Robert E. Shepherd, Jr.

May 12, 2017

Prepared by: Katherine E. Poindexter, J.D.

HOW DID WE GET HERE ?

A refresher on a child’s pathway to adulthood in the court-system:

• Youths as young as 14 can be CHARGED, PROSECUTED and IMPRISONED as

adults in the Commonwealth of Virginia. (Va. Code § 16.1-269.1)

• The Commonwealth Attorney initiates CERTIFICATION or TRANSFER. The Court

considers many factors before granting the State’s request:

o Would the juvenile act be considered a felony if committed by an adult,

and is there probable cause to believe they committed the act?

o Is the juvenile ‘competent’ to stand trial? They are presumed to be so –

This presumption can be rebutted by “preponderance of the evidence.”

o Has the State proven by a “preponderance of the evidence” that the

juvenile’s case should not remain in juvenile court.

• Other Factors: Age, seriousness of and number of charges, maximum

penalties involved, level of juvenile’s involvement in event(s), whether a

Firearm was used, whether the juvenile is gang-affiliated, the juvenile is

likely to respond to rehabilitative efforts, whether there is a length of time

available in DJJ system to offer ample rehab services, prior adjudicatory

Hx, prior substance abuse Hx, prior probation or community program Hx,

number of contacts with the Court, educational Hx, mental and emotional

maturity, physical and condition and maturity, etc.

The Power of the Circuit Court Over a Juvenile Offender.

Once a juvenile’s case is properly certified, transferred, and/or indicted to the Circuit Court, all constitutional trial

rights apply to the juvenile as they would an adult, to the exclusion of SENTENCING. (Virginia Code § 16.1-272)

DISCOVERY BOND HEARING MOTIONS JURY

(Suppress Evidence, Request

Evals., Expert or Invest. Fees)

“Upon a finding of guilty of any charge, the COURT shall fix the

sentence of a juvenile, without the intervention of the Jury.”

When a juvenile is in the Circuit Court for trial, you have the benefit of having a jury trial option, without the

unwanted risk of mandatory jury minimums* and Judges are better equipped to understand complex sentencing

schemes and incarceration alternatives.

If the juvenile is convicted of a “violent felony” the Court may convict the

juvenile as a “SERIOUS OFFENDER” under Virginia Code § 16.1-285.1:

You must to consider your client for

classification and ask for appropriate investigative reports, social histories and

other documentation for courts to consider this as a feasible sentencing

outcome and to properly advocate on their behalf.

(See Virginia Code § 16.1-273, etc.).

• Lay and Expert Witnesses; both sides

• Academic Records, School Work, Art Work

• Mental Health / Physical Health Records

• Social Services Reports

• JDAI, YASI, PSR, etc. Reports

• Length of Stay Policy Changes

• Old Probation Violation Reports

• Sentencing Guidelines (bring explanations)

• Like-kind Verdicts / Sentencing Schemes

• Letters of Support

• Photos

• Articles / Journal

• New LegislationA Strange Animal……

1. Commit juvenile to DJJ to serve a period of “commitment.” (Virginia Code §

16.1-278.7, 16.1-278.8, 16.1-285) – [not to exceed 7 years or 21st B’day]

2. Order the juvenile to serve sentence as a serious offender; partially in the DJJ

(until 21st birthday, or upon motion) – and the remainder in DOC. (Virginia Code

§ 16.1-285.1)

3. Order the juvenile to serve entire sentence, in the same manner as an adult, in

the DOC.

*** NOTE: Where the juvenile is convicted of a felony in violation of § 18.2-61 through 67, 18.2-307, or where the

victim is a minor or is physically helpless or mentally, the clerk shall make the report required by § 19.2-390 to the

Sex Offender and Crimes Against Minors Registry.

Alex is newly15 years old but is 6’1” and 180 lbs. He is friends with Jaron (17)and Brian (18), both in a local gang. Alex, who has

done poorly in school, who historically has an unstable home life, living some time in foster care, feels protected and cared for by

peers like Jaron and Brian; he aspires to one day be in the same gang and will do what it takes to gain their acceptance. He is

also somewhat scared of his peers and often does what they tell him to, in order to avoid ridicule or possible violence. He has

twice been in detention; once for (m) Petit Larceny and once for (m) Possession of Marijuana.

