Neko Wilson – courtesy photo

By Layla Mustafa

NAVAJO COUNTY, AZ – After having spent almost the entirety of his adult life fighting the criminal justice system, Neko Wilson finally departed the Navajo County Detention Center as a free man Oct. 23, about six weeks ago.

No longer will Wilson be required to endure the looming threat of the District Attorney’s office here and its “mission” to keep him a prisoner.

While Wilson, friends, and family rejoiced in the justice finally awarded to the defendant, the celebration remained bittersweet. When prosecutors realized the battle they faced would be too great, the charges holding Wilson in Arizona custody for over 15 months were immediately dropped.

The ultimate guilty plea to a probation violation Wilson entered on Oct. 20, 2020, swiftly ended a nearly 20-year uphill battle with the courts, and left many questioning—what went wrong?

In Neko Wilson’s case, it seems like the answer is almost everything.

And while the details of Wilson’s case make it unique in its own right, it is not a surprising story to be found in the American criminal justice system.

Interestingly, and fortunately, it didn’t hurt that Neko’s brother—Jacque Wilson—is a San Francisco public defender, who worked relentlessly to enact legislation which would eliminate archaic law.

Neko Wilson’s history with the courts is a testament to the institutionalized racism and pattern of official misconduct which permeates society and courts. Unfortunately, the injustice Wilson encountered is not uncommon to a countless number of persons in our society.

In both California and Arizona, an overview of the Wilson case (and its aftermath), can help to illustrate the number of legislative flaws which effectively inhibit the basic human rights of defendants.

In 2003, Wilson’s saga began with a traffic stop on Interstate 40 in Arizona. Wilson was the passenger in a vehicle cited for speeding; the driver got away with a warning—Wilson was not so lucky.

The Wilson family has maintained that the traffic stop was an instance of racial profiling.

The non-Black driver was let off with a warning, while the officer decided to search Wilson. The Wilson family has contended the search was unlawful and has said in Wilson’s case he was “stopped for riding while Black.”

The stop and search led to law enforcement officials locating under five pounds of marijuana—enough to result in a conviction.

It is fitting that this Nov. 3, 2020, the people of Arizona passed Proposition 207—legalizing recreational use of marijuana in the state. While the legalization would have not made a significant difference to the ruling in Wilson’s case, it does depict Arizona’s changing attitudes toward the substance.

The state’s modified outlook on marijuana can be further represented in its criminal arrest statistics. According to the FBI Crime Data Explorer, between 2006 and 2019 there was a 37.48 percent decline in marijuana arrests made in the state. These facts indicate that Neko Wilson reasonably faced much harsher court prospects in 2006 than if he had been convicted in 2020.

Furthermore, currently in Arizona, if you are found in possession of four pounds or more of marijuana, you are charged with a felony and face 1-3.75 years of incarceration.

In fact, anything over an ounce is classified as a felony. By comparison, in California, where The Vanguard is based, and Wilson’s place of residence, possession of any amount over 28.5 grams is classified as a misdemeanor—at most, you may face six months in prison.

Time, social climate, and state played significant roles in the arrest and subsequent legal proceedings Wilson experienced in his 2006 conviction.

According to local legal experts, in Navajo county in particular, it is very common to be charged with possession of marijuana. Police and drug enforcement officials are typically on the lookout for anyone they think may be in possession or transportation of a drug—even if they have no direct evidence to believe so.

This history of arrests in the county influences suspicion over racial profiling, particularly in cases like Wilson’s.

At the time of his arrest, 21-year-old Wilson was given state appointed counsel. Wilson was discouraged from fighting the case on the grounds of racial profiling or illegal stop and search. In fact, Wilson claimed that his counsel implied that if Wilson did not accept a plea deal, he would be sent to prison.

District Attorney Joel Ruechel presented the young defendant with what seemed like an easy way out.

Arizona law allows conditional release or alternative sentencing for people facing their first prosecution. Typically, the conditional release would allow one to opt for probation rather than trial. To a young person, uneducated in legal procedure, and given unhelpful counsel, probation is presented as the only viable option.

