Emily Wilder Arizona Republic
(CNT) City News And Talk #arizona
Neko Wilson stepped out of the metal gate in front of the Navajo County Detention Center into the quiet, empty parking lot, wearing all white save for his bright purple sneakers missing their laces and carrying one small cardboard box containing a year’s worth of his belongings.
The chain-link fence rattled shut behind him, and he squinted at the bright Arizona sun. It was the first time he had seen daylight unobstructed by small jail windows in 15 months — the first time in 17 years he felt the warmth of the sun on his face as a completely free man.
Then he was surrounded by people and laughter and tears. His fiancé held him tightly and kissed his face. His two older siblings, Jacq and Jacque Wilson, embraced him, smiling and joking through masks.
The reunion was bittersweet, though.
Wilson lost almost half of his life — and the entirety of his adult life — to the criminal justice system. He was no longer the youthful 21-year-old who was pulled over and searched on Interstate 40 nearly two decades ago. He hadn’t seen his 13-year-old daughter since she was 2, nor his now-ailing father since 2019.
The arrangement that secured his release at the Navajo County courthouse on Friday was an imperfect compromise. Ideally, Wilson would have fought what he saw as violations of the law and his rights that landed him behind bars a second time, he shared with The Arizona Republic. But facing an eight-year sentence in prison and a potential death sentence posed by COVID-19, he instead forfeited his right to a trial and pled guilty for the third time in his life.
By admitting to violating his probation on a 14-year-old marijuana conviction in exchange for his freedom, Wilson joined the 94 to 97% of criminal cases nationwide that are resolved through guilty pleas. His case demonstrates what legal experts argue is the reason so many are discouraged from exercising their constitutional rights — the potential penalties of fighting are too high a risk.
Legal experts told The Arizona Republic that this coercion has only gotten worse during the COVID-19 pandemic as people charged with crimes — particularly those like Wilson who have preexisting medical conditions that put them at increased risk of hospitalization or death from infection — will do whatever it takes to get out of state custody. These guilty pleas condemn them to years under state supervision and represent marks on their record that follow them for the rest of their lives.
Case began with 2003 traffic stop, guilty plea
Wilson sat at the table in the front room of the warm and bustling law office of Lee Phillips. He had changed out of his jail uniform and into jeans, a black sweater and shoes with laces. He bowed his head as his brother prayed, and then he ripped into his Philly cheesesteak. He hadn’t eaten since 11 a.m. Thursday.
The conversation turned from the Oakland Raiders — the brothers’ football team back home in California where Wilson would be heading with his fiancé the next day — to the complicated and grueling ordeal now behind him.
In 2003, Wilson was a passenger in a vehicle when a police officer pulled the driver over for speeding. The officer wrote in the report on the incident, “As I arrived at the right front passenger side window, I noticed a black male passenger which was slouched down.”
He let off the non-Black driver with a warning but decided to search Wilson and the vehicle and found just under 5 pounds of marijuana.
Wilson and his brothers, both of whom are public defenders, have long believed that Wilson was racially profiled and that the search was unlawful.
“He was stopped while a passenger in a vehicle. He was stopped for riding while Black,” Jacque Wilson said.
However, Wilson’s state-appointed counsel at the time advised the then 21-year-old that if he tried to fight the case on those grounds, it would be his word against a cop’s — and in Navajo County during the War on Drugs, that didn’t amount to much. He’d likely lose the battle, be convicted and face years in prison. Meanwhile, the prosecutor and current Navajo County District Attorney Joel Ruechel offered Wilson a bargain — if he pled guilty, he’d get off with only probation.
“My brother told me back then, ‘Don’t take the probation because it’s set up for you to fail,’” Wilson said. “Back then I was so young and uneducated to the system, I just wanted to get out.”
Six years after the traffic stop, Wilson violated his probation when he was arrested and charged with murder for his involvement in a robbery that ended in the slaying of two people in Fresno, Calif. A court later dismissed these charges after finding that he was not present during the robbery nor took part in the murders and only knew of the robbery plans before they took place. Wilson instead pled guilty to two robbery charges and was released from jail with time served.
But then he was arrested forthe 2009 violation and held without bail in Navajo County in 2019.
“Prison and jail is supposed to be about rehabilitation and trying to stay out of the system, and I was doing that. None of that mattered to them,” Wilson said.
Phillips, Wilson’s counsel since 2018, has argued that this arrest was illegal because Navajo County didn’t follow proper warrant filing procedures. Wilson should have been allowed to serve time concurrently for both the robbery crimes and his probation violation while he was in the Fresno jail, he maintained. Phillips also launched a federal lawsuit against Navajo County alleging civil rights violations and took Wilson’s criminal case all the way to the state Supreme Court.
