HOST INTRODUCTION:
When you’re sixteen or seventeen do you really think about what you’re doing and who you’re doing it with? Sometimes, sure. But not all the time. There’s science to show that teens don’t think like adults. Their brains aren’t fully developed. That means two things. First that they didn’t have the same ability as an adult to consider the consequences of their actions, and second, that in time, when their brain does become fully developed, they can be rehabilitated.
For these and many reasons, the US Supreme Court issued a series of decisions that teens can’t be sentenced to death and they can’t be given an automatic life sentence without the possibility of parole. But what does that mean? How long can a state send a teen to prison before they have a chance at parole?
If you break the law and are sent to prison as a teen, how long do we wait to give you another chance? This week on Life of the Law, Reporter Brenda Salinas is going to tell us about Ashley Ervin.
STORY:
17 year old Ashley Ervin didn’t shoot anybody…but she did drive home the boys who did.
Back in 2006, Ashley was a shy, honor student from a black-middle class neighborhood in Houston. She was hand-picked to attend a special high school that focused on science. Her teachers loved her. She wanted to go into medicine.
ERVIN: And, right now I think that if everything would’ve happened as planned, I would’ve been a nurse right now.
Sophomore year, Ashley started dating a boy from her school named Keithron. She liked that he was soft-spoken, like her. She was a teenager in love.
ERVIN: That was my first boyfriend, and I knew it was possible that it could’ve been plenty others after that, but at seventeen that was like, that was all I seen. So, I kind of, just, put my all into that, and it was like, that was just it for me.
Keithron had a friend, Dexter. Ashley sort of knew that guy was bad news. They’d grown up in the same apartment complex, and he was always in and out of trouble as a kid. Ashley has always been really close to her mom. So maybe it says something that she didn’t tell her mom when she was hanging out with Dexter.
Most of the time, the three of them did typical high school stuff. They’d watch movies, listen to music, just hang out. But they also had some riskier habits.
One night, the three of them were out driving around Houston in Ashley’s car. It was late May, Memorial Day weekend, 2006. Dexter was driving. Ashley was dozing in the backseat. It was well after midnight.
ERVIN: And, I wake up to a car door slamming.
She could tell that her boyfriend Keithron had just gotten back in the car. He was wearing a hoodie with the hood up. He told Dexter that the woman didn’t have any money. They drove off.
ERVIN: I could tell that something was going on that wasn’t right.
A little later, Dexter noticed that Ashley was awake. He asked her to drive. They swapped places. Ashley started driving towards Keithron’s house. It was nearly dawn.
ERVIN: And, I’m at a stop light, and, I guess, he, I don’t know, he seen something or something, and he tells me, you know, “Turn here, and let us off here.” So, I do it, and in that instant, that’s when it all happened.
At a carwash near the intersection, an older man was busy washing a truck. Dexter and Keithron hopped out. They had guns in their hands.
ERVIN: He tried to rob some – this man, and, I guess, during the course of it, something went wrong, and, the man was shot, and he was killed.
The man was retired shop teacher Brady Davis. He had woken up at the crack of dawn to go to his local carwash. He was catering a barbecue later, and he wanted to clean his pit and trailer. Dexter and Keithron approached him wearing black bandanas over their faces. They demanded that Brady hand over his wallet. Brady had taught young men who looked just like them. Maybe he thought if he could only talk to them… He was found lying behind his truck with a single gunshot wound. He was 61.
Meanwhile, Ashley had driven around the corner to go to her house. So she says she didn’t actually see Dexter fire the gun.
ERVIN: I heard a gunshot, but I didn’t know, exactly, you know, where it came from, or what was going on, or anything. I didn’t know what was going on.
Ashley says she told herself, “I hear gunshots in this neighborhood all the time.”
ERVIN: And as I’m going back up the street, they’re running to my car, so I stop of course, and they get in, and they don’t say anything to me, and I just drive them back home.
