http://www.macombdaily.com/article/MD/20170831/NEWS/170839934
Home News Court decisions
Appeals court upholds reversal of rapist's prison release
By Jameson Cook, The Macomb Daily
Posted: 08/31/17, 9:21 AM EDT | Updated: 1 week, 6 days ago
The state Court of Appeals upheld a Macomb County judge’s decision to undo the prison release of a convicted rapist whose release was challenged by the victim.
The appeals court ruled Wednesday that circuit court Judge Kathryn Viviano last November correctly reversed the Parole Board’s 2015 decision to release Richard McBrayer, a former police officer who brutally raped a preteen and teenage girl repeatedly in the early 1990s.
McBrayer originally was convicted in a trial and sentenced in 1994 to 20 to 40 years in prison.
He was released in January 2016 but placed back in prison when Viviano decided McBrayer showed a “present risk of harm and lack of true rehabilitation,” and had a deficient post-release plan.
However, he was released again last January without the victim’s knowledge and is living in Clinton Township and reporting to a Roseville office after the appeals court stayed Viviano’s decision during the appeal filed by the victim’s attorney, Kerry Ange.
Ange said Wednesday she was pleased with the ruling but that the legal fight is not over. McBrayer cannot be returned to prison until his appellate rights expire. McBrayer and the Parole Board have 42 days to seek an appeal to the state Supreme Court.
Ange said the victim, who lives in Roseville, still fears McBrayer. She lives near him and one time saw him driving in Clinton Township.
“He’s a dangerous man,” Ange said. “She’s scared.”
The three appeals court judges in a five-page ruling cited McBrayer’s apparent inability to set up a post-release plan as well as the violent nature of the rapes, which caused permanent injuries to the victim, now in her 30s.
The Parole Board claims the courts should not substitute their judgment for that of the Parole Board.
“But,” the judges say, “this case presents the unique situation in that the damage inflicted on the victim is couple with a professed relapse prevention plan that did not materialize.”
McBrayer planned to reside with a niece in Louisiana, but his “transfer to Louisiana was denied because the resident at the address provided by McBrayer stated that she did not know him,” the judges say.
“We are taking into consideration the derailment of McBrayer’s plan to stay away from the victim and avoid relapse,” the judges say.
The judges also point to information about McBrayer that seems to contradict his classification as a “high probability of parole.”
One report says, “There is some concern related to deviant sexual interests.”
McBrayer in a 2015 interview blames the victim and maintains an attraction to 13 and 14-year-olds, the judges note.
McBrayer is a former court officer and Eastland Mall police office, as well as a karate instructor.
He sexually assault the girl when she was 12 to 14 nearly every day for more than two years in the early 1990s at a home in Macomb Township after he married her mother.
McBrayer was slated for release in 2013 when Ange, then working as an assistant Macomb County prosecutor, successfully challenged the board’s release.
Ange said if McBrayer does not seek an appeal, she will seek to have him imprisoned immediately.
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Jameson Cook
My beat is the courts of Macomb County and general assignment. Read more of Jameson Cook's court coverage on his blog http://courthousedish.blogspot.com/ Reach the author at [email protected] or follow Jameson on Twitter: @jamesoncook.
Home News Court decisions
Appeals court upholds reversal of rapist's prison release
By Jameson Cook, The Macomb Daily
Posted: 08/31/17, 9:21 AM EDT | Updated: 1 week, 6 days ago
The state Court of Appeals upheld a Macomb County judge’s decision to undo the prison release of a convicted rapist whose release was challenged by the victim.
The appeals court ruled Wednesday that circuit court Judge Kathryn Viviano last November correctly reversed the Parole Board’s 2015 decision to release Richard McBrayer, a former police officer who brutally raped a preteen and teenage girl repeatedly in the early 1990s.
McBrayer originally was convicted in a trial and sentenced in 1994 to 20 to 40 years in prison.
He was released in January 2016 but placed back in prison when Viviano decided McBrayer showed a “present risk of harm and lack of true rehabilitation,” and had a deficient post-release plan.
