices. She reminds herself that she failed to break the pattern for years after Cotaling's murder, until she beat a drug addiction and became a mentor in the rehab program.
Hernandez runs for more than an hour, around and around the fenced perimeter of a small recreation yard in the prison where a judge decided she should spend the rest of her life. Then, alone with her thoughts, she walks back to her cell.