Ashley says when she drove away she didn’t know what was happening. Police and prosecutors say she knew exactly what was going on.
About a month later, at the end of June, two plainclothes police officers showed up at a local McDonald’s where Ashley worked part time as a cashier. They had been looking for Ashley’s boyfriend, Keithron. He was a suspect in another crime — a rape and double murder committed in mid-June, a few weeks after the Brady Davis murder. The police had found out that Ashley and Keithron were dating. So when they couldn’t find Keithron, they stopped by Ashley’s work to see if she could help them.
The officers asked if she would come with them. She agreed.
ERVIN: In my family, I was always told, like, if you have to answer questions, just tell the truth and nothing will happen, I mean. That’s how my family was. But, looking back now, a lot of people in my neighborhood they probably would have never…freely went with the police like I did.
At first, the officers didn’t think she had anything to do with either crime. But then she mentioned her car – a black Nissan Sentra identical to one at the second crime scene. They asked if they could search it. She said yes, and the police had her car towed to the station. Then, the officers said they needed to take her to the station for questioning.
ERVIN: Actually that whole time I didn’t think that I was in trouble at all. And actually they kept telling me that I wasn’t in trouble, so they made me feel like… I wasn’t.
When she got to the station, the officers told her she wasn’t in custody. They said she was free to leave any time she wanted. They gave her food. They let her use the bathroom. Then they asked her about the rape and double murder case. The case in which her boyfriend Keithron was a suspect.
What she said must have been a surprise. Because Ashley, it turned out, was a witness to those crimes, too.
According to the police report, here’s what Ashley said happened:
It was late one night in mid-June 2006. 23 year old Maria Aparece was sitting in her parked car with her 17 year old boyfriend, Huy Ngo. They were talking when Dexter, Keithron, and another man approached them with a shotgun and a pistol and forced the couple into the backseat. Then, they drove around Houston demanding the couple give them money, credit cards and PIN numbers. Ashley’s cousin followed them in Ashley’s car, with Ashley as the passenger. Both cars drove to a wooded area. There, Dexter raped Maria while Keithron held her boyfriend back. Then Dexter made the couple march 60 feet into the woods, naked. He shot them in the head, execution-style. Ashley heard the gunshots. Afterwards, she and the three attackers went back to her boyfriend Keithron’s apartment.
At the police station, Ashley put this all in writing. Then, the police officer asked her about the Brady Davis murder. The one that happened in late May at the carwash, before the Aparece and Ngo murders. The officer suspected that Keithron and Dexter might also be involved in that crime…and that Ashley might know something about it, too.
So Ashley made a second written statement. She told the police everything that she saw and heard. And contrary to what she told me — that she was dozing in the car, that she didn’t really know what was going on — she told the police she knew Keithron and Dexter were robbing people. She knew they had guns and that Dexter had fired his. She also told police she knew all this when she drove Keithron and Dexter home after the murder at the carwash.
After the first day of voluntarily talking to the police, Ashley went home. The next day, police went to her house and said they had more questions for her. She agreed to go with them. They gave her a ride to the station.
When she got there, the officers read her her Miranda rights. You have the right to remain silent. You can ask for an attorney. Anything you say may be used against you in a court of law.
She agreed to answer their questions without an attorney. They asked her to give the same statement she’d given the day before. This time, they recorded her. She incriminated herself, again. She said she was the getaway driver after the murder at the carwash. And this time, her statements could be used against her in court.
It’s important to say here that Ashley’s aunt, Autumn Hawkins, says that the statement Ashley made to police wasn’t the truth.
HAWKINS: No it’s not correct, they you know sometimes you can tell them one thing and then they come up with something totally different from what you said and I think after her being there for so long, she was just ready to go home, you know.
That night, police questioned Ashley for five hours before they let her go home. Her aunt Autumn suspects the police fed Ashley information about the murders, information that she previously didn’t have. Autumn thinks Ashley added that new information into her statements because she was tired and wanted to go home.