However, he was released again last January without the victim’s knowledge and is living in Clinton Township and reporting to a Roseville office after the appeals court stayed Viviano’s decision during the appeal filed by the victim’s attorney, Kerry Ange.
Ange said Wednesday she was pleased with the ruling but that the legal fight is not over. McBrayer cannot be returned to prison until his appellate rights expire. McBrayer and the Parole Board have 42 days to seek an appeal to the state Supreme Court.
Ange said the victim, who lives in Roseville, still fears McBrayer. She lives near him and one time saw him driving in Clinton Township.
“He’s a dangerous man,” Ange said. “She’s scared.”
The three appeals court judges in a five-page ruling cited McBrayer’s apparent inability to set up a post-release plan as well as the violent nature of the rapes, which caused permanent injuries to the victim, now in her 30s.
The Parole Board claims the courts should not substitute their judgment for that of the Parole Board.
“But,” the judges say, “this case presents the unique situation in that the damage inflicted on the victim is couple with a professed relapse prevention plan that did not materialize.”
McBrayer planned to reside with a niece in Louisiana, but his “transfer to Louisiana was denied because the resident at the address provided by McBrayer stated that she did not know him,” the judges say.
“We are taking into consideration the derailment of McBrayer’s plan to stay away from the victim and avoid relapse,” the judges say.
The judges also point to information about McBrayer that seems to contradict his classification as a “high probability of parole.”
One report says, “There is some concern related to deviant sexual interests.”
McBrayer in a 2015 interview blames the victim and maintains an attraction to 13 and 14-year-olds, the judges note.
McBrayer is a former court officer and Eastland Mall police office, as well as a karate instructor.
He sexually assault the girl when she was 12 to 14 nearly every day for more than two years in the early 1990s at a home in Macomb Township after he married her mother.
McBrayer was slated for release in 2013 when Ange, then working as an assistant Macomb County prosecutor, successfully challenged the board’s release.
Ange said if McBrayer does not seek an appeal, she will seek to have him imprisoned immediately.
Subscribe to Get Home Delivery for as low as $1.50 per week
Jameson Cook
My beat is the courts of Macomb County and general assignment. Read more of Jameson Cook's court coverage on his blog http://courthousedish.blogspot.com/ Reach the author at [email protected] or follow Jameson on Twitter: @jamesoncook.
http://www.macombdaily.com/article/MD/20161111/NEWS/161119908
Rape victim trying to return attacker to prison
Richard McBrayer MICHIGAN DEPARTMENT OF CORRECTIONS PHOTO
By Jameson Cook, The Macomb Daily
Posted: 11/11/16, 5:29 PM EST | Updated: on 11/12/2016
A 37-year-old Macomb County woman believed her rapist, Richard McBrayer, was still in prison last spring. So she was shocked to see him sitting in a vehicle adjacent to her vehicle on Groesbeck Highway on Easter Sunday.
“I had sheer terror when I looked at his face,” she said. “I couldn’t believe it. I had to look again to make sure.”
McBrayer, 59, of Roseville, had been released the prior January, and his victim says she was never informed by the Michigan Department of Corrections despite a requirement to do so.
She’s angry that she was never informed and terrified McBrayer is free, albeit on parole in Mount Clemens.
“I’m terrified to leave my apartment,” she said. “I’m terrified to go to the grocery, to take my daughter to school. I’m in fear all the time.”
The woman says McBrayer, who was her stepfather, violently raped her countless times over a two-year period from 1991 to 1993 when she was 12 to 14 years old in their Clinton Township home and elsewhere. McBrayer pleaded guilty to two counts of first-degree criminal sexual conduct and was sentenced in 1994 to 20 years to 40 years in prison by Judge Mary Chrzanowski of Macomb County Circuit Court.
The woman says the assaults were so violent they permanently harmed her to the point where she was limited to having one child and suffers daily.
McBrayer, a former police officer and karate instructor, actually was approved for release by the state Parole Board in 2011, prior to serving his minimum term. But Macomb prosecutors, with backing from Attorney General Bill Schuette, gained a reversal from Judge Peter J. Maceroni. McBrayer remained imprisoned until his release Jan. 26 , 2016, following 2015 parole hearings, which his victim attended. He is a registered sex offender.
