Boston Criminal Attorney Blog

As readers of this blog are well aware from my previous posts on the subject of the school bullying death by suicide of Phoebe Prince in January (as well as the suicide death of Carl Joseph Walker Hoover last April 2009, I feel that there should be much stronger anti-bullying laws on the books in Massachusetts – stronger than the one recently passed by the Massachusetts House of Representatives. That proposed law would require school staff members to report suspected incidents and require principals to investigate those incidents. It would also require that schools teach about the dangers of bullying – but it would not make bullying a crime.

There should be a law making bullying in schools a criminal offense- and one can only hope that on the civil side of the law, that courts in this sate and elsewhere will soon issue clear and unequivocal decisions holding school districts, teachers, and school administrators liable for failing to take reasonable measures to stop such vicious assault and battery. Teachers unions and school districts howl in protest at this idea. They and similarly-minded people say that it’s too difficult to adequately “define” bullying on a legal level – that proposed definitions of bullying are “too vague”, and a “threat to free speech.” If the tragic cases of Phoebe Prince and Carl Jospeh Walker Hoover can’t convince these Neanderthals, they should read the case of Nicholas Parsons of Tewksbury.

Finally, today, a Massachusetts District Attorney stood up and took the courageous step that a lot of people watching the cases of Phoebe Price and Carl Joseph Walker Hoover were waiting for: Yesterday, March 29 2010, Northwestern District Attorney Elizabeth D. Scheibel announced that nine separate felony indictments have been issued against nine teenagers attending South Hadley High School, all involved in the brutal bullying campaign waged against Phoebe Prince. The felony indictments range from stalking to statutory rape. The most serious of these charges carry lengthy state prison sentences, though I doubt any of these defendants will serve time in state prison. Even though as a Boston criminal defense lawyer I practice on the other side of the legal aisle than District Attorney Scheibel, I applaud her for this unequivocal action.

Charged in connection with the death of Phoebe Prince are the following South Hadley High School students:

• Football player Sean Mulveyhill, 17, of South Hadley: charged with statutory rape, violation of civil rights with bodily injury, harassment and disturbance of a school assembly.
• Austin Renaud, 18, of Springfield was charged with statutory rape.
• Kayla Narey, 17, of South Hadley was charged with violation of civil rights with bodily injury, criminal harassment, and disturbance of a school assembly.
• Ashley Longe, 16, of South Hadley was charged with violation of civil rights with bodily injury as a youthful offender. (A “Youthful Offender” is a legal term used to describe a criminal defendant who is younger than 17, but older than 14.)
• Flannery Mullins, 16, of South Hadley was charged with violation of civil rights with bodily injury, and stalking as a youthful offender.
• Sharon Chanon Velazquez, 16, of South Hadley was charged with violation of civil rights with bodily injury, and stalking as a youthful offender.
• Additionally, three female juveniles, (aged 14 or younger,) who were not named but are all from South Hadley, are also being charged.

Other teenagers could still also be charged, according to Scheibel.

The “stalking” charges refer to these students following and harassing young Phoebe, throughout the school building as well as off school property. The “Disturbance of a school assembly” charges relate to attacks these students made upon the Prince girl, in public areas of the school such as the library where one attack occurred. The civil rights charges refer to Massachusetts as well as federal civil rights offenses these students committed against Prince. The statutory rape charges refer to allegations that the two male students engaged in sex with Prince, whether with her consent or not.

The evidence that the District Attorney’s office uncovered in this case is truly sickening. These twisted students – particularly (whether certain "feminists" groups like it or not,) the seven female students charged here – acted like a pack of wolves, out to kill their prey. And psychologically, they slowly tore her to shreds. When they weren’t physically threatening her and inflicting assault and battery upon her at and near school, they used social networking sites to take her apart, calling her, among several other lies, and "Irish slut." What did 15 year-old Phoebe Prince do to deserve this brutality? She went on a couple of dates with a senior. These girls, ugly to their core, didn't like that.

On the final day of all this physical and mental torture, after this pack of wild, twisted animals had attacked Phoebe in the school library right in front of a teacher (who did nothing,) in the lunchroom and the hallways, and threw a canned drink at her as she walked home, she reached her limit of endurance. Her sister found her hanging from a stairwell at home, still in her school clothes, at 4:30 p.m. I truly hope these nine twisted kids serve time. I really do. I know that may sound unusual coming from a Norfolk County criminal defense attorney, but I really do hope this results. The reason? Because if these charges are proven to be true - after a fair trial - then those found guilty deserve to be punished –and severely.

