Sixty-eight-year-old Susan Miller, a retired teacher and librarian, an active volunteer in her community, and the parent of two successful adult children, was sent to prison last week even though there was not even so much as a traffic ticket on her record. Readers may recall that Susan Miller was recently found guilty of “accessory after the fact,” for trying to erase a video of her husband, Harry Miller, shooting a neighbor, Paul Palistrini, during an ongoing easement dispute on the South Coast.
District Attorney David Eyster asked the court for three years in state prison for Susan Miller; and, of course, Paul Palistrini along with his wife, Desiree Palistrini, each read statements of impact on their lives and asked for the maximum penalty. Mr. Palistrini was shot at close range and was hospitalized for three months, having nearly died. The shooter, Harry Miller, also tried to shoot Desiree Palistrini, and he has been charged with two counts of attempted murder, for which he is still awaiting trial.
Susan Miller’s lawyer, Justin Petersen, told the court it was important to keep in mind that his client was not there to be punished for the shooting. “She’s also a victim of that shooting, Judge. Her life, as she knew it, is now over. She’s lost her home as a result, a home she had expected to live the rest of her life in, and to die in.”
For Susan Miller’s crime, Petersen explained, there was no victim; it was a crime against the justice system.
Judge John Behnke interrupted to clarify that her crime was technically creating a false narrative under which Mr. Palistrini was the instigator, and that therefore he was the victim.
Petersen said he wasn’t arguing that what she did was acceptable. “It’s not,” Petersen said, “but she was forced into choosing between her husband of 40 years and the justice system. She would have done the right thing if she had to make this decision on a test, but it was not on a test, she was suddenly forced to make a quick decision under very trying circumstances.”
The question, Petersen said was, “What should the appropriate sentence be? Should there be any jail time? She’s terrified of going to jail. And, if so, how and when should she serve the jail time? Also, your honor, I’d like a chance to argue for a 17b [reduction to a misdemeanor if certain conditions are met].”
DA Eyster said there should be more than jail time – he wanted the aggravated prison sentence of three years, citing “uniformity” and “consistency” in sentencing. “This is an aggravated accessory after the fact case, judge. She encouraged her husband in the shooting by yelling that Mr. Palistrini was a big bully, and what we have here,” Eyster added in reference to Mr. Petersen’s comment that Susan was a victim as well, “is an attempt to cheapen the word ‘victim.’ Claiming she’s [Susan] a victim: A woman who tried to frame the Palistrinis!”
Eyster’s manner and expression of shocked incredulity suggested someone had called him a big bully and tried to frame him. Our DA, it must be said, really tries to put himself in his victims’ shoes, bless his heart.
“They [the Millers] were trying to show that Paul had hit Harry with the shovel and the shooting was done in self-defense. And the lying didn’t stop at the scene. It continued at the hospital, and in this courtroom, up on the witness stand. I’m not even going to address the 17b request because I think that’s fanciful. We have to punish lying to the police and trying to get rid of evidence. You have to have some consistency and continuity-in-sentencing has to take precedence over compassion and misplaced sympathy.”
Judge Behnke agreed that if Susan had successfully hidden the evidence then Harry would have had a viable self-defense case. “Yes, it’s a serious violation against the criminal defense system, but it also put the Palistrinis in jeopardy.”
Desiree Palistrini came forward to address the court and told how her husband’s life had been one of the Top Five saves of the year, according to the emergency room doctors, and how Susan had no remorse — she’d sneered at Desiree from the witness stand — but continued to blame Mrs. Palistrini and her husband. “She’s not a good person; she’s a liar and needs to serve some jail time.”
Paul Palistrini spoke next and, after recounting the extensive ordeal he’d been through, said, “I didn’t come here seeking revenge, that would make me a vengeful person, and I’m not, but I am seeking justice. Susan is a mean-spirited, angry person and we had to install a camera system because of these people [the Millers].”
It appears that the Millers and the Palistrinis had each been filming their various encounters over the easement and had been in civil court numerous times, so they both knew the value of video evidence.
DA Eyster closed by saying Susan Miller’s crime was “a huge attack on our criminal justice system and considering the lack of remorse we’re asking the court to deny probation and impose the prison sentence.”