After the shocking incident of seeing McBrayer in his 2003 Ford Taurus, the woman contacted Kerry Ange, the former assistant prosecutor whose arguments gained the reversal several years ago.
Ange, now in private practice in St. Clair County, has filed a unique post-appeal motion to reverse the decision, on the woman’s behalf. She first had to gain permission from a visiting circuit court judge to file the appeal before filing it to Judge Kathryn Viviano of Macomb County Circuit Court.
Ange believes McBrayer should not be freed because, according to prison records, he has never taken responsibility, blames the victim, minimizes his acts and never successfully completed sex offender treatment in prison. She has to show the Parole Board abused its discretion.
The decision “flies in the face of the MDOC’s own continuing opinions details throughout the record,” Ange says in her legal brief. “The record bears out this child rapist obviously remains a significant risk to children everywhere; there are zero assurances of public safety whatsoever against the background of this record.”
Her legal brief graphically describes some of the vaginal, anal and oral rapes claimed by McBrayer’s victim.
Ange also points out that if McBrayer had been convicted after 2006, he would be serving a mandatory minimum of 25 years in prison due to a toughed law against adult predators of children. She notes a probation officer from the same Michigan Department of Corrections that granted his release recommended in 1994 that he serve 40 to 60 years behind bars.
His victim calls him a “monster” who may again prey on children and worries what will happen after he is released from parole in 2018. He currently wears a GPS tether.
However, a response legal brief filed on behalf of the parole board down plays the graphic description and points to 2015 psychology testing of McBrayer showing he did complete sex-offender therapy “with a good evaluation” and scored a “high probability of parole” due to his good behavior and rehabilitation.
“McBrayer expressed remorse, specifically that he destroyed (the victim’s) childhood and caused her long-term harm,” Assistant Attorney General Steven Langschwager wrote. “McBrayer’s record shows rehabilitation and evolution from the start of his incarceration to the parole decision date.”
Langschwager concedes that McBrayer admitted he retains “an attraction to children,” but says that acknowledgement portends a better chance of future compliance than if he denied an attraction.
A Correctional Offender Management Profiling for Alternative Sanctions (COMPAS) report “indicates a low recidivism risk and a low violence risk,” Langschwager says. In that 2015 report, McBrayer did not minimize his actions or blame the victim, he says.
“It can be inferred that McBrayer has progressed positively since the 2009 COMPAS evaluation,” which Ange referenced, Langschwager says.
Langschwager tells the judge that she cannot replace the board’s judgement with her opinion.
“A decision is not an abuse of discretion merely because the reviewing court would have ruled differently on a close evidentiary question,” he says.
Ange maintains that McBrayer’s recent positive reports contradict his prior reports.
Subscribe to Get Home Delivery for as low as $1.50 per week
Jameson Cook
My beat is the courts of Macomb County and general assignment. Read more of Jameson Cook's court coverage on his blog http://courthousedish.blogspot.com/ Reach the author at [email protected] or follow Jameson on Twitter: @jamesoncook.
Full bio and more articles by Jameson Cook
Rape victim trying to return attacker to prison
Richard McBrayer MICHIGAN DEPARTMENT OF CORRECTIONS PHOTO
By Jameson Cook, The Macomb Daily
Posted: 11/11/16, 5:29 PM EST | Updated: on 11/12/2016
A 37-year-old Macomb County woman believed her rapist, Richard McBrayer, was still in prison last spring. So she was shocked to see him sitting in a vehicle adjacent to her vehicle on Groesbeck Highway on Easter Sunday.
“I had sheer terror when I looked at his face,” she said. “I couldn’t believe it. I had to look again to make sure.”
McBrayer, 59, of Roseville, had been released the prior January, and his victim says she was never informed by the Michigan Department of Corrections despite a requirement to do so.
She’s angry that she was never informed and terrified McBrayer is free, albeit on parole in Mount Clemens.
