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Judges matter when it comes to treating kids like kids

Cuyahoga River, Cleveland, OH

Judges matter when it comes to treating kids like kids

Cuyahoga County prosecutor Michael O’Malley attempted to try a 15-year-old boy accused of murder as an adult. The child was accused of shooting 16-year-old Alexander Mullins in an abandoned building in Cleveland’s Slavic Village. O’Malley’s effort to try the child in adult court was rejected by Cuyahoga County Juvenile Court Judge Alison Floyd, who found that the child still had a chance at rehabilitation.

Judge Floyd’s ruling will have massive consequences for the boy. If he’s convicted in juvenile court, the child would have to be released from a youth prison by the time he’s 21. If he’d been tried and convicted as an adult, the child could have faced life in prison with parole eligibility after 20 years.

According to the Cleveland Plain Dealer, “Floyd held a hearing June 20 and later found that the boy is emotionally mature enough to be transferred to adult court. But he has no previous convictions in juvenile court and Floyd believes there is still enough time before he turns 18 for the juvenile system to rehabilitate him.”

While Ohio law left the final decision in the hands of a judge, in many other states O’Malley would have been free to prosecute the child in adult court without input from or review by a court. In those jurisdictions, it is left up to the prosecutor to determine whether to initiate a case against a child in juvenile court or in adult criminal court (by way of a method called “direct file”).

“With direct file, there’s no opportunity for it to go before a judge to make that very important decision on whether or not a child should be prosecuted as an adult,” said Nisha Ajmani, a lawyer and program manager at the Center on Juvenile and Criminal Justice in a 2016 Atlantic article that looked at efforts in California to end the practice.

Ajmani said a judge should be part of the of the process because prosecutors, among other things, may be more focused on appearing “tough on crime” rather than fully exploring a juvenile’s maturity and capacity for rehabilitation.

Florida’s direct file practice has generated the most attention, with the Marshall Project saying that the state is the worst in the nation when it comes to prosecuting children as adults. Human Rights Watch has reported that during a five-year period, over 12,000 children were sent to Florida’s adult courts. Notably, Human Rights Watch determined that “more than 60 percent of the juveniles Florida transferred to adult court during this period were charged with nonviolent felonies. Only 2.7 percent were prosecuted for murder.”

According to HRW’s report, there is also statistical evidence that children of color in Florida were more likely to be direct filed than white juveniles: “Our analysis reveals that black boys make up 27.2 percent of children received by the juvenile justice system (arrested and initially sent for processing to the Department of Juvenile Justice), but account for 51.4 percent of transfers to the adult system. White boys make up 28 percent of children received by the juvenile justice system, but account for only 24.4 percent of transfers.”

Heavy criticism of direct filing led both California and Vermont to recently abandon the practice in their states. Reform efforts in Florida, however, died in the legislature this past spring.

Prosecutorial misconduct in DE renders guilty plea unconstitutional

Delaware Coat of Arms
Wikimedia Commons

Prosecutorial misconduct in DE renders guilty plea unconstitutional

When a defendant pleads guilty, he must do so “knowingly, intelligently, and voluntarily.” Whether those requirements are undermined when prosecutors withhold information concerning the credibility of a key witness was explored in a recent decision by Judge Richard Stokes of the Superior Court of Delaware.

On February 19, 2016, Michael Coverdale came to court on heroin-related criminal charges. During the February 19 hearing, Coverdale’s attorney informed the court that the State had just disclosed that the its forensic chemist, Dr. Bipin Mody, had resigned. Defense counsel said that he understood that Mody “was actually suspended pending discipline up to termination,” and suggested that what little he knew about the situation “affects the integrity of the information” — the testing of the heroin — “that substantially affects this case.”

The prosecutor dismissed Coverdale’s attorney’s suggestion and asserted that Mody’s departure was unrelated to any wrongdoing. “There is no Bradyinformation that the State is aware of,” the prosecutor assured Coverdale and the court, rerferring to Brady v. Maryland—a US Supreme Court case that requires prosecutors to provide information to the defense when it is material and exculpatory.

Three days later, the prosecutor again dismissed concerns about why Mody’s employment ended. “Your Honor, I did check with Wilmington and the only issue is his turnaround time on case work. There’s nothing else.”

Up against a plea deadline, Coverdale agreed to plead guilty.

Only after Coverdale pled guilty, the truth about Mody — and what prosecutors knew yet withheld from Coverdale — emerged.

