Two charged in fire death (June 22, 2005)

A man and a woman have been charged with first degree murder in connection to the death of Angel Lynn Denny, a 15-year-old Hays-Lodge Pole junior who died in a house fire April 9, Assistant U.S. Attorney Lori Suek said today.

Kenneth John Arcand, 21 of Chinook and Bobbie Jo Wing, 25, of Dodson each appeared before U.S. Magistrate Judge Robert Holter Tuesday in Great Falls and pleaded not guilty, a U.S. Attorney's Office press release said. They have both been released from custody, and a pretrial conference has been set for July 7, the press release said.

Authorities are alleging that Arcand and Wing set fire to a house on the Fort Belknap Indian Reservation, where Denny's body was found in a bedroom. An autopsy determined that Denny died of smoke inhalation.

"The allegation is that this was an arson," Suek said. She said she could not disclose how investigators came to that conclusion.

We later found out the FBI worked them into confessing, after they asked for attorneys.

If convicted, Arcand and Wing each face a manditory life prison sentence and $250,000 in fines, the press release said.

Suek said Arcand and Wing were released in accordance with the Bail Reform Act. People who are accused of such crimes but do not pose a flight risk or danger to the community are released, she said.

A few months later, they were convicted after a trial.

A couple accused of setting fire to a home on the Fort Belknap Reservation that killed a 15-year-old Lodgepole girl sleeping inside, was found guilty of first degree murder Thursday in Great Falls.

After deliberating for three and a half hours, the 12-member jury convicted Kenneth Arcand, 20, and his common-law wife, Bobbi Jo Wing, 25, of killing Angel Denny by setting fire to the home they occupied a mile southeast of Lodgepole in the southeastern corner of the reservation.

U.S. Marshals took the couple into custody as the three-day federal murder trial ended. First degree murder carries a mandatory life sentence.

* * *

At the heart of the case are statements Wing and Arcand gave to FBI agents nearly a month after the April 9 fire.

Prosecutors relied heavily on the written statements and a question-and-answer form, in which Wing and Arcand provided answers to questions such as, "how and why did you start the fire?"

During closing arguments Thursday morning, defense attorneys claimed FBI agents threatened and coerced Wing and Arcand into making false confessions after requesting a lawyer.

Before the trial, the defense attempted to suppress the statements but U.S. District Judge Sam Haddon denied the request.

Assistant U.S. Attorney Lori Harper-Suek argued the statements were not false declarations of guilt because they provided details, such as where the fire originated, matching the burn patterns reported by state fire investigators.

"Is it just a coincidence that the defendant's statements match the evidence?" Harper-Suek asked the jury.

Dick Swingley, a state fire marshal, testified Tuesday that he could not determine the origin or cause of the fire.

* * *


Arcand's attorney told the jury that Wing falsely confessed to the crime to protect her family.

* * *

Nonetheless, prosecutors convinced the jury Arcand and Wing started the fire regardless of whether the couple intentionally meant to harm Denny.

* * *

The couple also were charged with felony arson; that charge was severed from the first degree murder charge, according to Assistant U.S. Attorney Carl Rostad.

Prosecutors will decide later whether to pursue that charge.

Burn pattern analysis, fire marshals who can't tell where or how the fire started, coerced confessions, LWOP sentences.  And more charges, just in case.  Sounds like Texas.  

They were sentenced in accordance with the law - mandatory life without parole.  They appealed.


Today, the appellate opinion came down - affirmed.  

The appellate opinion leads off:  

Pathetic events led to a fire, a death, and the conviction of Bobbi Jo Wing and Kenneth Arcand for first-degree murder. There is no legal basis for overturning Appellants' convictions.