Thus in 2006, DA Joel Ruechel offered Wilson a bargain to plead guilty in exchange for probation time. This exchange—made by a naive young person and a tenured DA who has been described by his colleagues as “feared by the defense bar”—would one day return to haunt Wilson.

Six years after the traffic stop, Wilson was arrested in California for his alleged involvement in a robbery that resulted in the murder of a couple in Fresno County.

Wilson was not one of the two men who entered the house of the couple. Nor was Wilson in the getaway car for the duo’s escape. The simple assertion that Wilson had helped to plan the robbery led to a new potential conviction and death sentence.

Under California’s “felony murder” rule, a defendant could be convicted of first-degree murder if a victim died during the commission of a felony – whether or not the defendant had any intent to kill or any knowledge of the murder.

Wilson remained in California jail under pretrial detention for more than nine years. During that time his brother Jacque Wilson, a San Francisco public defender, worked relentlessly to enact legislation which would eliminate the archaic law.

Jacque’s efforts came to fruition as of September 2018 when Senate Bill 1437 was made into law in California. The new law, which was widely backed, changed the definition of felony murder so that it significantly reduced the possibility of a defendant being unfairly prosecuted.

Under 1437, the new legal definition of felony murder is that a person must have actually killed someone, acted with the intent to kill someone, was a “major participant” who acted with reckless indifference to human life, or killed an on-duty police officer as a result of the commission of the felony. 

A significant difference for cases like Neko’s was the redefinition of aiding and abetting in murder to clarify that there must be evidence of some intent to kill.

The legal changes enacted through 1437 provided new opportunities for many inmates to petition the court for a reduced sentence, and also indicated lighter sentences/outcomes for future defendants facing felony charges.

Under the enactment of Bill 1437, prosecution dropped the murder charges against Wilson, and he eventually pleaded guilty for the second time—this time to armed robbery.

After more than nine years of incarceration, and a resulting monumental change to Californian felony murder procedure, Wilson walked free on Oct. 18, 2018. Or so he thought.

Wilson’s freedom was short-lived. The bargain Wilson made almost 12 years prior had finally returned to haunt him.

Wilson’s legal team alleged that following Wilson’s release California district attorneys reached out to Navajo County prosecutors to inform them of his discharge. The next day, Arizona reopened a probation revocation and later reissued a warrant for Wilson’s arrest.

On May 14, 2019, Wilson traveled to Arizona two days before his sentencing date in California. At the time, Arizona Judge Robert J. Higgins declined to remand Neko, and allowed him to stay out of Arizona custody in order to attend his Californian sentencing on May 16.

Three months later, Judge Higgins returned to grant District Attorney Ruechel’s request that Wilson be held without bail.

Wilson’s defense team argued that under the Interstate Compact Act, Navajo County should have filed a warrant with the National Crime Information Center (NCIC) but failed to do so. Since Californian authorities were never notified, Wilson did not have the opportunity to serve time for the probation violation concurrently with his Californian sentence.

Neko returned to Arizona on July 2, 2019, where he was subsequently held for 15 months pending the outcome of his case, and forced to endure more injustice at the hands of the law.

During his 15 months without bail or bail hearing, Wilson and his team made multiple attempts to file petitions or motions for his release. Attempts ranged from arguing for courts to grant Wilson bail, or arguing that the interstate warrant misconduct obstructed Wilson’s due process.

As described by his brother Jacque Wilson, they were planning on “fighting them in every court.”

The defense team’s tireless fight was made more urgent as the country experienced an accelerated spread of the COVID-19 pandemic.

The team fought for a bail hearing so Wilson could at least self-isolate at home. Wilson suffers from severe underlying health issues and implored for his release to avoid being exposed to the virus.

Several jails across the country have released nonviolent detainees or those who are being held pretrial to decrease risk of an outbreak. Wilson’s team was hoping for some similar luck to ensure the defendant’s safety, but ultimately was not granted this request.

District Attorney Ruechel, meanwhile, did everything he could to ensure that Wilson’s pretrial release would not occur, and that a request to self-isolate would be denied.

