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[BN] Watchdog

He served his time and should have been freed – 38 days later, he was

What is it like to sit in jail knowing the judge wanted you freed days ago? And then weeks ago? And, finally, more than a month ago?

"There were days when I wanted to give up," said Richard Burr III, a disabled veteran who was freed from the Erie County Holding Center 38 days late.

Burr, 40, served time last year on domestic violence charges and for driving while intoxicated after he violated probation. His release date was July 8, 2018. Or it was supposed to be.

Days later, he was still in his cell. Court papers were drafted, a hearing scheduled and arguments heard. It all looked promising.

Yet when July turned to August, Burr remained in jail.

While his lawyer worked to liberate him, Burr's days began and ended behind bars for two more weeks, until the middle of August 2018. Finally, he was given back his jeans and an Army green T-shirt and allowed to go.

America's jails and prisons sometimes hold inmates too long. The state prisons in South Carolina kept 23 inmates beyond the end of their sentences, according to the State, a newspaper in Columbia, S.C. Louisiana routinely keeps people beyond their release date, according to the Appeal, an online journal focused on criminal justice. Mostly because of staff error, the federal prison system released 152 inmates late over a five-year period, the Justice Department's Office of the Inspector General found.

Freedom is precious, said Charles Culhane, who spent time in a state prison years ago and now is active in efforts to reform conditions for Erie County's inmates.

"How do you compensate for that person's loss?" he asked. "How do you give back those 38 days?"

Late releases can be "extraordinarily serious," the Justice Department's inspector general said in the report about late releases in the federal system, in 2016. They not only deprive inmates of their liberty, they are costly. The federal government paid to house prisoners who should not have been there, and it later paid to settle their lawsuits, the report said. Just four suits cost taxpayers $680,000.

The inspector general's report included cases of inmates held more than a year beyond their release date. In 2011, the Erie County Holding Center released an inmate 28 months late. While bureaucratic fumbling was to blame, that inmate had done nothing to protest his plight; he knew that once released he would be deported. Considering the average cost of an inmate, taxpayers had provided some $85,000 to confine him for an extra 854 days.

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Richard Burr's case is more complicated.

Why Burr was not freed 

Burr said that during his five years in the Army – all spent stateside – he suffered a traumatic brain injury and has post-traumatic stress disorder from episodes he does not want to discuss. At the same time, he talks of seeing an Army mechanic blown apart when a truck tire exploded. Burr said he has serious issues with his back and that he twice has attempted suicide. He has a Veterans Administration counselor and receives help from VA programs.

In late 2017, he had legal problems on two fronts. He violated an order of protection and faced other charges, such as criminal mischief, because of an incident with his girlfriend at the time. That matter, plus his continued use of alcohol and marijuana, led the county Probation Department to void his probation from a drunken driving conviction. His probation officer wrote in a report that Burr should serve time for the DWI felony.

Burr's attorney was Robert C. Singer, a veteran who tells other veterans and active military personnel that he understands the pressures they face. Singer, recognizing that Burr had separate matters before two judges, devised a strategy: get him into treatment again as soon as possible.

After Burr pleaded guilty to two misdemeanors to settle the domestic violence charges – but was not yet sentenced – the attorney asked the judge in the probation violation case to agree that the best course would be to get Burr into a residential treatment program in Bradford, Pa.

But Burr had been in residential drug treatment before and then didn't follow through as an outpatient, a report by the Probation Department said. The judge, Michael Pietruszka, wasn't going along with the attorney's suggestion.

"Mr. Burr has already been to Bradford," Pietruszka said, according to a transcript of the court appearance. "And I asked at the bench, what's different this time, and I did not get a satisfactory answer.

"Do you know the definition of insanity?" Pietruszka continued. "It's doing the same thing over and over again and expecting a different result."

Burr remained in jail and started to serve the one-year sentence that Judge Deborah Haendiges soon gave him for the domestic violence misdemeanors.

As the weeks drifted by, a rough agreement with Pietruszka took shape.

Burr's yearlong sentence would amount to about seven months behind bars when accounting for days off for good behavior and credit for his days in confinement while awaiting sentencing. So he was to be out July 8, 2018, when he could then go into a treatment program.

