A killer goes free: Stories from families affected by shock probation

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Landmark News Service

 Cindy’s story

 “It’s the worst thing a parent can ever go through, just knowing how she suffered. There’s just no way it will ever make sense to me at all.”

Cindi McIntosh of Shelbyville, whose daughter, Beth McIntosh-Shreve, 37, a nurse at Jewish Hospital Shelbyville, was brutally murdered in 2007, leaving behind three children.

Carolyn’s story

 “My precious child, she was taken from me, and then, this thing called shock probation hits you in the face, and her killer goes free, and you wonder how could that happen?” she said.

Carolyn Scharf of Louisville, whose daughter, Anne Lawson Scharf, 17, of Louisville, was killed in 1985 when a drunk driver hit her car head on in Seneca Park in Louisville.

Debbie's story

Debbie Moskwa of Michigan lost a son.

“I was just devastated; my son was gone; I'd never see him again, and now this guy just gets to walk away, like my son's life meant nothing.”

Debbie Moskwa of Michigan, whose son, Ricky Moskwa, 24, of Michigan, died in 2002 when he and his father were driving home from visiting relatives in Tennessee and their car was struck head-on in Kentucky by a drunk driver.

Cindi McIntosh, Carolyn Scharf and Debbie Moskwa may never have heard of one another except for one critical, deadly link: Each of their lives was affected by someone on shock probation, the discretionary, early release program for first-time offenders who are serving a prison sentence.

This is the program that has freed 10,006 in Kentucky in the past five years, 8,315 of them felons, including Tonya Nicole Brown, the woman from Lexington who admitted to delivering her baby, stuffing it in plastic bags and leaving it in the trashcan of a restroom in Shelbyville, where it died.

Prompted by the release of Brown, who had pleaded guilty to second degree manslaughter, The Sentinel-News examined shock probation in a series of articles that was published in September, and this investigation prompted McIntosh, Moskwa and Scharf to come forward and explain the tragedies in which the person involved in the death of their loved one had been granted shock probation before or after the crime.

Shock probation, which has been employed in seven states, including Kentucky, since the early 1970s, allows a judge to set free someone convicted of a felony after serving just 30 days of his or her sentence.

The sentencing judge is the sole authority in these cases. Applicants should be first-time offenders and not involved in violent, murder-related cases – at least in the opinion of the courts.

There is no appeal of a release, and the requests continue to file into the courts.

Even this month a plea on behalf of Joshua Fast, sentenced to 10 years for his participation in a robbery in which his friend was shot and killed, will be heard in Shelby County Circuit Court.

Another involves Madison County Central High School secretary, Lynda Chase, who may be eligible for shock probation after being sentenced to three years in prison after admitting to having a sexual relationship with a 15-year-old boy.

Neither Fast nor Chase is directly responsible for a death but the stories of Moskwa, Scharf and McIntosh introduce painful questions about to whom shock probation is granted and how it is applied by the courts.

Shelbyville family's nightmare

But as unfair as the law may seem – with a person responsible for a death getting a new chance after only a few weeks in jail – it is nothing like the tragedy faced by the McIntoshes.

They lost their daughter, Beth McIntosh-Shreve, in the summer of 2007 at the hands of James Benjamin Gary, 22, a man who had been granted shock probation on burglary charges.

Cindi McIntosh said she blames her daughter's death on the justice system. “She would be alive today had he not been released out on shock probation,” she said. “The grief and suffering for us never ends.”

McIntosh-Shreve's family had filed a missing-person report on June 1, 2007, after not having seen or heard from her in three days. Then Gary was arrested on an unrelated violation, and because he was driving McIntosh-Shreve's car, he was quickly connected to her disappearance.

Gary and McIntosh-Shreve had become friends while he was being treated for substance abuse.

Jason Butler, a former Jefferson County assistant commonwealth attorney who prosecuted the case, now is in private practice and did not return telephone messages left by The Sentinel-News.In an interview in May with WVLK-AM (590) in Lexington, Butler said McIntosh-Shreve's case was unusual because it was worked backwards, because they had the killer in custody without first having a victim's body.