One day Jaron, Brian and Alex agree to hit a “lick,” targeting Hispanics in Southside Richmond, believing they are ‘easy prey,’ not

likely to contact police to complain and often carry cash. They identify and approach two Hispanic males outside of a Latino

Market on a main road and demand their valuables. The two men aren’t willing to give up and a fight ensues. Jaron and Brian

pull out guns and points them at the Hispanic males, but Jaron’s gun falls out of his hands during the struggle. Brian yells to Alex

to “shoot” those “MF’ers” and Alex, impulsively picks up the gun and fires at the man fighting with Jaron. Brian also fires. The

other Hispanic male drops his belongings and falls to his knees, begging not to be shot. Jaron and Brian pick up the stuff and the

three of them all run. The male fighting with Jaron dies on the scene and the 2nd Hispanic male is not injured.

Within ten days, Jaron and Brian are arrested based on the surviving witness’s photo line-up identification, eyewitness tips and

video surveillance. Brian flips on Alex, and he is brought in, charged with (F) First Degree Murder, (F) Conspiracy to Rob, (F)

Robbery, and (F) Use F/A (x3).

The Commonwealth successfully argued for transfer, (Va. Code § 16.1-269.1). A preliminary hearing resulted in probable cause

being found. Alex was tried by a jury in Circuit Court, and found guilty of (F) First Degree Murder, (F) Robbery and (F) Use F/A

(x2). The Commonwealth asked for 30 years on the Murder, 5 years on the Robbery, 3 years on the first Use of F/A and 5 years

on the 2nd for a total active sentence of 42 years. They oppose serious offender commitment. The Judge departed slightly

with what the Commonwealth requested as follows: (F) Murder = 40y / 15y suspended / 40y; (F) Robbery 5y / 5y suspended /

5y; (F) Use F/A = 3y; (F) Use of F/A 5y; for a total active sentence of 33 years.

STEP 1: AFTER TRIAL

The First Sentencing Hearing

• Ask for serious offender

commitment which will allow

this 15 year old to spend as

much time in a rehabilitative

environment as possible.

• Get your sentencing evidence

together to support the reasons

why serious offender

commitment is appropriate.

• Get the ‘right’ people at the

hearing to support your

argument.

• Find your best, unique,

advocate-witness to tell story.

• Gather necessary information

about dispositions of co-

defendant’s cases for

comparative analysis.

• Differentiate your client’s

culpability from the others

where it helps to do so.

WHAT IS UNIQUE ABOUT OUR

CLIENT? (MITIGATION)

IN LIGHT OF HIS UNIQUENESS,

WHAT EVIDENCE IS BEST?

WHO DO WE WANT THERE?

WHAT EVIDENCE DO WE WANT

TO BE AWARE OF THAT MAY BE

COMING FROM THE STATE?

WHERE DO WE GET THE

EVIDENCE WE NEED?

HOW DO WE COMPILE FOR THE

COURT?

1. What is unique? (Good or Bad)

a) He’s big for his age; perception by the court that he is “older.”

b) He has two prior adjudications of not-innocent and familiarity with the court.

c) His prior adjudications are not for crimes of violence.

d) He is young… and younger than his co-accused…

e) Comparative culpability: He may not be the most culpable; he is easily manipulated and influenced; arguably fearful and

indebted to his peers.

f) It’s unclear who fired the fatal shot, though concert of action is key part of CW’s case.

g) Childhood trauma: PTSD, unstable housing and family situation.

h) Child development: Developmentally, impulsive, easily influenced, etc.

i) He did not “cooperate” with LEO or the State. They’re showing no mercy. Offer made an not accepted.

2. What Evidence is best and who do we want there?

a) Witnesses:

i. Experts Witnesses: Child hood trauma, PTSD, Child Hood Development

ii. Family, friends, neighbors, church officials, Athletic Association Members (Coaches):

iii. Get BEST witness to tell client’s life story.

iv. Teachers, Counselors, in-home advocates (CASA, SCAN, etc.)

v. DSS / CPS personnel (maybe)

vi. Detention personnel, DJJ personnel, Court personnel, CSU personnel

b) Exhibits / Documents:

i. Letters of support

ii. Academic records, records of extra-curricular activities,

iii. CPS, DSS, CSU, YASI, JDAI, Pre-Sentence Reports, Mental Health and Physical Health records

iv. Physical Evidence from the trial showing comparative culpability.

v. Photographs

vi. Articles, Policies, Statutes, Case Law, supporting (or in lieu of) live testimony; supporting position.

