Lost and Found

by John Glatt

  My appointed councel [sic] from the beginning to end has not been in my behalf, Von Haizel [sic] has tried to his best to keep me from Trial. By telling me there was no defense. I stayed with him because I have no insight on the law. We went to change my plea to guilty. The Judge talked with me, and did not want to accept my plea. So we returned to not guilty. In this case Van Haizel [sic] did not even come to see me until the last four days before trial. He did not even work on my defense until then. At that time he still tried to change my mind in any way he could.

  He was unhappy with my case from the start. Van Haizel [sic], felt I should go to prison, just by the way he talked. And put no effort to really help me.

  At the time of sentencing I asked him to see if federal time could be run with state time. The man told the judge that request, and then on his own, not in [sic] my behalf, aginst [sic] my will told the Judge that he felt I should not be granted this request, for his own reasons. Not once did he try to help me. But instead did only what he had to so he him self [sic] would not look bad in his line of dutey [sic].

  I asked him about modifacation [sic] of sentance [sic], and he also tried to tell me it would do no good.

  All in all the man is not wanting to help me.

  On these ground’s [sic] I ask for dismissal of my appointed councel [sic]. And please respectfully request new appointed councel [sic].

  I need some one [sic] right a way [sic] so I can file an appeal. I respectfully ask for legal forms to file:

  A. Rule 15 for modifacation [sic] of sentance [sic].

  B. Availability to Federal Law book & legal transcripts while being without funds to secure same.

  C. Availability to file legal papers & legal representation while being without funds to secure same

  I only have till the 21, to file an appeal. I ask only with respect, to please help me.

  Yours Truly Phillip Garrido

  The following day, Willard Van Hazel formally resigned from the case, and Phillip Garrido’s appeal was officially filed in the United States Court of Appeals for the Ninth Circuit.

  At 9:15 A.M. Monday, April 11, 1977, Phillip Garrido was back in Washoe County Court for sentencing on one count of forcible rape. After reviewing the presentencing reports prepared by the Nevada Department of Parole and Probation, Judge Roy Lee Torvinen asked Garrido’s defense attorney, Ronald Bath, if he had anything to say before his client was sentenced.

  “Yes,” replied the public defender. “First of all, we’re not making light of the offense that Mr. Garrido has pled guilty to. However, I would like to point out to the court that this is one of the things that took place across the state line and everybody is trying to get a pound of his flesh, but he’s presently under a fifty-year sentence in the federal jurisdiction.”

  The defense attorney asked Judge Torvinen to accept the report’s recommendation, that the state sentence imposed today should run concurrent with the fifty-year federal one. Bath said he had discussed the matter with Washoe County deputy district attorney Michael Malloy, and they both hoped that if the court agreed to let it run concurrently, Nevada would release Garrido into the custody of the federal marshal to begin his fifty-year sentence.

  “Unfortunately,” said Bath, “California is waiting to go on the same kidnapping, and at this point everybody should realize that there is only so many years of someone’s life to sentence him.” (Ultimately, California state prosecutors did not file any charges.)

  The defender told the judge that his client was now “extremely remorseful” about the offense, which was caused by “extreme use of drugs.”

  “He’s hoping to benefit from the time spent in prison,” said Bath, “and to better his life. And I think he’s a candidate for the court’s consideration in this matter.”

  Then prosecutor Michael Malloy stood up to address the judge.

  “I don’t know which one of us is getting the impound of flesh,” he said, “the federal government or the state of Nevada or both. But anyway, I don’t know that I’m getting a pound of flesh. I don’t mean to make light of it either, but this is an extremely serious offense.”

  Then Malloy told the judge that during the plea negotiations, he had never committed himself to the Nevada sentence being served concurrently.

  “I do believe that it would be concurrent,” said Malloy. “In light of the fact of the sentence in the federal court, and I assume there will be a hold placed on Mr. Garrido if he is released to the federal authorities, and should he be paroled, which he will undoubtedly be from the federal prison. If he would not have been paroled from the Nevada prison by that time, he will have to come back to the Nevada state prison to serve whatever time before he is or isn’t paroled.”

