Double Jeopardy or Dismissal?

Photo from the Texas Legislature

In Texas, a child is no longer a child when she turns 17.  When the clock strikes midnight, the protections afforded to juveniles vanish and the child becomes an “adult,” subjected to the processes and jurisdiction of the adult criminal court.  Rehabilitation and treatment is no longer in the minds of the court; 17-year-olds are now thrown into the harsh world of retribution.

Unfortunately, it’s not just the 17-year-olds who are exposed to harsher sentences.  Sometimes, the presumption of childhood disappears when the court considers the overall factors of the offense, such as the gravity of the offense, whether it was premeditated or violent, did the child show sophistication and maturity that is more typical of adults than children, and how likely will rehabilitation be.  (Kent v. US, 383 U.S. 541 (1966) and Family Code §54.02.)

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KENT v. UNITED STATES

In a landmark juvenile case, Kent v. US, a 16-year-old boy was tried and indicted as an adult after he admitted to some involvement in several criminal incidents.  Morris Kent was placed on probation when he was 14 for several housebreakings and an attempted purse snatching.  When he was 16, he was arrested and taken into custody by the police as a rape suspect.  He was taken into custody at about 3 p.m. and was interrogated for 7 hours.  By the time he was finally released at 10 p.m., he admitted some involvement in the offense.  The next morning, he was further interrogated by the police for more than 5 hours.

His counsel offered to prove that Kent would be a “suitable subject for rehabilitation” and moved to get access to the Social Service file with information regarding Kent’s behavior during his probation period.  Instead of ruling on these motions, the Juvenile Court judge:

“…held no hearing.  He did not confer with petitioner or petitioner’s parents or petitioner’s counsel….He made no findings.  He did not recite any reason for the waiver.  He made no reference to the motions filed by petitioner’s counsel.”

– 383 U.S. 541, 546.

The judge failed to fully consider any of the factors and procedure before he entered an order waiving jurisdiction over Kent and directed that he be tried in the U.S. District Court for the District of Columbia.  Despite attempting to dismiss his indictment due to the lack of due process, the U.S. Court of Appeals affirmed the district court’s holding.

Fortunately, the U.S. Supreme Court invalidated Kent’s waiver, acknowledging that the transfer was rubber stamped.  However, this wasn’t the end.  The Court struggled with what they should do with Kent.  He was too old (now 21 years old) to be in juvenile court’s jurisdiction.  It took 5 years to invalidate the certification order.   If they vacated the conviction, it was likely that Kent might be getting off all the charges without facing any consequences.  The Court held that it would be most appropriate the remand the case to the District Court for a hearing de novo on waiver.  If that court finds that waiver was inappropriate, petitioner’s conviction must be vacated.  But if waiver was proper, there would be further proceedings to – AGAIN – enter judgment:

“Accordingly, we vacate the order of the Court of Appeals and the judgment of the District Court and remand the case to the District Court for a hearing de novo on waiver, consistent with this opinion.  If, however, it finds that the waiver order was proper when originally made, the District Court may proceed, after consideration of such motions as counsel may make and such further proceedings, if any, as may be warranted, to enter an appropriate judgment.”

– 383 U.S. 541, 565.

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TEXAS, NOW

Currently, in Texas, a certified juvenile must wait until after the criminal trial is final (and he is found guilty) to appeal the certification.  There is currently no opportunity to make an interlocutory appeal after a certification hearing transferring juveniles as adults to criminal court until after the final verdict in a criminal trial.  As in Kent, it may take a long time – as long as 5 years before the court can find that procedure was ignored.  That’s 5 years of a child’s life that is spent in fearful limbo.  

Right now, Texas is facing this very issue in the juvenile certification case of then-16-year-old Cameron Moon.  Moon was involved in the shooting death of another youth during a “botched drug exchange” in 2008.  The Juvenile Court judge failed to give a detailed explanation supporting Moon’s certification, except to mention his maturity and severity of the crime.  The judge waived jurisdiction over Moon despite multiple witnesses testifying that Moon would be amenable to rehabilitation.   There was nothing Moon could do but wait for trial in 2010, where he was found guilty.  After his conviction, Moon’s counsel could then appeal his certification, a process that took many months.  Finally, in August 2013, the 1st Court of Appeals in Houston decided to overturn Moon’s certification, which the Texas Court of Criminal Appeals affirmed in a 6-3 opinion.

“Because the juvenile court made no case-specific findings of fact with respect to the seriousness of the offense, we agree with the court of appeals that the evidence fails to support this as a valid reason for waiving juvenile-court jurisdiction,” Judge Tom Price wrote for the majority.

While the higher courts’ rulings are incredibly significant for the protection of juveniles’ due process rights, there is still a ways to go for juvenile justice advocates.  They earnestly await the day the Texas Legislature brings back the right of interlocutory appeal for juveniles.

Even if the higher court overturns a certification, what comes after is just as uncertain.  Does the juvenile offender, who is now an adult, go back to juvenile court to ask for another transfer hearing where he might be promptly re-certified as an adult and be retried for the same offense?  The District Attorney will certainly refuse to even entertain the idea of dismissing the case.

Suffering through another transfer hearing, possibly resulting in a retrial and dismissing the case are both undesirable options; one results in double jeopardy (being tried again on the same charges), which is prohibited by the Fifth Amendment to the US constitution, and the other allows the juvenile delinquent to avoid taking responsibility for the delinquent action they’ve committed or getting the attention and treatment necessary for rehabilitation.  In cases like these, the right to interlocutory appeals will give certified juveniles the right to appeal an interlocutory order for certification and transfer before he goes to trial.   This allows for review and re-examination of the Juvenile Court judge’s decision to waive jurisdiction, which will, in turn, encourage judges to ensure their certification decisions are supported by thorough and detailed reasoning after considering the individualized nature of each child’s case, and absolutely no standardized forms.

Texas law is already written in such a way as to suggest meaningful and individualized consideration is required during certification hearings, but actual practice reveals some courts use pre-printed check-box forms, and judges sign off on transfer decisions without fully considering the circumstances of each young offender.

COMMENT: WAIVER, CERTIFICATION, AND TRANSFER OF JUVENILES TO ADULT COURT: LIMITING JUVENILE TRANSFERS IN TEXAS, 13 SCHOLAR 317, 322

Advocates hope that Moon’s landmark ruling serve as the very much needed impetus for lawmakers to recognize that juvenile certification procedure has been reduced to “rubber stamping,” a serious abuse of discretion that needs to change immediately.

Texas used to give juveniles the right of interlocutory appeal, but in 1995 Texas law changed in a movement ‘to “get tough” on juvenile crime.’

Texas has not always prohibited immediate appeals of certification hearings. But in an effort to “get tough” on juvenile crime, in 1995 the 74th Texas Legislature amended § 56.01, “Right to Appeal,” by removing the ability of a youth to immediately appeal a certification order. The legislative history of the acts of the 74th Legislature reveals the intent of the change that disallowed immediate appeal was to crack down on juvenile crime. By contrast, the most recent act of the Texas Legislature reveals the recognition among legislators that it is in the State’s best interest to decrease the number of juveniles transferred to adult court.

COMMENT: WAIVER, CERTIFICATION, AND TRANSFER OF JUVENILES TO ADULT COURT: LIMITING JUVENILE TRANSFERS IN TEXAS, 13 SCHOLAR 317, 354

Hopefully, Cameron Moon will be the last juvenile subjected to the unfairness of the current certification process in Texas’s Juvenile Courts.

 

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