Juvenile Illiteracy

I posted the link to Caleb Sosa on Monday, but I just didn't have time to discuss it.  And, wow, is there a lot to discuss.

First, like most news articles, it is light on the facts that would allow the reader to make any informed decision other than the one the article wants you to draw.  They do not tell us what the evidence against Sosa was - eyewitnesses, DNA, or just the confession at issue.  We don't know whether the confession was even admissible at trial against him.

Second, the article discusses how Sosa could not even write his initials without instruction, yet he was about to sign off on a plea but then rejected it.  The key being HE WAS ABOUT TO SIGN HIS NAME FOR A PLEA.  Did he learn to read and write while locked up?  He has gone from not knowing how to write the first letters of his name to being able to read and sign legal documents yet it is not discussed.

Third, it would have been an interesting civil trial, had the city lawyer filed the appropriate paperwork.  A claim that the police violated Sosa's civil rights by forcing him to sign a confession he couldn't read would be difficult to prove.  Even at fourteen, a person should be able to read.  Sosa would have to bring in his family and teachers and describe how they had failed him for his entire life by letting him live without learning the most basic skills. 

The trial would essentially put the city of Detroit's education system and parental structure on trial.  I am certain that Sosa made it through elementary school.  Sosa would basically have to put on witnesses to demonstrate his illiteracy and explain how they all let it happen.  It is no secret that reading and writing levels in large cities are horribly low.  Total illiteracy though?  How can we as a society allow this to happen?

Fourth, as JeffO has pointed out, the money is a large amount for a headline, but spread over 40 years it is $27,500 per year before taxes.  That's hardly a sum enough to justify spending time in prison as an innocent man. 

My first jury trial involved a 25-year-old man who claimed illiteracy.  The victim claimed that the defendant shot him twice in the stairwell of an apartment building because the victim got in an argument with the defendant's girlfriend.  The gun was recovered a month later inside the girlfriend's apartment.  When the defendant was arrested, he spoke to the police.  They wanted him to write his own statement, but he said he could not read and write.  The police wrote his statement for him, read it to him, and then he signed it.  He was able to sign his name.  An hour later, the defendant wanted to make another statement.  He had some changes to the first one.  They went through the same process and the defendant signed it. 

At trial, he claimed the detective never read him the statements and he did not know what he was signing.  His mother took the stand and described his illiteracy.  I only asked the mother whether she read to him and if he understood what she read.  She agreed he did. 

The problem with the statements was that they both provided a defense to the shooting.  Why would the detective, when he could write anything he wanted without the defendant knowing, write two separate statements that contained defenses?  If he was fabricating the statements, why wouldn't the detective write the most damaging confession possible?

The evidence in my case was overwhelming and the defendant's version of events did not match the physical evidence.  The jury found him guilty.

Illiteracy is an enormous problem in society and also a hurdle police officers must overcome on a daily basis.  The Caleb Sosa civil trial would have been a hard look at the education system in America and I would have loved to follow it.  Unfortunately, we will not be able to due to a procedural error. 

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How Much Is Freedom Worth?

It was a deadly combination this weekend.  A cold, out of town guests, the holidays, and spotty internet combined for the death of any in-depth post this morning. 

But, this story popped up this weekend.  Caleb Sosa, from Detroit, spent two years in juvenile lock-up when he was 14 for murder.  He was acquitted two years later.  The interesting twist is that Sosa then sued the City of Detroit for violating his civil rights.  Through the City's inaction, by not filing timely paperwork, a judge awarded Sosa $1.1 million.

There will be more on this later this week when the cold goes away and internet returns.

But for now, I wonder if there are people who read this article and think they would serve two years in jail for that much money when they got out.  If not, how much would it take?   

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Powerful Words from an Unlikely Source

Thursday's are usually a post-free day from PD, but I thought I'd break with tradition to provide these words to victim's everywhere:

“Please do not allow my actions and the actions of Muhammad to hold you hostage and continue to victimize you for the rest of your life. If you give those images and thoughts that power, it will continue to inflict that suffering over and over and over and over and over again. Do not give me or him that much power.”