  Then Judge Torvinen asked the prosecutor for his input as to whether Garrido should begin serving his sentence in the state prison system or the federal one.

  “As crowded as the state prison is,” said the prosecutor, “it doesn’t matter where he does his time and the federal prisons aren’t as crowded. And I don’t object to sending him to the federal prisons first and have the state of Nevada place the hold, but I think the sentence should be for the crime committed, and maybe by the time he’s released he won’t be so dangerous, because right now he’s a dangerous man.”

  Defender Ronald Bath pointed out that when his client was sentenced in the federal court, Judge Thompson had been unable to decide if the fifty-year sentence should be concurrent with the state one.

  “If in fact the district court judge wanted to do that,” said Bath, “he had nothing to run it concurrent with.”

  Then Malloy told Judge Torvinen what his and the defense attorney’s understanding was of when Phillip Garrido would be eligible for federal parole.

  “Your Honor,” Malloy said, “Mr. Bath informs me that he has to do a minimum of two-thirds of the federal sentence before paroled.”

  Malloy told the judge that as Garrido would be eligible for parole in just five years on the Nevada offense, it would be far better if he started serving his time in the federal system, as it would be for far longer.

  Then, before passing sentence, Judge Torvinen asked Phillip Garrido if he wanted to address the court.

  “Well,” began the defendant, slowly rising to his feet, “the only thing I do say is that I’m very fortunate that this happened to me because my life was in a crash course. Before I ever came into using marijuana my life was clean. I had no arrest record, but association with marijuana led me to harder drugs, and I’ve used LSD for the last seven years and if it wasn’t for the drug LSD I wouldn’t be here right now.

  “But this has given me a chance to find something more important than anything and that is God—and the most important thing, I can straighten my life out.”

  The judge then turned to Garrido for sentencing.

  “Upon the entry of the plea of guilty,” Judge Torvinen began, “to the indictment, Count One, forcible rape, a felony, it is the judgment of the court that the defendant is guilty, and it is the sentence of the court that he be sentenced to the Nevada State Prison for a term of life.

  “As I understand that statute, it is with the possibility of parole, that the sentence run concurrent with the sentence of the interstate kidnapping by the federal government that I understand is fifty years.”

  Bath then asked the judge to release the Nevada State hold on his client, so the federal marshal could transport him to a federal prison, to start serving his sentence.

  “He was sentenced first from the federal court,” said the judge, “and it will be the order of the court that he fulfill the federal sentence before required to maintain the balance of his term under the Nevada state sentence.“

  The judge then formally dismissed counts 2 and 3 against Phillip Garrido, who then stood up to have the final word.

  “Your Honor,” he said. “I would like to say one more thing that I didn’t want to say before. But I feel I will be helped more in the federal prison because of the facilit
ies and psychiatric treatment.”

  “All right,” said the judge, as the court bailiffs led him away to start serving his fifty-year federal sentence.

  At 5:00 P.M that afternoon, Judge Roy Lee Torvinen signed the official judgment, sentencing Phillip Garrido to life, with the possibility of parole, for the forcible rape of Katie Callaway. The life sentence would run concurrently with the federal one.

  Both the judge and prosecutor Malloy mistakenly believed it would be at least thirty-three years until Garrido would be eligible for federal parole before being returned to Nevada to complete his sentence. But under the law at that time, Garrido would be eligible for parole after serving just a third of his federal time or ten years of a life sentence, or of a sentence of over thirty years.

  And the misunderstanding that day would prove a tragic mistake with huge consequences.

  15

  LEAVENWORTH

  On June 30, 1977, Phillip Garrido started serving his time at Leavenworth Federal Prison in Kansas. Located twenty-five miles north of Kansas City, Kansas, Leavenworth is the biggest maximum security federal prison in the United States.

