May 27, 2020

A Punishment to Fit the Crime

For the fourth time, a judge will sentence Robert Jensen Schwander for murdering Carly Lewis in Traverse City.
By Patrick Sullivan | Jan. 25, 2020

The trial of Robert Jensen Schwander for the brutal murder of Carly Lewis in June 2011 was not about whether or not Schwander killed Lewis — he confessed to killing her early in the investigation. Rather, the trial was supposed to determine what kind of killing had occurred.

In the 2012 trial, Schwander’s attorney, Craig Elhart, would argue that Schwander acted in self-defense, that he was provoked, and that the slaying was, at most, a case of manslaughter. Prosecutors read the facts quite differently: Schwander, Prosecutor Noelle Moeggenberg would argue, lured Lewis to an abandoned building in Traverse City with the promise of marijuana and then stabbed the 16-year-old to death in cold blood, perhaps out of rage that Lewis’ family, who had recently taken in the homeless youth, had turned him back out onto the street.

The trial never really settled that question, however.

The jury returned what was perhaps a compromise verdict of second-degree murder — less than what prosecutors sought, more than the defense argued was warranted.

In the years since that verdict, the state’s criminal justice system has been unable to determine what punishment fits Schwander’s crime.

So far, judges in Traverse City have tried repeatedly to sentence Schwander to at least 40 years in prison, nearly twice the time state guidelines recommend. Judges in Lansing have repeatedly struck down those sentences and called for fewer years or a better explanation of why Schwander deserves such a stiff punishment.
 
BACK AND FORTH, AND BACK AND FORTH
Next week, nearly nine years after Lewis’s death and after repeated Michigan Court of Appeals decisions that struck down previous sentences, Schwander is scheduled to be sentenced for the fourth time.

This time around, a third judge will have to either sentence Schwander to a prison term within the guidelines, which would cap Schwander’s minimum sentence at 22 ½ years or come up with a rationale that can satisfy the higher court that a tougher sentence is warranted.

The original trial judge, Judge Thomas Power, explained his reason for exceeding the guidelines; he found they didn’t properly take into account the severity of the crime. He sentenced Schwander to 40 to 70 year in prison. When the Court of Appeals found that Power hadn’t properly justified his departure from the guideline recommendations, Power resentenced Schwander — to 38 to 70 years in prison.

Shaving two years off of the sentence wasn’t enough for the appellate court judges, however; they ordered that another judge take the case.

At Schwander’s third sentencing hearing, Judge Philip Rodgers restored Power’s original sentence, ordering Schwander to serve 40 to 70 years in prison. Rodgers reasoning? That despite what the jury said, there was evidence that the crime Schwander had committed was indeed first-degree, premeditated murder.

Rodgers’ sentence, handed down in 2014, has been under appeal ever since. The appellate court, in a 2–1 decision in May 2018, called both judges’ sentences “unreasonable and disproportionate" and sent the case back to the 13th Circuit for yet another resentencing, one that would take place following Rodgers’ retirement, to be determined by Judge Kevin Elsenheimer.

Elhart said he hopes that when his client is resentenced, he receives a sentence within the guidelines. He said Power and Rodgers attempted to undo the work of the jury with the punishment they attempted to hand down.

“What I think has happened is, they took the decision of the jury out of the mix,” he said. “The jury clearly decided he was guilty of second-degree murder.”
 
PUNISHMENT, STANDARDIZED
The difference between the maximum under state sentencing guidelines and the sentence sought by Power and Rodgers is significant, nearly double what the guidelines call for. Practically, the difference between the two sentence lengths is gaping. Assuming that Schwander is released upon becoming eligible for parole, under state guidelines he would be 39 years old when he is released; under the departure sentence, he would be 57.

Sentencing guidelines were first enacted in Michigan in 1998 as a means to ensure some uniformity in sentencing, so that a person who committed a crime in northern Michigan would receive a similar sentence to a person who committed the same crime in Metro Detroit.

The guidelines use a grid to take into account the circumstances of the crime — was a weapon used? Did a psychological injury occur? — and the prior record of the defendant in order to determine the minimum sentence. For a judge to exceed the guidelines, they have to have good reason and base their departure on factors that are not already considered within the guidelines.

In the first Court of Appeals decision, the judges ruled (2­–1) that while Power listed some “objective and compelling” reasons for a departure from the guidelines, he offered no justification for nearly doubling the years Schwander would spend in prison.

