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Judge accepts plea deal for Brian Ervin, finds sex abuse victim credible

Victim: My name is Darcy Ervin, I am SAM

Posted: February 10, 2012 - 1:32pm
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Ketchikan Superior Court Judge Trevor Stephens accepted a plea deal on Friday sentencing former Juneau police officer Brian Todd Ervin to 4 1/2 years for tampering with a witness.  Michael Penn / Juneau Empire
Michael Penn / Juneau Empire
Ketchikan Superior Court Judge Trevor Stephens accepted a plea deal on Friday sentencing former Juneau police officer Brian Todd Ervin to 4 1/2 years for tampering with a witness.

Ketchikan Superior Court Judge Trevor Stephens accepted a plea deal on Friday sentencing former Juneau police officer Brian Todd Ervin to 54 months in prison, or 4 1/2 years, for tampering with a witness.

Ervin, 39, was charged in the fall of 2010 with three counts of sexual abuse of a minor (SAM) for sexually abusing his biological daughter, Darcy Ervin, who is now 18. Those charges were dismissed in a plea deal reached with prosecutors. He pleaded ‘no contest’ in August to one count of attempted interference with official proceedings. That charge stemmed from trying to contact the victim as the criminal matter was pending in court.

In the judge’s statements on Friday, he also said he found Darcy Ervin’s claims of sexual abuse credible.
“I’ve watched the videotaped interviews. Ms. Ervin had two videotaped interviews at the CAC (Child Advocacy Center in Juneau), and I’ve seen Mr. Ervin’s videotaped interview. I’ve listened to the grand jury proceeding, I’ve written a somewhat lengthy opinion or decision on a pre-trial motion to dismiss the indictment and I’ve observed and listened to testimony last week. And I found, and I want to emphasize under the preponderance of evidence standard which is what applies at this stage in the proceeding, that Darcy Ervin’s allegations are credible based on her testimony last week and her videotaped interviews.”

Stephens was the second judge to find Darcy Ervin’s testimony and allegations credible. Juneau Superior Court Judge Philip Pallenberg also found her to be believable, as did a doctor in Juneau who evaluated her and wrote a psychological assessment.

Ervin has consistently denied the charges and has never given an admission of guilt. Meanwhile, members of the family were quoted in court documents saying Darcy made the whole thing up. Stephens disagreed.

“There are indications in the documents filed in the pre-sentencing report, in particular the Provo Canyon (psychological) assessments, that there are members of her family have quoted that somehow she set this all up, and I just don’t see this,” Stephens said. “She’s certainly intelligent. ... I just don’t see this as some grand design, and I just don’t see anything on record that would provide her with a motive for making those things up.”

The defense has provided theories for Darcy’s allegations, such as them being false memories as a result of a medical condition. Darcy’s mother and Brian Ervin’s wife, Wendy Ervin, has insisted her husband had been falsely accused, according to a letter in support of her husband which she submitted earlier to the court.

Wendy Ervin, commented to reporters as she was leaving the courtroom, likely referring to other articles the Empire has written about her husband’s case, “Nice piece of fiction.”

The Empire does not publish the names of victims of sex crimes unless they agree to be named. A Jan. 29 Empire article describing her experiences leading up to the sentencing process named Darcy only as "SAM," after the acronym for the crime she accused her father of committing. On Friday she wanted to be clearly on the record.

Darcy, who says she’s been abused by her father since she was 10, told the Empire on Friday, “My name is Darcy Ervin. I am SAM. My father’s name is Brian Ervin, and he sexually abused me.”

The sentencing

With mandatory so-called “good time” in prison, Ervin will be released early. Good time means for every two days in prison, one day is knocked off the imposed sentence, Stephens said. In Ervin’s case, that means one-third of his sentence would be knocked off. That equates to 18 months knocked off Ervin’s 54-month sentence, meaning he would only serve about three years in prison.

Ervin will also eligible to apply for discretionary parole with a statewide parole board.

The plea deal accepted by Stephens does not include probation requirements, but the parole board has the authority to implement those kinds of restrictions.

Ervin still maintains his innocence, his attorney Julie Willoughby told the judge on Friday. Ervin re-affirmed his initial ‘no contest’ plea through Willoughby and declined to address the court.

Attempted interference with official proceedings is a class ‘C’ felony that can carry a maximum penalty of five years in jail. The presumptive sentencing range for a first-time felony conviction, which is the case with Ervin, is zero to two years of jail time.

The initial plea deal worked out in August between District Attorney David Brower and Ervin’s then-attorney and now Juneau Superior Court Judge Louis Menendez, called for Ervin to serve a minimum of one year and a maximum of two years. That plea deal was thrown out after new developments in the case — Brian Ervin’s half-brother from Texas, Erik Ervin, came forward last week alleging Brian Ervin sexually abused him and another relative during their childhood. Erik Ervin also gave the Empire permission to publish his name.

