Gina Barton

Milwaukee Journal Sentinel

A jury found Damien Payne not guilty of being a felon in possession of a firearm and of carrying a concealed weapon.

But he was still sent to prison for more than three years.

That’s because Payne, who got out of prison in 2010, was being supervised by the Department of Corrections at the time. As a result, he was subject to a little-known department rule that says it doesn’t matter if ex-offenders on probation or parole are acquitted — they can be sent back to prison based on the same allegations.

Payne, 35, said he didn’t know his girlfriend’s gun was in the glove compartment of his car when he was pulled over in July. The jury believed him. His probation and parole agent didn’t.

Milwaukee County Circuit Judge Stephanie Rothstein has agreed to review Payne's revocation case and decide whether the department acted “erroneously, arbitrarily, capriciously and contrary to law,” as his attorney, Jessica A. Klein, contends.

"The administrative rule that allows for revocation to occur, even after an individual is acquitted of underlying charges, is in my humble opinion, an absolute abuse of power and a waste of precious state resources," Klein said. "This phenomenon, wherein the DOC is allowed to revoke Mr. Payne, despite the fact that a jury of Mr. Payne’s peers previously acquitted him of all charges, illustrates how archaic and undemocratic this system has become."

Payne's case is on Rothstein's calendar for April. In the meantime, he will remain behind bars, where he has been since the gun was found more than six months ago.

About 70% of some 3,000 ex-offenders sent back to prison without being convicted of new crimes in 2015, the most recent year available, were “suspected of criminal activity,” department statistics show.

Asked how many of those were acquitted in criminal court, Department of Corrections spokesman Tristan Cook didn't respond.

In an email, Cook said the department was “committed to public safety.” He also pointed out the lower burden of proof for violations of supervision, which is a preponderance of the evidence. This translates to “more likely than not,” whereas the standard in criminal cases is “beyond a reasonable doubt.”

At the time Payne’s supervision was revoked, he had been living in the community crime-free for nearly seven years, according to his attorney. He had not previously violated any of the rules of his supervision (aside from traffic violations), never missed an appointment with his agent and never tested positive for drugs.

Payne ran his own medical transportation business. His 3-year-old son, Tyson, stayed with him three nights a week.

A subjective process

Here’s how the revocation process works:

A Wisconsin Supreme Court ruling known as the Plotkin decision requires agents to consider three factors when deciding whether to send someone back to prison.

They are: Whether prison is required to protect the public; whether necessary treatment would be most effectively provided behind bars; and whether a lesser sanction would depreciate the seriousness of the violation.

Probation and parole agents seeking revocation must provide offenders with written notice of their reasons. Those who wish to contest the allegations are entitled to have an attorney represent them at a hearing before an administrative law judge, a lawyer who works for the state Department of Administration.

Having a jury or circuit judge hear the revocation case at that point is not an option. Instead, ex-offenders who wish to appeal must do so via the Wisconsin Division of Hearings and Appeals. Like the departments of corrections and administration, that division is a state government agency.

In addition to lower standards of proof, people accused of violating probation, parole or extended supervision do not have the right to have a jury decide their cases. They are not provided with legal help for their appeals but must hire and pay their own lawyers.

Finally, while circuit judges may choose to review a department’s decision — as Rothstein did by issuing what is known as a writ of certiorari — they are not required to do so.

A risk to public safety?

Payne’s attorney first wrote to his probation and parole agent, Joe Beightol, to try and persuade him to change his mind.

“Revoking Mr. Payne ... sends the message that he will be punished for the remainder of his life, regardless of the positive changes he made following his release from prison,” she wrote.

Neither Beightol nor his supervisor was persuaded.

Administrative Law Judge Charles R. Guokas agreed with them. Guokas concluded Payne constituted “an extremely serious risk of violent crime in the community.” Payne had easy access to the gun, lied to his agent, and admitted he had consumed alcohol, another violation of supervision, Guokas contended. Because of those factors and the nature of Payne’s underlying crime, 39 more months in prison was the only adequate sanction, Guokas wrote.