There is a gravestone with this girl’s name on it. There is a family, brought to this country by hope and optimism, that is now and will be forever more devastated by this tragedy. Those found guilty should serve time. Because I’m a defense lawyer, doesn’t preclude my desire for justice.

And while the primary actors here were these students, what’s going to happen to all the adults that were part of this tragedy – the school administrators who Phoebe Prince’s mother pleaded with to intervene and protect her daughter; the teachers who knew what was going on, but failed to act aggressively in stopping this carnage? It seems nothing. District Attorney Scheibel’s investigation found this evidence of inaction by school administrators particularly disturbing. Her official statement of yesterday reads as follows: “Contrary to previously published reports, Phoebe’s harassment was common knowledge to most of the South Hadley High School student body. The investigation has revealed that certain faculty, staff and administrators of the high school also were alerted to the harassment of Phoebe Prince before her death. Prior to Phoebe’s death, her mother spoke with at least two school staff members about the harassment Phoebe had reported to her." Yet, despite the District Attorney’s conclusion that South Hadley High School staffers appear to have left 15-year-old Prince to fend for herself in a teenage jungle surrounded by a pack of bloodthirsty predators, it appears they broke no laws. Notwithstanding this legal technicality, the district attorney commented that “The actions or inactions of some adults at the school are troublesome.” She said Prince’s mother spoke to “at least two school staff members” about the bullying and the harassment was “common knowledge” around the school. Yet nothing was done.

So it seems these “adults” who did little to nothing to prevent this brutal bullying will walk away scot-free, and many parents in South Hadley are justifiably disgusted. They ought to be. But perhaps they shouldn’t be surprised: These “teachers” are probably of the same type that produce students unable to spell common, everyday words or do simple math. They have little regard for what goes on in their classrooms, and look the other way when it comes to poor teaching, or just about anything else. You know the type. A lot of responsible, respected journalists in the media are equally disgusted. Margery Eagen of the Boston Herald yesterday summed up: "Now we know: The adults knew, and did nothing."

I hope these “adults” never know another night’s restful sleep. And I hope those charged who are either found guilty after a fair trial, or who plead to guilty through a plea deal, are punished to the full extent of the law (hopefully, with jail time.) That’s what’s called “justice” under the law. Phoebe Prince and her grieving family deserve no less.

Striking down a city ordinance that I am sure was well-meaning and not malignant in its intent, the Massachusetts Supreme Judicial Court (SJC) yesterday ruled unconstitutional a city of Lowell ordinance making it a crime of youths under the age of 17 to be on city streets after 11:00 PM unless accompanied by an adult.

This case was a classic civil liberties challenge to government oversight of public conduct that, in itself, is benign. The municipal ordinance was passed by the city of Lowell in 1994, after that city was wracked by years of youthful violence and youth gang activity. Many such crimes involved Massachusetts drug offenses, including murder. In fact, only two months prior to passage of the ordinance, a 16-year-old was beaten to death in a gang-related slaying. The curfew banned persons under the age of 17 from being on the city’s streets unless accompanied by a parent or a guardian. The law provided several exceptions, including for youths who held night-time jobs, were on the sidewalk next to their homes, or were participating in certain recreational or religious activities. Individuals who were convicted of violating the curfew could be fined up to $300. They could also be deemed a delinquent and placed on probation. If they violated the terms of their probation, the law stated that they could be committed to the custody of the Department of Youth Services (DYS) until the age of 18.

For the years 1998 through 2002, city police arrested and arraigned an average of 60 juveniles a year for criminal violations of the curfew, according to statistics provided by the Asian American Legal Defense and Education Fund, an organization that helped support the legal challenge that overturned this law. That averages to about 12 arrests per year, or one per month. It should be noted that the Asian American Legal Defense and Education Fund became involved in this issue, due to the large concentration of Cambodian youths and families living in Lowell. Lowell Police have asserted for years that Cambodian youth gangs are numerous and dangerous in Lowell, and the facts have supported that claim. Cecilia Chen, a lawyer for the Asian American Legal Defense Fund, commented that the curfew upset Lowell’s large Cambodian community and claimed that police in that city engaged in racial profiling. “It assumes that youth are up to no good by simply being out at night,’’ she said.