Then Ruechel offered Wilson another bargain — forfeit his rights to appeal or challenge his case by admitting to the violation and be released, or face the maximum sentence of 8.75 years in a trial he would likely lose.
The offer was appealing as Wilson had already languished for 15 months in the detention center he described as understaffed, overcrowded and coronavirus-infested. He worried about his health, as he was especially susceptible given his pre-existing conditions of asthma and hypertension. He wanted to see his daughter and his family. He wanted to finally live his life.
So, he took the deal and forfeited his chance to fight.
“We basically had to give up our right to challenge their violations of his rights,” Phillips said. “And we would have won.”
‘Trial penalty’ coerces defendants to plea, exacerbated by COVID-19
Legal experts call this pressure to plea out rather than fight a case in court the “trial penalty.” In a 2018 report, the National Association of Criminal Defense Lawyers explained that less than 3% of criminal cases go to trial largely because “individuals who choose to exercise their Sixth Amendment right to trial face exponentially higher sentences if they invoke the right to trial and lose.”
“Further, the pressure to plead guilty, and plead early, is often accompanied by a requirement that accused persons waive many valuable rights, including the right to challenge unlawfully procured evidence and the right to appeal issues which have an impact not only in their cases but also for society at large,” the report stated.
This reality has led to a criminal justice system that is almost entirely coercive, according to Jared Keenan, a former defense attorney and current staff attorney with the American Civil Liberties Union of Arizona.
“The government, the prosecutor, has all of the power and can exert that power in varying degrees, with the outcome being that the vast, vast majority of people take a plea,” Keenan said.
Keenan said that this coercion is worsened in Arizona, where the majority of people in jail have not been convicted and are in custody because they are unable to pay bail or are ineligible for bail, like Wilson. For these people, often the only means of getting out is taking a plea deal. The alternative is suffering months of detention, waiting for a trial that could end in a conviction and a lengthy sentence in prison.
Wilson observed this reality firsthand during his 15 months at the Navajo County Detention Center. Out of the hundreds of people he saw coming through the jail, he said, not one of their cases ever went to trial.
The pressure of plea bargains is also heightened in Arizona by COVID-19, which began circulating rapidly through custodial institutions across the state as early as late March.
“If you’re in jail, particularly at a time when there is a global pandemic and there is a deadly virus spreading throughout our jails and prisons, that’s additional pressure on you to take a plea or to cut a deal and get out,” Keenan said. “That’s an additional tool that the government and prosecutors can use to coerce plea deals.”
But plea deals, even ones that result in probation without a jail or prison sentence, are not harmless compromises. A felony conviction on record or the conditions of probation often inevitably lead to future difficulties, violations and crimes, according to a July report by Human Rights Watch.
“Even if you took the deal early on for a crime that you should have fought — you took a plea because you didn’t want to risk the potential to go to prison — you’re now paying for that decision for the rest of your life,” Keenan said.
Despite the costs of incarceration, family grateful
Wilson’s voice softened as he spoke about his daughter, now 13, who he hasn’t seen in the decade he’s been in and out of state custody.
“I didn’t want to get into her life again and be ripped out again,” he shared. “Hopefully when I get out now, I can start that process.”
He also looked forward to seeing his father, an 85-year-old Vietnam War veteran suffering from recent ailments. His health issues were undoubtedly worsened by the stress of not only Wilson’s case, but also the incarceration of another son, Lance Wilson.
“The human cost is incalculable,” Jacq Wilson added through tears. “He said, ‘I’m afraid if I go to the E.R., I’m not going to make it out to see my son.’ He said, ‘If I don’t make it, would you please let Neko know that I love him, that I tried to wait for him.’”
Despite all Wilson lost while incarcerated, the family felt gratitude and relief leaving the Navajo County Detention Center for what they hope is the last time.
“Obviously Neko made mistakes, and he’s paid dearly for those mistakes, but he’s been blessed. Ninety nine-point-nine percent of folks who are in his position don’t have two brothers who are attorneys, don’t have an attorney like Mr. Phillips there to fight for him to the bitter end,” Jacque Wilson said.
While Wilson has yielded his rights to challenge the outcome, the Arizona Supreme Court ruling on his case is still pending and could potentially have implications for other probationers in jail statewide.
Meanwhile, Wilson hopes to pick up where he left off 17 years ago.
“Neko took the deal today to get out of there,” his brother said. “Neko wants to live.”