Roanoke Times
Copyright (c) 1995, Landmark Communications, Inc.
DATE: WEDNESDAY, March 8, 1995 TAG: 9503080115
SECTION: VIRGINIA PAGE: C-1 EDITION: METRO
SOURCE: LAURA LAFAY LANDMARK NEWS SERVICE
DATELINE: VIRGINIA BEACH LENGTH: Long
The Virginia Parole Board, which has denied parole even to nonviolent first offenders, last week released a man who had served only four years of a 27-year sentence for first-degree murder and robbery.
The next day, after a sudden change of heart, the board ordered him locked up again.
Eight officers and five police cars converged on the home of James Michael Wear's mother Thursday night, where they arrested Wear on the request of the Parole Board and took him to the Virginia Beach Jail.
``The same detective who had worked on my case was with them,'' Wear said during an interview at the jail Tuesday. ``He told me that the Parole Board had made a mistake, that they weren't supposed to let me out and he had to lock me back up again.''
That detective was Sgt. A.F. Zucaro.
``The Virginia Parole Board notified our Police Department that he was let out on parole and that there was some type of administrative miscalculation in the paperwork,'' Zucaro said Tuesday. ``So a parole violation warrant was issued.''
But Wear didn't violate his parole, said officials familiar with the case.
And once the Parole Board has released someone, it cannot reincarcerate that person unless a violation has been committed, experts said.
``Once an inmate has been paroled ... that right is protected,'' said Clarence Jackson, a former Parole Board chairman who served on the board for eight years.
``No one has a right to be granted parole; but once that privilege is granted, the board can't just arbitrarily take it away, unless it has justification.''
Harrison Hubbard, a Richmond attorney who specializes in representing inmates before the Parole Board, called Wear's case ``bizarre.''
``I've been doing parole work for 22 years,'' he said, ``and I've never heard of a situation where there's been no alleged violation of the terms and conditions of parole, but there's a revocation.''
Asked about the Wear case Monday, Parole Board Deputy Director Richard W. Crossen Jr. said: ``A board warrant was issued by the Parole Board to pick up Mr. Wear, and the board is reviewing his suitability for parole at this time. His case is under review.''
Wear, now 22, was 17 when he drove the getaway car for three friends after they robbed the Ocean Island Motel and murdered the 28-year-old night clerk, Julie Benica. Wear pleaded guilty to first-degree murder and robbery in August 1990 and was sent to the Brunswick Correctional Center in Lawrenceville in 1991. He became eligible for parole March 15.
In anticipation of that date, a Parole Board examiner went to Brunswick on Nov. 3, 1994, to interview Wear and determine his suitability for parole. He found that Wear had passed a high school equivalency exam and five college courses. He had worked in the prison kitchen, taken an auto body class and kept his record clean.
The examiner "said something like, he didn't see too many cases like mine,'' Wear remembered. ``And that he felt like if I maintained what I was doing and didn't hang out with the wrong crowd, I could make it on supervised parole.''
On. Dec. 7, Wear got a letter, saying the Parole Board ``is considering granting you parole provided you agree to participate in a home electronic monitoring program.'' Wear kept his mouth shut; he had heard stories of inmates who, on discovering that another inmate was to get parole, did their best to get the parolee in trouble.
A month after the letter arrived, Wear signed a form in his counselor's office agreeing to the conditions of the monitoring program. Ten days later, a parole officer went to see his mother and asked her if she would agree to have an electronic monitor in her home. She said yes.
Although his counselor told him he could be released as early as February, Wear said, he asked for a postponement until after his mother had surgery in the middle of the month. On Feb 28, he said, ``They told me to pack my stuff.''
Wear was taken to a work camp in Chesapeake, where he spent one night. On March 1, his parole officer picked him up, drove him to the parole office in Virginia Beach, attached the monitor to his left ankle and drove him to his mother's house.
Wear ate breakfast and took a shower. He sorted through his old belongings, making one pile to keep and one pile for the Salvation Army. He washed clothes, bought a pair of jeans and spoke to his uncle on the phone about a possible job.
The next day, his stepfather came home and announced that there were ``five or six cop cars down the street.''
``And my mom said, `Well, I'm glad they're down the street and not here,' and then about two minutes later, there was a knock on the door.''
Sitting in jail Tuesday, dressed in an orange jumpsuit and sandals, Wear said he had no idea what would happen to him next. He figures he will probably be sent back to prison, but he doesn't know when, and he doesn't know whether there will be a hearing first.
``The way I look at it is, I have no control over the situation,'' he said. ``I exposed myself to all this five years ago when I committed the crime. ... And now, I've done everything I could do. They sentenced me to the state penitentiary to try and rehabilitate myself, and I did everything I could to do that. I don't want to go back, but there's nothing I can do.''
Wes Benica, the husband of the murder victim, was never told of Wear's impending release. He is scheduled to meet today with Parole Board Chairman John Metzger. It could not be determined who scheduled the meeting. Benica said Tuesday he does not want to talk about the case.
by CNB