The attorney and Burr's probation officer, with consent from the prosecutor, agreed that Pietruszka's upcoming sentence, on Burr's probation violation, should run "concurrently" with his first sentence. That way, Burr could immediately enter a drug treatment facility once he had served the seven months.

Pietruszka, who is now retired and could not be reached for comment, agreed with the plan, court documents show.

Like Haendeges did, Pietruszka sentenced Burr to a year in jail, on June 4, 2018, but said he would get credit "for the time that you've already spent in custody." On a court record, an aide to the judge wrote that the 12-month sentence would run concurrently with the sentence Burr was serving for Haendiges.

The probation officer was Paul Falzone. "We left court thinking that (Burr) would be released in early July 2018," Falzone said in a sworn statement. It was completed after the arrangement went awry, and Singer was laboring to patch it together.

According to Singer, a jail clerk found that Burr could not be released July 8 based on the paperwork she was seeing.

State law lets sentences on different charges run concurrently, but not when one of the sentences is imposed months after the first. The probation violation had been an open case during several months of Burr's confinement in the domestic violence case. The penal law didn't let the clock go backward.

The jail clerk who calculates release dates determined Burr's time would end in November 2018, not as soon as July.

The clerk exposed a problem the attorneys had failed to realize.

It was still June 2018. Clearly, the judge intended for Burr to be released when he completed the first sentence, for the domestic violence charges, if a treatment bed was waiting for him. Over the coming days, Singer made a round of calls, to the probation officer, the prosecutors and the judge's clerk, who told him he should write up a court motion to redo the sentence.

Singer figured Burr could still be out in early July.

Singer, in his motion, reminded the judge of how they had agreed to pair the two sentences and have them end on the same date. He mentioned that prosecutors did not object to undoing the snag.

His motion was dated July 2, just six days before what everyone thought would be the release date. But prosecutors had to be given time to respond. Their affidavit was dated July 25. Then the parties headed to Pietruszka's courtroom on July 31. Everyone, that is, except Burr.

For some reason, the jail staff didn't deliver him to the courthouse, which is across the street. Singer said it might have been because the judge's staff missed the hour at which jail officials needed to receive a request to produce an inmate.

Because a defendant must be present to be sentenced, the matter was rescheduled to Aug. 6, when Singer was to be out of town for two weeks' duty in the Navy Reserves. So he asked another attorney to stand at Burr's side. Almost a month after Burr's original release date, the judge sentenced him to time served. Burr would be heading to Bradford, Pa., within hours. Or so everyone thought.

There still was a holdup at the jail. Confusion remained over what the judge wanted the second sentencing to accomplish. While Singer thought the judge had sentenced Burr to time served and wanted him released, the jail's commitment clerk did not find that message clearly stated in the paperwork, Singer said.

From Reserve duty, Singer sent the judge a letter: "Unfortunately, the changes made on Monday did not achieve Mr. Burr's release," he told Pietruszka.

The lawyers gathered for another hearing before Pietruszka on Aug. 14. The next day, Burr was freed. Singer said a new document made it clear Burr's prior sentence was being undone, or "vacated," and he was being re-sentenced to the time he had served.

By then, the bed in Bradford had gone to someone else.

'The system isn't perfect'

Instead, Burr said, he went to the streets. He said he slept two nights in woods near Cazenovia Park, then started paying for a hotel room. He has since gone through a residential program at the VA Medical Center on Bailey Avenue, followed by a stay at a VA program in Canandaigua, he said.

Another lawyer has drawn up a lawsuit. It names a range of Erie County office-holders, the district attorney and probation commissioner among them, as defendants. Burr seeks millions of dollars in damages for his extra confinement and the mistreatment he alleges occurred inside the county Correctional Facility and the Holding Center.

Burr says he's dismayed at how long it might take for his lawsuit to play out.

"They were quick to take my rights," he said, "but not so quick to correct their wrong."

Singer said that because Burr is a disabled veteran, he had people working on his behalf, and most criminal defendants don't.

"Obviously, the system isn't perfect," Singer said. "Did it function as well as it could in this situation? No, it didn't."

"It was a situation where people had good intentions, and they were not realized as quickly as they should have been," he said. "The bad result of that is, it cost someone their freedom, which should be a serious concern."

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