Brower and Willoughby reached a new plea deal this week calling for a four years flat sentence, which is double what was on the table before. Stephens told the lawyers on Friday he wanted a 4 1/2 year sentence instead.

Stephens called a recess in court to discuss the matter privately with the parties, then returned a few minutes later, saying, “ ... So what I told the parties is that we agreed to a sentence of 4 1/2 years, that the sentence is something I have control over, I am not bound by any agreement. (It) is very near the absolute maximum of five years. I don’t know if I would have to be able to make a ‘worst offender’ finding to impose five years, and I think this case is at — is near, not at — that which is consistent with the 4 1/2 years, which is just six months short of the absolute maximum.”
Willoughby argued in court that the worst offender finding should not be found.

“In order to give the maximum sentence of five years, the court has to find the worst offender finding via the (inaudible) factors, and I would submit to the court that those factors do not support a worst offender finding given Mr. Ervin’s lack of criminal conviction, his age, his sterling military record, his sterling employment record. He has no significant history of drug or alcohol addiction. So I don’t believe that the court could make a worst offender finding. I would ask the court not to do that and accept this agreement,” Willoughby said.

Stephens agreed he would not be able to make that finding, although noting he considering the seriousness of the underlying allegations, his own findings that the allegations were credible and despite indications that Ervin had alcohol abuse problems.

“He has no criminal record, has been gainfully employed throughout his adult life. He’s had a number of people standing by his side — family friends, I’ve received letters from those folks, letters from church officials,” Stephens said.

Stephens explained he was unable to attach any conditions of release to the sentence because the crime Ervin pleaded to — attempted interference with official proceedings — does not qualify as a sex offense or a domestic violence crime.

“To the extent that the court would like to try to address rehabilitation, in terms of a sex offender evaluation, possibly order substance abuse as probation conditions: I can’t do that. It may be that those things are ordered as part of parole.”

Darcy described her lost childhood in a victim impact statement, which was read aloud to the court on Friday by her foster mother. The statement also details the realities of what happened after someone had first reported the abuse to authorities.

“This process has substantially affected my life in ways that I can’t put into words,” Darcy’s statement read. “After I disclosed, I was alienated from my friends and rejected by my family. My parents secretively sent me away to Provo Canyon Treatment Center. This was their attempt to keep me quiet. They did everything they could to get people to think that I was crazy including making false accusations and outright lying. While I was there, I was victimized again. I tried to commit suicide several times while at Provo, but now realize that I want to live and have a great desire to see this through.”

Darcy had never told anyone about the abuse until she confided in a close friend on a Juneau beach. The friend’s sister overheard a later phone conversation between the two, in which Darcy worried she might be pregnant by her father. The concerned sister reported it to her mother, who reported it to authorities.

Stephens acknowledged Darcy’s statement, saying, “I really can’t add to what she has told the court through her letter. The impact’s been incalculable. The abuse itself is horrific. And I think she knew darn well, based on her comments, that she knew that once the report was made, her life was going to end as she knew it. And that’s what happened.”

No trial

Darcy asked the court in her statement to drop the plea deal to allow the case to go to trial.

“It scares me to think that in order for our court systems to save a little time, that millions of sex offenders are able to secure a plea bargain and with that receive little or no punishment for their actions. I want this plea agreement to be dropped. I want this case to go to trial,” her statement said. “I do not want to have to go through another trial, but it’s important to me that my family hears my side. I know that Brian has done this to another family member as well, and it needs to come out and it needs to stop. I want Brian to go to jail so that (my sister) is safe. He needs to be responsible for what he did. He still will not admit that what he did was wrong, which in my opinion, makes him a danger to society. I would ask the court for the maximum amount of time in jail for Brian. This will keep (my sister) safe and send a message to him, as well as my family, that what he did was wrong and that he is not all powerful — that even Brian Ervin has to answer for his crimes.”

In turn, Ervin’s attorney Julie Willoughby asked the court to accept the agreement to resolve the case against her client without going to trial.

Willoughby said, “The court has been involved in this case since the beginning. As the court knows, much has been said, much has been written about the allegations. We could spend days if not weeks parsing through the truthfulness and the veracity of those statements and allegations. Mr. Ervin has vigorously asked me to not do that. Mr. Ervin, for the sake of his family and for the dignity of his family, just wants the court to know that he stands by his testimony that none of those things happened. He wants to put the public spectacle of this behind him, and he asks that the court accept the plea agreement.”

Outside the courtroom, District Attorney David Brower did not comment on Friday why the case did not go to trial, saying he wouldn’t talk about the case since it is still active. He told the judge on Friday, “I think this is not a situation that either party is entirely satisfied with, but I believe that this is the best result that we’re going to get here. So I’d ask the court to accept the sentencing that we agreed.”