  Built at the beginning of the twentieth century, the tough prison’s most notable inmates have included Robert Stroud, the notorious Bird Man of Alcatraz, and gangsters George “Bugs” Moran, who fought Al Capone for control of the city’s underworld, and George “Machine Gun” Kelly.

  Thirty-foot-high walls surround the 22.9-acre prison facility, housing almost two thousand of America’s most dangerous prisoners. Its domed main building is the original “Big House” and also nicknamed the “Hot House,” during the steamy hot summers, because of its poor ventilation.

  By all accounts, Phillip Garrido was an exemplary prisoner. He soon settled into the Leavenworth routine, where inmates are released from their cells every morning at 6:00 A.M. and free to roam around the prison compound until lights out at 10:00 P.M.

  A month after he arrived, Inmate Garrido was officially designated for “close custody and regular duty status.” The prison classification team assigned him to work in the carpenter shop, recommending he seek further education to prepare himself for college.

  On August 1, he embarked on a half-day educational program, and a month later he began seeing psychologist Dr. John B. Kiehlbauch, of the Mental Health Division, to work on his substance abuse problems.

  “He is verbal from the outset of contact,” Dr. Kiehlbauch later wrote. “He is cooperative, candid and volunteers information readily, even if self-critical.”

  Imprisoned 1,750 miles east of Reno, Phillip Garrido’s only contact with the outside world were monthly telephone calls to his beloved mother, Pat, and weekly letters to other family members. He received no visitors.

  During his free time, he played guitar and wrote new songs. He regularly attended church services, becoming an active member of a devout group of Jehovah’s Witnesses. He exercised in the prison yard, as well as attending weekly movie shows.

  A few months after Phillip Garrido’s incarceration, his wife Chris filed for divorce.

  “I went to visit her,” recalled former Rock Creek guitarist Eddie Loebs. “And she seemed generally pleased and happy that he was finally out of her life. She was just happy to be rid of him.”

  Loebs asked what she was going to do with his valuable collection of vintage guitars and Marshall stack amplifiers and speakers.

  “She said she was going to sell his equipment,” he said, “and move on.”

  That summer, Garrido’s fifty-seven-year-old mother Pat married a businessman named Herschel Franzen, moving into his home in Antioch, California. She found a job with the local school district as a maintenance worker, regularly writing letters to her youngest son in Leavenworth. And she assured him that he could move in with her and her new husband when he was released.

  On August 8, United States Attorney Lawrence J. Semenza and his assistant Leland Lutfy, who had prosecuted Garrido at his federal trial, filed a sixteen-page answering brief to counter Garrido’s appeal, filed by his newly appointed defense attorney James Hollabaugh.

  “Appellant asserts that the government’s reference to the rape was ‘inflammatory,’ ” read the brief. “Indeed, what could be more inflammatory than his own testimony.”

  In late November, the United States Court of Appeals Ninth Circuit rubber-stamped Garrido’s federal conviction. The three-judge panel found no merit in his argument that because he had raped and assaulted Katie Callaway after crossing the state line, the federal case became “irrelevant.”

  “Our analysis of the record convinces us,” wrote the judges in their opinion, “that appellant’s assignments of error are groundless. The judgment of conviction must be affirmed.”

  Four months later, Phillip Garrido filed a motion to the United States District Court for Nevada, asking to reduce his fifty-year-sentence by half, making him eligible for parole in eight years. His motion was pursuant to Rule 35 of the Federal Rules of Criminal Procedure, allowing the court to reduce a sentence within 120 days of it being imposed, although a year had already passed.

  As part of the motion package, he included a handwritten letter to Judge Bruce Thompson, claiming to be a changed man.

  Honorable: Bruce R. Thompson.

  When living at home and going to school, my life was free from the influences of drugs. I had been raised in the country and lived in a very clean home. I was the baby of the family and spoiled in the long run.

