My prediction: No diversion for Mary

How much time, if any, will Mary Winkler get for killing her husband in his sleep?

There has been quite a bit of speculation flying around after it was announced last week that Mary is asking for a judicial diversion following her recent conviction on the Class C felony of voluntary manslaughter for shooting her husband, Matthew Winkler, in the back while he lay sleeping.

While it is obvious there are varying opinions on whether she was a battered woman acting in self defense or if she was a cold-blooded murderess, the fact remains it is her right to ask for a judicial diversion since she was convicted of nothing more than a Class C felony. Any one of us can ask for the same thing provided we haven?t spent time in jail or had a diversion in the past.

A diversion basically places the person on probation for an amount of time. If they get into no further trouble, they can ask for their criminal record to be erased at the end of their diversion. A diversion can be asked for before a trial or even after a conviction.

Once the petition is filed, the judge is required to consider the request and make a written reason of why the request is being denied. A judge is also required to consider other forms of punishment which do not include incarceration.

With that said, my prediction (and it?s only a prediction based on how most courts around here work) there?s no way Mary gets a judicial diversion. While she has no prior criminal record, the seriousness of the offense itself will likely preclude the judge from allowing such a move. Even if he were to find a legal ground to allow the diversion, which would be stretching the letter of the law, he would be penciling himself in as the next Judge Ito and be writing off any chance of re-election to his post.

It?s one thing to sit quietly and proceed with caution during the trial, as that can be seen as patience and diligence to the rights of the accused. However, it?s something totally different to be seen as being soft on crime in the same town where Buford Pusser once roamed with a big stick. Granting a diversion in a homicide would be seen as being soft on crime by most of the folks down there who want their judge to be firm in sentencing.

What I believe we will see is a split sentence, meaning the judge will sentence Mary to serve a certain amount of time behind bars and the rest on probation. This is kind of like what happened to Pamela Rogers, that is, until she broke probation and was sent back to jail to serve more time than Mary ever will. The Solomon-like thing to do would probably be to sentence her to serve one year behind bars and have her spend the remainder of a five-year sentence on probation. There?s several reasons for this.

First, it doesn?t just set her free given the seriousness of her crime on the time she has already served. It also allows her to opt to serve her time in a local jail either here or in Selmer as you can do that with any split sentence in which you are to serve less than a year. Plus, instead of leaving her supervision in the hands of some parole officer, a split sentence puts her under the trial court?s supervision for review so the judge has the final say. And, since she could be out after 30 percent, there?s no guarantee she would spend a large amount of even a maximum six-year sentence in prison.

And, the biggest reason for the relatively short sentence is that it also reduces the chances she will appeal seeing she is in a custody battle for her children. If she appeals it could take years for the appellate court to make a ruling and that could delay her getting her children back.

Once again, I?m not the judge, thank goodness, but from what I?ve seen in other courts, the scenario I just cited could be your outcome.

Duane Sherrill is a reporter for the Standard. He can be reached at 473-2191 or by e-mail at [email protected].