When a person commits a homicide, they often are able to hide their involvement, leave the area, cast suspicion on another person, or appear to have a solid alibi. Due to the necessity of probable cause and the difficulty of gathering evidence, it may take years to apprehend that person. Fortunately, for the murder victim’s family and the protection guaranteed to citizens, there are no statutes of limitations against filing a murder charge.
In some cases, the person charged may initially be deemed incompetent to stand trial due to mental health issues. However, the suspect may eventually be found to be competent and then has to stand trial, even if several years have passed since the time of the homicide itself. However, what if that person was a very young child at the time of the crime? Moreover, if a juvenile is a very young child, he is legally considered to not be competent to understand the consequences of his actions, is not able to form the “mens rea” or “guilty mind” necessary for a premeditated murder, or realize the results of his statements against himself and how they will affect the rest of his life.
In the case of the 8-year-old boy charged with two counts of premeditated murder in St. Johns, Arizona, the prosecutor has filed a motion to drop one of the two murder charges. The reason is so that in 10 years and once the 8-year-old child has reached adulthood, he can be recharged with that crime as an adult. If an 8 year old child is unable to form mens rea, is not competent to understand the charges against him, or be able to comprehend how those charges will affect his life in the present moment, can a prosecutor say “That’s ok, we will wait to charge him after he has reached the age of 18 years and when he is then considered to be an adult.” There is something inherently wrong with this concept.
Arizona’s State Revised Statutes on juveniles Title 13 – Criminal Law, Chapter 4, Statute 13.501 states:
“1. Persons under eighteen years of age; felony charging; definitions
A. The county attorney shall bring a criminal prosecution against a juvenile in the same manner as an adult if the juvenile is fifteen, sixteen or seventeen years of age and is accused of any of the following offenses:
1. First degree murder in violation of section 13-1105.
The same statute also says:
B. Except as provided in subsection A of this section, the county attorney may bring a criminal prosecution against a juvenile in the same manner as an adult if the juvenile is at least fourteen years of age and is accused of any of the following offenses:
1. A class 1 felony.
Nothing else is listed for children under the age of 14 years old. In fact, the manual entitled “A Prosecutor’s Guide to Psychological Evaluations and Competency Challenges in Juvenile Court“, written by the American Prosecutors Research Institute in 2006 states, “the adolescent brain is a work in progress” and this is about juveniles from the ages of 12 to 17 years old, let alone a child that is only 8 years old. A child’s brain is still growing and changing. One of the factors regarding competency is whether or not the child is able to comprehend, understand, and exercise their Fifth Amendment rights. Furthermore, because a child’s vulnerability to suggestion leads them to overstate their involvement in a crime and even to confess to a crime the child did not commit, their statements are often found to be unreliable.
In 1998, two young boys, ages seven and eight were charged with murdering an 11-year-old female friend. They confessed to the murder saying they wanted to steal her bike. Later, the charges were dropped when DNA testing showed that the assailant was an adult. There are countless cases where children have confessed to a heinous crime, especially when questioned without the presence of an attorney or parent, and that later tell their parents they did not do it, and only said it because they knew the police wanted them to say they did the crime.
In the Arizona case, involving the 8-year-old boy who supposedly confessed to killing his father and a family friend, did so without a child advocate, parent, or attorney present. The chances that he was suggestible or coerced by the mere presence of police officers wearing guns may have instigated the confession, especially when his first story involved seeing a white vehicle driving away from his home.
If a child is incompetent due to age, Arizona Revised Statutes, Chapter 41, Statute 13-4517 states:
13-4517. Incompetent defendants; disposition
If the court finds that a defendant is incompetent to stand trial and that there is no substantial probability that the defendant will regain competency within twenty-one months after the date of the original finding of incompetency, any party may request that the court:
1. Remand the defendant to the custody of the department of health services for the institution of civil commitment proceedings pursuant to title 36, chapter 5.
2. Appoint a guardian pursuant to title 14, chapter 5.
3. Release the defendant from custody and dismiss the charges against the defendant without prejudice.
If a child is 8 years old when a Class 1 Felony is committed, supposedly by that child, and is then deemed to be incompetent due to age, waiting 21 months is not going to change the facts when the child would then only be 10 years old. Waiting until he is an adult is absurd when the time frame is 10 years long. What child is going to remember what exactly happened and why 10 years previously, especially if that child has already been subjected to countless testing procedures and questions as to why he killed a person, let alone the how and what motive he may have had?
In 2006, a bill was introduced to amend Arizona’s Revised Statutes with regard to juvenile competency and states:
2. “Incompetent” means a juvenile who does not have sufficient present ability to consult with the juvenile’s lawyer with a reasonable degree of rational understanding or who does not have a rational and factual understanding of the proceedings against the juvenile. AGE ALONE DOES NOT RENDER A PERSON INCOMPETENT.
3. “Juvenile” means a person who is under eighteen years of age at the time the issue of competency is raised.
Although age alone cannot be used as an indicator of incompetency, the cognitive development of a child under the age of 12 is certainly suspect when the totality of the circumstances, intelligence level, and emotional maturity is taken into consideration. In courts where they use the totality approach, courts have traditionally examined factors such as the suspect’s age, education, intelligence, whether he was advised of his constitutional rights, and the length and nature of detention. How will this be addressed when the commission of an alleged crime happened years before by a child who was not mentally competent to understand his actions or who may have been questioned in such a way as to make him think “I did it”?
One thing is evident. Studies by the MacArthur Research Network have shown that one third of the children between the ages of 11 and 13 years of age and one fifth of the children between the ages of 14 – 15 years old, lack the competency to participate in their own defense at trial. They are less likely to understand the impact of any legal decisions they make and how those decisions will affect the outcome of their trial. In fact, it was found that many children between the ages of 11 and 13, and if interrogated by the police about a crime and given three choices of 1.) confessing to a crime, 2.) denying the crime, or 3.) understood they did not have to speak at all, an average of 50% of those children said they would confess, whether they were guilty or not.
The prosecutor in the Arizona case wants to wait 10 years to charge a person who is several years away from being an adult and who may or may not have committed a crime at the age of 8 years old. In his “pursuit of justice”, who is actually receiving “justice”? The People of the State of Arizona? The families of the two murdered men? Or, is this just a case about making a name for one’s self under the guise of seeking justice through the manipulation of a small boy and the law? It does not seem justified.
Arizona Revised Statutes
AN ACT AMENDING SECTION 8-291, ARIZONA REVISED STATUTES; RELATING TO JUVENILE COMPETENCY
State of Arizona, Senate, Forty-seventh Legislature, Second Regular Session 2006, CHAPTER 80, SENATE BILL 1128
BUT I DIDN’T DO IT: PROTECTING THE RIGHTS OF JUVENILES DURING INTERROGATION, By Lisa M. Krzewinski
Coalition for Juvenile Justice, Applying Research to Practice, What Are the Implications of Adolescent Brain Development for Juvenile Justice?, By Coalition for Juvenile Justice, 2006