3. Where do we find this stuff?

a) Records: ALWAYS carry HIPAA forms and Privacy Release Forms around with you. Have them signed at the very start of

your case, by the required parties, so you can use them over-and-over during your representation.

i. Medical Records, Mental Health Records, Substance Abuse Treatment Records – All received via HIPAA.

b) Letters: Beg, Plead, make house calls. Go to the place where these folks are employed. Email. Be persistent. Get the

letters and tell them WHY.

c) Protected Documents and Witnesses: CSU, DSS, CPS, DJJ, Detention, CASA, SCAN, workers: Use your power of

subpoena and get these people to court WITH RECORDS, if it helps your client’s case.

d) Expert Witnesses: Use your power of subpoena to bring experts in to give testimony. Ask for expert fees on child

development, childhood trauma and brain development, teenage impulsivity and peer pressure.

e) Don’t have the Witness? Present the Articles: Where you don’t have an expert “GOOGLE!”

f) Comparative Culpability: Trial transcripts, Pre-Sentence Reports of co-accused, trial testimony, comparative success /

failure of co-accused in DJJ / DOC, statements to police, sentiments of jurors post-trial.

g) Photographs: Get photos of your client when they were little. Have the pictures tell his story. Find compelling photographs

from the incidences of trial that help your client. Find mugshots of the co-accused for comparison. Insert photographs

intermittently that support your theory of the case, which supports the diminished level of culpability of your client.

4. How do we present to the Court?

a) START BY RETELLING THE STORY OF THE CASE, USING THE FACTS AS THEY WERE ELICITED

AT TRIAL, WHICH SUPPORT YOUR CLIENT’S POSITION.b) Show and Tell: Many courts are equipped with technologies allowing presentations in the form of slide shows, videos,

DVD’s recordings, etc. This can have a compelling impact on the Court’s disposition.

c) Provide what is necessary to the Commonwealth (this is usually just the reports generated by government agencies and

expert witness information). I usually provide a copy of what I plan to submit to the Commonwealth as a courtesy.

d) Mitigation Packet (in the form of three-ring binder, folder, etc., with supporting documents).

2. Organize Naturally from Start to Finish:

WHO – WHAT – WHEN – WHERE - WHY

BRIANBRIANALEXJARON

Conversation between

Jaron and Alex;

June 30, 2015

BRIAN

Criminal Record:

2015 (F) Murder Con. 40 years / 18 suspended / Life (22)

(F) Robbery 40 years / 30 suspended / Life (10)

(F) Robbery 40 years / 40 suspended / Life

(F) Use F/A 5 years to serve (5)

(F) Use F/A 5 years to serve (5)

2013 (F) Larceny from the person Committed to DJJ

2012 (m) Petit Larceny CSU – Level 4

2012 (m) Prob. Viola. (a&b) CSU – Level 4

2011 (m) Assault & Battery CSU – Level 2Richmond City Jail Detail: 12/15/2015

“Since Brian McEnary has been in jail,

he has had several institutional

infractions for cursing at staff and has

twice had to be restrained due to

fighting with cell mates. He is currently

held in solitary confinement and is only

fed on plastic trays passed through the

door to protect staff. He will be

transported out of the regional jail to

Red Onion on January 23, 2016 where

maximum securities are available.”

Trial Transcript: November 29, 2015 – Testimony of Alejandro Miquel

Suarez (Commonwealth’s Victim Witness)

CW: What did Brian say and do when he first approached you?

AMS: I remember he was very red in the face and spoke loudly and

spit. He seemed very angry. He was in front telling us to “give

up our shit,” and saying “shut the f*uck up.” He kept waving

the gun in my friends face and hitting him in the nose. My

friend just kind of bear hugged the boy and they started to

tussle. The other boy, the one here today (the defendant) just

kept saying “oh God” and they told him to pick up the gun and

“shoot those MF’ers.” I hit the ground and covered my head.

JARON

Criminal Record:

2015 (F) Murder Con. 40 years / 25 suspended / Life (15)

(F) Robbery 40 years / 35 suspended / Life (5)

(F) Robbery 40 years / 40 suspended / Life

(F) Use F/A 3 years to serve (3)

(F) Use F/A Nol Prosse

2014 (F) PWID Cocaine, School Zone Committed to DJJ

2013 (F) Poss. Cocaine CSU – Level 4

2013 (F) PWID Marijuana CSU – Level 4

Rappahannock Detention Center

Detail: 10/30/2015

“Jaron has been less than an ideal

detainee since coming to RDC. He is a

‘keep separate’ from other inmates, as

he exhibits gang-promoting behavior

and has engaged in a fight with two

rival gang members. He has failed to

cooperate with daily room inspection

directives and refuses to engage in

required substance abuse treatment

groups.”