Contrary to the prosecutor’s earlier claims, Mody didn’t lose his job because of “laziness.” Instead, what the prosecutor knew — and withheld — was that Mody “was subject to disciplinary actions because he … did not follow correct testing procedures; undertook multiple practices which, in a variety of ways, undermined the chain of custody; and/or was untruthful with regard to his … testing procedures.”

According to Judge Stokes, issues known by the Delaware Department of Justice regarding Dr. Mody included: he did not always rerun drug samples after being told to do so; some cases had to be retested because he was not following the proper testing procedures; he was not always candid when confronted about his errors and omissions; he sometimes entered incorrect lot numbers for reagents; cases were returned to him because he had not entered the correct information on his reports; and he did not follow proper procedures when doing his proficiency tests.

Judge Stokes found that these “affirmative prosecutorial misrepresentation[s] … caused the defendant to enter the plea under a misapprehension or mistake as to his legal rights.” Notwithstanding the uphill legal battle defendants often face when asserting that prosecutors withheld Brady information before entering a guilty plea, Judge Stokes found the conduct in Coverdale’s case crossed the line.

“In this case, the prosecutor’s misrepresentation and concealment of the Bradymaterial was serious; i.e., it was a grave misrepresentation which constituted grave prosecutorial misconduct. Furthermore, the misrepresentation impacted the integrity of the plea process and the justice system in turn.”

Judge Stokes concluded that Coverdale “entered a plea bargain that he otherwise would not have entered,” and vacated his convictions.

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SA Melissa Nelson (Office of the State Attorney for Florida’s Fourth Judicial Circuit) Elections matter: Florida’s 4th Judicial Circuit

SA Melissa Nelson
Office of the State Attorney for Florida’s Fourth Judicial Circuit

SA Melissa Nelson (Office of the State Attorney for Florida’s Fourth Judicial Circuit) Elections matter: Florida’s 4th Judicial Circuit

In August 2016, Melissa Nelson overwhelmingly defeated Angela Corey to become the chief elected prosecutor in Northeast Florida. During her campaign, Nelson “assembled a coalition of support ranging from the National Rifle Association to liberal trial lawyers. Many were motivated by dislike of Corey, who had become an increasingly polarizing figure locally and nationwide.”

It is axiomatic that campaigning is easier than governing. So now six months into her tenure, the question on the table is how is Nelson doing? Or as The Florida Times-Union recently explored: Has she delivered?

At one time, Corey, the elected prosecutor before Nelson, was largely seen as unbeatable. In the modern era no chief prosecutor had ever been voted out of office in Jacksonville, and it was assumed that Corey would keep her job for as long as she wanted.

But Corey’s draconian views on criminal justice caught up with her. Her decision to seek a long prison sentence for Marissa Alexander, a woman who fired a shot in the direction of her estranged husband who had just beaten her, and to try 12-year-old Cristian Fernandez as an adult for the murder of his half-brother, drew international condemnation. The Nation ran an article on Corey asking if she was the “cruelest prosecutor in America.”

Nelson easily defeated Corey with a promise to change the office culture and mete out justice in a responsible, reform-minded manner.

Early indications are that in Florida’s Fourth Judicial Circuit, this particular election has provided positive returns for those who believed in Nelson’s platform of change.

Nelson is going forward with plans to launch the first conviction integrity unit in Florida, with her office actively seeking a director who will ferret out wrongful convictions. She has also endorsed the use of civil citations for juveniles rather than arresting and jailing them.

Nelson has also been willing to dismiss charges in cases in which Corey almost certainly would not. For example, she dropped the charges against one man charged with arson and murder who had been locked up for three years after determining the case against him was weak.

Nelson dropped the charges against a woman who shot and killed her husband after she said he had beaten her. She also dropped the charges against two men and cut misdemeanor plea deals with three other men who’d been involved in an anti-war protest and got into an altercation with a Donald Trump supporter.

While it’s impossible to say if Corey would have done any of these things if she were still in office, her previous record strongly suggests that she wouldn’t have done any of them.

To be sure, concerns remain that Nelson has not gone far enough to change the corrosive culture that Corey left behind. But early returns suggest that Nelson has at least cleared the low bar set by her predecessor.

All of which offers another clear reminder that the most powerful actor in the justice system — the elected prosecutor — can and should remain accountable to her constituents.

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