Skin color shouldn’t impact how long confessed murderer spends in prison | Opinion

On Dec. 1, Joshua Ellis is scheduled to be sentenced for the 2017 murder of his ex-girlfriend, Wendi Traynor.

Ellis is Black. Wendi was white.

Does it matter? Ellis’ defense attorney hopes a judge will think so, suggesting in a series of court filings that Black suspects should get special consideration, no matter how heinous the crime. It is a worrisome, if not outright racist idea of progress — one we must reject if we hope to reform our justice system into one that is truly blind.

Before discussing the legal maneuvers at play, it’s important to understand the brutal nature of the crime Ellis confessed to committing — how Wendi suffered a fate too many women in Washington state fear at the hands of someone she once loved.

Wendi was 25 years old when Ellis shot her in the head. The two recently moved to Kentucky before Wendi returned home to escape what her family describes as a toxic relationship. They claim Ellis repeatedly tried to coax Wendi back. When that failed, he drove to Washington and put a bullet in her brain.

Ellis left Wendi’s body decomposing on the floor of her Milton apartment, where her father and uncle found it a week later.

When he appears in court on Friday, it will be the second time Ellis has been sentenced for killing Wendi. At his first trial in 2019, a Pierce County jury convicted him of second-degree murder. Judge James Orlando gave Ellis more than 20 years — the maximum sentence allowed by law. In addition to a 220-month sentence for the murder, Judge Orlando added a 60-month firearm enhancement.

Judge Orlando lamented that he could not put Ellis in prison for longer.

“The autopsy pictures from Wendi’s case will haunt me. You didn’t do anything that deserves less than the high end. … It is still probably far less than what is deserved in this case,” he said.

“I’ve never had anybody that treated a dead body as callously as you did,” he added, referring to a witness whose testimony suggests Ellis may have returned to the apartment in the days after the murder to feed his dog, ignoring her corpse in the process.

O.J. Simpson reference, overturned conviction

But justice for Wendi was short-lived.

In 2021, the Washington State Court of Appeals overturned the conviction, citing prosecutorial misconduct. According to the ruling, Prosecutor John Neeb “invoked racial stereotypes” by referring to The People vs. O.J. Simpson during jury selection. The reference was a clumsy attempt to explain to jurors that “The People” refers to the prosecution. While it was not directed at Ellis, the court found it could have deprived Ellis of a fair trial.

Despite the setback, the facts of the case remained strong, and a second conviction seemed likely given Ellis confessed to the crime.

Instead, Wendi’s family was stunned to learn that prosecutors intended to offer Ellis a deal. In exchange for a guilty plea, they would drop the gun enhancement entirely and recommend the lowest possible sentence under the law: 123 months. With good behavior and credit for time served, Ellis could be out of prison by 2026.

Those close to the case were understandably shocked.

“There is so much talk about domestic violence and gun crimes. And this is both,” Bonney Lake Police Sgt. Brian Byerley, who investigated Wendi’s murder, told me. “A classic ‘if I can’t have her, no one can’ DV case where a firearm was used to kill another human being.”

So why would prosecutors offer such a light deal, over the objections of Wendi’s family?

While the facts of the case haven’t changed, Washington’s political environment has.

More specifically, attitudes around race and criminal justice are much different now.

A sentencing memorandum from Ellis’ public defender, Mary K. High, alludes to the current climate in Washington. It also offers insights into the kind of misguided thinking that makes plea deals like the one Ellis received possible, mistakenly describing them as progress.

In it, High said Deputy Prosecuting Attorney Dru Swaim showed a “commitment to equity and anti-racism” — suggesting the recommendation was based on Ellis’ skin color, rather than the nature of his crime.

Now she hopes that brand of “anti-racism” will carry through to sentencing.

In a memorandum to the court filed Nov. 17, High included data on sentencing outcomes in Pierce County Superior Court over a 20-year period, dating back to 1999, noting that Black defendants received “88% of the standard sentencing range compared to white defendants who receive 52% (mid-range) sentences.”

Lower sentences now won’t reverse past racism

In another chart, High highlighted the sentencing practices of a former Pierce County Superior Court judge. There is no explanation as to why High singled out Judge Stephanie Arend, who retired in 2021. It is also unclear why High chose to use data going back to 1999, long before Washington embarked on efforts to reform sentencing guidelines.

If Judge Arend were the one sentencing Joshua Ellis, the data set would be relevant. But she’s not. Ellis’ sentencing will be handled by Judge André M. Peñalver, who was appointed by Gov. Jay Inslee in 2021.

Could it be that Judge Arend’s record and data from the chosen time frame fits the narrative High is trying to paint?

Regardless, High’s suggestion is clear: She believes Pierce County judges have a track record of racism against Black defendants.

Her solution? Employ a different type of racism by artificially lowering sentences for Black offenders, regardless of the nature of the crime.

It’s important to note that judges are not bound by any pre-sentencing deals. One can only hope that Judge Peñalver sees through the tactic, which was no doubt tailored to appeal to him as a relatively new jurist who has advocated publicly for criminal justice reform.

In that sense, High’s tactics are brilliant — albeit alarming.

“I want to puke,” Wendi Traynor’s mom wrote in an email after reading the filings.

Her disgust is justified.

Ellis’ skin color does not make Wendi any less dead. Her life, and its value, must not be weighed by the skin color of the man who took it.

A truly equitable criminal justice system would seek to remove skin color from the equation, not insert it as the central argument at sentencing.

Lady Justice wears a blindfold for a reason. Removing it is the opposite of progress.

This story was originally published December 1, 2023 at 7:32 AM with the headline "Skin color shouldn’t impact how long confessed murderer spends in prison | Opinion."