HAWKINS: You know with her being 17 the first time talking to police officers, they kind of coerced her, you know into what to say if you say this we’ll let you go home.
The police didn’t charge Ashley in the Aparece/Ngo murders. Though she was at the scene of the crime, there was no evidence that she’d helped commit the crime.
But the Brady Davis case was different. There, Ashley herself said that she’d driven the getaway car. So the police charged her: with capital murder.
ERVIN: That’s when they told me, well, you’re, I don’t remember the exact words, but that’s when they told me that I was being arrested, too.
They took her to the county jail. That’s where she sat for almost 2 years, waiting for a trial.
In Texas there’s something called the law of parties. The law says if you knowingly played a significant role in a crime, if you added to the momentum of it in any way, you can be charged for that crime. So if you witness a murder, you’re not necessarily on the hook. But if you’re the getaway driver in a murder, like Ashley was, you can be charged as if you had pulled the trigger.
So things didn’t look good for Ashley. If she was found guilty of capital murder, she’d get a mandatory sentence of life in prison without the possibility of parole.
But right before the trial, the prosecution came to Ashley with a deal: plead guilty to a lesser offense, testify against Dexter and you’ll get 35 years. Prosecutor Lisa Andrews says she still doesn’t understand why Ashley didn’t take the plea.
ANDREWS: I mean, the evidence against her was overwhelming and the law was clear about what her punishment could be, and then she was offered an opportunity that she didn’t take.
Even Ashley’s lawyer encouraged her to take to plea. And she was going to do it.
ERVIN: And right at the last minute, when I was taken into court to plead guilty to this lesser offense, um, I turn around and I looked, and my family was there. And I see my mom, and she just looked at me and she just shook her head, like, like, “No, what are you doing, you didn’t do this, so, you can’t.” So, I didn’t. I didn’t sign for it.
Ashley’s aunt, Autumn, says she’s glad her niece didn’t take the plea.
HAWKINS: Because we felt, her mom felt that her taking the 30 years is actually agreeing and saying that I’m guilty of doing this, and later on down the line she couldn’t appeal that 30 years because she said she was guilty and she really didn’t want to do it but she thought of it as 30 years at least I might have a chance of coming home but her mom was telling her you know, no, she didn’t want her to accept that and plead guilty to something that she didn’t do
In February 2008, after close to 2 years behind bars, Ashley finally went to trial. Despite the odds, she felt confident.
ERVIN: Yeah, I definitely thought that, without a doubt, I’m like, I know that I didn’t kill anybody – I wouldn’t hurt anybody. So I’m like, “Oh yeah, I know I’m gonna get out of here, I’m gonna go home.” But it didn’t happen like that.
The jury made their decision pretty quickly.
ERVIN: They deliberated, and I don’t – it wasn’t even that long that they deliberated, maybe a couple hours, and I was called back into the courtroom, my family was there, and, um, that’s when they read the verdict.
Guilty of capital murder. Even though she was 17 at the time of the murder, she was tried as an adult. The verdict came with an automatic sentence – life in jail without the possibility of parole. Ashley was in shock.
ERVIN: I just can’t believe any of it. Like, even though it’s been ten years, it still like, it still amazes me every day, like, every morning when I wake up I can’t believe that I’m in prison, and for life without parole? That’s what they gave me. It’s… I can’t grasp that.
Ashley was sent to state prison at the Texas Department of Criminal Justice Hilltop Unit. It’s a minimum security prison for women in Gatesville, Texas, near Fort Hood. Every day since 2008, Ashley says she wakes up in her cement cubicle at 3:30 am. She works at the garment factory, where she sews Texas flags and prison uniforms. When she’s not working, she calls her family, writes letters and studies for the college courses she’s taking. In 2010, she appealed her sentence, but the appeal was rejected. It looked like Ashley would spend the rest of her life in prison.
