Tuesday, April 26, 2016

The four year battle to a plea deal

Many, if not most, have been critical of the fact that Bennie Caswell was not arrested and will not serve any time in jail/prison for what he did to me. I am ever so thankful that so many people are angry for me. Believe me, that does not go unnoticed. You have given me what I needed and longed for as a child, teen, and young adult. I know that the sentence was light. It was not fair. But it was right. Now let me explain to you why I say that.

This case was not cut and dry. Let's not kid ourselves, I pressed charges 36 years after the fact. Even if I had kept the blood-streaked underwear (instead of throwing them into the trash fire) for DNA evidence, it would be a tough case to prosecute. It was a case of he said/she said from the get-go. Not exactly a prosecutor's dream.

And secondly, this case had to be handled by a special prosecutor/judge/clerk because Caswell's sister is the circuit court clerk in Hardin county. That means that the Assisitant Commonwealth's Attorney from another county had to pick up an additional case. That means that the judge, court clerk, and prosecutor had to commute to Elizabethtown for every court appearance. That means that all parties had to schedule court when Hardin county had a court room open. It was not an easy task. Oh, and one more thing, they didn't get paid any extra to do it. I overheard the judge talking about his concern for his clerk, who had to make the trip to Elizabethtown on her day off and with her own money.

I met with the Commonwealth Attorney in Breckenridge/Meade county in May 2012. He listened to my story and told me , "Well, you're pretty, you're intelligent, and you have all of your teeth. I can put you on the stand." At that he turned the case over to a young assistant. She was a feisty young woman who was genuinely appalled at the heinousness of the crime. She talked quickly with a thick Kentucky accent in incomplete sentences. She was intense and fidgety at the same time. She was also a little bit excited, because this case, if successful, would set a new precedent.

The first legal task at hand was to decide which law to use, present law or 1976 law. Both sides of the table had to write briefs arguing their cases, and the judge had to decide. This took a year. A year. For a year, I emailed the prosecutor monthly to ask for the status. After a year my emails came weekly. Then I called. After 14 months, the prosecutor called for a status hearing, at which time the judge decided to use 1976 law.Next step, transfer the case out of juvenile court and into circuit court.

That's when the real legal wrangling began. Although it was the summer between his sophomore & junior years of high school, he has a December birthday, making him 15 1/2 at the time of the crime. According to 1976 law, juveniles 16 or over accused of a felony were automatically transferred to circuit court and treated as adults. Juveniles under 16 would be granted a transfer hearing, where the judge would hear any and all evidence, the witnesses would be cross-examined by the defense attorney, and then the judge would decide whether or not to send it on to circuit court. But transfer wasn't guaranteed. Circuit court could deny it and send it back to juvenile. 

Defense counsel managed to block the transfer hearing three times, and after 3 years in litigation, argued that the defendant's civil rights to a speedy trial had been denied. When that argument failed, they claimed that the charges had been amended illegally, and that this also violated the defendant's civil rights. (the prosecutor at the time told me that the clerk in the Hardin county office argued with her about how to amend the charges, and that ultimately she yielded to the clerk's demands. As it turns out, the prosecutor knew how to do it correctly all along, it was the clerk's advice that led to a violation of his civil rights. Make of that what you will.)

At that point, the judge was forced to make a decision. The charges were going to have to be dismissed, but would they be with, or without, prejudice. Again, the judge ordered that both counsel present briefs, and he would make a decision. It was at that court appearance the prosecutor told me "I'm tired of this case. The judge is tired of this case," as she stomped off and out of the court house. 

I was devastated. I called the detective to see if he understood what was happening, and what the next steps were. He encouraged me by telling me that no one has the luxury of being tired of my case, it is their job to fight for justice for me. (Side note: up to this point, Caswell was represented by a pair of attorneys.)

