Henny v. U.S.

321 A.3d 621

Shawn HENNY, Appellant,

v.UNITED STATES, Appellee.

No. 23-CO-0011

District of Columbia Court of Appeals.

Argued February 6, 2024

Decided August 29, 2024

Appeal from the Superior Court of the District of Columbia (1993-FEL-004073), (Hon. J. Michael Ryan, Trial Judge) Braeshaun Dozier, Washington, DC, with whom Clayton S. Wild, Yishai Schwartz, Paul Brachman, Washington, DC, Justin Anderson, and Justin Lerer were on the briefs, for appellant. After argument, this court granted Yishai Schwartz’s motion to withdraw as counsel.

Anne Y. Park, Assistant United States Attorney, with whom Matthew M. Graves, United States Attorney, and Chrisellen R. Kolb, Nicholas P. Coleman, and Eliot A. Folsom, Assistant United States Attorneys, were on the brief, for appellee.

Before Easterly, Deahl, and Shanker, Associate Judges.

Deahl, Associate Judge:

[1] Shawn Henny committed a first-degree murder in 1991, when he was twenty-one years old, for which he was sentenced to a lifetime in prison. Having spent more than three decades imprisoned for an offense he committed in his relative youth, Henny is now eligible for a sentence reduction under the Incarceration Reduction Amendment Act, and he thus moved for IRAA resentencing. Beyond mere eligibility, an inmate seeking IRAA relief must demonstrate that they are no longer a danger to the community and that the interests of justice warrant a sentence reduction. The trial court denied Henny’s request for a sentence reduction after holding an evidentiary hearing and considering all of the relevant IRAA factors. See D.C. Code § 24-403.03(c)(1-11). While it found that a number of factors favored a sentence reduction, one overriding consideration precluded it from finding that Henny was non-dangerous: his disciplinary record while imprisoned.

We vacate and remand the case for further consideration because the trial court did not account for powerful expert evidence that Henny’s disciplinary history was a point in his favor. Henny presented expert evidence from a former Bureau of Prisons warden, Maureen Baird, who opined that "Henny appears to have more than substantially complied with the rules of the BOP institutions in which he has been housed." She explained that most of his disciplinary infractions were "from more than 20 years ago," and that they were not the type of infractions "indicative of a violent individual," but were instead more "nuisance type violations." She testified it was exceedingly rare for an inmate serving a life sentence to be moved to a medium-security facility—"maybe one out of hundreds," in her estimation—as Henny had been. Given the arcana of BOP disciplinary infractions and security assessments, Baird’s unrebutted expert testimony interpreting Henny’s disciplinary history seems to be quite powerful. Yet the trial court did not expressly consider Baird’s testimony in its findings, so we are left without any clear indication as to why the court seemed to discount it. While any dangerousness assessment is ultimately for the court (it need not credit the expert), we cannot uphold the trial court’s finding absent some explanation for why it seemingly discounted Baird’s unrebutted opinions.

We therefore vacate and remand the case for the trial court to consider and expressly address Baird’s testimony as it relates to interpreting Henny’s disciplinary record. We reject the remainder of Henny’s arguments, for the reasons set forth below.

I. Facts

Shawn Henny was convicted of first-degree murder for the 1991 killing of Brett Entsmiger. As this court described it in Henny’s direct appeal, Henny was involved in an "elaborate drug-trafficking operation," and he suspected Entsmiger (an associate) was cooperating with law enforce- ment to take his operation down. So on Halloween night of 1991, Henny and his friend Michael Jenkins went with Entsmiger to a "crack house" on the pretense of picking up some drugs. Henny and Jenkins then walked Entsmiger out to a wooded area behind the house and fired six bullets into him, killing him (it is unclear which of the two men fired the shots). Both Henny and Jenkins were convicted of first-degree murder and a host of related offenses. While that case was being investigated and prosecuted, Henny committed another "narcotic-related" murder in Virginia about a year later, when he was twenty-two years old. Henny served his Virginia sentence from 1993 through 2014, at which point he was paroled and transferred to BOP custody to begin serving his sentence for killing Entsmiger.