The problem is, a lot of youths out on the streets late at night, are up to no good. Incidents involving assault and battery , sexual assault and rape were not infrequent in that city (as is true with other crime-plagued communities in Massachusetts). Kenneth E. Lavallee, Lowell police superintendent, said taking away from police the power of arrest deprives officers of a critical tool, especially for suspicious or repeat violators. “This whole ordinance was enacted to protect children, to keep them safe and keep them out of an environment where harm could come to them,’’ he said. “This wasn’t done to infringe upon anybody’s rights.’’

I believe him – and I believe that the intent behind this ordinance was entirely benign and laudable – to decrease violent crime in that violence-plagued city – crime that was visibly being committed by youthful offenders. However, as a Massachusetts criminal defense lawyer, I could have told the drafters of this ordinance that the problem was in the overbroad nature of the way the law was drafted. It simply went too far in criminalizing conduct that in and of itself was not criminal, and overreaching in restricting individual liberties; in this case, the right to walk on a public street.

Writing this opinion for the court, Justice Robert J. Cordy wrote, “The criminal processes and punishments provided in the ordinance . . . contradict well-established goals of rehabilitating, not incarcerating, juvenile offenders.’’ Essentially, the court found that the right to travel is a fundamental civil liberty, and any law that restricts that right must pass stringent constitutional tests, which this law did not. Importantly, however, the court left intact civil penalties for violators of that ordinance. Civil penalties impose fines, instead of subjecting the violator to arrest or detention. With some exceptions, the law will still allow police to fine juveniles who are found on the streets unaccompanied by an adult from 11 p.m. to 5 a.m. The fine for that violation is $50, and a written notice sent to the youth’s parents or guardians.

This ruling was important because, in an effort to battle youth crime committed at night, several Massachusetts cities and towns had enacted similar juvenile curfews, and this ruling is the first time a Massachusetts state court has ruled on whether such curfews are legal. (Other Massachusetts communities enacting curfews to curb crime, have included Lynn, Holyoke, and Chicopee).

Lawyers who successfully challenged this law plan to meet in the near future with Middlesex County District Attorney Gerard T. Leone Jr., as well as Lowell city lawyers, to discuss revising the statute. In my opinion as a Boston criminal defense attorney, they will re-write the ordinance to just keep the civil penalty – and I think that’s a good idea. I’d have only one recommendation: Put the fine at $100.00.

I often wonder how people in some professions can sometimes do what they do, unavoidably exposed to what they must see as part of their work, and not give up entirely on the human race, the human condition. Beyond my own profession as a Massachusetts criminal defense lawyer, I’m thinking of two other professions: law enforcement and news reporting – because those two professions see the worst of what our world has to offer. Reading what follows, you will know what I mean.

Damian Merida is (almost was,) a 30 year-old Guatemalan. He immigrated to this country when he was young, after most of his ten brothers and sisters preceded him here, because they were living in a dirt-floor house inside a poverty-wracked village that had almost no food, medicine, employment, or future. As it had for so many others before his family, the United States beckoned as a place where a chance at making something of yourself, a chance at a decent life, still existed. He and his siblings settled in Lynn, Massachusetts. While he entered the country without legal approval – and while I can already hear the far-right’s cries of “He’s “an illegal” – he got what he deserved,” the fact remains that what I will describe was done to him, had no relation whatsoever to his being a legal or illegal immigrant. He could have had a file folder full of stamped and certified immigration papers on him, and this savagery would have happened anyway. (It’s also a fact that if any of the conservative right found themselves living in a dirt-floor hut in a dirt-poor country with no hope and no future, they’d enter this country any way they could, legally or illegally.)

On July 22, As Merida slept under a shade tree in Robert McManus Field in Lynn, a wide, grassy park about a mile from his house, a pack of children allegedly descended on the 30-year-old landscaper, and savagely beat him with a mix of bricks, bottles, sticks and rocks. The savage and inhuman attack has provoked questions and incited fear throughout this city and beyond, because according to the Lynn Police Department, Merida was targeted solely because of his ethnicity. His alleged attackers are six boys age 11 to 14; most were on championship sports teams, and one is an immigrant himself, from West Africa. Hate ran through their young veins – hate almost certainly inspired and cultivated by parents and older youths. Authorities are investigating whether this same group of boys was responsible for an attack in the Lynn area two weeks prior to the attack on Merida, on another man from Guatemala. Lynn police are urging the victim to come forward.