Ruechel reasoned his argument with Arizona Rule 7.2(c) which he claimed mandated that Wilson be held without bail. Rule 7.2(c) was ultimately the bedrock for Judge Higgin’s ruling to hold Wilson without bail for more than 15 months.

Yet, the premises for Higgin’s ruling actually allowed the defendant’s team to gain some traction in court. The team was able to file a special action petition to the Court of Appeals, arguing against the prosecution and court interpretation of the rule.

In this special action petition, Wilson contended that Rule 7.2(c) was inapplicable under the current version of Rule 27.7(c) which had been amended by the Arizona Supreme Court on January 1, 2018.

The Rule 27.7(c) stated prior to its modification: “At the initial appearance, the court must advise the probationer of the probationer’s right to counsel under Rule 27.6, inform the probationer that any statement the probationer makes before the hearing may be used against the probationer, set the date of the revocation arraignment, and make a release determination under Rule 7.2(c).” However, on January 1st, 2018 the task force removed the line: “under Rule 7.2(c).

The Court of Appeals found Wilson’s contention to carry some weight. The court came to the conclusion that, “When language from a rule is deleted, we infer that it was done purposefully, to make clear that the omitted phrase no longer has any effect.” (para. 14) Additionally, they asserted that the decision to remove the reference was “sensible” given that Rule 7.2(c) refers to the release of a convicted defendant, while Rule 27.7(c) refers to the release of a probationer awaiting a hearing on a petition to revoke probation.

In a final attempt to keep Wilson a prisoner without a hearing, the prosecution fought the Court of Appeals decision through an Oral Argument.

On Oct. 13, 2020, the Arizona Supreme Court heard an Oral Argument regarding the finding made by the Court of Appeals. The District Attorney’s office argued that the Court of Appeals ignored 7.2(c)’s plain language and asked that the court reverse the decision made by the appellate court.

Since Neko had pleaded guilty to the 2003 marijuana charge, the District Attorney’s office attempted to argue that Wilson had already been convicted and so he should be held pursuant to 7.2(c). Wilson attorney Lee Phillips maintained that since Wilson had yet to be convicted of any violation of probation, the state’s language on conviction did not apply to him or probationers in general.

This proclamation, in effect, carries the capacity to alter many future rulings and court determinations for Arizona probation cases. By labeling probationers as “pre-conviction,” more defendants will have the ability to receive bail hearings.

Future probationers in Arizona should not have to endure waiting months in jail without any sign of a speedy and fair trial. The argument begs the question: why should a defendant be held on a charge or violation they have not yet been convicted of?

Through this translation, many Arizonans remain hopeful that defendants held months without a release determination hearing will remain a thing of the past. In Arizona, Wilson’s case is instrumental toward guaranteeing a probationer’s right to due process.

After deciding to vacate the Court of Appeals and trial court decisions, the Arizona Supreme Court ultimately decided to hold a release determination hearing for Wilson.

The District Attorney’s office understood that Wilson’s team was not giving up, and prosecutors immediately arranged to resolve the case.

Wilson’s team sustained a multitude of potential defense options if this case had remained open. The team could have appealed back, resulting in more case law, or they could have sued the District Attorney’s office for failing to produce an interstate compact warrant, and violating Neko’s due process—the list goes on.

Instead, it was quietly resolved all within a couple of days. The District Attorney’s office offered a plea deal to have Neko admit the violation and, in turn, the DA would terminate his probation. This was the third and final plea deal in Neko’s case.

After 17 years as a prisoner of the criminal justice system, Neko Wilson left the Navajo County Detention Center on Oct. 23, 2020, as a free man. In Wilson’s wake lies monumental reform to Californian legislation and historic change to the future of Arizona probation cases.

Wilson’s story shows one man’s battle against the racial bias and systemic misconduct which widely pervades the American legal system.

Neko Wilson’s 17-year fight for freedom was long, convoluted and confusing, but in its essence it was not unique and should serve as a warning against the weaknesses of a legal system that reinforces inequality.

Layla Mustafa is a recent graduate from UC Davis. She is currently applying to law school and living in the Bay Area.


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