He said after Gary had confessed to police he had killed McIntosh-Shreve, Gary's defense attorneys came to Butler to make a plea agreement.

“His defense attorneys wanted an offer from us in exchange for disclosing the location of the body,” he said.

Butler said it was a very emotional case, because he sat down with McIntosh-Shreve's family and asked them what they wanted to do.

“They said ‘Cut a deal; I want my daughter's body,’“ he said.

The body was found June 6 near a bowling alley in St. Matthews, and Gary on June 19, 2007, pleaded guilty to murder and tampering with physical evidence. He was sentenced to 30 years and is incarcerated in state penitentiary.

What Gary did to her daughter almost tore her family apart, McIntosh said, adding that the gruesome details of her daughter’s murder haunted both her waking and sleeping hours for a long time.

“I'm all right now, but I've had post traumatic stress syndrome. And her kids...” her voice trailed off and she paused before she could continue. “The day we told Kelsey [McIntosh-Shreve's daughter], the whole family gathered around her. She had just graduated from eighth grade the day after her mother was murdered.”

McIntosh-Shreve also had two sons, Dustin Kenner and Joshua “Tanner” Shreve, and McIntosh described her daughter as a very sweet little girl who never ceased to amaze her with her intelligence and her love for everyone.

“She was a cheerleader from sixth grade on, and she was very smart, she was an honor student; she was an RN. She was a nurse at Jewish Hospital,” she said. “She had such a big heart. She rarely got mad, even if she was stressed. I've seen her take little animals in and feed them, even if she didn't have much money. That’s just the way she was, soft hearted and sweet.”

The issue arrives head-on

Moskwa's husband, Ricky, and her son, also named Ricky, were driving on  Interstate 71 in Gallatin County when they were struck by a speeding car driven by a drunk driver.

Her husband was injured and her son killed in a three-vehicle crash with two other drivers who were coming back from the Kentucky Derby. The drivers, Mathew Scott Burton, 49, and Vincent Rutledge, 31, had been drinking and were drag racing on the interstate, Moskwa said.

Rutledge hit a car in front of him, causing Burton to swerve, hitting the Moskwa car head-on. Burton's passenger also died in the crash.

Burton and Rutledge originally were charged with murder but were given a plea agreement of second-degree manslaughter.

Both were given 13-year prison sentences and applied for shock probation. Senior Judge Stanley Billingsly denied it for Burton but granted shock probation for Rutledge who was released the next day, having served a total of eight months in jail.

“I just couldn't believe they let him off like that,” Moskwa said. “It was such an insult to my son, and to my family,”

Moskwa says she thinks that a manslaughter charge related to a DUI death should most definitely be considered a violent offense, and in the 26 years since her son was killed, she has been working to put a halt to the practice in Kentucky.

Louisville family's heartache

Scharf likewise lost her daughter to a drunk driver, who then was released on shock probation.

Anne Scharf, 17, was the valedictorian of her class at Atherton High School in 1985, when she was killed in Seneca Park in Louisville.

In that accident, Kelly Bennett, 19, hit the car that Scharf's friend, David, was driving. Scharf, who was in the passenger seat, had to be cut out of the vehicle. Bennett was charged with murder and pleaded guilty to second-degree manslaughter.

She spent 63 days in jail before being released on shock probation by Circuit Judge Joseph Eckert Sr.

Scharf said that Bennett's father, Russell Bennett, executive director of the Long Run Baptist Association, which serves Jefferson, Bullitt and Oldham counties, persuaded 115 people, mostly in the clergy, to send letters to Eckert, asking for shock probation for his daughter.

“I used to go to church all the time, but when those religious leaders wrote a letter to the court asking that my child’s killer not be punished....”

Her  voice trailed off at the memory.

She said that she was floored when she was told at one point that shock probation had to remain unchanged because every case is different and judges have to have the discretion to rule the way they wish.

