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September 17, 2012

How should the law respond to those who kill before they are teenagers?

BildeThe question in the title of this post is prompted by this lengthy new AP article discussing the debate over how Florida is dealing with Cristian Fernandez, who at age 12 was charged last year with the murder of a 2-year-old half-brother. Here are excerpts from the piece:

A decade before he was charged with murder, a 2-year-old Cristian Fernandez was found naked and dirty, wandering a South Florida street. The grandmother taking care of him had holed up with cocaine in a messy motel room, while his 14-year-old mother was nowhere to be found.

His life had been punctuated with violence since he was conceived, an act that resulted in a sexual assault conviction against his father. Fernandez' life got worse from there: He was sexually assaulted by a cousin and beaten by his stepfather, who committed suicide before police investigating the beating arrived....

Now 13, Fernandez is accused of two heinous crimes himself: first-degree murder in the 2011 beating death of his 2-year-old half-brother and the sexual abuse of his 5-year-old half-brother. He's been charged as an adult and is the youngest inmate awaiting trial in Duval County.

If convicted of either crime, Fernandez could face a life sentence — a possibility that has stirred strong emotions among those for and against such strict punishment. The case is one of the most complex and difficult in Florida's courts, and it could change how first-degree murder charges involving juvenile defendants are handled statewide.

Underscoring the unusual nature of the case, Fernandez' defense attorneys said they aren't sure how to proceed since the U.S. Supreme Court threw out mandatory life in prison without parole for juvenile offenders in June. Another complication involves whether Fernandez understood his rights during police interrogations....

Supporters of local State Attorney Angela Corey say she's doing the right thing by trying Fernandez as an adult: holding a criminal accountable to the full extent of the law. But others, like Carol Torres, say Fernandez should be tried in juvenile court and needs help, not life in prison. "He should be rehabilitated and have a second chance at life," said Torres, 51. Her grandson attended school with Fernandez and she has created a Facebook page to support him.

In other states, children accused of violent crimes are often charged or convicted as juveniles. In 2011, a Colorado boy pleaded guilty to killing his two parents when he was 12; he was given a seven-year sentence in a juvenile facility and three years parole. A Pennsylvania boy accused of killing his father's pregnant fiancée and her unborn child when he was 11 was sent this year to an undisclosed juvenile facility where he could remain in state custody until his 21st birthday.

The Justice Department said that 29 children under age 14 committed homicides around the country in 2010, the most recent year for which the statistics were available...

Based on psychological evaluations, prosecutors say that Fernandez poses a significant risk of violence. That's why he is being detained pre-trial — and why they charged him with two first-degree felonies.

Yet difficult questions remain for Judge Mallory Cooper: Should a child so young spend his life in prison? Does Fernandez understand his crimes, and can he comprehend the complex legal issues surrounding his case?

In August, Cooper ruled that police interrogations of Fernandez in the murder and sexual assault cases are not admissible, saying Fernandez couldn't knowledgeably waive his rights to remain silent and consult an attorney. Prosecutors are appealing.

The defense wants the charges dismissed, saying the U.S. Supreme Court ruling banning sentences of life without parole for juveniles makes it impossible for them to advise Fernandez since the Florida Legislature has not changed state law. Prosecutors say they never said they would seek a mandatory life sentence — they say the old Florida law that called for a 25-year-to-life sentence could apply.

Mitch Stone, a Jacksonville defense attorney who is familiar with the case, said Corey and her prosecutors are in a tough position. "I know they're good people and good lawyers," he said. "But if a resolution short of trial doesn't occur, this case is on a collision course to sending Cristian Fernandez to life in prison. That's why this is one of those very difficult cases. It's hard to understand what the appropriate measure is."

Related post on Fernandez case:

September 17, 2012 at 08:47 AM | Permalink


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I am a prosecutor.
I appreciate the difficulty of the situation. It seems like this tween age is the one that is the most challenging--once juveniles hit 14 or so, it's easier to think of them as fully responsible. Or maybe to phrase it like this--when young juveniles prey on other juvenile victims, it has been difficult for me not to see both parties still as victims. As the suspect gets closer to 15 and further from 10, somehow it becomes easier and easier to differentiate the two and pin the "well, even if you were victimized as a child, you are now [insert age], you know right from wrong, and you are going to be held fully accountable." What is the right answer here?

Posted by: Rachel Laing | Sep 17, 2012 2:57:02 PM

Here we are back in the dumbass lawyer backwards Twilight Zone world. The moire dangerous the person, the greater the protection of the dumbass lawyer. Dumbass is not an epithet, but a term of art. It refers to an intelligent modern student who enters law school and emerges a mentally crippled, atavistic believer in supernatural powers, a victim of the law school indoctrination process.

All mitigating factors are actually aggravating factors, young age, insanity, rough childhoods, mental retardation make the murderer more dangerous, but not less culpable.

To be honest, I do not know if I would the physical courage to personally execute even a serial killer, let alone a child murderer. I would have not a second of hesitation if executing the arrested, tried and condemned members of the lawyer hierarchy, internal traitors, seeking the destruction of our nation. It would be a patriotic duty to rid our besieged nation of this relentless pestilence.