The speaker?  John Lee Malvo.  He was the second half of the D.C. shooting spree that terrorized Washington in 2002.  He was 17 at the time of the crimes and spoke to the Today Show this morning from jail where he is serving his life sentence.  His partner John Allen Muhammad was executed in 2009.  Here is the interview where he claims Muhammad sexually abused him during their time together:

Visit NBCNews.com for breaking news, world news, and news about the economy

 

 

 

Are these the words of a reformed young man?  Or something else?

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Youthful Offender - A Second Chance?

Everyone wants it.  In every case, the defendant asks his attorney, "can I get my Y-O?"  It's a common belief in the street that you get one free felony.  You get to commit any felony and still have your record sealed.

It is officially called youthful offender adjudication under Criminal Procedure Law Section 720.  What it means is that a teenager's conviction is replaced with an adjudication, the records are sealed, and they are eligible for lower sentences.  But, it is not automatically granted in any felony case. 

An eligible person for youthful offender must:

1. Be aged 14 through 18
2. Have no prior felony convictions
3. Have no prior felony youthful offender adjudications, and
4. Have no prior juvenile delinquent adjudications for listed designated felony acts 

Felonies are handled by supreme and county court judges in New York State.  It is in their sole discretion to determine who receives a youthful offender adjudication.  The standard is:

"If in the opinion of the court, the interest of justice would be served by relieving the eligible youth from the onus of a criminal record and by not imposing an indeterminate term of imprisonment of more than four years, the court may, in its discretion, find the eligible youth is a youthful offender."  C.P.L. § 720.20(1)(a).   

What does it mean to receive a Y-O?  First, the records are sealed and the defendant does not have to report any convictions for crimes on any applications for college or work.  Second, the sentencing range runs from a conditional discharge (one year unsupervised probation) to an indeterminate four years in jail.

A person is not eligible for this if the crime is:

1. An A-I or A-II felony (murder),
2. An armed violent felony, or
3. Rape first, Criminal Sexual Act First, or Aggravated Sexual Abuse

As in any law, there are exceptions to these rules.  A judge can still grant a defendant youthful offender status if they are charged with an armed violent felony (violent felony committed with a gun like robbery) or the sex crimes listed if the judge finds mitigation.  Mitigation is defined in C.P.L. Section 720.10(3).  It means circumstances that bear directly on how the crime was committed or that the defendant was not the major actor. 

An example of mitigation is where two men rob a victim.  Only one of the men has a gun.  The non-gunman has a good shot of receiving Y-O.

Mitigation has nothing to do with the age of the defendant, the lack of a prior criminal record, the victim wants to see it happen, the defendant sings in his church choir or any of the other plethora of reasons given by defense attorneys.  It only has to do with how the crime was committed. 

A defendant must first plead guilty to a crime.  Then, at sentencing, the judge must place the reasons she is either granting or denying Y-O on the record for an appellate court to review.   

Do you see the problem with Y-O?  It can take a crime like robbery in the first degree or rape in the first degree, which carries a five year minimum sentence, and reduce it to a sealed record where the defendant can receive a conditional discharge?  It is ripe for abuse in the wrong cases.  Luckily, I have yet to see it misused in such a severe manner. 
 
Y-O can be a second chance.  Court's must wield this power wisely.  Every eligible youth who comes before it does not deserve this status for every crime.  The reverse is also true.  Court's must not summarily deny the status just because of the crime.  Each case must be analyzed separately.  The power to grant or deny this rests solely in the judge.  Neither the prosecution or defense has the power to negotiate this with each other.                             

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Anonymous Victim Meets Anonymous Defendant

There have been many comments, posts, and emails about the importance of a defendant's rights versus a victim's rights on this blog.  The U.S. Constitution lists the rights every person and every defendant is entitled to.  The right to remain silent, the right to have a case tried by a jury, and proved beyond a reasonable doubt, etc.

We must look to state legislatures for the protections of victims.  In all the jurisdictions I know, a sexual assault victim's identity remains a secret (example is the Jerry Sandusky trial).  It cannot be mentioned in court documents or by the media.  Also, juvenile defendant's enjoy the same anonymity.

Not Savannah Dietrich.  Savannah is a seventeen year old victim on the cusp of going to jail.  Yes, the victim may go to jail.