After six weeks of waiting, I learned that the judge decided to dismiss without prejudice, meaning charges could be refiled and a transfer hearing was set. Another victory for me.Then defense appealed, first in district court, then circuit court, then they asked for the Kentucky Court of Appeals perform a discretionary review. This part was actually online and open, although the details of the case were still confidential (we were still in juvenile court at this time.) After three months the Kentucky Court of Appeals denied the motion, which upheld the decision, sending it back to district court for a transfer hearing.

called the prosecutor with the news. Yes, I called her. I knew before she did. That was July 2015. Charges were to be refiled as Rape, 1st degree, victim under the age of 12. After that, the prosecutor stopped returning my emails.

I waited a few weeks, because even on good days the wheels of justice move slowly, before I called victim advocate (for the Breckenridge county prosecutor). Don't be fooled by the title, the victim advocate does not really advocate for the victim, but that's another post. She was very nice, though, and did some research to find that they no longer had the case, and that it was still in Hardin county. I started calling the Hardin county attorney. I would call, weekly, to ask for a status of the case. On one particular day, I was driving my car and speaking to a very sweet woman, who was having trouble finding any information on the computer. I told her that this was a juvenile case, that  I wasn't sure if that made a difference, and she responded "yes, I know the defendant in this case. I can't believe he would do such a thing,"

" Excuse me?!!! You do realize you are talking to the victim in this case, right?" She apologized, and attempted to smooth things over by saying that you never really know what people are capable of doing.

I had several phone conversations with the Hardin county attorney’s office after that. I kept getting transferred to a particular intern, whose job it seemed was to placate me with legel-ease. Here was the best line she used; the commonwealth/county attorney’s office is afforded the right to decide whether or not a conflict of interest even exists, and obviously the county attorney needed some time to decide that matter. This was the second week of October, a full 14 weeks after charges had been filed.  I reminded her that the conflict of interest in question is the same conflict that had existed since original charges had been filed in 2012. I informed her I was calling the attorney general. She asked me not to do that.

I hung up with her and called the attorney general's office. I spoke to one of the AG's assistants, who enlightened me to some frightening legal details. While he agreed wholeheartedly that it appeared the Hardin County Attorney was dragging his feet, county attorneys are autonomous. The AG's office has no authority over them, and can not get involved unless they are either called in by the county attorney, or find evidence of misconduct. Neither had occurred. Never the less, he would talk to a few people and see if something could be done.

The next week I call Hardin county back, and am told that the case had been sent to Breckenridge county for prosecution. Again, make of that what you will.This time a different prosecutor would handle the case. He called me one evening early on to discuss the case with me. His approach was quite different. He was gentle, caring, safe. He listened intently to my story and understood my goals. He had over 20 years experience prosecuting crime, and he was confident we could be successful. His demeanor gave me hope.

Our next court appearance occurred in December 2015, where a January arraignment date was set, as well as a February transfer hearing. Snow in January caused court closures, so everything got pushed back a month.Then the prosecutor called me with a plea idea, one he called "an offer he can't refuse." Keeping in mind my original goal, to hold him accountable and make his name public for others to see, I made a few concessions in this plea. Rather than go down the road of a grand jury indictment, an INFORMATION would be filed instead. This doesn't change the outcome in anyway, but it simplifies the legal proceedings. The main concession I agreed to was taking my age off of the charge, thus lowering it to a D felony. The essence of the plea went like this:

  • Defense stipulates that probable cause exists to transfer the case to circuit court
  • Defense waives his right to grand jury indictment and appeal
  • Defense pleads guilty to sexual assault in the first degree.
  • Defendant is sentenced to 1 year, probated, under the terms of a three year diversion program which include:
  • monthly meetings with a parole officer, for which he will have to pay a $25 fee each visit
  • sex offender counseling
  • limited/supervised interaction with children, including his family
  • he waives his 4th ammendment right to search and seizure
  • unannouned home visits by parole board
  • If he meets all requirements of the diversion program, he can have the felony expunged.
  • No sex offender registry requirement (which really isn't an issue, legally he wouldn't be required to register anyway, but putting it in the plea will avoid confusion down the road.)
  • $1000 fine plus court costs
The positive effects for him taking the deal are:
  • establishing which law will be used in the case
  • establishing how charges should be filed
  • he has already been convicted of this crime, establishing a pattern
  • if he starts out in juvenile court again, a transfer hearing will be the next step. Other victims will not have to wait 3 years to get there
Only those convicted of D felonies are eligible for the diversion program. He was charged with an A felony (20-life), but confessed to a C felony (5-10). Offering him diversion was the carrot on the stick, it was the sweet part of the deal for him. There was no way he wouldn't be indicted. His confession alone would secure that. A trial by jury, though, was a crap shoot, for both of us. (However, even if I lost in a jury, I would have won because it would have been public.) The prosecutor and defense attorney offered and counter-offered a few times, and then worked together to massage the plea deal into what was entered April 18, 2016.

