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BRIAN DICKERSON: A plea deal thwarted, a life is ended

March 24, 2004

BY BRIAN DICKERSON
FREE PRESS COLUMNIST

Ernest Hemingway wrote that every true story ends in death.

This is a true story.

It begins two years ago with a troubled 14-year-old girl who documented her sexual exploits in a diary. She called herself a predator. But Oakland County Prosecutor David Gorcyca was more interested in her slightly older sex partners. He charged four of them with criminal sexual conduct, a felony.

In May 2002, when what became known as the Bloomfield Sex Diary case broke, I argued that Gorcyca had overreacted by bringing criminal charges for what amounted to consensual sex between promiscuous teenagers. I noted that, if convicted, the defendants would be listed on Michigan's sex-offender registry until they reached middle age.

After a public uproar, Gorcyca relented. Under a plea agreement blessed by two sentencing judges, all four defendants were permitted to plead guilty to a lesser charge of seduction. The prosecutor and defense attorneys agreed that none of the defendants would be imprisoned or listed on the sex-offender registry.

The 14-year-old girl and her parents were relieved by the deal. "We didn't have an ax to grind," the girl's attorney, Mayer Morganroth, recalled this week. "Nobody wanted to see these young kids stigmatized for life."

It should have ended there -- a fiasco averted, a case of overzealous prosecution brought to a sane resolution.

But it didn't.

Last month, more than a year after the charges against them were resolved, all four defendants were notified they'd be registered as sex offenders after all.

One of them, 20-year-old Justin Fawcett of West Bloomfield, was particularly devastated. On Feb. 27, three days after Fawcett's probation officer broke the news that he'd be publicly branded for the next 23 years, Fawcett's father e-mailed me to express his fear that Justin would kill himself.

After a rocky year, David Fawcett said, his son was finally on his feet. He'd enrolled at Oakland Community College, where he was carrying an A average. (OCC's dean of student affairs confirms that Justin was "an outstanding student.") He was seeing a therapist and attending Narcotics Anonymous meetings, and he seemed to have beaten an addiction to Vicodin.

But the news that he would be branded a sex predator -- in direct contravention of his plea deal -- had shattered Justin, David Fawcett told me in the e-mail. "He says that every time he takes a step forward, they push him two steps back."

The Fawcetts consulted the attorney who'd represented Justin and David Fawcett's brother, a criminal defense lawyer in Chicago, who told them a legal battle to keep Justin off the registry would be long and expensive.

Justin also approached Jerry Sabbota, a highly regarded Oakland County attorney who'd represented one of Justin's teenage codefendants, Aaron Winkelman.

Sabbota had struck a new deal to keep Winkleman off the registry. Winkleman was allowed to withdraw his guilty plea, and the Prosecutor's Office dismissed the seduction charge.

But Sabbota told Fawcett he'd need a $10,000 retainer. Justin, who still owed his previous lawyer $6,000, never called him back.

Judges, probation officers and defense attorneys I spoke to this week attributed Justin Fawcett's legal dilemma to new marching orders from Michigan Attorney General Mike Cox's office, which recently advised the Department of Corrections to place defendants like Fawcett on Michigan's sex-offender registry whether or not the offense they've been convicted of is specifically mentioned in the registration statute.

(Full disclosure: My wife is an assistant Michigan attorney general.)

Cox's spokesman, Matt Davis, says the attorney general's advisory was designed to bring the Department of Corrections in line with a recent Michigan Court of Appeals ruling. The ruling, in a 2002 case called Michigan v. Meyers, says defendants may be listed on the registry for any crime "that by its nature constitutes a sexual offense against an individual who is less than 18 years of age."

In the attorney general's view, it didn't matter what the judge, prosecutor and victim in the sex diary case had agreed to. Because the conduct that brought the teens to the prosecutor's attention involved sex with a classmate younger than 18, they would be listed on the registry by name and address alongside thousands of violent rapists, child predators and cyber-stalkers.

"If Oakland County prosecutors are allowed to plead these cases one way and prosecutors in other counties plead them another way, you're going to end up with disparate results," Davis said.

Maybe, in time, Justin Fawcett could have struck a deal like the one Sabbota got for Winkleman. And maybe not: Unlike Sabbota's client, Fawcett's legal troubles hadn't ended with the sex diary fiasco. He'd been arrested for possession of Vicodin and larceny from a vehicle, and spent time in jail for violating probation.

But none of those offenses figured in the decision to put Justin and his codefendants on the sex-offender registry for 25 years.

Justin, in any event, had neither the stomach nor the cash for another legal battle.

Friday night, his parents found him dead of an apparent overdose.

"I can't say the sex-offender registry thing was 100 percent to blame," David Fawcett told me Tuesday. "But it seemed to launch him on a downward spiral."

So if you're a state legislator, pay attention. Because you enacted this indiscriminate law, and it's way past time for you to fix it.

If you're a prosecutor, take heed. Because the criminalization of teenage promiscuity is destroying young lives.

And if you're a parent, wake up. Because if you think this couldn't happen to your teenager, you've missed the whole point of Justin Fawcett's story.

Contact BRIAN DICKERSON at 248-351-3697 or dicker@freepress.com.


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