Detroit Prosecutor Kym Worthy is livid over the creampuff sentence handed down by Judge Michael Hathaway in the Tigh Croff vigilante shooting of a would-be home invader, and has promised to appeal it.
The prosecution has contested Judge Hathaway’s decisions since, during the first trial last August, the judge unilaterally reduced the principal charge of murder 2 to manslaughter, ruling that under the evidence Croff was still hot-blooded when he shot one of the break-in suspects to death, and that the proofs showed this to be a “textbook case” for manslaughter. The jury was hung after the August trial, forcing Judge Hathaway to declare a mistrial.
When Croff was originally interrogated by DPD officers, he was brutally honest. He had returned from his job as a security guard to find two men in his backyard, apparently with the objective of breaking into his home. Retrieving a firearm, Croff chased one of the men, 53 year old Herbert Silas, for a couple of blocks when the older man ran out of steam, turned to Croff with hands raised in surrender. He gave Croff a ‘mercy’ look, according to defendant.
As the two men faced each other on Marquette street, Croff was in full control. Silas was no longer a threat to Croff or his property, so Croff was beyond the realm of justifiable homicide. Yet Croff evidently saw Silas as a representative of the break-in artists who had visited his home twice during the past 30 days. He rejected the helpless man’s gesture of surrender, and his further actions were those of a vigilante, He told investigators what he told Silas: “You are going to die today.” Croff then shot Silas to death, a punishment Silas never would have suffered had Croff turned him over to the police.
Croff was tried again and the jury deliberated only about two hours before finding Croff guilty of manslaughter and felony firearm.
At sentencing, Judge Hathaway had no discretion on the felony firearm charge; the statute mandates 2 years in prison. However, the judge gave Croff three years probation on the manslaughter charge, and also ruled that the first two years could be served concurrently with the firearm charge, Normally, the charge on the principal offense must run consecutively with the higher felony, That is not the case when the penalty for the higher case is less than the two years mandated by the felony firearm statute. In this case, no prison time resulted from the manslaughter conviction. So Croff will do his two years in state prison and have left only a single year of probation when he gets out.
So how will Wayne prosecutor Kym Worthy fare on her promised appeal? I would give her a 40% chance of success. She will argue that the sentence for manslaughter was unduly lenient, using Croff’s own admissions to Investigators about Silas’ attempt to surrender. Parenthetically, former Macomb prosecutor Carl Marlinga called the sentence “unduly light,” adding that people cannot shoot suspects “who are at bay, under their control, or at their mercy.”
Worth will include the fact that the sentence of three months probation was considerably more lenient that what the sentencing guidelines suggested. Under the guidelines, Croff should have been sentenced to a minimum of 2.5 years in prison for manslaughter. Yet a sentencing judge has the discretion to go lower or higher than the guidelines if there is a compelling reason to do so.
Judge Hathaway’s downward departure was predicated on Croff’s feelings at the time of the shooting. Hathaway said the prior break-ins had left Croff feeling frustrated: “He was enraged,” Hathaway said at the sentencing hearing. “He felt hopeless.”
I can sympathize with Croff, but there is an old adage that ‘hard cases make bad law.’ I’m certain Judge Hathaway did not want to encourage vigilante activity, but this sentence seems to have resulted in a very soft landing for one. The standards Kym Worthy must meet on appeal are high, but there is a solid chance she could prevail, putting some backbone into this sentence.