Anne Avery Miller

May 9, 2010

Anne Avery-Miller’s Suicide: Friends and lawyer say jail hanging was totally preventable
 By Anne Stanton
The woman who once jokingly called herself the Britney Spears of
Northern Michigan is now dead, after hanging herself in an Antrim
County jail cell.
Anne Avery-Miller was reviled, gossiped about, but also loved and
passionately defended by friends in the little town of Elk Rapids,
where she once worked as a barber.
She was accused of killing her psychologically troubled 16-year-old
son, Sam, who was found dead on November 7, 2007, with a gunshot wound
that entered from the back of his left ear. Avery-Miller didn’t call
police, but instead picked up the gun and carried it downstairs. She
took pills and drank vodka in an unsuccessful attempt to kill herself.
Some say that last week’s suicide of Anne Avery-Miller, 39, proved she
was suffering from a guilty conscience for killing her son.
But her friends and lawyer contend she was innocent, yet became deeply
hopeless while she waited for months in Antrim County Jail for her
murder trial. She was unable to get any free counseling and was never
allowed to go outside.
On Monday night of last week, Avery walked to her cell after watching
TV and hanged herself with a bed sheet. She was found at 10:58 p.m.,
about 35 minutes after her last check.
She was taken to Munson Medical Center, where family and friends
surrounded her before her life support was turned off on Tuesday at
7:30 p.m., Zerafa.

“HANGING BY A THREAD”
Deb Zerafa, Avery-Miller’s friend said she was in a world of hurt. She
was very frustrated with her downstate attorney, Carl Marlinga, who
was considering withdrawing as her attorney. Her trial date remained
unscheduled (at Marlinga’s advice). But most significantly, a hearing
was scheduled to permanently terminate her parental rights of her
eight-year-old daughter on Tuesday, the day after her suicide. The
state requires a disposition of parental rights within a year of a
petition for neglect and abuse, which was filed after Avery-Miller
became a murder suspect.
Zerafa talked to Avery-Miller about the termination hearing over the
weekend and again on Monday. “I told her, ‘don’t ever give up your
rights.’ She said, ‘I won’t. I won’t sign anything.’”
With a parental termination hearing, the parent is not allowed to
communicate with the child until he or she reaches the age of 18.
Avery-Miller hadn’t seen her daughter since she was jailed.
Said Marlinga: “I know that was probably as crushing a weight as the
possibility of being convicted, maybe  even more so. Just the judgment
she was a bad mother was something she could not possibly take.”
“She was hanging on by a thread for all this time,” Zerafa said. “The
circumstances surrounding her life were hopeless. The whole entire set
of circumstances, but the thing that pushed her over the edge was
facing Mother’s Day without her children.”

‘SCREAMING FOR HELP’
Zerafa, who wrote and frequently talked to Avery-Miller since she was
jailed in November, said she believes a wrongful death suit should be
pursued against the Antrim County Sheriff’s Department.
“I have letters upon letters from her screaming for help — ‘I’m not
going to make it, I need counseling, where are they? I want to die,’”
she said.
Darcie Pickren, also a friend, is pursuing a grievance against Antrim
County Prosecutor Charlie Koop with the Michigan Attorney Grievance
Commission. She is holding Koop responsible because he is considered
chief of law enforcement for the county.
“I believe whole-heartedly she was innocent, but we won’t be able to
exonerate her. Why does Koop get to close the case? The daughter
should be able to know if her mother was guilty or not. I really
believe that. What a cop-out. If he has all this evidence against her,
bring it on.”
Koop didn’t return a call to the Express on Wednesday and left for
vacation on Thursday. Antrim County Sheriff Daniel Bean issued a press
release saying the suicide was under investigation, but did not
respond to specific questions about the alleged lack of psychological
care.
Marlinga, who is based in Clinton Township, said that he had
considered withdrawing from the case because Avery-Miller was deeply
dissatisfied with how his law firm was handling the case. She wanted a
trial right away, but he wanted to do a series of psychological
assessments that would reflect that she might have been troubled and
emotionally fragile, but not capable of killing her own child.
“She wanted us to come to an early trial, and I specifically did not
think it was in her best interest. What we needed, first of all, was
the psychological assessment. That was extremely necessary. Once you
have a trial and the jury comes back guilty, you can appeal it from
here to forever, but it’s best to make sure all your ducks are in a
row before you ever go to trial.”

