State admits error in prior case for man accused in double murder

casey.grove@adn.comJune 6, 2013 

Alaska's attorney general says state prosecutors erred when they made an inappropriately soft plea bargain in 2009 with a man charged last month with killing an elderly Anchorage couple and sexually assaulting a young girl hours after his release from jail.

In addition to the murder and sexual assault charges, a grand jury this week also indicted Jerry Andrew Active, 24, on charges that he sexually assaulted another elderly woman in the same household May 25 and assaulted the girl's parents when they discovered him inside their Mountain View apartment, almost nude.

But Active might not have been roaming Anchorage's streets that day if he had received an appropriately tougher sentence in the 2009 case. He was already a registered sex offender who had spent most of his adult life in trouble with the law. Many Alaskans, including state legislators, have questioned why Active was not behind bars.

"When terrible crimes are committed, the first question that comes to mind is, 'How could this happen?' " Alaska Attorney General Michael Geraghty said Thursday, discussing a state review of Active's past cases with reporters. "This is a question that never has an easy answer, or necessarily any answer."

Still, Geraghty attempted to answer for the prosecutors he oversees in the Department of Law. Geraghty said state prosecutors acted appropriately in all but one of Active's past cases: the 2009 plea agreement in which a prosecutor failed to recognize that Active had been previously convicted of a felony. That error also slipped past a judge and the Department of Corrections, resulting in a lighter sentence than what was appropriate, Geraghty said.

"We should've been aware of it," Geraghty said.

In addition to sentencing ranges under state law, there are many factors at play in determining how much prison time a person serves for a conviction. Among them are recommendations prosecutors make in plea deals and how the Department of Corrections calculates sentences.

Corrections officials are still looking into how their staff calculated Active's prison time, a department spokeswoman said. The "time accounting," as it is called, includes looking at time an inmate serves from arrest until sentencing, time suspended by a judge, and time off for good behavior, said Kaci Schroeder, spokeswoman for the Department of Corrections.

"It's not straight math," Schroeder said.

The time accounting for Active was more complicated than most cases, Schroder said. She declined to comment on details of the review still in progress.

On Thursday, Geraghty detailed the Department of Law's interactions with Active.

 

SENTENCING MISTAKE

Active first faced criminal charges as a juvenile, when he was charged with driving drunk, said Geraghty, who did not elaborate on the charges. Attorneys and court personnel are generally prohibited from discussing cases involving minors.

In 2007, police in Togiak arrested Active and he was charged with five felonies related to a burglary and giving booze to kids in the dry Bristol Bay village, which had voted to ban the sale of liquor. Active agreed to plead guilty to a felony charge of furnishing alcohol to a minor, a misdemeanor in Alaska communities that have not banned the sale of alcohol, Geraghty said.

"I was surprised to learn it was a felony. But it is. And it's our responsibility to know that," he said.

Under the plea agreement, Active's sentence was suspended. That meant he did not have to serve any time behind bars, unless he committed another serious crime. Active received three years' probation, the attorney general said.

Then, in 2009, police arrested Active again. This time he had broken into a home in the village and sexually assaulted an 11-year-old girl. Active touched the girl over her clothes, hit her when she started screaming, and also assaulted her mother and brother when they tried to intervene, Geraghty said.

Prosecutors also offered Active a plea agreement in that case and did not pursue revoking his probation in the 2007 case, the attorney general said. In return for pleading guilty to attempted sexual assault of a minor, assaultand trespassing, Active was sentenced to seven years with four years suspended for the attempted sexual assault conviction, along with 185 days for each of the other two convictions. The result was a sentence of four years to serve and four suspended.

That sentence was a mistake, Geraghty said. The recent review showed the plea deal "may have been inconsistent with the law," he said.

The prosecutor on the case did not realize Active was already a felon -- what should have been a major factor at his sentencing -- and did not recommend the appropriate range of eight to 15 years behind bars, Geraghty said.

State prosecutors rely on the Alaska Public Safety Information System, a statewide database maintained by the Department of Public Safety that shows prior criminal history of defendants, Geraghty said. The database's report on Active did not indicate that he was a felon, and neither the prosecutor, the judge nor Corrections officials delved into the issue further, the attorney general said.

"No one realized it was a felony," Geraghty said. "It's somewhat counter-intuitive, but nonetheless, it is the responsibility of the Department of Law to be aware of those nuances and to recognize he was on felony probation and this should not have been treated as a first-time felony offense."

The database error is something state officials still need to investigate, among other things, Geraghty said.