The judge noted in court the case would have been difficult to prove at trial, especially since there was no admission of guilt, eyewitnesses or physical evidence. He added that Darcy’s disclosures of abuse at times differed and were made gradually over time, something that wouldn’t work in her favor at trial, he said.

Stephens said, “In the disclosures, there were different statements made, and at one point, denials made that some things had happened, and later disclosures made that those things in fact did happen. And I understand why it’s extremely difficult for a 16- or 17-year-old to talk about such things, especially involving ones parents. But that’s something that the state would have to explain to a jury. ... When Ms. Ervin testified, I think she made comments last week about she’s having to do this (testify) again, she’s done it time after time after time. And that’s true. When a witness, any witness, and a victim, any victim, is asked about incidents that happened, in some instances years ago, time after time after time: what’s said differs. And that’s the kind of stuff that’s fodder for a good defense attorney. I understand that that happens, but that’s something that still you would have to address at a trial.”

Stephens accepted the plea deal, saying, “I think that’s what brings us to where the case is now. I’ve made my findings. The maximum I can impose is five years. Given the facts and circumstances, I think 4 1/2 is about as high as I can go. That’s what I’ve imposed and I am imposing now. ... At this point, my sentencing goals are to serve the sentencing criteria of isolation and community condemnation.”

Was justice served?

When asked Friday evening in an email interview if justice was served, Darcy responded, “With the appalling options the state left us with, the judge did everything within his power under the law. Actual prison time I feel, as do most people, is important and necessary. However a lengthy probation is what’s most significant in regards to the safety of my brother and sister, as well as the community. Once a short three years is served, followed by only 18 months of parole, there will be no restrictions on his actions which will inevitably result in him offending again.”

Erik Ervin, who listened in on Friday’s court hearing from Texas by telephone, told the Empire afterward that the whole thing left him with a bad taste in his mouth.

“I still can’t wrap my head around it,” he said. “In roughly three years, he’ll be able to go right back to whatever he wants to do for the most part, short of having a felony conviction. Obviously he’ll have trouble getting a job in the future, but that’s not the real problem here. The real problem is him being around kids. That’s what’s really upsetting. This could come up again in the future 10 years down the road. There’s nothing to keep him from doing this again. There are no rules. They completely missed the issue.”

The case should have gone to trial, Erik said. He said he felt that the judge was right that there are no eyewitnesses to these kinds of crimes, but that the jury would also have to consider that Darcy wasn’t the only one alleging abuse.

“There would have been two to three people there saying this happened and that there’s a huge history of abuse. I think that would have gone somewhere with the jury, I really do.”

He said he harbors “complete and utter disgust” for District Attorney Dave Brower.

“It’s just disgusting,” Erik said. “I don’t know how he’s going to go home and sleep tonight. I couldn’t.”

Executive director of AWARE (Aiding Women in Abuse and Rape Emergencies) Saralyn Tabachnick, who has been involved with this case by helping Darcy and has attended all the court hearings, said she understood why the judge accepted the plea deal, but that it was still disheartening.

“I think that the judge did the best that he could do, and I appreciated his explanations about why he accepted the deal. As the judge explained, the burden of proof if this had gone to trial would be considerably higher. The credibility of the victim was undeniable to him. But to a jury, you don’t know. So from that perspective, I understand. But on the other hand, there’s a perpetrator, a sex offender who is not being charged with a sex offense and doesn’t have to be monitored when he’s done serving this sentence. It’s disheartening.”

Moving forward

A tattoo of the word “SAM” etched on a blue ribbon now adorns Erik Ervin’s arm. He got it at a Juneau tattoo parlor with his niece Darcy last week after the court hearing. The blue ribbon is a nationwide symbol used to raise awareness of child abuse and sexual abuse of minors.

“We’re all here for her and support her. Her foster mom seems great,” he said. “I just hope she can move on her with her life and hopefully be happy. That’s all anyone really wants.”

Darcy said in her statement to the court that she’s ready to begin to pick up the pieces of her life and think about her future.

“What my father did to me cost me my father, my mother and maybe even my brothers and sister. We have no relationship at this point, and I don’t believe we ever will. I am left with a lot of questions about what I want,” she wrote. “... He took everything from me, but I’m not going to let him win. I am just now starting to think about my future. I’m going to go to college, build a life with my new family and one day will hopefully know what it’s like to be happy. I will not let what he did to me or what he took from me control every aspect of my life.”

• Contact reporter Emily Russo Miller at 523-2263 or at emily.miller@juneauempire.com or Klas Stolpe at 523-2228 or at klas.stolpe@juneauempire.com

 

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