“I’m terrified to leave my apartment,” she said. “I’m terrified to go to the grocery, to take my daughter to school. I’m in fear all the time.”
The woman says McBrayer, who was her stepfather, violently raped her countless times over a two-year period from 1991 to 1993 when she was 12 to 14 years old in their Clinton Township home and elsewhere. McBrayer pleaded guilty to two counts of first-degree criminal sexual conduct and was sentenced in 1994 to 20 years to 40 years in prison by Judge Mary Chrzanowski of Macomb County Circuit Court.
The woman says the assaults were so violent they permanently harmed her to the point where she was limited to having one child and suffers daily.
McBrayer, a former police officer and karate instructor, actually was approved for release by the state Parole Board in 2011, prior to serving his minimum term. But Macomb prosecutors, with backing from Attorney General Bill Schuette, gained a reversal from Judge Peter J. Maceroni. McBrayer remained imprisoned until his release Jan. 26 , 2016, following 2015 parole hearings, which his victim attended. He is a registered sex offender.
After the shocking incident of seeing McBrayer in his 2003 Ford Taurus, the woman contacted Kerry Ange, the former assistant prosecutor whose arguments gained the reversal several years ago.
Ange, now in private practice in St. Clair County, has filed a unique post-appeal motion to reverse the decision, on the woman’s behalf. She first had to gain permission from a visiting circuit court judge to file the appeal before filing it to Judge Kathryn Viviano of Macomb County Circuit Court.
Ange believes McBrayer should not be freed because, according to prison records, he has never taken responsibility, blames the victim, minimizes his acts and never successfully completed sex offender treatment in prison. She has to show the Parole Board abused its discretion.
The decision “flies in the face of the MDOC’s own continuing opinions details throughout the record,” Ange says in her legal brief. “The record bears out this child rapist obviously remains a significant risk to children everywhere; there are zero assurances of public safety whatsoever against the background of this record.”
Her legal brief graphically describes some of the vaginal, anal and oral rapes claimed by McBrayer’s victim.
Ange also points out that if McBrayer had been convicted after 2006, he would be serving a mandatory minimum of 25 years in prison due to a toughed law against adult predators of children. She notes a probation officer from the same Michigan Department of Corrections that granted his release recommended in 1994 that he serve 40 to 60 years behind bars.
His victim calls him a “monster” who may again prey on children and worries what will happen after he is released from parole in 2018. He currently wears a GPS tether.
However, a response legal brief filed on behalf of the parole board down plays the graphic description and points to 2015 psychology testing of McBrayer showing he did complete sex-offender therapy “with a good evaluation” and scored a “high probability of parole” due to his good behavior and rehabilitation.
“McBrayer expressed remorse, specifically that he destroyed (the victim’s) childhood and caused her long-term harm,” Assistant Attorney General Steven Langschwager wrote. “McBrayer’s record shows rehabilitation and evolution from the start of his incarceration to the parole decision date.”
Langschwager concedes that McBrayer admitted he retains “an attraction to children,” but says that acknowledgement portends a better chance of future compliance than if he denied an attraction.
A Correctional Offender Management Profiling for Alternative Sanctions (COMPAS) report “indicates a low recidivism risk and a low violence risk,” Langschwager says. In that 2015 report, McBrayer did not minimize his actions or blame the victim, he says.
“It can be inferred that McBrayer has progressed positively since the 2009 COMPAS evaluation,” which Ange referenced, Langschwager says.
Langschwager tells the judge that she cannot replace the board’s judgement with her opinion.
“A decision is not an abuse of discretion merely because the reviewing court would have ruled differently on a close evidentiary question,” he says.
Ange maintains that McBrayer’s recent positive reports contradict his prior reports.
Subscribe to Get Home Delivery for as low as $1.50 per week
Jameson Cook
My beat is the courts of Macomb County and general assignment. Read more of Jameson Cook's court coverage on his blog http://courthousedish.blogspot.com/ Reach the author at [email protected] or follow Jameson on Twitter: @jamesoncook.
Full bio and more articles by Jameson Cook