Thursday, December 1, 2016

In re Shaputis: Elderly Parole Hearing: FOUND SUITABLE

Mr. Richard Shaputis was finally found SUITABLE  (see below) by the Board of Parole Hearings’ 2-member Panel in Chino (CIM) at his Subsequent Parole Hearing #9 and 2nd Elderly Parole Hearing on November 1, 2016.   (Represented by Attorney Diane T. Letarte)

FACTUAL / PROCEDURAL BACKGROUND: Richard Shaputis was sentenced to 17 years-to-life for second-degree murder in the 1987 shooting death of his wife. He was originally found suitable in 2006, after a State Appellate Court ordered a new parole hearing with restrictions(*) on the Board of Paroles’ exercise of discretion.

We all know the court ordeal of In re Shaputis (2008) 44 Cal.4th 1241, wherein the appellate court granted his habeas petition and ordered the Board to conduct another hearing. The Governor reversed and the Supreme Court eventually granted review and, concluded there was “some evidence” to support the Governor's reversal decision, and therefore affirmed the Governor's ruling.

Mr. Shaputis had a new Board hearing in 2009, wherein he was denied parole. The appellate court again granted his habeas petition and ordered the Board to conduct yet another hearing. On December 29, 2011, a second review in three years of a state habeas corpus petition seeking review of an adverse parole decision, the California Supreme Court again reversed the Fourth District Court of Appeal, Div. 1, which had ordered a new hearing after finding that the Board of Parole’s decision to deny parole was not supported by “some evidence.”

In 2011, the unanimous Supreme Court made several significant holdings that while Shaputis’ decision to not speak to either the Board’s psychologist or the Board itself could not per se be held against him, the absence of such information and testimony could not be used as a shield to prevent the Board, in rendering an unsuitability decision, from relying on older evidence in the record.

In the 2nd Shaputis decision, the California Supreme Court elevated “lack of insight” into a central factor for the Board to consider when determining parole suitability. The Court also substantially reduced the “wiggle room” for California courts to review challenges to lifer parole denials, except those without a “modicum” of supporting evidence anywhere in the record.


Inmates who are 60 years of age or older and who have been incarcerated for 25 years or more are eligible for the Elderly Parole Program.  Mr. Shaputis is now 80 years old and has served approximately 30 years on his 17 to - Life sentence.  During the 1st Elderly Parole Hearing (2015) Mr. Shaputis was denied 3-years and then returned for an earlier hearing under the Administrative Review (AR) in 2016.

In the 2015, the Board gave only lip service to Mr. Shaputis’ diminished physical condition. During the 2nd Elderly Parole in 2016, Commissioner Zarrinnam and Deputy Commissioner Desai truly followed the Three Judge Panel in the Plata/Coleman class action lawsuit that ordered the new elderly parole process.  That ruling required giving special consideration to an eligible inmate’s advanced age, long-term confinement, and diminished physical condition.

The 2016 Panel commented about the “elephant in the room;” looking face-to-face at Mr. Shaputis (not a cold transcript). They described he was old, frail, walking with a cane (mobility impairment), hearing impaired (both ears), vocal chord impaired (whispered through the whole hearing), had liver problems, amputated thumb, and was unassigned due to his physical impairments. The Commissioner commented that it would practically be impossible for Mr. Shaputis to be an unreasonable risk of danger, if released.

Although one of the 2016 Commissioners had a bit of a problem with the limited verbal expression of “insight” and remorse - he did find the commitment offense as described by Mr. Shaputis to be plausible. The other panel member did seem to find that Mr. Shaputis admitted to murdering his wife (not an accident) even though Mr. Shaputis stated that he was playing with the real gun like it was a toy.

Additional relevant suitability factors were brought forward. They included:
  • ALL of Mr. Shaputis’ Psychological Risk Assessments concluded he was a LOW risk of violence, if released to the community. 
  • His 30 years of incarceration without any Rule Violations i.e. CDC-115s or CDC-128s.
  • No Confidential file memo.
  •  His sobriety since 1987, subsequent to the fatal shooting of his wife.
  • His realistic Parole Plans, including several transitional homes, and;
  •  His marketable skills.  
Mr. Shaputis wrote a book report on Domestic Violence. He admitted hitting his wife and getting angry. He also took responsibility for his action. He analyzed and described his character flaws. In writing on Responsibility he states: “I created the caustic person that killed my wife…. I argued about money and how she raised the girls…it did become physical and emotional.”I was so selfish in my use of alcohol to relieve my stress of family problems and work matters.”  Under his Insight Mr. Shaputis writes: “Between the alcohol and my character flaws, no one was right but me. For over 28 years, I have been trying to work on new skills. AA gave me the steps I should have understood and used many years ago.  In writing his Remorse-Apology statement he states: “I am so ashamed and very sorry, for what I did. I destroyed the life of a wonderful woman and most caring and loving mother and wife…I took Erma’s life; the alcohol did not pull the trigger, I DID… There is nothing that can justify my actions, even understanding the impact of my childhood, will not bring you back but it will assure I will never repeat this crime.”

