Kansas defendant given minimum 50-year sentence in case questioning state's foster care system

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3 days ago

Shawnee County District Judge Jessica Heinen sentenced Mickel Cherry, 27, to a pair of life terms requiring 50 years in prison before being considered for parole. He confessed to sexually assaulting and murdering 5-year-old Zoey Felix in October 2023 in a homeless encampment in Topeka. (Pool photo by Evert Nelson/Topeka Capital-Journal)
TOPEKA — A perpetually homeless man abused by his parents and shuffled as a youth among more than 17 foster homes and two psychiatric hospitals received a life sentence in prison Tuesday without possibility of parole for half a century in the rape and murder of a Topeka preschool girl entrusted to his care.
Shawnee County District Judge Jessica Heinen ordered Mickel Cherry, who admitted to smothering 5-year-old Zoey Felix in 2023, to serve consecutive life sentences requiring incarceration for a minimum of 50 years before being evaluated for possible release. Defense counsel recommended their developmentally disabled client serve the pair of life sentences concurrently so parole could be an option after 25 years. The prosecution argued the extreme depravity of the crimes necessitated at least 50 years behind bars.
Cherry pleaded guilty to both offenses in exchange for the district attorney not pursuing the death penalty.
'The evidence shows you violently, forcibly and inhumanely raped Zoey,' Heinen told Cherry at close of a heart-wrenching two-day hearing. 'You then murdered Zoey.'
Heinen, who had the authority to order concurrent or consecutive life sentences, said her decision reflected Cherry's attempt to conceal his involvement by blaming an imaginary Mexican man and lying repeatedly to Topeka law enforcement officers. In a police station interrogation on the day of Zoey's death, Cherry confessed and has remained at the Shawnee County Jail for the past 650 days.
The judge asked Cherry if he wanted to make a statement to the court, and his response — 'No, Ma'am' — frustrated some family members looking for a glimmer of remorse. They had spent two days studying his mostly blank expression and tendency to bury his chin in his chest. He spoke periodically to his attorneys, but made few hand gestures given that his wrists were handcuffed to a chain linked to ankle shackles.
Zeke Felix, Zoey's father, said in an interview that he wasn't content with the decision of District Attorney Mike Kagay to set aside the capital punishment option. He understood there were potential legal complications with seeking the death penalty because of Cherry's diminished mental capacity, but thought an attempt should have been made to achieve what he viewed as full justice for his daughter.
'I'm not content, but satisfied,' said Zeke Felix, who sat during the proceeding in the front row behind prosecutors. 'The death penalty was off the table.'
Kagay, who handled the sentencing phase with two colleagues from the district attorney's office, said there was no easy way to talk about what the defendant did to the victim. He said in most criminal cases there were thin slices of humanity or fractured pieces of a puzzle to provide context or explain the horror.
'Not here,' he said. 'Not in this case.'
Kagay said it was outrageous that Cherry, while divulging how he squeezed the life from Zoey, informed a Topeka police detective that sometimes a 'good person' such as himself committed senseless crimes.
'Mickel Cherry made the conscious decision to kill Zoey. Why? In a failed attempt to avoid responsibility,' Kagay said. 'The most egregious crimes demand the heaviest penalties. Each of these crimes call out today for justice.'
The district attorney responded to defense witness testimony and court filings dedicated to outlining how Cherry emerged from a Texas childhood marked by abuse and mental instability to land in an isolated Kansas tent encampment where Zoey's life ended. Kagay conceded state foster care systems allowed children to fall through the cracks, but he rejected that required mercy beyond setting aside the death penalty for Cherry.
'The law has already shown him clemency,' Kagay said. 'There is no question who is to blame here. No failure of any system caused him to rape and murder Zoey Felix.'
Defense attorney Peter Conley, who is the state's deputy capital defender, presented evidence Cherry endured persistent abuse while a minor. There were Texas reports showing his mother put a lit cigarette to his head, leaving a permanent scar. Domestic violence was a routine occurrence in his parents' home, reports showed. He was beaten with sticks, fists and even a hammer by adults in his life.
The large but incomplete file on Cherry's upbringing indicated he lived in places where adults required disobedient children to stand in a cold shower all night or remain crouched in stress positions for hours. Elsewhere, he was forced to spend long periods of time in a yard with a dangerous dog. He was adopted at age 14, but was subsequently left on his own at 18 without the skills to live independently.
'The system failed him utterly and completely,' said Beth Robinson, a professor at Colorado Christian University who was the first Texas counselor Cherry encountered when taken from his parents at age 5. 'He needed a whole different type of therapy and intervention.'
She testified for the defense that one-third of children who spent extended time in foster care ended up homeless and about half eventually found their way into criminal entanglements.
Conley said it was important the sentencing judge in Kansas respond to the odious offenses committed by Cherry by imposing a life sentence. It was equally significant for the court to factor into the equation the role of a dysfunctional Texas foster care system as well as the Kansas Department for Children and Families' failure to sufficiently respond to reports Zoey was being neglected, he said.
That history argued for a sentence that provided Cherry a thin but reasonable hope of walking out of a prison in something closer to 25 years instead of 50 years, Conley said.
'The heart of this issue is DCF had information about unsafe environments for Zoey Felix and didn't do enough about it,' Conley said. 'Actions have consequences. Mickel needs to be punished. Inaction also has consequences.'
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