Family sees injustice in sentence

December 9, 2018

Marquel Wattley was attending Ivy Tech Community College in Indianapolis, majoring in business, holding two jobs and living in a place of his own.

The former nationally ranked high school football star had worked at the YMCA as a youth counselor and was involved for years with the Christian-based Young Life organization.

But in March 2015, 20-year-old Wattley’s car hit the back of a truck in Indianapolis, an event his mother said caused a downward spiral for her son, who grew up in Fort Wayne until age 11. He had moved to Indianapolis with his mother, graduating from North Central High School in 2012.

Research shows people are particularly vulnerable in the first year after a car accident to PTSD and associated symptoms.

Little more than a year after the 2015 accident, and after moving back to Fort Wayne to live with his father, he set a series of fires in trash cans at Southgate Plaza on May 29, 2016, using a butane lighter. Wattley later told police he was bored and had nothing else to do.

Despite his mother’s attempts to get him psychiatric help, Wattley spent 650 days in the Allen County Jail before being sentenced in March. He was ordered to serve eight years in prison for one count of arson, one count of attempted arson, a felony count for resisting law enforcement and a misdemeanor for the same charge.

Neither drugs nor alcohol played a part in his case, according to court documents and sources interviewed for this story.

Contrasting case

When a similar case against a 31-year-old white woman was resolved here in July, Wattley’s family became bitter.

Brittney Jayme Ellert set fire to a trash can Aug. 26, 2017, at IPFW, also using a butane lighter, causing more than 10,000 more than the Southgate Plaza damage that was attributed to Wattley. Ellert served one day in jail and received four years probation with a suspended four-year sentence.

At her son’s sentencing, Jeannette Wattley discovered that a man convicted of child molesting received a two-year sentence from Judge John Surbeck, the same judge who sentenced Wattley on the same day.

“His mental illness cost him everything in his life. Our family tried to help him,” Shanita Redd, Wattley’s cousin, wrote in a letter to The Journal Gazette. “He did not receive the same leniency or any consideration from our legal system. He was thrown away, simply because he’s a young African-American male whom society cares nothing for.”

Wattley and Redd share the same grandfather, Charles Redd, who was a Fort Wayne city councilman and local civil rights activist.

Black men typically serve a sentence 19 percent longer than white men committing similar crimes, a study from the U.S. Sentencing Commission reported in November 2016. The report was based on a series of studies using data from 2012-2016. The data was included in an article published a year ago by The Equal Justice Institute in Montgomery, Alabama.

Ellert, who was sentenced by Judge Fran Gull, pleaded guilty to two felony charges for criminal mischief and criminal recklessness after an original charge of arson was dismissed.

In a transcript The Journal Gazette obtained that includes the trial and subsequent sentencing July 6, Ellert’s private attorney, Nicholas Wallace, noted that Ellert had successfully gone through the county’s Drug Court. As a special condition of her probation, she was ordered to obtain a substance abuse and psychological evaluation and comply with any recommendations for treatment or medication.

Deputy Prosecutor Adam Mildred asked that Ellert be forbidden to use butane lighters, noting that text messages between Ellert and her fiance demonstrated a “compulsion with fire.” However, the judge did not agree, Wallace said.

Ellert did not have a criminal record, nor did Wattley.

Awaiting tests

At Wattley’s sentencing, both prosecutor Christine Neilson and public defender Robert Gevers seemed to believe, based on the court transcripts, that Surbeck might be leaning toward probation or home detention, given the nearly two years that Wattley had already served in jail.

Wattley had been judged competent to stand trial but had problems with coherence, at times denying that he had set the fires. His sentencing had been delayed in attempts to assess his mental health.

At one hearing July 7, 2017, Surbeck noted that Wattley’s mental health had deteriorated while he was in jail and his mother told the bench he’d been on suicide watch.

Jeannette Wattley was prepared to post bail for her son’s release from jail, but there were concerns, she said.

By the time of the final sentencing hearing March 9 this year, Surbeck, who declined to speak to The Journal Gazette, seemed to be in a hurry.

Surbeck asked whether there was anything in the Bowen Center report that should be considered. The Bowen Center provides mental health evaluations and counseling.

Gevers told the judge the Bowen Center’s diagnosis was an “unspecified impulsivity control issue.” It’s a problem sometimes associated with people who have been injured in car accidents along with PTSD, according to sources such as the Cleveland Clinic Journal of Medicine and the U.S. National Library of Medicine.

“There were no other mental illnesses in what appears to be simply a clinical interview and no paper testing done by the center,” Gevers said.

Surbeck said he’d take a look “real quick. Let’s take a look at it.”

Plea for probation

At the sentencing, Wattley seemed confused. He asked what his jail time credit was, complained the prosecutor had lied and maintained he didn’t set the fires.