Mr. Shaputis’ Relapse Prevention Plan discussed his internal and external triggers along with his new coping skills and he explains that alcohol was not a solution. He described his Anger issues and his distrust toward his family stemming from his childhood and his previous wife cheating on him [by getting pregnant when he already had a vasectomy.]  He discusses how he learned to be humble, understanding, and not so selfish.

For icing on the cake, Attorney Letarte hunted down Mr. Shaputis’ 1987 2nd trial transcript and read over 1100 pages to find a few interesting facts that made Mr. Shaputis’ story PLAUSIBLE regarding the shooting of his wife and the single-action “cocked” revolver, that laid on the floor next to his wife’s body. Mr. Shaputis always testified that he cocked the hammer once and pulled the trigger, not knowing the gun was “loaded” when he fired it [aiming at the fireplace]. He fired and the gun jumped out of his hands by the powerful “kick”, [possibly accidentally re-cocking the hammer]. He had never fired that revolver before, let alone the fact that the hand revolver was chambered with a .30 caliber Rifle bullet. The record corroborates that the revolver was fired only once.

Furthermore, Attorney Letarte was able to debunk the “on-going” hearsay that Mr. Shaputis mistreated all his daughters, including the alleged sexual assault. In reality he pled “nolo contendre” to a PC 647(a) “a conviction for lewd conduct in public which does not require registration as a sex offender,” a misdemeanor which was later dismissed pursuant to PC 1203.4. He was never required to register under section PC 290. Attorney Letarte quoted the following two relevant passages from the 1987 trial:

 (1987) Direct Examination Sgt. Carl Case testing the .30 Caliber revolver that killed the victim. This is a sergeant who is well versed in firing weapons.

Q. Describe for us how that shot felt when you fired the gun.
A. Well, I was quite surprised. I had never fired a revolver before that chambered a rifle round, and there was a quite a bit of a kick….
Q. How much of a kick did it have?
A. Well, pretty good; it was pretty good, pretty noticeable.

(1987) Direct Examination of Cheryl De Boe (one of Mr. Shaputis’ daughters)

Q. Directing your attention in 1978 did you ever hear your father speak to Annette (sister) about the allegations that she made against him?
A. No.
Q. Were you -- did you ever have occasion for your father to get in bed with you?
A. Did I ever have an occasion?
Q. Yes.
A. Yes, when he got the wrong room. Yes.
Q. Tell me what year that was as best you remember?
A. ’75.
Q. What happened?
A. He came into the room and got into the bed. And I said, “What are you doing in here?” and he looked confused and I said, “Get the (expletive) out of the room,” and he did.
Q. All right.  And was he drunk then?
A. Yes.
Q. And when you told him to get out, he complied with that?
A. Yes.
Q. Were you ever molested by your father?
A. No.

After deliberation the Commissioners unanimously concluded that Mr. Shaputis(**)  does not pose an unreasonable risk and found him suitable on November 1, 2016. We are now waiting for the 150 day review cycle to be completed, in hope that the Governor will take no action -- this time around!

* In 2006, Commissioner St. Julien, who granted parole to Mr. Shaputis pursuant to a court order stated: “I found you unsuitable in 2005 … and I think I made the right decision then [2005]…” and later in the decision Commissioner St. Julien stated: “However, today [2006] we do feel unduly burdened by this Court decision so we’re going to do the legal thing.” She then pronounced him suitable, per the court order.

** Little known facts about Mr. Shaputis. He worked many years as a foremen at the San Onofre (Nuclear plant) and traveled many weekends back and forth to San Diego, his home. On or about the day of the crime, he had worked extremely long hours and still drove home to celebrate their 23rd wedding Anniversary.  The death occurred, after they both had been heavily drinking that evening, with the victim’s blood alcohol concentration (BAC) analyzed at approximately .24, at the time of death.