The Daily Item of Lynn has reported that the boys pleaded not guilty, and all but one is free pending trial. Lynn public schools suspended four of the boys indefinitely, which they reportedly have appealed. The oldest boy, age 14, is still in state custody. The sixth boy’s status is unclear. He reportedly attended St. Mary’s Junior-Senior High School last year but he did not re-enroll in the fall, according to school officials.

The boys face multiple assault charges, including armed assault with intent to murder, as well as a civil rights violation, due to the allegation that they allegedly targeted him because he was an immigrant. Acting Lynn Police Chief Kevin Coppinger reported that witnesses said the boys targeted Merida because he is Latino. Juvenile court proceedings in Massachusetts are private, and as a result, authorities would not confirm the boys’ names due to the fact that they are minors. This story goes from bad, to worse, to even worse: At least five of the six boys had won recognition in Lynn for participation in youth sports. Four were on Pop Warner football teams that were among the best in the state last year. One team was even praised in a ceremony last year at City Hall. Even worse? After the attack, the boys were allowed to play until the Merida family and others expressed outrage. One of the boys, a soccer star from West Africa, is still playing in a private league, according to his coach, who said he believes the boy is innocent. Not surprisingly, the coach would not provide his name.

Legally speaking, what are these boys facing, and what is the worst that could happen to them? Hold on to your seat: Under Massachusetts criminal law, the five boys who are under age 14 cannot be tried as adults, but rather only as juveniles. If found guilty, in all likelihood the worst legal punishment they would face would be that they could be committed to the Department of Youth Services until they reach 18 years of age. After that, they would be free. The 14-year-old could be held at DYS until he turns age 21. I’m told The Essex County District Attorney’s office is reviewing whether to try this youth as an adult. As a Boston criminal defense lawyer, I'd be stunned if they didn't.

Merida spent weeks in Massachusetts General Hospital, his face unrecognizable to friends and relatives, his body broken. Once strong, Merida has been transferred to Tewksbury Hospital, where he is learning to walk and feed himself. Family members say he has permanent brain damage and will never live and work on his own. Sometimes he suffers from long crying fits. His family is suddenly tens of thousands of dollars in debt. His family is trying to raise money to pay for his medical bills through Sovereign Bank.

Not only is this case a frightening, troubling reminder of the savagery that our culture is gradually succumbing to – fed by the rapid increase in violence in media of all sort and the decline of civil life in this country – it is also a call to reform the juvenile justice system in Massachusetts. I’ve blogged before about the injustices that can result from the present prohibitions on trying youthful offenders under age 14 as adults – and this case is Exhibit A.

This sickening, tragic event is right out of a horror movie - “Lord of the Flies” comes most appropriately to mind – and think about this: If any or all of these boys under 14 is found guilty, the worst punishment they could receive would be to be placed in DYS custody until they are 18. That’s it. Can you imagine trying to explain that result to the family of Damian Merida?

I’ve dedicated several posts to this subject, because the problem of school bullying and student violence has become so pervasive. It is a reflection of the violence and vulgarity that pervades our society, in everything from video games such as “Grand Theft Auto,” which is filled with sickening and gratuitous violence, to television and movies, to the ubiquitous (and often dangerous) internet.

This growing infection of violence and brutality is being witnessed, of course, in a new generation of school children who are among the most abusive and disrespectful in decades. I've seen this first-hand. The origins of this behavior have produced the very problem of bullying in our schools that led to the death of Charles Walker, as well as so many other bullying victims in other schools across this country. The numbers are frightening. Google “School Bullying Victims Committing Suicide,” and you’ll be shocked.

Some suggested solutions:

First and foremost, students need to be taught a centrally important point when facing this problem: There is strength in numbers. And that when you stand up for someone who is targeted for abuse, you stand up for yourself. In every classroom program teaching anti-bullying tactics, there should be the following lesson from the great German poet and pastor, Martin Niemoller. The poem speaks to the fatalism of inaction and apathy in the face of brutality. It is central to the human conscience, and it should be taught to children at an early age to inoculate children against inaction in the face of brutality. There can be no better place than schools and schoolyards in which to teach this:

"In Germany, they came first for the Communists. And I didn’t speak up because I wasn’t a Communist;

And then . . . they came for me . . . And by that time there was no one left to speak up."

