If not for a ‘vague,’ now-overturned law, Abe Martinez would have been in prison the day he killed his grandmother

(Courtesy photos) Abe Martinez and Jerrod Baum

In the weeks since police say Abe Martinez walked away from an Arizona halfway house and absconded to his grandmother’s South Salt Lake home, killing her and critically injuring his stepgrandfather, officers and prison officials have declined to answer many questions about his escape.

It’s unclear whom authorities notified of his disappearance, if anyone; who may or may not be investigating it; and where Martinez went between his escape and the fatal standoff that also left him dead, shot by police.

One fact is clear: If not for a 2015 U.S. Supreme Court decision, Martinez would still be in prison — and he and his grandmother, Rose, would still be alive.

So would Brelynne “Breezy” Otteson and Riley Powell, the teens found murdered inside an abandoned mine shaft in Eureka, said Utah’s U.S. Attorney John Huber. Jerrod Baum, 41, has been charged in the deaths.

Both men were sentenced under the federal Armed Career Criminal Act, which says certain repeat offenders can be sentenced to a minimum 15-year prison term, or maximum of life, if they are convicted of a gun crime. But the Supreme Court decided a clause in the law was unconstitutionally vague, and Martinez and Baum are among 30 felons who have successfully petitioned to have their Utah sentences reduced.

Of that 30, they’re also among the two-thirds prosecutors say went on to reoffend.

Their recent high-profile cases have prompted Huber to speak up, asking for a legislative fix to keep the people he calls “the worst of the worst” behind bars.

“I am hampered in my ability to keep the community safe from people like Jerrod Baum and Abe Martinez right now,” Huber said. “We need the tools back in our toolbox to keep Utah safe.”

Former Utah U.S. Attorney Brett Tolman, however, doesn’t think strengthening the act is the answer for preventing career criminals.

“My opinion,” he said, “is we’ve got to start doing something different — and it’s not the length of sentences.”

A flaw in the law

The Armed Career Criminal Act says that after defendants are convicted of three designated types of felonies, they can be sentenced to a minimum 15-year prison term, or maximum of life, if they are convicted a fourth time for having a gun.

But its so-called residual clause, which loosely defined a subset of felonies covered by the act, was unconstitutionally vague, the late Justice Antonin Scalia wrote.

“Invoking so shapeless a provision to condemn someone to prison for 15 years to life does not comport with the Constitution’s guarantee of due process,” he wrote.

From January 2015 to January 2018, petitions for shortened sentences were filed in 211 Utah cases.

Of those, 30 were granted, 55 were voluntarily dismissed, 54 were denied in court and 72 were stayed, according to data from Utah’s U.S. Attorney’s Office.

Of the 30 whose sentences were reduced under the ruling, data show about two-thirds went on to reoffend, on average, 128 days after release. The shortest time before a new crime was committed was one day. The longest stint was 363 days.

Huber said Martinez and Baum were clear career criminals.

(Photo courtesy Salt Lake County Jail) Abe Martinez, 44, was killed by police after he killed his grandmother and wounded her husband.

Martinez was convicted of drug trafficking and selling. He was also convicted of unlawful sexual intercourse with a minor in 1994. When police caught him trafficking drugs while carrying a weapon in 2004, he was sentenced to 20 years in prison under the act.

Awaiting sentencing in jail, Martinez coaxed a prison guard over to his cell and stabbed him just below the eye with a pencil — “and bragged about it,” Huber said.

“[He] calls himself the spider,” Huber said, “because that’s his approach to life.”

Baum’s criminal history began on his 15th birthday, records show. That November night in 1991, Baum wracked up 11 felony charges — including multiple counts of theft and first-degree murder, although the later was dismissed.

Jerrod Baum appears for a hearing before Judge Christine Johnson in 4th District Court Thursday, April 26, 2018, in Provo. Prosecutors say 41-year-old Baum became angry after a young couple visited his live-in girlfriend. The victims, 17-year-old Brelynne "Breezy" Otteson and 18-year-old Riley Powell, were missing for nearly three months before their bodies were found down an abandoned mine shaft. (Rick Egan/The Salt Lake Tribune)

In 1995, he pleaded guilty to an aggravated assault committed while he was serving time at the Utah State Prison for the earlier conviction. Then in 2003, he was convicted for having a gun.

A year later, he was caught with a gun again and was sentenced to 15 years and 8 months in jail under the federal career criminal act.

But both men successfully argued that some of their prior convictions fell into the area of the law that had been nullified.

For Martinez, it was his conviction of unlawful sexual intercourse with a minor. For Baum, it was rioting and aggravated assault.

‘What more needs to happen?’

Instead of remaining in prison until 2024, Martinez was transferred to an Arizona halfway house May 23. He was set to be released in September, but he left June 16. He killed his grandmother and critically injured her husband the next day, police said, before he was fatally shot by police.

Bureau of Prison officials have refused to answer key questions about the escape, and South Salt Lake police said they cannot release information because of the ongoing investigation into the officer who shot Martinez.

Baum was released from prison about a month after his appeal in July 2016. A few months later, he pleaded guilty to misdemeanor charges of drug and weapon possession. He was sentenced to time served for those charges on Halloween last year.

Two months later, he allegedly killed the two teenagers and threw their bodies into an abandoned mine.

Rose Martinez’s family members declined to speak with The Salt Lake Tribune.

Amanda Hunt, Otteson’s aunt, told The Tribune that she’s wondered since Baum’s arrest why he was out of jail. Now she knows.

She said the news stings, especially because Baum wasn’t released for good behavior or any similar reason. He was just released, she said, because of a 13-word “loophole.”

Baum left custody without going through any transitional programming, since he’d already served the maximum sentence for his crime without the career criminal enhancement.

“What more needs to happen for the law to be changed? We already have three deaths,” Hunt said. “Does it have to be a mass murder?”

Huber said he can’t think of two better examples of why federal prosecutors need the act amended.

“I can’t get them like I used to be able to get them with the law. I need the tool fixed so I can protect our community,” he said.

Tolman, Huber’s former boss, agrees Congress should address recidivism. But Tolman, now practicing law privately and an advocate for criminal justice reform, doesn’t think further defining which offenses qualify career criminals for the 15-year minimum sentence will help.

Time behind bars doesn’t decrease recidivism — but programming focused on rehabilitating felons does, he argues.

Tolman pointed to Martinez, who served 13 years of his original 20-year sentence. Baum was sentenced to nearly 16 years and was in prison for over a decade.

Those are both long sentences, even with the early release, Tolman said — and they still went on to reoffend. States that have passed prison reforms that focus on programming have seen a drop in recidivism, he said.

“We have tried and tried to believe the length of incarceration is what affects somebody’s ability to come out and be solid citizens again,” he said, “and the states have proven that doesn’t occur.”