Incidences of Trial / Commonwealth Position:

CW: Jaron cooperated with LEO and the Prosecution; He

helped bring Brian and Alex in, made inculpatory

statements about his involvement and what the others did.

He also gave information to LEO about other gang activity

and home-invasion robberies in Southside Apartments, a

predominantly Hispanic community.

Jaron did tell the CW that Alex’s involvement was minimal

as compared to Brian, who orchestrated everything and is

also higher ranking in the gang to which he is a member.

ALEX

Criminal Record:

2015 (F) Murder Con.

(F) Robbery Sentencing Guidelines:

(F) Robbery (455 pts.) 28y5m – 37y10m – 47y4m

(F) Use F/A

(F) Use F/A

2015 (m) Poss. Marj. Detention; CSU – 1st Offender

2014 (m) Petit Larceny CSU – Shoplifter Diversion

Richmond City Juv. Detention Center

Detail: 12/20/2015

“Alex has been a model inmate. He has

exhibited exemplary personal growth and

engages positively with staff and peers. He

attends class and receives A’s and B’s on all

work. He has enrolled in the barbering program

and is almost certified. He has completed all

recommended substance abuse prevention,

anger mgmt., and vocational support programs.

He has joined a “fatherhood” group on his own,

and loves to do art. He is on target to graduate

with a standard diploma by June 2017).

Trial Transcript: November 29, 2015 – Testimony of Alejandro Miquel

Suarez (Commonwealth’s Victim Witness)

CW: What happened next? (after the victim tackled Brian)

AMS: It all happened so fast, but I remember when Brian pulled out

the gun and started to wave it in my friend’s face, that within

seconds, the other kid – the tall one with freckles – pulled one

out too and started yelling “get down!” I looked at the boy that

is here today (Alex) and he just kept saying, “oh my God, oh

my God,” and that he started to back away. The freckled boy

and Brian started yelling at him to pick up the gun and “shoot

those MF’ers.” He was shooting, I think, but he wasn’t shooting

straight or I know he would’ve hit me from where he was

standing. He was right next to me.

Fatherhood Initiatives Program Barbering Program

§ 16.1-285.1 (F)

Any juvenile committed under the provisions of this section shall not be released at a time earlier than that

specified by the court in its dispositional order except as provided for in § 16.1-285.2.

The Department may petition the committing court for a hearing as provided for in § 16.1-285.2 for an earlier

release of the juvenile when good cause exists for an earlier release.

In addition, the Department shall petition the committing court for a determination as to the continued

commitment of each juvenile sentenced under this section at least sixty days prior to the second

anniversary of the juvenile's date of commitment and sixty days prior to each annual anniversary

thereafter.

VIRGINIA CODE § 16.1-285.1 and 285.2 AT PLAY

STEP 3:

THREE YEARS POST-CONVICTION

The 2nd Review Hearing

• GOAL: Ask for continued serious offender commitment if

appropriate (are they still under 21?)

• Check CW to see if there is agreement. If not:

• Retell the story in a light most favorable to your client.

• REPEAT THE REMAINING STEPS from first review.

• IF THIS IS THE “LAST BITE OF THE APPLE”

• Get your BEST witnesses here. EXPERTS / Lay Wx’s.

• Pull out all the stops.

• Bring pyro-techniques (think ‘KISS’ concert circa 1975)

• Consider having client testify and “show remorse” if

appropriate.

STEP 2:

TWO YEARS POST-CONVICTION

The First Review Hearing

• GOAL: Ask for continued serious offender

commitment.

• Check CW to see if there is agreement. If not:

• Retell the story in a light most favorable to your

client.

• Show how they have responded positively to rehab.

environment.

• Always position your client as the age they were at

the time of the offense.

• Gather information re: progress and identify key

people playing daily roles in client’s life.

• Get the ‘right’ people at the hearing to support your

argument for cont’d DJJ stay. (lay/expert witnesses)

• Re-engage with the client’s family and gather intel.

• Gather necessary information about behavior of co-

def’s.

• Forge relationships within the DJJ facility where

client resides.

• Check new legislation / law.

• ASK THE COURT TO CONSIDER RELEASING

YOUR CLIENT OR REDUCING THEIR

SENTENCE

• Check new legislation

• Note your continuing

objections under case law,

constitution, statutes, etc.