Savannah was sexually assaulted by two teenage defendants, who then posted pictures of her on the internet.  She called the police, who arrested both boys.  The case wound through the juvenile system, which is confidential and closed to the public.  Savannah and her family were unhappy with the plea deal, which has not been made public.

She then took to twitter, releasing her attacker's names in violation of a court order.  Savannah went public with her ordeal and her name, even though she didn't have to.  I am an avid supporter of empowering victims.  See here.  My sworn duty, however, is to enforce the laws, which include contempt of court.  I support Savannah going public, but she definitely violated a court order by tweeting the names.

Would I prosecute Savannah?  Well, that's what prosecutorial discretion is all about.  Doing what's right.  What is right?  Fortunately, I don't get paid enough to make that decision in a case like this.

There will be a hearing on July 30, regarding Savannah's contempt charge.  It is a juvenile proceeding and thus closed to the public.  Savannah, however wants to make it public.  The defendants attorneys are fighting that.  One article reported that the criminal petition was withdrawn, but I cannot find another article to corroborate that.  If it was withdrawn, that means the prosecution would not be prosecuting Savannah.

Many interesting issues are arising out of this case.  Savannah's tweets touch on the First Amendment freedom of speech and whether she should have the case open to the public and media.  And whether her First Amendment right overrules the court's order to keep the proceedings private.  It pits her feelings and what she views as rights against the defendants'.  It is a constant battle within every case.

Not a week goes by that I don't have a conversation like this.

Witness:  Why do I have to come in?
PD:  You have to testify.
Witness:  Why do I have to testify?
PD:  So we can go forward with the case.  We can't prove it unless you testify.
Witness:  I gave my statement to the police.  I told them who did it.  That's enough.
PD:  It's enough to arrest them.  But to move forward, we need testimony.  A person has a right to confront witnesses.
Witness:  What about my rights?

The conversation is also had when discussing a reduced plea with a very cooperative victim.  I'll post how we come to plea bargaining decisions and how we discuss those with the victims next week.

So what do you think?  Should the victims have rights?  Do they have enough now?  Does one set of rights have to trump the other?  Can they co-exist?

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Cruel and Unusual Punishment?

It depends on your views.  With immigration and the health care law, what the Supreme Court did this week in the land of juvenile justice is getting overlooked. 

In Miller v. Alabama, the Supreme Court ruled that a sentence of life imprisonment without the possibility of parole for persons under eighteen violates the Eighth Amendment's prohibition on cruel and unusual punishment.  The Court ruled that mandatory life sentences for two fourteen year olds convicted of murder should not stand. 

It is a ban on states that have mandatory life without parole sentences, not on discretionary life without parole sentences where the court or jury considers the background of the juvenile and all other circumsances.

The Court divided 5 to 4 on this issue in deciding two cases similtaneously.  Evan Miller, the defendant, was fourteen when he and another boy beat and robbed a neighbor with a baseball bat and then burned the trailor to the ground with the victim inside.  In the second case, Arkansas native Kuntrell Jackson, fourteen, was convicted of murder when a store clerk was shot and killed during a robbery by one of his accomplices.

The Supreme Court took issue with legislatures mandating life without parole sentences in these cases.

This is an extension of the Court's decision in Graham v. Florida, in 2010.  In that case, a sixteen year old was sentenced to life without the possibiltiy of parole for an armed robbery.  The Court held unequivocally, that life without parole sentences are never valid for juveniles in non-homicde cases.   

The Supreme Court has taken a chunk out of juvenile sentencing in the last few years.  In Roper v. Simmons, in 2005, the Supreme Court ruled that the death penalty is no longer available for juveniles convicted of murder.  It again ruled that this is a violation of the Eighth Amendment.  The Court stated that their opinions can reflect the standards of an evolving society on the issue of sentencing. 

The Supreme Court had taken up the juvenile death penalty previously.  In 1989, in Stanford v. Kentucky, the Supreme Court upheld the death penalty for juvniles convicted of murder.  In those cases, the defendants were sixteen and seventeen. 

The Supreme Court admittedly analyzes sentencing based on the standards and decency of an evolving society.  None of these decisions will affect juvenile sentencing in New York State.  New York State does not have a death penalty anymore and juvenile offenders, even those convicted of murder, have a maximum sentence of fifteen years to life. 