Judge Behnke said, “The gravamen is that she knew what was on the camera and that it was not helpful [to her husband]. She was not convicted of helping Harry try to kill the Palistrinis, but of trying to create a false narrative to help her husband. In the false narrative, Harry fired after he’d been hit by the shovel and knocked to the ground. In the cold, indisputable light of the video evidence, he’s standing upright when he fired and gut-shot Paul at close range. And in the probation report, Susan increases Harry’s bravado by calling Paul a big bully. Whether she egged him on, I don’t think I can find that conclusion, and neither did the jury. What the jury found was that she was an accessory after the fact, and in the video she seemed shocked and surprised when the gun went off. As to the possibility that they [the Millers] discussed it in advance, sure that’s a possibility, and it’s probably what Paul Palistrini thinks, but that’s not what she was convicted of.”
Judge Behnke then went into the factors of aggravation, which the DA was pushing for, and the factors of mitigation, which the defense wanted. The Palistrinis were victims of a false narrative, and by putting the blame on Paul as the aggressor, and that he was unconscious for three months and unable to respond to that false narrative; yes, that was a factor of aggravation. As for mitigation, did it involved circumstances that were unlikely to occur again?
Behnke said, “I think they are. The incident was a culmination of a dispute that had gone on for a long time and I don’t think it will recur in her [Susan’s] lifetime. She misled the officers as to whether she had a camera, then deleted what was on it.” This was another factor of aggravation. As to mitigation, Behnke said, “She has no criminal history and I think she’ll comply with probation, but there will be jail time; there has to be penal consequences, but this is a local prison offense and it can be split [between jail time and probation].”
The strain of making such a difficult judgment was beginning to show on Judge Behnke, his shoulders were visibly quaking under his black robe and he was having to take pronounced pauses, little intervals to collect himself before proceeding. This is how a judge earns his sumptuous salary and benefits package. The remuneration is for life, and rightly so since cases like this will likely haunt him all the rest of his days – especially at night.
“And I think she’s eligible for the split. As to remorse: it is something pretty difficult to calibrate. She is distraught, and the probation officer says she’s distraught only because of her legal difficulties. I think there’s anger in that.”
The probation officers are a decidedly sullen set of sourpusses, no question about that. The one exception being the new head of the department, Isen Locatelli.
“I think there’s anger that the legal system didn’t resolve the Miller’s easement dispute with the Pallistrinis, but this is still an 1170h [local prison] case and a split is presumed to be appropriate. The probation department found it was callous conduct and interfered with the judicial process. I think that factor applies. This offense occurred with unusual circumstances, unlikely to recur.” The DA was seeking three years, with one year in and two years out; the probation officer was seeking 10 months in with the rest out.
Judge Behnke went over the main parts of the trial again, carefully teasing out the tangled web of deception Susan had tried to weave.
“There’s no question she’s bitter about it. And I don’t think she’s come to terms with it. She fails to see the distinction that Harry shot Paul and that Mrs. Palistrini could have been killed. She’s not really facing up to the hard reality…”
The judge took another long pause to collect himself, making a few halting starts, before he finally resumed. “In my analysis … eliminated the aggravated factors … however she knew the narrative was false… umm… Last night when I reviewed the case I resolved she met the criteria for probation and so I was inclined to grant her probation. But after listening to the Palistrinis I think it a …uh, whether or not … I intend to give her substantial jail time … proportionality and consistency in sentencing is important and I get it, but from my experience no two cases are the same and whether I give her the 10 months or the full year it’ll be the same to her. It’s a difficult decision and she would’ve made it easier for me if she’d have owned-up, but… [suddenly, decisive] I’m gonna give her the 10 months. And grant the probation. With a surrender date to be determined. There will be a stay-away order for the victims.”
There was discussion between the lawyers and the probation officer, 200 hours of community service was added on. Susan Miller was ordered back on June 13th, the same day her husband’s pre-trial motions were set to begin. The surrender date would be figured out by then, as she was taking care of the invalid husband, and other arrangements would have to be made. Judge Behnke, who had been working double calendars while Judge Faulder was bicycling away in Italy for the past two or three weeks, had come in on his day off to do this sentencing and left as soon as it was over. Behnke likes to fish and he told Harry Miller’s lawyer, Monty Hansen, who wanted to postpone Harry’s trial so he, Monty, could go fishing at a special lake in Minnesota; only last week, he (Behnke) told Monty that he (Behnke, again) first went fishing there, at that same Minnesota lake, with his father when he was seven years old. Eyster objected to Monty’s fishing trip, but the DA seemed to think the judge had earned an outing, and didn’t complain when Behnke left, even though Susan Miller didn’t get the three years Eyster had wanted. Hansen said he was going fishing whether Eyster liked it or not, and that his law partner could come in for the first part of Harry’s trial. Behnke didn’t say where he was going, but he left in a hurry.