• Make creative arguments for

how the hefty sentence

handed down is equivocal to

“life.”

• Get the last word.

NOTABLE CASES: The “Diminished Culpability” Lead up to MILLER v. ALABAMA, 567 U.S. ______ (2012)

Thompson v. Oklahoma, 487 U.S. 815 (1988), the Court determined that our national

“standards of decency” do not permit the execution of any offender under the age of 16 at the

time of the crime.

Stanford v. Kentucky, 492 U.S. 361 (1989), the Court determined that there was no “national

consensus” or “evolving standard of decency” that suggested the death penalty wasn’t appropriate for

heinous crimes committed at age 16 or older. the imposition of capital punishment on an individual for a

crime committed at 16 years of age does not constitute cruel and unusual punishment under the Eighth

Amendment.

Atkins v. Virginia, 536 U.S. 304 (2002), the Court held that the Eighth and Fourteenth Amendments

prohibit the execution of a mentally retarded person.

Roper v. Simmons, 543 U.S. 551 (2005), the Court held that the Eighth and Fourteenth Amendments

forbid imposition of the death penalty on offenders who were under the age of 18 when their crimes were

committed. (Piggybacking on Atkins).

Graham v. Florida 560 U.S. 48 (2010), The Court held that juvenile offenders cannot be

sentenced to life imprisonment without parole for non-homicide offenses.

Jackson v. Hobbs, 132 S.Ct. 548 (2011), (Decided in Conjunction with Miller v. Alabama)

Jackson and two other teens conspired to rob a video store. One co-accused shot and killed

the shop keep in the face. Jackson received life without parole and the court was barred

from considering any mitigation info re: age at the time of the offense.

Miller v. Alabama, 567 U.S. ______ (2012) The Court held that mandatory sentences of life

without the possibility of parole are unconstitutional for juvenile offenders. The ruling

extended beyond the Graham v. Florida (2010) case, which had ruled juvenile life without

parole sentences unconstitutional for crimes excluding murder.Two

Justice Elena Kagan wrote for the majority of the court:

“Mandatory life without parole for a juvenile precludes consideration

of his chronological age and its hallmark features — among them,

immaturity, impetuosity, and failure to appreciate risks and

consequences.”

“It prevents taking into account the family and home environment

that surrounds him — and from which he cannot usually extricate

himself — no matter how brutal or dysfunctional.”

Miller v. Alabama

Montgomery v. Louisiana, 557 U.S. _____ (2016), The Supreme Court determined that

Miller v. Alabama must be applied retroactively. The petitioner, Henry Montgomery, has

been in prison since 1963 for a murder he committed at the age of 17. The Court said that

states could undertake re-sentencing, or offer parole to inmates sentenced to life as

minors. Up to 2,300 cases nationwide may be affected by the ruling.

This case is one in a series since 2005 that have mitigated the harshness of

sentencing of juveniles and persons who committed crimes as juveniles. It is based

in part on scientific evidence showing that juvenile brains are not equivalent to

those of adults.

Juvenile Brain Development, Trauma, PTSD, MENTAL ILLNESS,

ITELLECTUAL DISABILITY, Effects of Trauma on Developing Brain

YOUR For purposes of making a clear record and preparing for future challenges to current law, Counsel respectfully

renews all objections made during the course of trial, all subsequent hearings, including today’s final serious

review hearing.

In light of the rapidly-changing national sentiment on juvenile culpability and the holdings and dicta found in the

following listed Supreme Court cases, Counsel proffers that the sentence rendered, while not a life sentence, is

its close equivalency. Counsel posits that the sentence rendered is a violation of the 8th and 14th Amendments

as it pertains to cruel and unusual punishment.

Counsel seeks to preserve the right of her client to challenge this final sentencing, should present law change,

and/or that any new law effecting their sentencing directly or indirectly, be rightfully applied to this case.

Atkins v. Virginia, 536 U.S. 304 (2002)

Roper v. Simmons, 543 U.S. 551 (2005)

Graham v. Florida 560 U.S. 48 (2010)

Miller v. Alabama, 567 U.S. ____ (2012) and

Montgomery v. Louisiana, 557 U.S. _____ (2016)

Note: **** you do not have to keep repeating your objection or make a formal exception to the court’s ruling in order to preserve the

objection to the ruling. See Va. Code § 8.01-384(A); and King v. Commonwealth, 264 Va. 576, 581 (2002). Use this exception wisely!