THE CASE OF WILLIAM HETHERINGTON

SUMMARY BY ATTORNEY ANDREW CARLAN December 23, 1999 Farmingdale, NY, consulting attorney: Andrew Carlan, Esq. Send e-mail to: Andrew Calan, Attorney at law I worked on a possible federal habeas corpus brief for William Hetherington. Mr. Gregory Singer (NCFM Chair of the William Hetherington Defense Fund) asked me to familiarize others with the case. The file is enormous. I have tried to cut it to the bone, but that is difficult because there are so many independent issues. I hope this summary serves as a useful guide. Note: Judge Thomas Yeotis', the sentencing judge, offered Mr. Hetherington a plea that would have allowed him out of jail immediately. Judge Yeotis must have been so convinced that Mr. Hetherington was no threat to his ex-wife, as the Court-appointed psychologist testified, that he staked his career as an elected judge on that certainty. Radical feminism remains a potent political force in Michigan elections. Catherine MacKinnon teaches at University of Michigan Law School. Hetherington was the first man convicted under Michigan's spousal rape law in Genesee County. His trial generated heated emotions on this novel rape law. His recent (Fall 1999) eligibility for parole reopened the old wounds. Most prosecutors forget in time those they have imprisoned, especially where all those who participated in this case are gone. Not here. [See Man Jailed In Spousal Rape Gains Support To Be Freed] Hetherington faced civil and criminal proceedings simultaneously. The divorce court froze Hetherington's meager assets, largely a small disability benefit. Both Yeotis and Michigan Appellate Assigned Counsel System were aware of this. Hetherington was denied the right to a review of his conviction in contravention of Michigan Criminal Procedure. The trial court denied Hetherington a free transcript. The state thereby made it impossible for Hetherington to prepare his own appeal. Several lawyers "represented" him in passing pre- and post-trial. Judge Yeotis released each before any post-conviction claims could ever be perfected because Hetherington quickly ran out of money to pay each in turn. The divorce court must have had the parties' financial statements. His ex-wife, who was represented, could have disputed his. Hetherington is in a "Catch-22" conundrum on parole. For a long time, he wouldn't "show remorse." He believes himself innocent. Now that the Board has informed him that he must or he will "max out", he has tried to conform. The parole board then turns around and rejects his compliance as insincere. The Board and the prison administration won't put him in a treatment program, which dims his chances for early release although his behavior record is exemplary. That is one issue that Singer and other would like you to consider, whether he has served his time and could be released on a state writ of mandamus. The cases are not on point and the law is confused. The trial Court prevented Hetherington from impeaching his wife's credibility. She had filed rape charges twice only to withdraw them. In Perkins v. Perkins, 424 Mich. 302, 307; 379 N.W.2d 390 (1986) the Michigan's Supreme Court notes an exception in MCL 750.520j(1); MSA 28.788(101)(1). Subsection (b) of the latter allows the admission of evidence that is material to prove that semen recovered from the complainant and her resulting physical condition was the result of someone other than the defendant. It found further that evidence of prior sexual encounter between the complainant and the defendant probative of the defendant's version that the events on the night in question were consensual, id at 308. People v. Hackett, 421 Mich. 1, 338, 347-348; 365 N.W.2d 120 (1984) Also see Michigan v. Lucas, 500 U.S. 14, 111 S.Ct. 1743; 114 L.Ed.2d 205 (1991), and People v. Arenda, 416 Mich. 1, 10-11; 330 N.W.2d 814 (1982). The Court imposed a sentence of 15 to 30 years. He was convicted in 1986. He began his sentence credited with one year for time served in jail prior to trial and without benefit of attorney. This sentence may be so grossly disproportionate and as so tainted by reactions to Hetherington's refusal to accept the plea bargain as to offend fundamental rights. The absence of prior offenses and the plea-bargain offer implicitly acknowledge that petitioner represented no danger to society. Petitioner admitted having sex with his wife. She came to his mother's home and entered his bedroom uninvited although she has told the press that she opposes his release now out of fear. [See Man Jailed In Spousal Rape Gains Support To Be Freed]. Surely, one plausible explanation is that she was trying to set him up for just such a charge as CSC because she had lost custody of the children. Statistics show that charges of spousal and child rape increase exponentially during divorce litigation, especially-as here-where custody is dispute.