Juvenile justice is a lightning rod issue.  Some of the juvenile crimes are the most heinous and violent.  We walk a fine line between an appropriate sentence and rehabilitation.  A bill is winding its way through the New York legislature right now that will overhaul the entire juvenile offender system. 

For better or worse is yet to be seen.  The other question is, why is eighteen the cut-off?  Or sixteen?  Or whereever someone will draw a line.  Some studies say the brain is still devloping through a person's twenty-fifth birthday.  Picking an arbitrary date leaves a lot of room for future debate. 

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Criminogenics

Huh?  That's what I thought too.  A made up word to address made up problems. 

Turns out there is a lot of research out there on the subject.  Criminogenics is the study of needs that must be addressed in order to rehabilitate a convicted criminal and reduce recidivism (breaking the law again).

It's tied to the old debate.  What should be the purpose of the penal law?  To punish or to rehabilitate?

Criminogenics looks for ways to rehabilitate a person so that they can reenter society and not commit another crime.  It's not the typical kumbaya approach to rehabilitation and treatment.  It's based on scientific research and identifies six risk factors that associate with criminal conduct:

1. antisocial/ pro-criminal attitudes, values, and beliefs
2. pro-criminal associates
3. temperament and personality factors
4. a history of antisocial behavior
5. family factors
6. low levels of educational, vocational or financial achievement

Some of these areas can be changed and some cannot.  It takes a lot of work and skilled practitioners to change someone's beliefs, personality, associates, and temperament.  The focus is on changing the individual.  It is difficult, if not impossible in some cases, to change the individual's environment.

There is plenty of research to support the idea that programs that correctly work on these areas reduce recidivism.  Programs that just provide education or drug treatment don't work well.

But, what about the victim in all this?  Should there be some measure of justice for the victim of the crime?  Should the seriousness of the crime have an impact on what happens?  If we switch to a strictly rehabilitative program, should it be enough for a person that was raped to know that we're doing everything we can to help the defendant get back on track?

I think criminogenic programs have their place with misdemeanor and low level felonies.  When a serious and violent crime occurs though, there must be a measure of punishment doled out to deter the defendant and others.  Additionally, even people who study criminogenics will admit that there are people who will not respond to treatment.  Everyone cannot be saved.

There is legislation pending in New York that would raise the age of infancy to eighteen.  That means everyone up to seventeen would go through family court, except for serious felonies.  The age is currently sixteen.  New York is one of only two states where sixteen year olds are treated like adults.

The teenagers I see are extremely violent and involved in gangs.  All of their friends are too.  There is generally limited parental involvement and no motivation to change.  In at risk populations, changes and training must start when children are five or six years old.  The families, communities, and schools are where training should begin.  All the training in the world won't work if we release a person into the same environment.

One quick story.  A defendant had committed a series of burglaries.  He was sixteen.  The police caught him leaving one of the houses.  They brought him in for questioning and his mother showed up.  She asked the police what the big deal was.  All the people he was stealing from have insurance.

These are the attitudes all programs will battle against.  Our society has tried to strike a balance between  rehab and punishment for decades and will continue to do so.

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15 and Life to Go

A Missouri court just sentenced Alyssa Bustamonte to Life imprisonment with the possibility of parole for the murder of a nine year old girl when Alyssa was fifteen.

As you know, I take a special interest in these cases because it's what I do in my office.  When a juvenile commits a specified violent crime, there is always an analysis that we conduct to determine whether we should try the juvenile in adult court or move it to family court. 

Here's what we look for and how it compares with the facts of Alyssa's case:

1) Seriousness of the offense - It doesn't get more serious than murder.
2) Victim's opinion - I can imagine the family of Elizabeth Olten (the victim) wanted her tried in supreme court.
3) Prior record - We don't know in this case.
4) Danger to the community - Alyssa's stated goal was to see what it felt like to kill someone.  She celebrated the murder in her journal after completing it.  I'd say she's a danger.
5) Evidence of guilt - She confessed, wrote about it in a journal, and brought investigators to the grave.  Pretty good evidence.
6) Character of defendant - see number 4.
7) Purpose of the sentence - A murder sentence is to punish and deter others from committing the crime.  Sending the case to family court does not create a deterrence to murder.
8) Age - The defendant's only 15.

