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13-Year-Old Charged with First-Degree Murder in Oklahoma, Faces Life in Prison

13-Year-Old Charged with First-Degree Murder in Oklahoma, Faces Life in Prison

In Oklahoma last month, the Lincoln County District Attorney’s Office charged a 13-year-old boy with first-degree murder after an October play date ended with him hitting his two friends (ages 8 and 10) with a crossbow arrow, killing one. According to NewsOK, the arrow went through the 10-year-old, killing him, and punctured the 8-year-old in the arm. The 13-year-old boy told authorities that the incident was an accident. However, the 8-year-old who was hit told investigators that the 13-year-old was angry at his friends.

The case was picked up by national outlets, including the Associated Press and CBS News, which noted that the 13-year-old boy is one of the youngest ever in Oklahoma to be charged as an adult with first-degree murder, a charge that comes with a mandatory minimum sentence of life in prison. But one thing was left unsaid: The prosecutor seems to be using an inflated charge, given the crime, in order to put a 13-year-old behind bars.

In Oklahoma, first-degree murder usually requires “malice aforethought” (also known as premeditation). Second-degree murder, on the other hand, is defined as not premeditated, but with the intent to harm or kill. That’s different from manslaughter, which includes homicides committed in the heat of passion, without malice or intentional harm. The Lincoln County DA’s office did not respond to a request for comment — including questions about why the office decided to charge the 13-year-old boy with first-degree murder instead of second-degree murder or manslaughter.

A first-degree murder charge is the only way for a prosecutor in Oklahoma to automatically charge a 13-year-old as an adult without a judge’s ruling. A first-degree murder charge also comes with a mandatory minimum sentence of life in prison, life without parole, or death. As a comparison, second-degree murder in Oklahoma comes with a mandatory minimum of 10 years in prison. Given his young age, if the 13-year-old boy had been charged with anything other than first-degree murder, he would have been charged in the juvenile justice system.

There, his age and background would come into consideration in the courtroom and there would be programming and mental health services to help him with rehabilitation. A prosecutor can seek to have a child’s case transferred to adult court if that child is convicted of a felony, but the request must be reviewed by a judge and supported by “clear and convincing evidence” that prosecution as an adult is warranted.

Samantha Buckingham, director of the Juvenile Justice Clinic at Loyola Law School, declined to discuss the Oklahoma case specifically, but told The Appeal that prosecutors often file more serious charges to bring cases in adult criminal court rather than proceeding in juvenile court. “Prosecutors who have the power to directly file charges in adult court will utilize that power when they charge the most serious offense, which is oftentimes unwarranted by the facts, evidence, and mitigation present in the case,” she said.

It is not entirely set in stone that the 13-year-old boy’s case will remain in adult court, though proving he should be tried in the juvenile system now falls on his attorney’s shoulders: Oklahoma law allows the boy’s attorney to file a motion asking the judge to certify him as a juvenile. The judge has also ordered a psychological evaluation for the 13-year-old.

The prosecutors’ push to charge the 13-year-old boy as an adult and seek a life sentence flies in the face of recent juvenile justice reforms across the country. The most notable reform occurred after 2012 when the Supreme Court ruledin Miller v. Alabama that mandatory life without parole sentences for children convicted of murder were unconstitutional. The ruling cited research on children’s brain development and the outcomes of putting children through the adult criminal justice system. Studies show that children are more likely to re-offend if they go through the adult criminal justice system, while their chances for rehabilitation are far greater when they go through the juvenile justice system.

There is “an indisputable body of research that shows that youth’s brains are still developing through their teen years [and up until age 25]. In fact, this is such an intense period of growth that it is as critical to a young person’s future as the well-known brain development that takes place in the ages of 0 to 3,” Sarah Bryer, executive director of the National Juvenile Justice Network, told The Appeal.