The IRAA submissions and Henny’s testimony

Henny moved to reduce his remaining sentence under the District’s IRAA. See D.C. Code § 24-403.03.¹ IRAA requires a trial court to "reduce a term of imprisonment" for an eligible defendant if they are no longer "a danger to the safety of any person or the community" and "the interests of justice warrant a sentence modification." D.C. Code § 24-403.03(a)(2). In assessing those questions, the trial judge must consider ten statutory factors, plus an eleventh catch-all factor accounting for "[a]ny other information the court deems relevant." D.C. Code § 24-403.03(c)(1-11). We do not need to go into great detail about the bulk of the evidence before the trial court. Suffice it to say that the trial court concluded that several of the IRAA factors favored Henny’s release—a few were immaterial—but that there was one overriding basis (affecting two statutory factors) for denying relief, as we now explain.

After receiving the written submissions and evidence, the trial court opened the evidentiary hearing by noting that its "biggest concerns" related to Henny’s disciplinary record while imprisoned. The court acknowledged that interpreting prison disciplinary records is "one of the most difficult things about these IRAA proceedings," given the "paucity of information that’s generally presented about things like these disciplinary issues." And it highlighted two infractions in particular—(1) a 2016 infraction for possessing a shank, and (2) a 2021 infraction for fighting with his cellmate—as raising serious concerns that Henny remained a danger to society. After saying those disciplinary infractions were its "chief concerns," the court invited the parties to "address them" through their in-court presentations and evidence.

Henny testified first. Most of his testimony was dedicated to explaining the 2016 and 2021 disciplinary infractions. As for the shank found on him in 2016, he said that he was on his way to referee a basketball game for one of the prison’s units that had a fight break out earlier in the day, so "the tension was high on the compound" and he brought a shank "only for protection." As for the 2021 incident, Henny explained (and it is undisputed) that minutes before the fight, he had pressed the duress button in his cell so that he could be separated from his cellmate. Henny— who was then in his fifties—had noticed his cellmate "walking back and forth pacing in his cell," and that was "a red flag" that "something was wrong." Henny’s cellmate did not have the paperwork that other prisoners expect to see within the month of their arrival at a new prison "showing you didn’t cooperate or you’re not like a child molester or a rapist." And because his cellmate’s month was up, Henny surmised that he was looking to pick a fight with him so that he could be put in segregation housing to avoid the repercussions. While the guards removed Henny from his cell in response to his duress call for about fifteen minutes, he was then returned to his cell where he and his cellmate immediately began fighting. Roughly contemporaneous reports from BOP staff did not clearly indicate which, if either man, instigated the fight.

Henny’s brother, John, also testified briefly. John’s testimony largely related to Henny’s reentry plan, including that Henny was going to stay in a house that John owned (and where their mother lived), and that Henny had a concrete offer to work in a barbershop.

The only other witness to testify was Henny’s expert, Maureen Baird, who had also submitted an expert report before the hearing. The evidence from her report and testimony is pivotal in this appeal, so we discuss it in some detail.

Baird’s report and testimony

Henny presented the report and testimony of former BOP warden Maureen Baird to put his disciplinary record into context. Baird had spent twenty-seven years employed with BOP, and for stretches of that time her responsibilities included making parole recommendations and security-classification decisions for federal inmates. She was qualified "as an expert in interpreting BOP security classifications," "interpreting inmate discipline," and "deciphering … disciplinary reports."

Baird explained that the vast majority of Henny’s disciplinary infractions came during his first years in Virginia state prison: thirty-six of Henny’s forty-six infractions were from 1994 to 2000, and he then accumulated only ten more over the subsequent twenty-two years. She said that even during those first several years when Henny accrued the majority of his infractions, his record was unremarkable. She explained that young men sentenced to life in prison often have "no hope for any type of release," and accumulate a lot of infractions early on. Baird also explained that Henny had never been sanctioned for any "violent, threatening, or egregious behavior" during his decades in Virginia state prison. Nineteen of Henny’s Virginia infractions were for "disobeying an order," and his most serious offense came in 2000, when he was found to be under the influence of an intoxicating substance. That was the only one of Henny’s Virginia infractions that would rise above what the BOP classifies as a "300-level moderate-severity" offense. Baird concluded that Henny’s Virginia disciplinary record was "not spotless," but also "not indicative of a violent individual or of someone who possesses an aggressive nature."

As for Henny’s more...