This haunting truth may have been written in response to the large-scale atrocities of Hitler’s Germany, but its powerful message represents a microcosm of all social structures- whether nations or schoolyards. In our schools, students need to be taught that when they see abuse and don’t speak up or stand up for that victim, they create a greater likelihood that they themselves will one day be victimized – whether in a class room today, or in a board room 30 years from now. Students must know more than how to “spot” abuse and bullying. They need to be taught how to speak up and stand up for victims of violence, and there can be no more effective way to do this, than to form that “critical mass” of several students, who are no match for one bully, or a small group of bullies. This is a moral response to this problem; it is practical instruction, and it should be our first response to this problem. If this doesn’t work, we should proceed to enact criminal penalties for school-age children who violently bully others. As a Massachusetts criminal defense attorney, I’d like to think we can avoid resorting to charging schoolchildren with criminal offenses. Such would not be my first choice.

But it’s better than reading about an innocent young boy found by his mother hanging at the end of an electrical cord, because he was literally bullied to death – and none of his fellow students did anything about it.

In my previous post on this subject, I wrote of how an 11 year-old boy in Springfield, Massachusetts, Charles Joseph Walker-Hoover, killed himself last week after suffering repeated taunts and bullying at the hands of fellow students at the New Charter Leadership School in Springfield, Massachusetts. According to the boy’s mother, Sirdeaner L. Walker, Carl had reported to her that students regularly beat, taunted and threatened him because they believed he was gay – even though, according to Carl’s mother, he was not gay. In what regrettably no longer comes as a shock, several of the students who threatened and bullied Carl were not just boys, but girls also. It’s been reported that shortly before young Walker committed suicide, a female classmate threatened to kill him because he acted too feminine. Probably suspecting she wasn’t feminine enough, she directed her aggression at him. So much for the old saying, “Girls are made of sugar and spice and everything nice.” Don’t buy it: Girls can be just as violent and just as vicious as any boy.

Investigations have been launched, and the expected denial by school officials of any wrongdoing, (in the form of negligence in the failure of school officials to aggressively respond to prior complaints by Carl’s mother), are all taking shape. People will wring their hands, shake their heads, and say “What a pity.” The media will report the story, and it will be over. Then what? What is to be done about this problem, to minimize the odds it will happen again? Why is it that we as adults feel entitled to be protected from assault and battery, violence and abuse, but when it happens in a schoolyard, it’s too often dismissed as “child’s play?” I’ve always suspected that as adults, we don’t want to aggressively address this problem with strong legislation providing criminal penalties for children, because there’s something about ourselves in this violent behavior, that we don’t like to see, or perhaps admit. There are more anti-bullying educational programs in our schools today than there were in previous generations, as there are more awareness programs about inappropriate sexual contact, and that is good. But we must now act to prevent an equally damaging type of abuse.

A new approach is required to effectively deal with this problem. First, in public and private schools seeking licensure by the state, there ought to exist mandatory educational programs not only about why bullying is bad, but how students should group together to stand up and protect students who are victims of bullying. It’s all well and good to teach students how to spot bullying, but then what? If students aren’t taught how to combat it, “recognizing” it is largely pointless: Reporting it afterward to teachers, while desirable, isn’t an effective response, for three reasons: 1) At that point, the bullying has already taken place; the victim of the bullying has already been harmed. 2) Teachers simply can’t be everywhere at all times, noticing every threatening gesture or assault that might take place; 3) Instruction on only “recognition” of bullying, doesn’t empower students to help stand up and help bullying victims when they are being assaulted. In fact, it almost makes the observer a secondary ‘victim’ – because he or she doesn’t know how to intercede.

It is in the nature of bullying that a perpetrator picks on a weaker person, who usually stands alone. If other students learn how to spot bullying but don’t know how to respond, what good is that – especially to the victim? The Boston Globe editorialized on this very point in its April 22 2009 edition, and it is apropos to quote here: Students need to be taught how to “form a critical mass of students who are willing to come to the aid of a targeted student and stand against their peers.” This is key. Bullies target weaker, isolated or unpopular students. If only one student stands up to a bully to defend a victim, that bully will probably dole out the same aggression to the rescuer. But no bully is going to stand up to an organized group of students who stand up to defend a victim. An important, added benefit of such group action, beyond the victim being aided, is that the rescuers will walk away with increased self confidence and self esteem, which they can carry with them as they move forward in life to face the certain challenges that lay ahead of them. Everyone benefits, and substantially.