Since the Supreme Court ruling, at least 20 states, plus Washington, D.C., have banned juvenile life without parole sentences. Another six states have no people currently in prison who were sentenced to life without parole as juveniles. Oklahoma is in neither of these categories. In 2016, the most recent data available, Oklahoma had 10 people in its prison population who’d been sentenced to life without parole as juveniles. Other states, like Louisiana, Pennsylvania, and Michigan, had over 200 people in prison in 2016 who were sentenced to life without parole as juveniles. More than 20 states have no child lifers currently in prison.

Despite recent legislation in many states that followed the SCOTUS rulings, there are still factors stopping children from being treated like kids in the criminal justice system. “We don’t have a juvenile court yet that handles all people up to 24 or 25 years old,” Buckingham noted. “Reforming the law to provide for hearings before a judge in each and every case will afford a critical opportunity to fully consider whether transfer of the child’s case to adult court is the best course for long-term concerns like recidivism and rehabilitation.”

But, in Oklahoma, the 13-year-old’s case demonstrates how prosecutors may try to get around any new legal restrictions: by filing trumped-up charges that go against the grain of SCOTUS opinion and the state’s preference — as reflected in its criminal code — in order to get children into the adult criminal justice system.

Activists Fight Back After NYPD Turns Prosecutor To Avoid Civil Suits

Arminta Jeffryes outside of Midtown Community Court

Activists Fight Back After NYPD Turns Prosecutor To Avoid Civil Suits

In almost every criminal case in New York City, the police department makes an arrest, and it’s up to the borough’s District Attorney to decide whether to prosecute. However, since the beginning of 2016, the Manhattan DA has taken the extraordinary step of allowing the NYPD’s Legal Bureau to prosecute some cases in court. Why? So the NYPD, according to its own leadership, can avoid “frivolous lawsuits” by persuading protesters to admit their guilt in exchange for having their charges dropped. This would shield the NYPD from future civil rights suits alleging the arrests were illegal. In fiscal year 2016 alone, the city paid out more than $228 million in settlements for police misconduct.

While allowing the police to act as prosecutors is more common elsewhere in the state, it’s highly unusual in New York City. But in February 2016, the NYPD and DA’s office signed a memorandum of understanding authorizing the NYPD to act as prosecutor in specific cases. In practice, the NYPD has overwhelmingly used this prosecutorial discretion to target protesters — but now those protesters are fighting back.

Late last week, after a years-long legal battle, Arminta Jeffryes, 24, was convicted of jaywalking during a 2016 protest against police killings of black and brown people. Only six people were charged with jaywalking in New York City in 2016.

But the case only went to trial because Jeffryes wanted to challenge the fact that the NYPD had acted as prosecutor. She and fellow protester Cristina Winsor (who was arrested at an earlier march for obstructing traffic) kicked off a movement that continues to challenge this arrangement. In November 2016, Jeffryes and Winsor filed a lawsuit against the NYPD and the Manhattan DA’s office, alleging the unconstitutionality of having prosecutors cede their sole responsibility to the police. Last September, a Manhattan Supreme Court allowed the lawsuit to move forward after the city tried to get the case dismissed.

“It is surely unfair if the prosecutors are concerned about protecting their employer and co-employees from civil liability, rather than being solely concerned about achieving justice for the people of the county who elected the District Attorney to accomplish that objective above all else,” Justice Lucy Billings wrote in her ruling.

The office of Manhattan DA Cyrus Vance declined a request for comment from The Appeal.

As their challenge moved through the court system, both Winsor and Jeffryes still faced criminal charges. Winsor was acquitted at her trial in October, where a judge berated the NYPD for inaccurately recalling the events which led to her arrest, statements that were easily disproven by video.

In late January, it was Jeffryes’s turn. The NYPD arrested Jeffryes after she led a group of protesters to a median in the middle of a street in lower Manhattan on March 7, 2016. The protest was part of #PeoplesMonday, a weekly march to businesses and public spaces throughout the city to highlight police killings. That night’s protest was held in honor of Gynnya McMillen, a black teenager who died in a Kentucky state-run juvenile detention center. Throughout the protest, Jeffryes helped marshal the protesters, stopping them when they didn’t have a green light, and giving the signal when it was safe for them to go.