Power based his departure on the facts that the evidence showed Lewis might have been alive, suffering for up to an hour, before dying of her injuries, and Schwander never sought help. He also noted the fact that Schwander had been taken in off the street by Lewis’s family and then had betrayed their trust.

When the court sent the case back to Power, demanding a better rationale for such a severe sentence, Power didn’t provide one. Instead, he cut two years from the minimum and wrote`: “The undersigned is hopeful that this substantial reduction in the Defendant’s sentence will prove satisfactory to the Court of Appeals.”
 
UNYEILDING DECISIONS
Perhaps unsurprisingly, Power’s note did not satisfy the Court of Appeals, which sent the case to Rodgers’ court. Rodgers then reinstated Power’s original sentence but went to some length to justify doing so.

Rodgers found that Schwander could have saved Lewis’ life but didn’t, that he betrayed the trust of the family, that he showed no remorse for the crime, and that he showed “complete and utter disrespect” for Lewis’s body following the murder, burying the body in a shallow grave and then hastily moving her remains to another location — all points that the higher court decision said were valid.

Nonetheless, they found that those reasons still didn’t justify a 40-year sentence.

Their rationale: “While Judge Rodgers identified several appropriate grounds for a departure, he failed to adequately explain why those grounds defined a sentence that was more proportionate to the offense and the offender than a guidelines sentence would have been,” the judges wrote.

There were other reasons Rodgers gave to justify the stiff sentence, but they were rejected by the court. A look at the transcript of the sentencing hearing shows that Rodgers found the circumstances of the crime more disturbing than what the guidelines reflect.

For example, at trial, Schwander took the stand and testified that he had choked Lewis to death in an act of self-defense. (Prosecutors noted that the autopsy showed Lewis was stabbed to death.) And Schwander’s claim that he had acted in self-defense didn’t hold up, Rodgers noted, because Schwander, who is 6 feet tall, clearly had a tremendous size advantage over Lewis, who stood 5-feet-2-inches.

Rodgers also noted that when Schwander testified at his trial, his apparent hatred for Lewis simmered just below the surface. Rodgers told Schwander at the sentencing: “You told the jury, if they only knew her, they would understand. Understand what? Understand why you wanted her dead?”

The dissenting Court of Appeals judge also noted that Schwander’s crime was not a typical case of second-degree murder.

“So which is more depraved, stabbing a victim multiple times and watching her slowly bleed to death, or choking her to the point where she became unconscious and could no longer fight or resist, continuing to do so for two additional minutes, then dropping the body, going for a walk, and returning finally to allegedly do some chest compressions?” the judge wrote. “That’s the trial record. In either case, the level of depravity is stunning. “
 
A DESCENT INTO HELL
Indeed, as the trial unfolded, it painted a disturbing portrait of a 17-year-old whose life was steadily falling apart and whose behavior was becoming more and more reckless.

It was almost a fluke that Schwander wound up at the Lewis house in the first place.

Schwander testified how he was thrown out of his family home in December 2010 for sneaking out of the house. He and his father had a screaming match, and then he was out on the street. The first night, he said, he went to a friend’s house, and then he couch-surfed for a while. He stayed one night at Pete’s Place, a shelter for homeless youth, but he hated it and left. They called his parents, he said, but he didn’t want them knowing where he was or thinking he needed help. He moved on.

He stayed at a friend’s house in Grawn for close to three months, even though his friend’s dad did not want him there. Somehow he made it through the worst of the winter, he said, even though his hosts wouldn’t feed him, and he stayed in a basement without heat.
The next house he wound up in was nicer and he was fed and made to feel welcome, but he said he got kicked out of that one when he mistakenly left out his bong, betraying his secret marijuana habit.

That’s when he ran into Carly Lewis’ brother, Mitchell Lewis, at school. Schwander said Mitchell Lewis was a student everyone, including himself, looked up to. When Mitchell heard about Schwander’s hard times, he offered the homeless youth a place to stay at his family’s home. Schwander had never met Carly Lewis until he moved into her house that spring.

Carly Lewis and Schwander did not get along well at first. But after he was there for a couple weeks, they started to get along better, according to testimony. They would go for walks, and, Schwander testified, smoked pot together in a backyard shed.