The defendants' counsel appears to have done what could be done with a lousy case.  The problem is, though, that jurors are not allowed to be told the punishment coming if they convict:

Appellants argue that the district court improperly implied it possessed discretion in sentencing by instructing the jury that  "punishment . . . is for the court to decide." The judge, however, added "You may not consider punishment in deciding whether the government has proved its case against a defendant beyond a reasonable doubt." When read as a whole, the instruction properly distinguishes the fact-finding role of the jury from the sentencing role of the court, and does not make the implication suggested by Appellants.
Appellants argue the district court had the power and obligation to depart downward from the statutory minimum sentence of life imprisonment. Under United States v. LaFleur, however, the district court had no authority to depart downward from the statutory minimum of life imprisonment for first-degree murder. See LaFleur, 971 F.2d 200, 208 (9th Cir. 1991). Nor did the district court have authority to depart downward under United States v. Booker, 543 U.S. 220 (2005). Booker does not apply to statutory minimum sentences. See United States v. Dare, 425 F.3d 634, 641 (9th Cir. 2005).

These are the kind of judges, practicing good "judicial modesty" of the sort that just has to make a Repug preznit proud, deferring to their betters in the Legislature and the Unitary Executive.  There are, in this writer's view, fewer cases more deserving for judicial surgery than this one.  But, the Repugs have taken the scalpel. Happily, though, one of the judges had some sense of common human decency and wrote a concurrence:

I write separately to express my dismay at the consequences of the result we reach. Although I concur in the memorandum disposition and join fully in its legal analysis, I find the outcome of this case to be troubling.



Even the Government appears to accept that the terrible death of the victim here was an unintended consequence of the defendants' act of burning down a house they viewed as theirs, in order to end a long-running family disagreement. It has not been disputed that the defendants acted without knowledge that the victim, previously seen getting into a car, had returned to the house and fallen asleep in a bedroom. Nothing reflects any intent on the part of the defendants to injure the victim or anyone else. Aside from this one episode, the defendants have had only a few minor brushes with the law. Yet the mandatory sentences of life imprisonment mean that the lives of these young people, aged 25 and 21 at the time of conviction, may be entirely squandered in prison. It is appropriate that the defendants be seriously punished for what they did, but these life sentences do not square with my concept of justice.

I do not suggest that a mandatory sentence of life imprisonment for felony murder is fundamentally unjust. Rather, I am struck by the consequences of how prosecutorial discretion was exercised in this case. It is telling to me that the Government has made no effort to defend these life sentences based on the particular facts here. I acknowledge that I may not have a complete picture, because it has not been necessary for us to investigate the details of all that occurred that night. I agree with the Government that serious punishment is properly in order. Arson is a serious crime. Anyone setting a fire, even if acting legally, should be responsible for making sure that it is done safely and that nobody will be hurt, which the defendants failed to do. But the Government has


not argued or even indicated a belief that the appropriate punishment on the facts of this case is life imprisonment. Why did the Government pursue first-degree murder charges, if it cannot justify the resulting mandatory punishment based on the specific acts of these individuals? What happened here seems much more like what most people would understand as negligent homicide; I suspect few, if any, would consider this "first-degree murder."

Rather than justify the life sentences for these defendants, the suggestion was made at oral argument that felony murder was charged here so that the defendants might be persuaded to accept a deal that involved pleading guilty to a lesser charge. Despite my appreciation for the candor displayed by the Government, this explanation provides no comfort. Whatever might be said about


using charging decisions as part of hardball negotiation, there is nothing to commend carrying this strategy through to conviction, at least in this case. The Government brought these charges; it cannot pretend to be an innocent bystander without responsibility for what happened thereafter.

Extreme justice is extreme injustice, according to an ancient legal maxim cited by Cicero. Bartlett's Familiar Quotations 108b n.7, 151b (Emily Morison Beck ed., 14th ed. 1968) ("summun ius summa iniuria"). So it may be here. This


court cannot properly alter the result of what was set in motion by this prosecution, but that does not have to be the end of the story. The President has the power to temper justice with mercy. I hope that the Executive Branch revisits this case and, if the facts truly are as they have been made to appear to us, will consider letting the defendants go after a more appropriate term of incarceration.

Don't hold your breath, Judge.