But instead of focusing on the basic fact of whether Jeffryes violated any traffic laws, the NYPD’s case against her centered on how uncomfortable the protest had made police officers feel and whether it was meant to “intimidate” them.

Testifying against Jeffryes in court was NYPD Captain Paul Lanot, who was working out of Manhattan’s Seventh Precinct and oversaw the arrests that evening. He described an unruly scene, where the NYPD made the decision to arrest Jeffryes not because she was jaywalking, but instead to “correct her behavior.” The NYPD went to great lengths to make clear they weren’t trying to “stop” the ongoing protest, which would violate the participants’ constitutional rights, but simply trying to police their activities. Captain Lanot later admitted, however, that he considered arresting Jeffryes an effective way of stopping the protest because it would send a message to protesters.

NYPD attorney Neil Fenton repeatedly raised Jeffryes’s prior cases, in which she had been arrested as part of protests, including cases that had been dismissed. That tactic brought repeated objections from her attorney, Martin Stolar, which were sustained by Judge Charlotte Davidson. Stolar called Jeffryes’s fellow protesters to the stand to testify that she had helped marchers obey traffic laws. But on cross-examination of the protesters, Fenton questioned the basis of chants that had offended the police, such as “NYPD — Shut it down,” leading to surreal moments in the courtroom.

When Fenton asked a fellow protester who served as a witness why protesters would chant “Fuck the police,” she responded that they did so when police were violent at protests. When the protester offered examples of violence by the NYPD at protests, Fenton objected, leading to a reprimand from the judge.

“You’re objecting to her testimony?” asked an astonished Judge Davidson.

When Jeffryes herself took the stand on February 1, Fenton again cross-examined her about the protestor chants.

Fenton asked Jeffryes what “Shut it down” referred to, and if it might have referred to New York City streets. She said he was misinterpreting it.

When her own lawyer questioned her about the chant, Jeffryes elaborated. “Black bodies laying for four hours dead in the street,” she said. “Black bodies in the stairwells. Black bodies dead on their grandmothers’ couch. That’s what we’re trying to shut down.”

A frustrated Fenton objected and the judge overruled him.

After 11 minutes of deliberation, Judge Davidson returned with a guilty verdict. Jeffryes was given time served (at the precinct, the night of the arrest) and an $88 surcharge. Speaking with The Appeal after the trial, Jeffryes said she wasn’t surprised by the verdict and that she is hopeful NYPD prosecutions of protesters will not dissuade people from taking to the streets.

“They arrested me to set an example,” said Jeffryes. “They think they can arrest me and the whole march would shut down. Nah. The march continues and doesn’t end until we say it ends.”

Asked for final thoughts on the trial, Jeffryes emphatically said, “Fuck the police.”

Stolar, Jeffryes’s attorney, said he was disappointed that the court didn’t consider the possible First Amendment violations implicit in the arrest, especially because the police had openly admitted they made the arrest to send a message to the protesters. He said he’s now looking forward to the ongoing lawsuit that Winsor and Jeffryes filed in New York Supreme Court, challenging the practice of the NYPD prosecuting these cases.

“We have a [NY] Supreme Court justice who has said it’s unethical for the police department to provide their own lawyers to prosecute summons cases,” said Stolar, “and she wanted to see what would happen with the criminal cases before moving forward. The whole reason we went to trial in what is essentially a silly jaywalking case, is to preserve the issue as to who is the prosecutor and whether [Manhattan DA] Cyrus Vance can delegate prosecution, which he is elected to do, to people who are hired as police officers.”