How do we achieve this in our schools? I’ll address this in my next post

Something happened in our midst this past week; something that should strike at the core of every public school committee and private school system in Massachusetts, and which should resonate across the United States. It is something that should keep principals awake at night, and something that should keep teachers vigilant about each day in their classrooms. This time, the subject isn’t drugs, and it isn’t sex or teen pregnancy, as serious as those subjects are. It’s far more common, far more insidious, and tragically, far more “accepted,” or at least tolerated, by school systems across this country.

It’s bullying.

Yes, the cruel, vicious abuse that the youngest of human beings are capable of. Maybe that’s why society hasn’t addressed it adequately enough so far: We don’t like to admit that such cruelty and savagery can exist inside children, our children. But the human being, regardless of age, is capable of unspeakable cruelty, and oddly enough, the display of that cruelty can appear with far greater frequency when people are very young. (Who has not heard the phrase, “Children can be so cruel”?)

And so it was that this past week that a boy universally described as sweet and kind by all who really knew him, hanged himself after repeated instances of bullying at the New Leadership Charter School in Springfield Massachusetts, where he attended the sixth grade. Carl Joseph Walker-Hoover could apparently take no more. His mother, Sirdeaner L. Walker, found him hanging by an extension cord in their home. The reason: Apparently, Carl wasn’t “tough enough” for many of the kids at New Leadership Charter School. Reportedly, many found him to be overly feminine, and singled him out for bullying because they thought he was gay. This is despite the fact that, according to his mother, the boy did not identify himself as gay, and despite the fact that he played football, basketball and soccer. Carl reported repeated instances of taunting, beatings and threats to his mother, who in turn reported these to school administrators. This daily emotional abuse and ongoing physical assault and battery, must have been horrible for this young boy. Despite Carl’s mother reporting this abuse to school authorities, she has inferred that school administrators did not do much in response.

Neither this post, nor this issue in general, is about gay rights. It's about human rights. It’s about moral accountability. And it’s most centrally about why we don’t protect the most vulnerable among us - school kids - from the violence that we as adults want to be - and expect to be - protected from. And it’s about what we should do about it.

I’ll follow this up more in my next post.

In my previous post on this subject, I reported on a brutal murder which took place in Hyannis, Massachusetts last December 15 2008. Aside from the savagery that marked this particular murder, what distinguished it from most murders was the fact that two of the three defendants charged with this murder are 13 years old, and are prevented by Massachusetts’ Juvenile Offender Law from both being tried as adults under the law, and shielded from a public trial. However, what many observers consider to be far worse, is these two defendants, if found guilty, can be held in state custody only until age 18. After the age of 18, the state can petition a court to continue to incarcerate that convict until he reaches the age of 21, but that is the maximum: After reaching the age of 21, that convict must, under the Juvenile Offender statute, be released from custody. Given the shocking allegations in this case, this potential outcome has been met with understandable outrage from a number of corners.

As I explained briefly in my previous post, were either of these two 13 year old defendants just one year older - age 14 - they could be tried as adults under the Juvenile Offender Law, and if found guilty, punished as adults. That would mean life in prison without the possibility of parole, if convicted of first degree murder, and a typically a minimum of twenty years if convicted of a lesser offense involving murder. The Juvenile Offender Law protecting these 13 year-olds was designed to shield very young offenders from the punishment meted out to adult offenders. But while a laudable idea in theory, is this law ill-advised in the real world we live in? Conservatives would brand this type of law the product of “bleeding heart liberals.” While I don’t count myself among conservatives, looking at this case, it’s hard to presently disagree with that assessment.

In my capacity as an experienced Massachusetts criminal defense attorney, I have been involved with many violent cases: From Assault and Battery with a Dangerous Weapon, to Rape, to Drug Offenses, to Murder. In my opinion, rather than choose an arbitrary age (such as 13), and declare that “No one of this age or younger can be tried under the same laws as an adult,” it would be a far more just approach to gauge each case on its own facts, in deciding whether or not to subject a youthful offender to the same laws that would apply to an adult in that case. Instead of a “blanket” approach, the set of facts and allegations that independently comprise each case should determine whether or not a youthful offender should be shielded from the laws that normally apply to adults.