Both Gevers and Neilson, the deputy prosecuting attorney, seemed to think his jail time would suffice as his prison sentence. Gevers recommended probation and Neilson did, too, with counseling.

“The state has struggled with this case as I think the court has,” Neilson said at the sentencing. She was hoping to get “a more in-depth psychiatric evaluation ... so we could get some insight into this, but you know, according to the report, he denies having problems with his mental health.

“Perhaps he can be monitored on home detention as a condition of probation. I think he does need some sort of counseling. Normally people just don’t set things on fire for the heck of it,” Neilson said, adding that she had concerns for the public safety.

Before the sentencing, Surbeck offered no hint of a longer sentence.

“We’ve struggled to find some placement. We were trying to find a place for you to go other than the Department of Correction. We’re not having any luck,” he told Wattley from the bench.

While Wattley urged the judge to get on with the sentencing because he wanted to get out of the county jail, his mother attempted one last plea. Before the car accident, she said, her son had a full-time and part-time job and was also attending school full time. He had no criminal record and had never been arrested or suspended from school.

“This isn’t just something, you know, random that happened. This wasn’t normal for Marquel,” Jeannette Wattley testified.

The court had evidence she’d provided that he started to have panic attacks and was taken multiple times to the hospital, where health officials recommended having her son tested for bipolar disorder and schizophrenia, she said.

Despite the pleas, Surbeck found Wattley guilty on arson and attempted arson, both level 4 felonies, for which he received two four-year consecutive sentences; resisting law enforcement, a level 6 felony, resulting in a one-year sentence; and a misdemeanor charge for resisting law enforcement.

Both the one-year sentences were concurrent, meaning he would serve those at the same time he was serving his eight-year sentence. Each arson count was actually for six years, with two years suspended.

Indiana sentencing guidelines recommend two to 12 years for level 4 felonies. Arson is typically a level 4 felony.

There was no sentencing statement, no mention of aggravating or mitigating circumstances.

An appeal by Wattley’s successive public defender, Donald Swanson, failed in October, leaving Wattley in prison until at least 2022, Redd said.

Through the cracks

Wattley is now at New Castle Correctional Facility, a privately run prison in New Castle, 90 miles south of Fort Wayne. He was assigned to the psychiatric unit, his mother said, and is doing much better because he finally got some help.

Wattley was first assigned to the minimum-security Heritage Trail Correctional Facility, also privately operated, in Plainfield, near Indianapolis.

The local chapter of the NAACP is taking a deeper look into how Wattley’s case was handled. Foundation One, a veteran activist who has helped scores of black inmates, believes Wattley’s mental illness fell through the cracks much like that of legendary local athlete James Hardy. His body was found in the St. Marys River in June 2017, a couple of weeks after he checked himself out of Parkview Behavioral Health.

Hardy overcame youthful trauma on the playing field, but mental illness brought him down, said Foundation One, owner of Unity Barber Shop on the south side of Fort Wayne.

Inmates with mental health issues often slip through the cracks and, once released, are not supplied with the medications they need, Foundation One said.

“At Parkview Behavioral Health, you can check yourself out in two days,” said Foundation One, who had his name changed legally. That’s a consequence of the state’s mental health laws where individuals must recognize they are mentally ill in order to get treatment. Involuntary commitment to a state mental health institution is very difficult, he added.

“Hardy slipped through the cracks because the community, the schools, the colleges and the NFL never recognized the help he needed,” Foundation One said.

Foundation One has suggested that Wattley’s next step could be a “modified habeas corpus for post-conviction relief.”

Family’s long fight

Shanita Redd, Wattley’s cousin, wrote that she meant no harm to the young woman who was charged in the IPFW trash can fire. Brittney Jayme Ellert was arrested Nov. 30 on a probation violation and has a Dec. 18 court hearing.

Her attorney said every case is different.

“I don’t know what the facts and circumstances of Mr. Wattley’s case are, but in Miss Ellert’s case we were able to negotiate a resolution with the state that was fair under the circumstances,” Nicholas Wallace said recently.

The differences in how the cases were handled are still unsettling to Wattley’s relatives.

“My grandfather, the late Charles Redd, served this city for decades and fought relentlessly to end racial inequality and to give minorities a better chance in life. He would be so disappointed to know that this happened to my cousin,” Redd said.

“It’s baffling to feel like the same city he served as city councilman among other things is really treating mentally ill minorities this way.”

Surbeck and Swanson declined to discuss Wattley’s case. Neilson has moved out of the area, according to the Allen County prosecutor’s office.

Jeannette Wattley said she may try to get her son’s sentence reduced through habeus corpus, an effort to prove he is unlawfully detained.