But in the last decade, the US Supreme Court has made a series of major decisions that could change things for Ashley. Punishments that were once considered okay for juveniles were, one by one, ruled unconstitutional. Hadar Aviram teaches law at U.C. Hastings.
AVIRAM: I think, or in the, the first decision in this stream of decisions is Roper v. Simmons, it’s a decision in 2005, in which the Supreme Court says you can’t sentence a juvenile to death. It’s unconstitutional, they’re not as culpable as adults, so that’s the first rung in the ladder. Then we have Graham v. Florida, which is the decision in which the Supreme Court says you can’t sentence kids to life without parole for crimes that are not homicide. Then you have Miller v. Alabama, a decision from 2012, in which the Supreme Court says you can’t use a mandatory sentencing scheme that requires giving life without parole on juveniles, you have to have discretion.
In other words, the Supreme Court’s decision in the Miller case said that the sentence Ashley had received — automatic life without parole — was unconstitutional. But Miller only affected future sentences. The ruling didn’t apply to inmates who had already been sentenced to life without parole for crimes they committed as teenagers. Inmates like Ashley and more than 2,000 others nationwide. Would they have to spend the rest of their lives in prison? This past January, the Supreme Court began to answer that question.
AVIRAM: And then you have Montgomery v. Louisiana, decided in 2016, just recently, saying that Miller applies retroactively.
So let me explain. Remember, in the Miller case the Supreme Court banned mandatory life sentences without parole for juveniles — going forward. In the Montgomery case this year, the Court said that that ban also applied to people who had been sentenced to life without parole as juveniles in the past.
One of those people was Henry Montgomery. In 1963, at 17, he was convicted of murder and sentenced to mandatory life without parole. He’s now 69. Officials say he’s become a model inmate. He coaches the prison boxing team, is part of an art program and mentors younger inmates. As a result of the Supreme Court ruling, he’ll now be considered for parole.
Professor Aviram says that the new ruling could impact thousands of people in Henry Montgomery’s position.
AVIRAM: Which is to say, there are now people in their 50s and 60s, like Henry Montgomery, from Montgomery v. Louisiana, who were originally sentenced to life without parole when they were 16, 15, and the Supreme Court says you have to remedy that, that was an unconstitutional sentence, and you have to award these people special parole hearings that will take into account the age that they were when they committed the offense.
Different states responded to the Supreme Court ruling in different ways. Texas lawmakers decided that anyone automatically sentenced as a juvenile to life without parole would still have to serve 40 years. But after 40 years, they’d be eligible for parole. That means Ashley — and 26 other Texans in the same situation – will eventually get a chance for parole.
But just being considered for parole doesn’t guarantee freedom. In Texas, only about a third of the people sentenced for crimes in the same legal category as Ashley are eventually granted parole. Plus, Ashley will be in her fifties before she’s considered for parole. Whether she gets out depends on a number of factors: the severity of her crime, her record in prison, and to what extent she expresses remorse.
The board may also consider Ashley’s age at the time of the murder. In the past few years, lawyers and judges have begun to pay closer attention to the science of the teenage brain. Research shows that teenage brains work differently than adult brains.
JENSEN: Even into young adulthood, your brain is not done until your mid to late twenties.
Frances Jensen is a neuroscientist at the University of Pennsylvania. She says teenage brains get more of a rush from risky behaviors. And, teenagers are still developing their pre-frontal cortex. That’s the part of the brain responsible for decision-making.
JENSEN: So if you can imagine this brain that is, you know, it’s emotional area for risk-taking, impulse control, novelty seeking, emotional behavior, sexual desire, all of that, actually on at a higher rate in general than the adult brain; and it doesn’t have the frontal lobe to say, wait a minute, that’s a bad idea, let me rationalize this with you, you know, let’s think about cause and effect.
There’s a silver lining to the teenage brain’s immaturity: Jensen says that young brains are more flexible than adult brains. Which means under the right circumstances, people who commit crimes as teenagers can be effectively rehabilitated. But law professor Hadar Aviram says usually prison isn’t “the right circumstances.”
