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In another murder case involving a transgender lifer incarcerated at a California women's prison, a prosecutor used the individual's gender identity to advocate for a parole denial. According to an official transcript of the 2015 hearing, Los Angeles County Deputy District Attorney Joseph Shidler conceded that the inmate, Victoria Smith, posed a "low risk of violence," based on an in-prison psychiatric evaluation. But Shidler argued that Smith, who was receiving hormone treatments at the time, was still a danger because of the "stressor" of being transgender. "Going through this transgender process leaves me with some questions as just how the inmate is going to be affording the remainder of [the hormone] treatment if released," Shidler said. "And I want to emphasize, which the psychologist also mentioned, that ... one of the stressors of [the inmate's] life on the outside will be a transgender [sic]. The inmate is not ready for parole at this time."
Brosgart, the state-appointed attorney, told me she has witnessed commissioners chastise prisoners who have been victims of violence behind bars, questioning them about whether they are prepared to deal with similar conflicts in society. Paraphrasing comments that she said she has heard from the parole board, Brosgart said: "'What are you going to do if you get targeted on the outside? You don't have the tools to deal with it in a safe way.'"
Brosgart added that when commissioners ask those kinds of questions, they are "essentially blaming the victim."
Brosgart said that in one case, her client had been sexually assaulted by fellow inmates and then refused to return to a specific prison work assignment for fear of being isolated with the same perpetrators. Brosgart said that inmate was issued a rule violation for the work refusal — a disciplinary mark that contributed to a subsequent denial of parole.
- Bert Johnson
- Stephen Whitfield.
I also observed one of Brosgart's recent parole hearings in which she represented a lifer convicted of second-degree murder in a drunken-driving crash. The 58-year-old prisoner, Stephen Whitfield, showed up to his hearing in a wheelchair and was wearing a helmet, because, as he told the commissioners, "I keep falling down." The inmate has numerous serious physical ailments, and doctors believe he also suffers from some kind of brain damage, according to testimony from Brosgart and the commissioners during the hearing. Whitfield appeared to have a lot of difficulty understanding and responding to fairly basic questions — stumbling often with rambling answers. He talked about hearing voices, coping with depression, and at times feeling suicidal. He had few cogent expressions of remorse, but he and Brosgart tried to argue that he is no longer a risk to society because he is not physically capable of driving a car or engaging in physical violence.
The commissioners ultimately denied Whitfield parole, stating that it was clear he lacked remorse and was mentally unprepared for reentry. "He still is not as stable as he should be," said Commissioner Michele Minor, when announcing the decision. She later added, "Certainly, his mental health does lend itself to dangerousness."
In his hearings, Flemming, the prisoner convicted in the Kern County drunken-driving case, has faced additional obstacles due to his mental struggles. According to his testimony, he has been unable to remember the basic details of the crash. But when he has offered insight into what little memory he has, or explained what he knows based on the facts in his record, commissioners and prosecutors have aggressively accused him of offering contradictory or false statements. "It has been a curse for me," he said in one of our phone interviews. "Imagine being in prison 32 years and you do not remember what it was you did? You know you did it. You know you're guilty of killing a man. That is a stone-cold fact."
At various times during his incarceration, Flemming has referred to the crash as "an accident" and has also speculated that it was possibly a suicide attempt — given his self-destructiveness at the time and the fact that he had tried to kill himself before. But the parole board and prosecutors have argued that these differing statements prove that he is lying and that he refuses to accept full responsibility, even though prison clinicians have reported that he likely suffered from memory loss. Records also show that he has repeatedly said he has little memory of the events, was clearly at fault, and is deeply remorseful.
In an interview, Sara Danville, supervising deputy district attorney with the Kern County District Attorney's Office, who argued against Flemming's parole in his last hearing, said: "He has no memory whatsoever, because he keeps changing his story to fit his audience. ... I absolutely believe he is lying."
She argued that Flemming still has to uncover the true root causes of his crime, and until he is fully honest with himself and the board, he remains a threat to the public. "It's hard work to dig into the depths of your soul," she said. She later added, "There's no magic formula. It's when you're in that room ... you can tell if somebody actually internalizes it, understands it. But he's not that person. He's still a danger."