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Why Prosecutors Keep Cheating: The Catherine Fuller Murder and the Failure of the Brady Rule

Chris Turner, convicted of Catherine Fuller’s murder in a trial rife with prosecutorial misconduct, visits her grave

Why Prosecutors Keep Cheating: The Catherine Fuller Murder and the Failure of the Brady Rule

Since last fall, #MeToo has grown from a hashtag into a movement. Stories of sexual misconduct throughout society — especially in the entertainment and business and political spheres — have wakened millions of people to the colossal scale of the problem. One of the most hopeful results is that efforts are underway to go beyond simply naming the problem to recognizing the culture that has allowed or excused sexual harassment and assault, and to hold organizations accountable for changing that climate.

Something similar needs to happen with our justice system. Over the past year, newspapers and magazines and legal blogs have been full of stories about violations of the Brady rule: the legal tenet that prosecutors in criminal cases must disclose favorable, material evidence to the defense. But so far, nearly all the focus has been on the misdeeds of individual prosecutors, and the failure of the courts to hold them accountable. There has been has been little effort to link these actions to the culture of prosecution offices; to a working environment that has tacitly, if not overtly, approved and enabled those violations.

The 33-year odyssey of the Catherine Fuller murder case, which reached the Supreme Court last year, is a prime illustration of why prosecutors break the rule. It’s also a lesson on why the problem persists.

In October 1984, a woman named Aimee Davis told Washington, D.C. police Lt. Frank Loney that she’d seen a horrific murder. She was shooting up heroin in an alley off H Street NE when she saw a man she knew, James Blue, beat a woman to death.

“The motherfucker just got out of jail the same day,” she said, “and killed her for just a few dollars.”

Loney knew of the killing Davis was talking about. Less than four weeks earlier, Catherine Fuller, a 49-year-old wife and mother, had been found dead in an empty garage. Police had quickly called it a gang attack; perhaps the most vicious and senseless killing in city history. They were working overtime to crack the case.

Loney passed his report of Davis’s story to the homicide division. But somehow it got “lost in the shuffle,” as the government later put it. By the time Loney’s report reached the right detectives, they had arrested 17 other people for the crime. The story was front-page news, and the lead prosecutor, Jerry Goren, was preparing for the trial of his career.

Under the Brady rule, named for a 1963 Supreme Court case, Davis’s story was clearly exculpatory. It was an eyewitness statement naming a different perpetrator, with a completely different scenario. But her narrative didn’t fit with Goren’s case. He decided, on his own, that she wasn’t credible. Instead of giving the report to the defense, he buried it. Eight young men were convicted for the killing, despite their protestations of innocence, and sent to prison for life.

Fifteen years later, the work of a dogged Washington Post reporter led to the discovery of this hidden evidence, along with other information favorable to the defense. It took 10 more years to win a hearing. Finally, the case — U.S. v. Turner — went all the way to the Supreme Court.

In June 2017, the Court, by a 6–2 vote, denied the men any relief. The majority opinion, by Justice Stephen Breyer, echoed both lower courts in stating that withholding Davis’s story was wrong; that exculpatory information should “be disclosed to defendants as a matter of course.” But he deemed the withheld evidence “too little, too weak, or too distant from the main evidentiary points” to have unfairly prejudiced the accused, so the convictions stood.

The Fuller case isn’t unusual; prosecutors regularly withhold exculpatory information. Alex Kozinski, former chief judge of the 9th Circuit, the nation’s largest appeals court, described the situation this way: “There is an epidemic of Brady violations abroad in the land. Only judges can put a stop to it.”

Kozinski, who recently resigned because of extensive sexual misbehavior, is right about the problem, but only partly right about the cure. Judges should — yet seldom do — punish violations that get to court. Stronger enforcement would no doubt scare some erring prosecutors straight. But because most Brady misdeeds don’t attract a relentless reporter or lawyer, they never come to light. Only prosecutors can stop them, since only they are aware of them.

So why is there virtual silence from prosecuting attorneys about this problem? Why do so many of them routinely break the rule? Or defend their colleagues who do?