Let me digress just a moment. I was very involved in this case, but understand, I had no right to be involved. The prosecutor(s) were under no obligation to discuss any of this with me. Neither the Hardin county attorney nor the Attorney General's office owed me any explanation. Even if I had hired my own attorney, she would have not had any power in the process. The best I could do was be as annoying as possible, and let everyone know that I wasn't going to go away. I was not always pleasant when dealing with some of the actors in this drama; I made a number of vague and pointless threats. I walked a thin line of getting justice for my inner 6 year old and making myself vulnerable to a libel suit. This is why Marsy's Law is important.

Now to my point. Why is this sentence right? Why do all of this fighting for justice and he not see the inside of a prison?

It's simple, other victims. If I am the only victim, I have made his life miserable for a total of 7 years. He will have to behave for the next 3 years or go to prison for a year. And if I am the only victim, I am OK with that. But you and I both know that I am likely not alone. There are probably more women out there who have suffered at his hand, but they do not know that they can make a case. The only way to let them know is by making this case public. My work has made both made his identity and conviction publicly known, it has made their cases easier by:
And no, he will not be offered diversion a second time.

Not to mention an added bonus for me, I never had to testify, and more importantly, I never had to be cross-examined. I was facing having to testify three times; in the transfer hearing, in the grand jury, and again at trial. This way I got to tell my story on the record for everyone and anyone, most especially other victims, to hear. But I never had to go through the stress and risk of a trial of any sort. All of the above listed points could have been lost if he weren't convicted. Setting precedent, making the way easier for other victims, was more important to me than putting him in prison. 

We will know in the next few months which way this will go. I pray there are no other victims, but in my gut I know there are. In my gut I feel that many women have been triggered by this case. They need to see it, they need to see his face, again. They need to know about it; the details of what I've been through, for them, because they are important too. They need to be supported to come forward and seek justice. They need to know that while it won't be easy facing the bastard, the difficult and often disappointing legal work has been done already.

Here is the link to WDRB's coverage, and also the article in the News Enterprise.

One last point- some critics claimed that Caswell pleaded guilty to a crime he didn't commit just because he didn't have money for adequate legal defense. Yeah. Four years of court appearances aren't cheap. Also, here is the citation from Det. Johnson's interview with him in February 2012 ( the 2014 date shown reflects the date it was filed with the court, not the interview itself). He has always denied raping me, but here you see he admitted to Det. Johnson that he sexually assaulted me in my barn loft, when I was only 6, a C felony.


  1. As I read this I can't help to know that people with 20 seconds invested have figured it out, developed the how, when and why and then want to take their opinion and tell you that your years and years of investment and interaction - well, they just want you to know that they would want more and demand more. The reality is you and you alone can decide what is acceptable. And I do hope that other victims have the resolve that you had, but again, it is up to them to decide what is acceptable. You have paved the road and may they find some healing and maybe even more justice. The other issue I keep coming up is Justice is a concept that we really think we grasp but we don't. But I do know this, one day he will stand before the Judge of Heaven and He will be held accountable - but before I get too excited, we all will. But that is the only true Justice that exists.

    1. I do realize that people want more justice for me. But here's the thing about justice, it balances the scales. It levels the playing field. No, his PUNISHMENT may have been light, but JUSTICE was served and the playing field is now level for everyone.


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