A dying bank robber, now serving the last 24 months of a 16-year prison sentence, may not fully understand the scope of the pro bono effort that’s been organized to help him. But the state’s largest law firm is embroiled in an 11th-hour plea to secure his release.
Bernard Mulka, 51, has been weakened from rectal cancer to the point that he is unable to walk on his own. His sister, Lynn Atkinson, wants her brother to have the dignity of dying at home.
“He’s never hurt anybody,” she said. “I don’t think robbing a bank is a nice thing to do, but all I’m saying is, he’s dying, let him come home.”
For the past three weeks, three pro bono lawyers at Robinson & Cole in Hartford have been working to get Mulka out of prison. They argue that a state law on medical parole was created for this very purpose.
James Wade, one of the Robinson & Cole lawyers, said the law allows dying inmates to be sent home if they have less than six months to live, have not been convicted of a violent crime, and if they are longer a threat to others.
“There is no dispute that Mr. Mulka is a dying man,” Wade wrote in a Dec. 30 letter to Erika Tindill, chair of the state Board of Pardons and Paroles. In the letter, Wade indicated the lawyers had been seeking a hearing for two weeks but had received no answer.
“We received another report from [a doctor] stating that Mr. Mulka has terminal, incurable cancer … which is causing him significant pain and suffering and has debilitated him to the point that he is barely able to walk at this time.”
Wade added that they “fear that Mr. Mulka will die before his application for medical and/or compassionate parole is decided, or even heard.” With that concern at the forefront, Wade said in the letter, he will seek a federal court order and monetary damages if a decision is not made by Jan. 30.
“The continued delays we have encountered, all while Mr. Mulka is dying in prison, is a form of cruel and unusual punishment forbidden by the Eight Amendment to the United States Constitution,” Wade wrote.
Medical parole has been around for many years, approved by legislators in Connecticut and other states in the 1980s as the AIDS epidemic led to a mounting number of deaths in prison populations. The federal government and all but a few states now have laws allowing an inmate to be released from prison if death is imminent.
A companion to medical parole, compassionate release is granted when it is proven that the inmate is dying and no longer a threat to society. Prison officials say the law is not used as often as it might be because inmates have often “burned bridges” outside prison walls, leaving them no place to go when they are dying.
The issue made national headlines on Dec. 31, when a former civil rights lawyer, Lynne Stewart, who had been convicted in a terrorism case and sentenced to 10 years in prison, was released in New York. Government lawyers filed a letter in Manhattan federal court stating that Stewart qualified for early release because she’s suffering from breast cancer that has metastasized to her lungs and bones and has less than 18 months to live.
Those closest to Mulka are hoping for the same outcome. Atkinson, his sister who lives in the Broad Brook section of East Windsor, said she understands there is little sympathy to be had for a dying former drug dealer who robbed a bank. “However,” she said, “the law on medical release exists for the family. I want my brother home.”
Her brother got addicted to heroin at a young age and turned to a life of crime. On Nov. 14, 2003, he walked into the Enfield Federal Savings Bank, indicated he had a gun and told a teller he would shoot if she did not give him money.
He fled in a car, but was immediately engaged in pursuit by a state police detective who had been driving by the bank. Two other state troopers joined the chase and, even though Mulka rammed their cars in his escape attempt, he was quickly captured.
Convicted of robbery, he was sentenced to 16 years and would have been eligible for regular parole in 2017. But just one year after Mulka’s sentence started, he was hospitalized with abnormal bleeding.
He was diagnosed with rectal cancer, which has spread and worsened, leading to a prognosis that he will soon die.
“I just want him to come home, so he can spend his last week or two with my dad,” his sister said. “Let him have a little dignity.”
On Dec. 30, Dr. Azadeh Namakydoust, an oncologist at the University of Connecticut Health Center who treats Mulka and other state inmates with serious illness, described how Mulka’s cancer had spread to other parts of his body. He concluded: “Given that Mr. Mulka has extensive involvement of his leg and lower abdomen by the cancer in addition to significant edema/swelling of the lower leg, he is understandably in significant pain.”
The doctor said Mulka’s condition is not curable. “As his physician, I wish that he was able to go through this difficult treatment and diagnosis at home,” he said.
The Board of Pardons and Parole has indicated it will look into Mulka’s case and decide whether to hold a hearing. Tindill declined to speak about the case specifically. But she indicated in general terms that the parole board tries to act quickly on medical requests.
“These cases are time sensitive, so we schedule a hearing as soon as possible, generally within a few days and usually no more than four business days of receiving all of the required information,” Tindill said. “The panel hearing the case makes a decision at the conclusion of the hearing.”
In 2013, Tindill said, there were eight requests for inmates to be released because of medical conditions, and three hearings were held. All three inmates who received hearings were granted medical parole.
The most common reason a hearing request might be denied, she said, is simply that the inmate’s status does not meet statutory requirements.
“Another common scenario is one where a physician has not written a letter stating that the inmate has a terminal illness and has six months or less to live,” Tindill said. “If inmate Mulka meets the statutory requirements, he will be granted a hearing.”
Chief State’s Attorney Kevin Kane said he was not yet aware of any request for a hearing or a parole modification in the Mulka case. In certain circumstances, he said, prosecutors have agreed to shorten sentences for medical reasons.
“When a person is so sick and incapacitated that they can’t be a threat to the community, in those circumstances, it may be appropriate,” Kane said.
Robert Farr, who served as parole board chair from 2007 to 2011, said requests for medical parole came up on his watch “a few times a year.” He said there are a variety of issues that can delay matters. For example, the board requires that those seeking medical release must have a plan in place for their care. “That can be very difficult to arrange,” Farr said, because many nursing homes and care facilities don’t accept former state prisoners.
The board also requires that the inmate’s victims be notified so they can oppose release if they wish. These matters can take weeks to sort through before a hearing is set, Farr said. At the same time, he said, he is cognizant that any delay for those awaiting an ill inmate’s release can seem like forever.
“For a lawyer who has been working on a case like this for a month,” Farr said, “a month is a very long time to wait.”•