It’s not due to some ambiguity in the guiding principle. The law is clear: the government’s “interest in a prosecution is not that it shall win a case, but that justice shall be done.” It’s because, in practice, convictions have become the goal. Prosecutors are not praised and promoted for making Brady disclosures, but for getting guilty verdicts. That’s their mindset.

In this case, it would have been a simple matter for Goren to hand Davis’s statement to the defense. Yet he hid the information to protect his prosecution. To him, the accused were guilty of a terrible crime, and justice meant convicting them of Fuller’s murder. But he didn’t have a strong case. If Davis was right, his entire prosecution was wrong. He didn’t want to lose the biggest trial of his life. So he withheld the report.

Coverage of the Fuller murder trial.

As a former public defender in Philadelphia and D.C., I know lots of conscientious prosecutors. But too many others do whatever they can to subvert the Brady rule. Sometimes they make late disclosures, even during trial, so it’s difficult to incorporate any new, helpful information into a defense. Sometimes they resort to massive document dumps, which makes it hard to find a useful piece of evidence among hundreds of pages. And sometimes, as Goren did here, they simply hide Brady material.

In 2009, I represented Joseph Harrington, who was accused of stabbing a man to death in a D.C. park. After deliberating several days, and announcing once that they were hung, the jury convicted him of murder. Less than two weeks later, mostly through blind luck, I learned that the prosecutor had concealed the fact that her star witness had been seen at the crime scene holding a large knife. And when an officer asked the witness about it, she had replied: “Self-preservation is the first rule of law.”

After extended arguments, the trial judge ruled that the non-disclosure was done “consciously, deliberately, and as a tactic,” and reversed the conviction. But it left me wondering how many other cases I might have worked where favorable evidence remained hidden, and my clients suffered unfairly; where a prosecutor’s desire to win overwhelmed the duty to disclose.

According to ex-judge Kozinski, that attitude is more the norm than the exception. During a 60 Minutes interview last April, he had this exchange with reporter Lesley Stahl:

Q: How much of a stigma is it to not turn over exculpatory evidence? Is it a huge blemish on a prosecutor, on a lawyer?

A: I don’t think so. I think they consider it feathers in their caps.

A related Brady problem is that decisions on whether evidence is exculpatory, or material, are made by prosecutors. In this context, objectivity is nearly impossible. They are invested in their case, in their theory. Like all of us, they are subject to confirmation bias: the tendency to favor information that supports our assumptions, and discount information that doesn’t.

Testifying about his decisions in the Fuller case, Goren frankly admitted that he had evaluated Davis’s story in light of his fixed belief that the killing was a gang attack, and that everyone he had arrested was involved. Given that starting point, it was inevitable that he would find Davis’s account of a lone, different perpetrator incredible, and conclude that he could withhold the information because it wasn’t material.

The solution is as obvious as it is difficult. Just having the Brady rule isn’t nearly enough. Prosecutors’ offices need to make fairness the focus, rather than winning. They need to reward lawyers who follow the rule, regardless of the outcome in a case. Conversely, whether the courts act or not, they need to punish those who violate the rule. The many honest prosecutors need to hold their weaker colleagues accountable. In short, the entire prosecution climate needs to be transformed.

The Fuller case shows how much work remains.

In his opinion, Justice Breyer made much of the fact that the government’s lawyer “assured the Court … that subsequent to petitioners’ trial it has adopted a ‘generous policy of discovery’ in criminal cases.” He had avowed that, if the Fuller trial were held today, the hidden evidence would surely be disclosed. Yet violations continue, as the Harrington case shows.

And at the oral argument on March 29, 2017, a score of prosecutors from the Office of the U.S. Attorney talked among themselves as they waited in the lawyer’s line to get seats inside. Nothing any of them said suggested any shame or chagrin at Goren’s actions in the Fuller case. Nothing indicated any concerns about the defendants left in the dark, about young men who had staked their futures on a belief that the system was fair. What they repeatedly expressed was near-outrage that the Court was even hearing the matter, even considering a sanction.

As long as that culture abides, Brady violations will be business as usual.

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