INCONCEIVABILITY, HORROR, AND THE MERCY SEAT.

• Author: Simmons, Thomas E.
• Position: Debra Sue Jenner's eligibility for discretionary parole

1. INTRODUCTION 212 II. DISCUSSION 216 A. DEBRA SUE JENNER 216 B. APRIL OF 1987 217 C. DEBRA'S INNOCENCE CAMPAIGN 224 D. TRIAL AND APPEAL 225 1. Trial 225 2. Direct Appeal 235 E. POST-CONVICTION PROCEEDINGS 238 1. Federal Habeas 238 2. State Habeas 238 3. A [section] 1983 Claim 241 F. THE JANKLOW FACTOR AND DEBRA'S COMMUTATION 241 G. PAROLE HEARINGS (2003-PRESENT) 244 1. 2003 244 2. 2005 245 3. 2007 246 4. 2013 246 5. Two Mandamus Writs and the [section] 1983 Claim 248 6. 2017 250 7. 2021 251 H. PAROLE BOARD CONSIDERATIONS 254 I. LOCATING AND MAPPING THE "MERCY SEAT" 257 1. The Lid of the Mercy Seat 257 2. Opening the Lid 260 3. Peering Within It 264 J. THREE FINAL POINTS: THE JENNER PROBLEMS 270 1. The Fundraising Factor 270 2. The Toy Airplane Problem 271 3. Inconceivability 273 III. CONCLUSION 276 [M]ercy is above this scepter 'd sway.... (1) - Shakespeare I. INTRODUCTION

   As Shakespeare has Portia articulate in The Merchant of Venice, mercy reveals itself in two primary aspects: first, in human society, and second, in God's. (2) First, there is mercy as an imperfect human attribute; an act of judgment coupled with an exercise of the will in carrying out a human action directed toward another. (3) Then, there is heavenly mercy; a divine, spirit-driven, perfected mercy directed at one or more of us. (4) There is that which we render; that which we emulate; that which we pray for; that which is demanded from us. (5) Mercy is not unknown in the law, but it is often incorporated in an offhand way, not in any kind of systemized doctrine or framework. We mostly do it only lip service.

   When a just sentence is pronounced, presumably, it takes account of both retribution and an easing of it; a balancing; a sentence that blends a moiety of mercy into the recipe. The Ancient Greeks would characterize justice as a mean between the extremes of unrestrained retribution and unrestrained empathy. (6) Thus, for the ancients, mercy modulates justice. If this approach is correct, then too much mercy (excessive mercy) could be as unbalanced as too little (defective mercy). (7) What we should aim for, according to Aristotle and other thinkers, is a temperate mercy; a Goldilocks dose of the stuff--neither too much nor too little: a moderate amount. (8)

   But what is this treasured ingredient, exactly? Mercy is regularly praised, frequently sought, and oftentimes pleaded, but seldom construed. What is it? If it is merely a codeword for restraint, how should we mete it out? (9) When should we withhold it? What role should it play? Is it merely descriptive of a lenient sentence? Is it present whenever a prisoner qualifies for early release and absent whenever a prisoner does not? Is it mere sentimentality and free-flowing empathy, or is it an authentic precept with a genuine role within the criminal justice system? (10)

   Not infrequently, we call upon mercy as an essential component to the administration of justice. (11) In this sense, mercy might be less like restraint and more akin to attention, caution, and freedom from bias--that is, as an element of judgment; an important part of all good judicial decision-making; a characteristic in any praiseworthy verdict. Like salt, we might notice a deficiency when it is lacking ("This meatloaf needs salt") but never as the key form of justice (One would never say, "Tastiness means saltiness," or even "The true mark of a great chef is one who knows how much salt to use"). But unlike salt, we could never have too much of it insofar as we would never accuse a judge or a jury of excessive impartiality. We would never characterize an unfair verdict as one suffering from a tad too much thoughtful attention.

   Whatever mercy is, it also proves difficult to locate--however construed--within the body of the law. Both its quiddity and its position arc elusive; both its what-ness and its proper role are fleeting--but I hope to stalk mercy's edges in the pages which follow. I will not capture mercy. Even if I did, I would remain uncertain about its application, though I am convinced of its essential qualities. Or at the least I am convinced that mercy does possess a particular set of characteristics, if not precisely what those characteristics are.

   Mercy, whatever it is, is a particularly relevant inquiry framed against Debra Sue Jenner, a mother from Huron. Her crime "shocked the town of Huron and stands out as one of South Dakota's most high-profile cases in recent decades." (12) Following her conviction for the brutal murder of her young daughter, she served time in the South Dakota prison system (first at Springfield; later at Pierre) from 1988 until 2021, when she was finally granted discretionary parole.