NO COUNSELING
 Marlinga, who was working pro bono, said his office repeatedly asked
Koop and the judge to ensure Avery-Miller received counseling.
“There were motions and phone calls and letters asking for her own
counselors to see her. It was decided they could see her, but she’d
have to pay for it herself,” he said.
Yet Avery-Miller had no money.
“It was a very difficult situation. We were far away, and it seemed
like pulling teeth to get what are considered to be fairly simple
courtesies,” said Marlinga, who worked on the Jon Bonet/John Ramsey
and O.J. Simpson cases.
“Anne — even under the prosecutor’s theory — was acknowledged to have
psychological difficulties. It seemed unusual it would be such a fight
to get her psychological counseling. The state, whether it’s the
courts or the prosecutor or the sheriff, have an obligation to provide
medical care in their custody. And it includes psychological care, if
symptoms indicate psychological care was needed.  …What happened is
just awful. It was totally preventable.”
A gentleman friend, who was very close to Avery-Miller, said she just
couldn’t get “any contact at all from Marlinga’s office.”
After Avery-Miller’s death, he asked Joe Kosmala, who worked with
Marlinga as the primary attorney in the case, the reason for their
planned withdrawal—was it because Avery-Miller was so upset with them
or because the suit was so expensive?
“He said, no, they got a real nice letter from Anne asking they stay
on. But at a partner’s meeting, they talked about how Carl Marlinga
was going to be second chair at the trial, and it looked like it was
going to be a three-week trial in November, which would come up at the
same time as Carl’s state Senate race, and he couldn’t do it or commit
to the time. Joe didn’t think he could give adequate representation
alone.
“I know Anne was terribly frustrated with her attorney, but she never
wavered from the fact that she never shot her son. She feels
responsible for being such a bad mom that her son committed suicide,
but she went to her grave adamant that she never did this.”

SAM’S DEATH
The facts behind the case are complicated, in part, because police did
not immediately treat the house as a crime scene. For example, they
never checked Sam’s hand for gunpowder.
The forensic pathologist Dr. David Start has said it was improbable
that right-handed Sam would shoot himself from behind his left ear,
but not impossible, according to published reports.
A woman came forward last November to say that Avery-Miller told her
she had “killed Sammy,” while they were both at Munson’s Center One
after Sam’s death. But the woman also testified that she suffered from
a closed head injury, was on three medications, and was bipolar,
according to published reports. Most troubling was the fact that
Avery-Miller, who was in vicious, protracted legal battles with her
ex-husband and ex-boyfriend, wrote in her journal about being in
heaven with Sam and her young daughter. She also had written
obituaries for all three of them. It appeared, on the surface, she had
a plan to kill her children and then herself.
Adding to local suspicions of her involvement in Sam’s death was the
fact that she had fled town on January 22, 2008. Her whereabouts were
unknown until February 25, when it was revealed that she had driven to
Las Vegas to stay in a women’s shelter.
“I’m not denying that the prosecution had a theory,” Marlinga said.
“But you can obviously go into flights of fancy to escape the
bitterness of this world, creating scenarios of where you are happy
and you can long for that. But it doesn’t mean you would cross that
huge line in this physical world and take a gun to your child. That
would have been my defense at the trial. …Maybe, in some sense, Sam
thought that with his own suicide, it would liberate his mom to take
her own life.”

‘ALL BY HERSELF’
Despite Avery-Miller’s suicidal history, she fought against being on
suicide watch, in part, because it meant getting put in solitary
confinement and being stripped of everything, including her religious
papers that gave her strength, Zerafa said.
“She’d been in her cell – all by herself – in solitary for the longest
time,” Zerafa said. “They took everything. Her socks and her
underwear. She was freezing to death. They wouldn’t even give her
proper clothing. They treated her as if she was a convicted murderer.”
Said Marlinga: “There is no reason on God’s green earth that someone
in solitary confinement should be freezing. You don’t take a person
who has psychological prob-lems and subject them to cold temperatures
and difficult conditions. You can have a type of confinement where a
person is closely watched, kept warm and well fed. There could have
been cameras on her on a regular basis. You could have done a whole
bunch of things differently and this isn’t 20/20 hindsight. Everybody
knew at the time, to some degree, that Anne was psychologically
weakened. There were problems and suicide was a distinct, a very
distinct possibility.”
A wrongful death suit would allege that Avery-Miller was
unconstitutionally deprived of psychological help.
The 8th amendment to the U.S. Constitution prohibits the infliction of
cruel and unusual punishment on prisoners.  A person who is sentenced
to jail or prison should not have an additional unofficial “sentence”
of pain imposed, said Traverse City attorney Grant Parsons, who has
represented prisoners who have committed suicide, lost limbs, and died
due to delayed or improper medical attention.
“Inmates are entitled to adequate medical care as a Constitutional
right.  I have represented prisoners who died from their own hand by
suicide; a man who lost his leg after literally crying for three and a
half months for medical care; a mentally ill man whose anti-seizure
medication was withheld and was instead given medication that causes
seizures, and he died; a man who was attacked and suffered brain
damage and then was denied help for two months.  These cases have
facts that are stranger than fiction.  If you read some of these
cases, it will make you doubt the fundamental nature of our nation,”
he said.
The 14th Amendment to the U.S. Constitution prohibits the government
from damaging a person’s property or life or liberty without due
process.  An inmate may not be made to suffer, in addition to serving
a sentence, because that effectively is another penalty without legal
process.
One of the primary civil rights suits is for medical or mental health
care for inmates in jails or prisons.  The Supreme Court wrote an
opinion many years ago, Estelle v Gamble, which held that inmates are
entitled to adequate medical care as a Constitutional right, Parsons
said.