In his decision to deny Payne’s appeal of that decision, Hayes, the hearings and appeals administrator, cited the section of the Wisconsin Administrative Code that says: “An acquittal in a criminal proceeding for a client’s conduct underlying an alleged violation shall not preclude revocation of that client’s probation or parole for that same conduct.”

Felony committed at 19

Payne’s original sentence of nine years in prison and 11 years on extended supervision came after he pleaded guilty to being party to the crime of burglary while armed with a dangerous weapon and agreed to testify against his co-defendants. He was a 19-year-old college student when the crime occurred in 2000.

Payne and three other men forced their way into a Milwaukee home and stole money, electronics and jewelry from the people inside, according to a criminal complaint. One of Payne’s co-defendants shot a man who lived there in the leg.

“I've always been a fence-straddler,” Payne later wrote. “I’d get straight A’s, but in between classes, I’d pit-stop in the bathroom to toke cigarettes; I did three semesters at UW-Parkside majoring in criminal justice, but would burglarize dorm rooms on the weekends.”

At the time of Payne’s sentencing, one of his professors asked the judge for leniency, saying he found it hard to believe Payne succumbed to the negative influences of Milwaukee’s inner city, where he grew up.

“I found him to be honest, conscientious, insightful and responsible,” Lee E. Ross wrote of Payne. “Unlike many younger persons, Damien showed respect for authority and willingness to listen. These are refreshing attributes that all parents hope to instill in their children.”

Girlfriend was concealed carry holder

The incident that led to the revocation of Payne's supervision was the result of a traffic stop that occurred about 1:40 a.m. July 17 in Grafton, according to police and court records. Just after the officer informed Payne that he planned to let him go with a warning for speeding, a second officer arrived and looked into the car, where he saw an empty holster tucked into the pocket behind the seat.

The officers searched the car and found a loaded .40 caliber handgun in the glove compartment.

His blood-alcohol level at the time of the traffic stop was 0.04%, half the legal limit for drivers of 0.08%, records show.

Payne told authorities the gun belonged to his girlfriend, Megan Heath, and he wasn’t aware she had left it in his car. Her testimony at trial backed him up. Heath, who legally purchased the gun at a sporting goods store before moving in with Payne, had a concealed-carry permit. She stored the gun in a safe at the Port Washington apartment they shared and had not given Payne the key, she said.

Payne admitted to his probation and parole agent that he had handled the gun at least once, putting it into the safe after Heath inadvertently left it out before his son visited.

"It was just a huge mistake on my part," Heath told the Journal Sentinel.

She said she bought the gun for protection and to shoot at targets with her friends and her father.

The hardest part of Payne's re-incarceration, she said, has been the impact on his son.

"Tyson doesn’t know how to deal with it because they were like best friends," Heath said. "He gets so upset and cries for daddy. It’s very heartbreaking. It’s just not fair to him, I don’t think."

Mistakes led to prison

Payne acknowledged his mistakes 16 years ago but contends his earlier incarceration served its purpose and rehabilitated him.

In a request to modify his sentence filed in 2008, which was denied, Payne wrote that while he “mimicked those (he) grew up idolizing,” he had changed his tune after his first month in the Milwaukee County Jail. Incarceration in state prisons reinforced his commitment to live crime-free, he wrote.

“The bumps and bruises I took solidified my allegiance to living the rest of my life as an upstanding citizen firmly entrenched on the right side of the law,” he wrote.

He reiterated that commitment in an email to the Journal Sentinel late last year.

“I'm not a criminal anymore, I'm not even much of a rule breaker. Truthfully, the 9 years I previously served in prison successfully helped eliminate any aberrant inclinations I may have had,” he wrote. “To think that a mistake, outside of my control, could take me away from my son for 3 years, force me to fold my business, and liquidate my assets, tarnish my business reputation I'd worked so hard to build, is disheartening. I very much hope my son's path to success is less resistant than my own.”

Gina Barton can be reached at gina.barton@jrn.com or at twitter.com/writerbarton.

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