This is a glimpse into the analysis we use to determine when a juvenile case will be tried in supreme court vs. family court.  The only thing on Alyssa's side was her age.  In a murder case, that's usually not enough.

What do you think?

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A Twelve-Year Old Murderer?

Twelve-year old Christian Fernandez is charged with intentionally killing his two-year old brother. His mother is charged with not seeking aid for the ailing child in a timely manner. Check out the full story here.


It's a difficult case for so many reasons, both legally and morally:

1. Christian Fernandez's mother was twelve when she had him and, at twenty-four, had four children. One is in jail for murder and the other is dead.
2. Allegations of abuse and neglect of Christian Fernandez at the hands of his mother goes back years.
3. The mother didn't call 911 for hours after finding her son unconscious. She allegedly searched various websites during that time including a bank, medical information on concussions, and music downloads.
4. Christian Fernandez is twelve and confessed to the police.  In NY, a parent or guardian is required at the interview for anyone under sixteen.
5. Christian Fernandez apparently broke his brother's leg by beating him months earlier.
6. Christian Fernandez can serve life without parole.
7. It will be difficult to prove a twelve year-old intended to kill him with pre-meditation.
8. It will be difficult to prove intentional murder if the only evidence is that he pushed him into a bookshelf.  The defense will be able to argue anything from accident to the "horsin' around" defense.
9. He apparently turned down a plea deal that would have let him out of jail at his twenty-first birthday.  
10. He's going to serve until eighteen in a juvenile facility, and then be placed in an adult prison.

I do not envy the prosecutor's who are handling the case. In most of my cases, sympathy is tough to garner for the defendant. Sympathy will be flowing out of the courtroom in this case.


At least in NY, we don't have to worry about twelve-year olds. Family court would handle this case. For murder in NY, the minimum is the ripe old age of thirteen.  The maximum for murder for a thirteen, fourteen, or fifteen year old is fifteen years to life in prison.  So they would be eligible for parole in fifteen years.


Luckily, I haven't had a case like that yet.


My youngest murder defendant? Fifteen years old. He shot and killed a man during a robbery gone bad.


So what do you think? At what age should a person be treated as an adult? Does it depend on the crime? Should the background of the defendant matter at all? Check out a discussion of New York juvenile crime law.

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Juvenile Crime

Found this article on yahoo today.

What I can gather from the facts is that two teens, a fifteen year old and a sixteen year old, walked up to a 73 year old man, each brandishing a black gun, knocked him to the ground, punched him in his face, and stole his money (which happened to be seven cents). The fifteen year old confessed to the crime, but said they were BB guns.

Quick thoughts on my first read:

1) The headline is "Teen gets branded a felon for life . . ." The headline would be more appropriate as "Teen's actions brand him a felon for life." Let's not blame the jury and judge for the defendant's actions.

2) What's the difference between seven cents and seventy dollars in a robbery? Robbery is a crime of theft no matter the amount. It is based on the force used. In this case, two guns, punches, and kicks. Should the defendant get a lighter sentence because he chose his victim poorly?

3) The defendant claims they were BB guns in his statement. Much like the amount of money taken, I doubt it mattered to the victim at the time.

In case you were wondering, this was not my case. Not even my county.

I prosecute felony crimes and specialize in juvenile offenders, which is why the article caught my attention. JO's are thirteen, fourteen, and fifteen year olds charged with certain murders, robberies, burglaries, and rapes, among others. These defendants would normally be prosecuted in family court in sealed delinquency proceedings, but these charges are considered so serious that these defendants are charged and tried in superior court just like adults. Anyone sixteen and up in New York is treated like an adult when they commit a crime.

The sentencing range for JO's is significantly lessened when they are in superior court. If the defendant in this article was sixteen, he would have faced up to 25 years in prison. Since he was fifteen, he faced a maximum of 10 years and the judge sentenced him to serve a minimum of two years in jail. This seems fair for what the defendant did.

What do you think? Should there be any exceptions for juveniles or should they all be handled in family court? What is an appropriate age to determine someone is an adult when they commit a crime?

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