In 4th Judicial District Court Tuesday morning, Wyatt Bear Cloud, the third defendant in the Robert Ernst murder case, went before Judge John Fenn on a Motion to Remove Guilty Pleas. Bear Cloud, now represented by public defender Carrie Johnson of Casper, had changed his plea on September 8th to Guilty on all three counts for which he is charged. He had been scheduled to go to trial on September 13th.
On the advice of his then-counsel Shelley Cundiff, he changed his plea, with the understanding in his mind, he told the Court Tuesday, that he was going to be released one day. He also told the Court that it was his idea about a month prior to changing the plea, and that he’d been unhappy with Cundiff’s representation, saying she seemed “incompetent” about the case and that she hadn’t met with him very much over the past year. Prosecuting Attorney Matt Redle asked him if he’d ever written a letter to the Court or filed a motion to have new representation if he was unhappy with her counsel. Bear Cloud said he hadn’t.
Redle also questioned Diane Lozano, the State Public Defender for Wyoming, in charge of overseeing all the public defender offices in the state. She told the Court that her office terminated Cundiff’s services because she felt it was incompetent of Cundiff, assisted by Sheridan attorney Hardy Tate, to have Bear Cloud change his plea without a Conditional Plea Agreement with the State. While Cundiff, who testified after Lozano, told the Court that both she and Tate had felt – and still feel – it is in the best interest for Bear Cloud, Lozano said that Cundiff should have gone through her office for approval of changing the plea.
For her part, Carrie Johnson referred to testimony from a hearing held earlier this year, wherein a language expert examined Bear Cloud. Barbara Sellers had testified that Bear Cloud’s comprehension of vocabulary was that of a 13-year-old. Johnson argued that with a low language comprehension, how was he to understand the legal jargon around the meaning of a Conditional Plea Agreement, when the average lay person most likely couldn’t explain its meaning. Redle countered that upon Cundiff’s testimony, since Bear Cloud has been in jail; he sought and took the opportunity to work toward receiving his GED, which he accomplished.
Also discussed at length was the matter of the possible sentences -- Life without Parole or Life. In Wyoming, there is no sentence of Life with the Possibility of Parole. The only way an inmate can be released from prison is by a commutation from the sitting governor on the recommendation of the State Parole Board.
Lozano had told the Court that the data on past gubernatorial commutations is filed with the Wyoming Attorney General's office. Redle said he had not been aware of that prior to Lozano mentioning it in Court, but instead said he'd researched data on the Internet and also read a Casper Star Tribune article written by Joan Barron dated October 19, 2003. He learned that Wyoming Governor Hirschler had pardoned over 900 inmates during his tenure; Governor Sullivan had 213 commutations. In fact, in 1991, Governor Sullivan reduced the Life sentence on Lance Toomey for a first degree murder conviction in Lincoln County. Several years later, Governor Freudenthal reduced Toomey's sentence even further.
Johnson told Judge Fenn in her final arguments that Bear Cloud's arraignment transcript showed that he really didn't understand what was being said. Fenn responded by saying that on September 8th, Bear Cloud had answered under oath that he did understand, and that he said he didn't need the judge to go over the information again. Johnson said in Court Tuesday, Bear Cloud couldn't explain what a Conditional Plea is. She also disagreed that Bear Cloud's father should be consulted, given Bear Cloud is being charged as an adult. Redle later rebutted that argument, saying that she couldn't have it both ways, saying he's being charged as an adult and yet indicating he only has the language comprehension of a 13-year-old.
During Redle's final argument, he said that it is difficult for the Defense to maintain that Cundiff was not serving the best interest of Bear Cloud by pursuing this strategy. Judge Fenn commented on the effectiveness of counsel, referencing Cundiff's statement on the stand that she still believes Bear Cloud will get out. Redle replied that "the Toomey's of the world go into a dark place [prison] with optimism to one day be successful. The defendant has been charged with the State's most serious charge, and he recognizes he has serious amends to make up. I believe that the defendant and Ms. Cundiff believe he will do what he needs to do to determine a successful life one day."
Judge Fenn then asked, "Is that 'informed optimism?'" Redle replied, "Absolutely. The defendant has been sitting in jail over a year and has some inkling of what's ahead...his plea was voluntary; this notion that he didn't understand is somewhat ludicrous..." Redle then went on to cite testimony from Bear Cloud's arraignment transcript where he stated, "'I understand I'm charged with Murder in the 1st Degree'" and goes on to describe the other two counts and the subsequent consequences possible for each.
After hearing from both sides, Judge Fenn told the Court he was prepared to make a ruling, after taking Tuesday's evidence into consideration, as well as the transcripts from the September 8th, 2010 Change of Plea proceedings and Bear Cloud's arraignment. He also said he reviewed seven "Factors to Consider on a Motion to Withdraw", suggested by the U.S. Supreme Court.
Factor 1 - Assertion of Innocence. Other than Bear Cloud's "Not Guilty" plea at his arraignment, the Court had been privy to Bear Cloud's law enforcement interview and other testimony in which Bear Cloud admitted his involvement in the crime.
Factor 2 - Government Suffered Prejudice. Judge Fenn said he did not hear evidence of prejudice in any arguments.
Factor 3 - Delay in Filing the Motion. Judge Fenn said the filing was timely. (Earlier in the hearing, Redle had asked Cundiff if the decision to change Bear Cloud's plea had been "rushed;" Cundiff had replied that no, they had been discussing it for several days and since they were scheduled for a Status Hearing on the 8th and had the Court time anyway, they chose that time.)
Factor 4 - Would the withdrawal of the Guilty plea subsequently inconvenience the Court? Judge Fenn said that yes, given that Sheridan's District Court is the busiest in the 4th Judicial District. HOWEVER, because of the gravity of the case, the Court would find the time.
Factor 5 - Counsel presence. Judge Fenn disagreed that Cundiff had not served Bear Cloud well. He said, "The Court has observed Ms. Cundiff and Mr. Tate in dozens of cases and found them to be competent and capable." Judge Fenn also said that Bear Cloud's father also had good Counsel; he disagreed with Johnson's opinion that Bear Cloud's father's legal advice should not be considered.
Factor 6 - Was the original plea Knowing and Voluntary? Judge Fenn said that yes, it was, and clearly Ms. Cundiff knew the consequences of risking a plea change, adding that her "having a belief that commutation may occur is not to be taken out of context."
Factor 7 - Would withdrawal waste judicial resources? Judge Fenn said that yes, it would, but that -- along with Factor 4 -- was not a compelling consideration.
The judge told the Court that based upon review of the above, he did not find a fair and just reason to withdraw the pleas, and denied the Motion.
Probation and Parole has already completed a Pre-Sentence Investigation, which has been on hold until after the November 30th hearing.
A Correction: Reporter Mary Jo Johnson had written in a November 23rd article on Dharminder Sen's sentencing that should Judge Fenn deny Tuesday's Motion to Withdraw, Bear Cloud would be sentenced on the 30th. He was not sentenced Tuesday morning – a date is yet to be scheduled. She regrets her error.