 

BAD BEHAVIOR IN PRISON

Active served the first two-thirds of his time at correctional facilities in Anchorage, Palmer, Kenai and Colorado. Despite getting in trouble twice while jailed, he was released with time off for good behavior and put on probation in Anchorage in October 2011, according to the Department of Corrections.

What followed was a series of alcohol-related probation violations, re-arrests and re-releases. In some cases, Active was jailed the same day he had been let out.

Following Active's arrest two days after the October 2011 release -- he was drinking and failed to report to his probation officer -- Active went back to jail and finished serving the remainder of the unsuspended portion of his sentence for the 2009 attempted sexual assault conviction.

Court records show Active was released again in November 2012 and arrested the same day for allegedly running from a police officer, whom he dragged along the ground as she tried to restrain him. Active was convicted on assault, providing false information and resisting arrest and sentenced to 90 days with 80 days suspended.

The case also landed Active 120 days' imprisonment for violating his probation, the result of another plea agreement, Geraghty said. Active was let back out of jail in early February 2013. Later that month, police arrested him for again violating probation by drinking booze, Geraghty said. In another plea deal in April, a judge accepted a prosecutor's recommendation and sentenced Active to 150 days for the probation violation, the attorney general said.

Why, a reporter asked Geraghty, did prosecutors not request that a judge impose all of Active's suspended time after any of the probation violations, rather than imposing the smaller chunks attorneys refer to as the "installment plan?"

"Because we charged him with those probation violations, and the judges typically don't impose suspended time in those circumstances," Geraghty said. "If he'd committed another sexual abuse of a minor, for example, while he was on probation for the original one, I think he would've had a different sentence."

For the last probation violation, 150 days is a "fairly hefty" sentence, Geraghty said. Geraghty said he did not know the details of Active's run-in with the police officer.

Either way, the prosecutor did not ask the judge to impose Active's suspended time, Deputy District Attorney Clint Campion said later. Such a request would have made more sense if Active had committed a more serious crime, Campion said.

"We have the ability to make a recommendation," Campion said. "You can ask for the moon, but a judge can decide you're not being reasonable."

Geraghty also defended his department's use of plea agreements, saying that Alaska is below the national average for the number of cases that end in such deals. The Department of Law is currently reviewing its policies on plea agreements, a move that Geraghty said he made before Active's arrest on the recent murder charges.

Does the department shy away from taking cases to trial, opting for plea agreements because trials cost more money?

"We try all the cases we need to try," Geraghty said. "If you try more cases, it does take more prosecutors. It takes more judges. It takes more court clerks. It takes more public defenders, arguably so."

"It's a legitimate question. I don't deny that. But I stand behind what we've done and what we're doing, even today."

As of Thursday, Geraghty said the department had made no policy changes or taken any disciplinary actions against prosecutors in the wake of their review of Active's cases. The attorney general said he hopes there will be a "collective inquiry" among lawmakers, lawyers and judges, among other officials.

 

'SOMETHING MISSING'

After serving less than the full 150-day sentence, based on the Department of Corrections' calculations, Active walked out of jail in Anchorage on May 25.

"There are no words to describe the horrific events of that day," Geraghty said.

Police say Active crawled through an open window to get inside the Mountain View apartment on North Bragaw Street. Once inside, according to police, he sexually assaulted a 2-year-old girl and beat to death her great-grandparents: Touch Chea, 73, and Sorn Sreap, 71.

Von Seng, the homicide victims' grandson and the girl's father, said and his wife arrived home after taking their 4-year-old son to a movie and found their door locked with a chain. Seng broke a window to get inside and discovered the bodies of his grandparents -- respected Cambodian elders who had survived a genocide in their home country -- and fought with Active, who was wearing only boxer shorts, he said.

His wife called police, who arrested Active a couple blocks away. Their daughter had to undergo surgery for her injuries, police said.

Seng told the Daily News the next day that his 90-year-old great-grandmother, who suffers from dementia and had been in the apartment, appeared unharmed. But a grand jury on Monday handed up charges that Active also sexually assaulted her.

Active's bail remains at $1.5 million.

After the press conference Thursday, Seng said he was not satisfied by the attorney general's explanation of how prosecutors handled Active's cases.

"Right now, no. Because I feel like there's something missing to this whole timeline of his previous criminal acts," Seng said.

The system let his family down, Seng said, and he's angry about that.

"We've been trying to be strong, just trying to keep sane and not go crazy with all the stuff we witnessed on the 25th. My son's trying to come back home, and there's no home right now. It's pretty hard for us, but we're hanging in there and trying to get justice for my grandparents."

 


Reach Casey Grove at casey.grove@adn.com or 257-4589.

 

 

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