Posted by: Supremacy Claus | Sep 17, 2012 11:17:35 PM

\\ " "beating death of his 2-year-old half-brother and the sexual abuse of his 5-year-old half-brother" " \\

"[W]hen young juveniles prey on other juvenile victims, it has been difficult for me not to see both parties still as victims."

This statement in response to this case is one of the sickest things I think I've ever heard.

Posted by: Adamakis | Sep 18, 2012 1:10:34 PM

Adamakis --

It has become standard-issue defense lawyering to portray the client as a victim, and the client can be any age.

The ACTUAL victim is, to coin a phrase, an inconvenient truth.

Posted by: Bill Otis | Sep 18, 2012 1:37:47 PM

Adamakis: My statement is one of the sickest things you've ever heard--really? Nothing like a little overstatement.

Now, by way of explanation for the "sickest" statement of the century, as a juvenile prosecutor, I became used to distinguishing between the Victim and the Juvenile (terminology in my state) despite the fact that both parties were often both minors. Especially in rape cases, the Juvenile had often been sexually assaulted and/or exposed to pornography in his or her past which would be presented to the magistrate as a mitigating factor by defense counsel. And up straight-up explanation for his/her conduct. In some instances, the two offenses ((1) Juvenile being abused and (2) Juvenile abusing) were so close in time that Job and Family Services/law enforcement were using information from a Juvenile's party opponent admissions to turn around and investigate the rape/abuse that preceded the instant offense. (How interesting is that.) For me, when the Juvenile was young (old enough to be competent but as she/he was closer to 10 and further from 15), the culpability piece became more difficult as the Juvenile and Victim's shared victim-hood was more apparent.

HOWEVER, that being said, I was and am STILL comfortable with dispensing harsh judgment on juveniles on severe first-degree felonies based on protective retribution/victim vindication/even utilitarianism principles. But I find it much harder when they are in that difficult spot for me--like I said, closer to 10 than 15.

Posted by: Lawyer Mommy (formerly known as Rachel Laing) | Sep 18, 2012 3:50:17 PM

Lawyer Mommy,

Thanks for your response. Some ideas for you to ponder:

1) I do think that if one of our 2-year-olds were beaten to death and our 5-yr-old raped by a 12-year-old who had been previously abused, it would not be too difficult for us to distinguish the relevant & innocent victims.

2) I was exposed to pornography at a considerably young age; still violence free!

3)"turn around and investigate the rape/abuse that preceded the instant offense."--good, not exculpatory though: punish those perpetrators.

4) "Juvenile and Victim's *shared victim-hood* was more apparent"--this is where you dangerously conflate and relativise.

5) re: Mitigation. . "presented...as a mitigating factor by defense counsel. And *straight-up explanation for his/her conduct."--if you accept such as vindicatory, I'm afraid we share precious little common ground.

Posted by: Adamakis | Sep 18, 2012 8:14:30 PM

Bill Otis:

Salutations. Yes, what is disturbing herein is that there exist nefarious influences operating on various offences, e.g, the strong correlation which I researched years ago between pornography and sexual violence.

Alas, the primitive mind, (I am tempted to say) misuses such correlations as convenient excuses or mitigators against punishment, as though the factors be inevitable causal agents.

Similarly, the exaggerated role of mens rea in criminal justice is a major motivation for me to argue for a stricter liability, as I understand it, in criminal justice.

When such aforementioned irrelevancies--other than basic intentionality--enter into the guilt phase of criminal procedure, I esteem the cause of justice to be perverted.

Posted by: Adamakis | Sep 18, 2012 9:10:53 PM


1. Absolutely agree with you about how I'd feel if I were the parent of one of those victims. ABSOLUTELY. As a parent, I'd be out for blood. (Or rather a bindover and prison.) As a completely-removed-from-the-situation observer/blog commenter, I was hoping to talk about (without receiving serious vitriol) the idea that when a juvenile defendant is quite young (perhaps in some states too young even to be bound over to criminal court) and himself a victim of past serious violence how his status--that duality--of victim/defendant blurs the line for me. Maybe not even enough of a blur to make any difference in the disposition. But just enough to discuss. Just as a person commenting and looking for objective other thoughts. Not being e-yelled at. Sheesh. (Sigh.)

2. TMI.

3. Yes, agree. Again, just talking about how close in proximity offenses can occur and then be reenacted by other parties. How Incident #1 involving Def 1 and Vic 1 can quickly be followed by Incident #2 involving Vic 1 now starring at Def 2. How I think that interplay is worthwhile to consider EVEN IF NOT to affect disposition.

4. See 3 above.

5. I'm telling you what I see. Not what I agree with. I'm a prosecutor not a defense attorney. But that is what I see done all that time. It drives us nuts and we argue against it. But I do see why defense counsel does it. What else are they going to argue?

Posted by: Lawyer Mommy | Sep 20, 2012 11:55:42 AM

I was shocked upon hearing this news of Cristian Fernandez who murders his own 2-year-old half-brother. Until now, I was thinking why young children are now being involved with this kind of crime. Are we going to blame it to the parents? I think, not. Children are now exposed to the crimes happened in our world today. Add the drugs, too. Therefore, let us give attention to it. Let’s not just ignore this thing. I think they should be punished so that next time, they’ll think hardly before doing such thing again.

Posted by: Teresa Evans | Feb 10, 2013 11:08:26 PM

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