I believe a wise approach would be as follows: Instead of statutorily tying a judge’s hands in an unspeakably heinous crime such as this, and forcing that judge to shield a defendant from the normal laws and punishments that would apply to an “adult” defendant in the same case (i.e., potentially anyone aged 14 or older,) an alternative mechanism should be created that would involve a legal maxim known as a “rebuttable presumption.” Under such a system, a “rebuttable presumption” would exist that a criminal defendant under the age of 14 should be shielded from the normal laws and criminal sentencing that apply to defendants over the age of 14. However, judges would be allowed to hear arguments by prosecutors that could, if the evidence presented were persuasive enough, rebut that presumption, and allow the judge to try such a defendant as an adult. While I am a defense attorney, I believe this approach to be quite prudent, and fair. It is quite true that courts should indeed recognize that very youthful offenders often merit protections that adult defendants do not enjoy, and such an overall approach is justified. But an absolute prohibition against exposing defendants under the age of 14 to adult sentencing, is overly-broad, and can produce decidedly unjust criminal law results. There is a sociological or theoretical presumption in the present Juvenile Offender Statute, which presumes a 13 year-old cannot know or understand that nature of his acts; that such an individual cannot be evil. I do not believe this statutory presumption to be true in all cases. Tragically, several cases, including apparently the present one written of here, illustrate the fallacy of this presumption.

At this point, these defendants must be presumed legally innocent, and they should each receive a vigorous legal defense from competent legal counsel. However, a close look at the evidence in this case, may make clear that our justice system should not shield someone accused of a heinous crime, on the basis of his age alone. Savagery and depravity can exist inside any human being, regardless of age. While some of my defense bar colleagues might disagree with my suggestions here, I believe our common goal in such cases should be justice, not loopholes. In my opinion as a Massachusetts criminal defense attorney, to do otherwise is to invite the crude jokes and criticism far too often heaped upon the criminal defense bar.

By now, many have read or heard of the gruesome, recent murder of a 16 year-old boy in Hyannis, Massachusetts. The body of Jordan Mendes was found buried in a ditch on Jennifer Lane in Barnstable on Tuesday night, December 16 2008. According to Cape and Islands District Attorney Michael O’Keefe, Mendes had been stabbed and shot to death shortly after noon on December 15 2008. The next day, his body was doused with gasoline, rolled in a carpet, set on fire, and then buried, smoldering, in a dirt hole. Police have arrested three individuals for this murder.

But if the facts couldn’t get any worse, investigators allege that two of the victim’s killers were 13 year-old boys – and that one of the 13 year-olds was the victim’s half-brother. The two 13 year-olds are Kevin Ribeiro and Mykel Mendes; Mendes is the victim’s half-brother, and they share the same father, one Manuel Mendes. Manuel Mendes is a convicted cocaine dealer, who is currently serving a 35-year federal prison sentence for cocaine trafficking. The third defendant is 20 year-old Robert Vacher. According to a criminal complaint in Barnstable County District Court, investigators allege that Robert Vacher stabbed and shot Mendes, while the two 13 year-old defendants supplied the gun and the knife, and were present during the murder. The three defendants allegedly stole $10,000.00 from the victim, who was alleged by the defendants to be a drug dealer, and bought a silver BMW with the cash.

Any reasonable person would expect that all these defendants should be put on trial for murder (presumably in the first degree,) and if found guilty beyond a reasonable doubt, spend the rest of their lives in prison. But it gets complicated from here – and unpleasant. Because two of these three defendants are under the age of 14, they cannot be tried as adults in Massachusetts. This is due to the state’s Juvenile Offender Law, which provides that while defendants aged 14 and older can be tried as “youthful offenders” and sentenced as adults, juveniles under the age of 14 are shielded by this statute from: 1) A public trial; and 2) If found guilty of this charge (or any criminal charge,) such juvenile defendants can only be held in state custody until a maximum of age 21. If these two 13 year-olds were 14 or older, they could be charged as youthful offenders in open court, and incarcerated past the age of 21. Under the existing law, they can’t.

In my next post, I’ll talk about what, if anything, should be done about this type of criminal law situation.