“That sent me through the roof,” she said. “Every case is not different. There is always a dead citizen, and a family looking to the justice system.”

Looking for change

She and Moskwa hooked up several years ago to join forces in this endeavor, both of them being members of MADD (Mothers Against Drunk Driving).

They met in 2004 when Moskwa and her husband came to Gallatin County for the sentencing of the two men charged in Ricky Moskwa's death.

“MADD's state office was following the case, and they called the Louisville office to ask if they would send a group of members up there,” Scharf said.

“So I went with them, and when Debbie and I met, I gave her my phone number, and we have been friends ever since.”

Scharf said she and Moskwa have been working hard since then to try to get the practice of granting shock probation in DUI death cases either restricted or eliminated, but haven't had any luck, though they are still trying.

“We've sent requests to the attorney general's office to get an opinion of the passages now on shock probation in a DUI death,” she said. “We think it's unconstitutional, because it's unappealable. You cannot appeal the judge's decision.”

The Sentinel-News asked Attorney General Jack Conway for an opinion of shock probation and the finality of the rulings in those cases.

He responded through his communications director, Allison Martin, who said: “We have received an opinion request on this issue regarding shock probation in fatal DUI cases, and since that issue is pending before our office, it would be inappropriate for us to comment further.”

That original request was submitted by Jan Withers, national president of MADD.

Her letter reads in part: “No one understands the violence of drunk driving more than the victims of this crime, these families suffer a traumatic loss that forever alters their lives.

Most victims and victim survivors do not know shock probation is a possibility until it happens.

“Offenders, however, are made aware of it by their attorneys, and indeed, expect to apply for it. The current unappealable practice of shock probation teaches the drunk driving offender that their sentence for taking a life is a mere nuisance by drastically reducing their incarceration from years to days.”

But just this week, a judge in Lexington revoked the shock probation of Kyle Brinegar, who had been sentenced to 10 years because of a crash that resulted in another man's death, because Brinegar was arrested for DUI.

In 2006, Brinegar, then 19, was running from police on his motorcycle when he crashed into a car driven by 44-year-old Dale Breeze, WLEX-Channel 18 reported. Breeze received injuries in that crash and was hospitalized, where he died from a staph infection about a month later.

A judge sentenced Brinegar to 10 years in prison in September 2009 and granted shock probation in March 2010. Because of the DUI, he now will serve the remainder of his sentence.

Within the past few years, Moskwa and Scharf have found some help in trying to get legislation passed that would restrict the ability of the justice system to grant shock in fatal DUI cases.

Legislative attempt

State Sen. Jack Westwood of Kenton told The Sentinel-Newsthat he tried to get such a bill passed several years ago but had no success because of the consensus that such a move would interfere with judges' authority.

“The issues were with limiting judicial decisions,” he said. “Many felt that if you take away that tool, it would put limits on judicial discretion.”

But Westwood will try again in 2012.

On Nov. 17, he pre-filed BR 320 which reads: “Amend KRS 439.265, relating to shock probation, to prohibit shock probation if a person is convicted of violating KRS 507.040 relating to manslaughter in the second degree or KRS 507.050 relating to reckless homicide and a violation of KRS 189A 010 relating to driving under the influence arising from the same incident, permit the victim's living next of kin to ask the court to permit shock probation.”

Westwood said that he is sympathetic to families of victims such as Moskwa and Scharf, but in states that have enacted shock probation, there are a lot of advocates for the practice.

“In general, there are many who advocate the practice because it does help reduce overcrowding in the jails, and a lot of inmates have benefited from it, because it has helped turn them lives around,” he said. “But when a life is taken, to me, that's a justice issue.”

Westwood said that he does not know of any other legislation proposed regarding shock probation for the coming session.

“Of course, it's still early yet, but I have not heard of anything,” he said.

But now they are all violent examples of the questions that spring from the minds and tongues of those who have felt the pain and been separated from full closure.

 “It's just not right,” Anne Scharf said. “There's just no justice for the victim – or for us.”