  In 1969 marijuana was reaching out to the rural area in Calif. From that point on my life was slowly changing. The drugs would bring more asocation [sic] and in turn more contact with drugs. It wasn’t long before a few months pasted [sic] and L.S.D. had become a part of my life.

  Slowly it began to take me to another style of living and thinking, in the long run I lost much of my reasoning powers. Seven years of using made me fall from reality.

  On my own I have been seeing Dr. Kiehlbauch of Men. Health. We have private one hour sessions, in which we have progressed very well.

  At this time I have started and finished high school in order to prepare for college.

  I have been working at the carpenter shop as I desire to learn the trade. So I have inrolled [sic] in an apprentice carpentry program lasting four years. Along with that I inrolled [sic] in drafting school as I felt it was a very important part of carpentry.

  This summer I start college. After my four years of drafting and carpentry I plan on a two year computer course.

  I have set my goals and find myself well on my way. It shall take seven years of schooling to complete these courses.

  In all respects my life has changed. Of course that is because I wanted to, knowing this is my chance to get my life in line. Drugs have been my down fall [sic]. I am so ashamed of my past. But my future is now in controle [sic].

  If I may please, all I ask is to be given the chance. By writing and asking for a report on me from Dr. Kiehlbauch and all departments would be giving me the fairest examination I could hope for.

  Sincerely,

  Phillip C. Garrido.

  In the March 24 motion to reduce his sentence to twenty-five years, Phillip Garrido carefully listed reasons why Judge Thompson should do so. He noted that when he committed the crime, he was “suffering from the effect of marijuana and a drug known as LSD,” claiming they cause him to withdraw from reality, so he lacked the capacity to conform his conduct to the law.

  Garrido also “prayed” for the reduction in his sentence, claiming that a lengthy stay behind bars would interfere with his further education and future plans.

  “The Petitioner’s long sentence denies [him] certain training and rehabilitation,” stated the motion. “It is the Petitioner who has set his own goal to reform his old way and live a new life on his own. [He] could become a very useful citizen and be rehabilitated if he could have his sentence reduced to twenty-five (25) years, which would make him a parole date in eight (8) years, where he could be released to the Sta
te of Nevada as an Educated Person and being a rehabilitated person.”

  On April 5, 1978, Phillip Garrido turned twenty-seven. The same day, he received a glowing progress report of his first year in Leavenworth. His senior case manager, R. S. Rose, wrote that he was making good progress and had a clean conduct record.

  “Mr. Garrido has demonstrated an above average adjustment in all areas of his confinement,” read the official report. “Mr. Garrido has maintained a clear conduct record while at Leavenworth.”

  Garrido now worked as an apprentice carpenter, responsible for woodworking equipment, cabinet-making and installation.

  “His work supervisor has rated him average,” stated the report. “He shows regular attendance on the job, gets along well with others, reacts well to authority, and accepts responsibility. Mr. Garrido is presently receiving Meritorious Good Time for his responsibilities within the Carpenter Shop.”

  The report also applauded Garrido’s recent academic accomplishments, as he now pursued college-level courses.

  “Mr. Garrido has been successful in significantly elevating his academic level of performance,” noted his education supervisor.

  It noted that on March 16, Inmate Garrido had been reassigned from the basic educational program to the Drafting Vocational Training Program. And he had also enrolled in eight hours of college course work for the upcoming summer session.

  “He is an exemplary student,” stated the report, “and cooperative in all respects.”

  Two weeks later, Leavenworth clinical psychologist Dr. J. B. Kiehlbauch prepared a detailed four-page psychological evaluation of Garrido, to help U.S. district judge Bruce Thompson decide whether to reduce his sentence.

  “Mr. Garrido is the product of a prosocial middle class family, now broken,” wrote Dr. Kiehlbauch in his report, “from which he inculcated generally appropriate values, though he described himself as over-condoned and pampered by his parents. A high school graduate, he has no military service or work record of consequence, describing himself as a ‘semi-professional musician.’