Schwander was eventually kicked out of the Lewis home, not because he didn’t get along with Carly, but because Susie Lewis, Carly’s mom, finally had enough. She testified during the trial that at first Schwander was amiable and willing to help out around the house, but as time wore on, he become obstinate and would lock himself in his room. The final straw was when she asked Schwander to help rake leaves, and Schwander ignored the request.
He found a note on his door the next day, telling him to clear out within a week.

Schwander did clear out, Susie Lewis testified. Within days, he’d removed not only all his possessions but also the things the family had given him so that he would be comfortable in their home, such as an older television set.

It might have been an argument over these second-hand items that caused Schwander to snap and to take Carly Lewis’s life.

That’s how Schwander explained it when he was on the stand. He said that television actually had been given to him by someone else, and a scooter and blanket in question were items that had been given to him to keep, not loaned. He said that, nonetheless, Carly Lewis pestered him about the items.

According to Schwander’s recount of the ensuing argument, he and Carly exchanged some raw, dark, and bitter words after arguing about the items.

“I told her that her mom knew about that. And she said, ‘You know, Jensen, my mom doesn’t even like you. She said you’re way too much to handle. She said if it wasn’t for knowing your dad back in high school, you would have never been welcome in our home,’” he testified.

He continued: “I said, ‘That’s funny because that’s exactly what your mom used to say about you, too. Too much to handle. Your mom probably liked having me around more that you.’”
Of the physical encounter soon after that led to Carly’s death, Schwander said this: “And she’s pushing me. She goes, huh? She’s pushing me. Just constantly pushing me. Pushing me. At that point, I couldn’t control myself. I pushed her right back. I pushed her. And she flew back into the wall.”
 
TWELVE DAYS WITHOUT KNOWING
The 12 days Carly was missing were devastating for her family and friends.
At the trial, Susie Lewis described her daughter as a good-natured, fun-loving teenager who sometimes got into trouble, but never very seriously.

“Had Carly stayed out overnight before? Yeah, she had. But I always heard from her, you know, by the morning,” she testified. “She would either need a ride or, you know, money. Something. And someone, either Todd [Carly’s father, Susie Lewis’ ex-husband] or I or my friend or grandma would always hear from her the next day.”

The day Susie Lewis last saw her daughter was a Wednesday, early. As Thursday progressed, she became increasingly worried.

Susie called Todd Lewis. He hadn’t heard from Carly either. Because Carly didn’t have a phone of her own, her parents had no way to reach her. So they called her friends and whoever they could think of. They called the pizza place she worked; she was supposed to pick up her paycheck that Saturday. The day passed; she never arrived to pick it up.

Susie Lewis tried to keep herself and the family calm, however; her son was graduating from high school that day. She said she managed to get through the day, but underneath, she was panicking. There had been no Facebook posts from Carly, and none of her friends had news. Her daughter had simply vanished — and that was simply not like her.

At Schwander’s 2014 sentencing, Todd Lewis, Carly’s dad, spoke in court about Schwander’s deception and duplicity following the murder.

“The Monday following her disappearance, our son, Mitchell, Carly’s aunt Cathy, and a family friend and I visited Jensen’s workplace and spoke with him. He said he had no knowledge of her whereabouts … that she would be back and that she was probably out partying somewhere,” Todd Lewis said in court. “He also said she ‘sure had a mouth on her.’ I thought that was very odd. And now, I look back, and this was his justification.”

He said he believes his daughter was murdered because she recognized Schwander’s true character.

“I believe she saw him as a user, and this is why they had problems living in the same house,” he said at the hearing. “This act is so dark and evil. How can we ever trust someone like this again?”
 
“NEVER ON THE STREETS AGAIN”
Todd Lewis said recently that he didn’t want to be interviewed for this article, but he agreed to comment in an email.

Todd Lewis doesn’t believe Schwander should ever be allowed out of prison.

“At a previous resentencing, I sat in the courtroom, and Jensen was sitting in the side room. As I looked at him, he stared at me, unflinching. What I saw in his eyes was not remorse but, instead, justification. It was as if he said, Yes I killed your daughter. So what, what are you going to do about it?” Lewis wrote. “I want people to understand that this person is Evil. He should never be allowed in society if, after all this time, he is still confrontational. I want Justice to prevail and the Judge to reaffirm his prior sentence. I hope I never live to see him on the streets of Traverse City again.”

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