AVIRAM: We know that juveniles that end up doing long sentences in adult prisons end up disproportionately committing suicide, they’re disproportionately physically and sexually victimized. And that is something that is really disconcerting especially given the fact that as prisons are now they are not really a place that rehabilitates you, they’re a place that habituates you to a very problematic life from a very young age.
Ashley says, after eight years in prison, she doesn’t feel like she’s grown up at all.
ERVIN: Actually, um, I still feel like I’m seventeen. Like, um, I consult with my mom about basically everything before I do it, and that’s – I feel like I shouldn’t be like that because I am twenty-seven now, but I feel like I’m stuck at that age, because of all this happened to me, and I never got to experience a lot of stuff, and that’s really all I know. So, it’s kind of hard for me to sometimes say, “Ok, you’re a twenty-seven-year-old, you’re not seventeen anymore.” But I’m just kind of stuck there.
With no guarantee that Ashley will ever get parole, she and her family are working on another strategy to get her out of prison: a second appeal.
HAWKINS: With her already have done 10, wow 40 years, that’s a long time, you know so I would hope and pray that we can get something way before then
Her family has hired a new lawyer. His name is David Rushing. Ashley’s aunt Autumn says Ashley’s mom sends him all the money she can.
HAWKINS: It’s hard for her to send try to money, keep money on the books and pay the lawyer, and keep the payments but the help of her and me and the family, we’re putting it together, trying to do it.
Ashley’s aunt says the goal is to convince a higher court that the statements Ashley gave to police should not have been used to prosecute her.
The thing is, Ashley’s first lawyer already filed a similar appeal. That appeal was refused. I wanted to find out how this second appeal might be different from the first. So I reached out to her new lawyer to ask him. He has 4 different phone numbers listed on the internet. I managed to talk to him on the phone once. He even left me a voicemail.
CUT OF VOICEMAIL
But when I tried to schedule an interview with him, he stopped responding. So I went to Houston to look for him. He has two offices listed online. One downtown and one in an upscale business area. I went to both. He doesn’t work at either office anymore.
So I went to his house – one of his houses – and left him a note. He still hasn’t gotten back to me.
Meanwhile, Ashley is out of the loop. She goes to the prison law library to try find out what’s happening.
ERVIN: Yeah, sometimes I go and I try to look up as much as I can things that apply to me, or that I think applies to me, and I may not necessarily understand all of it, all the legal terms and everything, but I still try to like go over it as much as I can and try to, you know, figure out some things, or if I have questions I try to get in contact with my family or have some legal assistance from somebody and I just try to go from there.
A few days after I met with Ashley in prison, I got a letter from her in the mail. She included a poem. She wrote it a few years into her sentence, but says she still feels the same way. It’s called “Lost.”
Her Aunt Autumn reads the poem.
HAWKINS:
Two different worlds, I don’t quite fit in.
Pain and hurt is how my story begins.
See, I thought I was in love and I fell deep, I fell hard.
I thought that love would fill my void.
Instead it left me with bitterness towards that person.
Lost and confused, this I know for certain.
Why must I suffer? Why must I feel pain?
Lost in a world where it seems like everything is a game.
Who can I talk to? Who can I trust?
I hold all my feelings in until it feels like I’ll bust.
It’s like I’m trapped in a maze with no way out.
I pray to God, but does he really hear me out?
I’m just so lost…
That’s it, that’s a poem from Ashley.
For Life of the Law, I’m Brenda Salinas.
HOST OUTRO:
Kids Doing Life — was reported by Brenda Salinas and edited by Jess Engebretson with sound design and production by Shani Aviram. We want to thank Rachael Cain, our summer intern, and Megan Flynn, Beth Schwartzapfel and Terry Langford for their reporting and help with production. Kirsten Jusewicz-Haidle is our Post Production Editor. Howard Gelman is our engineer.
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I’m Nancy Mullane. Thanks for listening.