   If there is reason to soften toward her crime, it seems, it resides in mercy, though mercy was not necessarily lacking when she was originally sentenced to life in prison without the possibility of parole. (Only because of a subsequent gubernatorial commutation was she even eligible for parole.) If the original sentence was just, then to insist upon softening it with mercy would be to argue for an unjust accommodation; it would be to ask for something other than what is just. (13) Should we even speak of mercy in connection with an application for discretionary parole? May state actors ever legitimately embody mercy? Or may only pastors and parents demonstrate it?

   As I said earlier, mercy is an elusive prey. If it is a divine attribute--and it is--then it is not for capturing. (14) It is for chasing. It is for modeling, but not perfectly replicating. Just how we arc to emulate it, and when, are demanding dilemmas.

   Debra may have merited a dose of mercy from the South Dakota Board of Pardons and Paroles in September of 2021 if only on account of the length of the sentence she had already served. Perhaps the length of her incarceration, which had already unspooled for her, naturally generated a splash of mercy where, previously, it would have been unfitting. Indeed, perhaps genuine justice required an additional dose of the mercy stuff at that particular juncture in Debra's legal life. Perhaps not. Perhaps she had simply served enough time, given the relevant factors to be considered in connection with an application for discretionary parole, none of which include any reference to mercy as such. (15)

   Before we can arrive at our own judgment concerning her release, we must obtain sufficient knowledge of her and her crime. No sentence is seen as just--even if it happens to be correct--if it is rendered hastily, without reflection, or lacking in foundation. Perhaps in carefully examining Debra's legal life, we might glimpse the proper role of mercy in the judicial machinery which held her. So, it is to her now that we should turn. But we should be prepared to encounter a stumbling block in our assessment of Debra's parole status, which sits at the very center of justice in the realm of criminal justice; the act for which she is being punished. That act is indecipherable. It is inconceivable.

   I will contend that Debra must be met with mercy despite the incomprehensibility of what she did--both to us and to her. We cannot imagine her crime, and she herself cannot recall it; she cannot remember it. So, the very act with which we are to configure a judgment is opaque. And mercy itself is difficult to pin down, and thus, it presents us with an indecipherability of its own. We seem to agree that mercy is important; we seem even to know something of its intrinsic qualities even if we bumble a bit in expressing them well. And, it seems, as lawyers, if we are called upon to assist in its application, we are also called upon to decipher it as best we can.

   Ultimately, I am afraid, the correct application of mercy must be left to shaper minds than mine. But I will return to mercy; how it ought to be measured out or withheld after outlining how Debra arrived at where she was in the fall of 2021 when she was finally granted parole. The quality of mercy and its application, I contend, is especially problematic when the nature of the criminal's conduct lies beyond our powers of imagination or comprehension. Debra's case is a difficult one, but it is not beyond our faculties to wrestle with it. Indeed, we must. With her case, we must be prepared to face the reaction her crime invokes. It is one of utter inconceivability. And it is this inconceivability, I believe, that might render mute and unsure the proper dose of mercy which ought to be applied. It is, to some degree, the chief stumbling block she encountered in so many unfavorable applications for parole over the years.

   Mercy is always an elusive virtue. It is especially elusive in the context of Debra, but, it seems, we are nevertheless commanded to construe it and apply it, even in difficult cases. Especially, perhaps, in the difficult cases.

2. DISCUSSION

   1. DEBRA SUE JENNER

      An only child, Debra Sue Jenner was born and raised in Huron, South Dakota. (16) So was her first husband and father of her children, Lynn Jenner. They had been high school sweethearts and had been married six years before having their first child, a son they named Stuart Jenner, born in 1982. (17) A daughter, Abby Lynn Jenner, followed the next year. Abby was lactose intolerant and sometimes had difficulty sleeping. (18) In other respects, the Jenner family life, from all appearances, was entirely predictable, routine, and unremarkable. Their home at 1137 Frank Avenue S.E. was commonplace, their quotidian lives, plain. Prior to April of 1987, Debra had never had contact with law enforcement for any reason.

      Debra was an agri-research technician for Pioneer Hybrid International with an associate degree, while Lynn was a carpenter. (19) He worked at Farmer's Cashway Lumber. (20) Both of them taught Sunday school at the Huron Wesleyan Church. Lynn was the Sunday school superintendent; Debra taught preschool Sunday school for several years. (21) Debra was also the church pianist...