Prosecutors Given To Much Power

Prosecutors hold power

Before the mid-1970s, teens facing felonies were primarily channeled through the juvenile justice system, which focuses on rehabilitative programs.

A juvenile court judge would weigh criteria mandated by the state, such as home environment and prior violent-crime history, before determining whether a young offender would be transferred to adult court.

Now, the number of transfer hearings held each year has dropped to zero.

Colorado is one of only 15 states that allow prosecutors, instead of judges, to decide whether youths should be charged as adults through direct files. They are not required to follow any criteria before charging kids 14 or older with the most serious felony offenses.

"Colorado prosecutors could be considered among the most powerful in the country in terms of their discretion," says Melissa Sickmund, senior research associate for the National Center for Juvenile Justice. In most direct- file states, prosecutors are required to satisfy minimum criteria or use guidelines before filing criminal charges, she notes.

Two of Colorado's neighbors, Nebraska and Wyoming, for example, require that district attorneys consider the same factors weighed by their juvenile courts in the transfer process, according to an NCJJ review.

The decision to move a juvenile to adult court exposes the defendant to significantly harsher penalties. A 14-year-old who commits a burglary in which an innocent person dies can be sentenced by a juvenile court to a maximum sentence of five years.

The same juvenile in the same circumstances facing a judge in adult district court - and facing felony murder charges - could be sentenced to life in prison without the chance of parole.

From 1998 through 2004, prosecutors averaged 176 direct-file convictions a year. More than 300 of those cases wound up in the Youthful Offender System, a DOC-run "last chance" for juveniles with violent or chronic criminal histories.

Thomas of the DA council points to a drop in violent crimes during much of that period - juvenile arrests for violent crime fell from 1,446 in 1995 to 1,027 in 2003, according to state data - as an indicator that the system works.

But he acknowledges the difficulty of drawing definitive cause-and-effect conclusions. And researchers note that juvenile crime nationwide is down, even in states that don't give prosecutors tools such as direct- file discretion.

Questioning justice

In addition to boosting prosecutors' powers in recent decades, state lawmakers have expanded police authority and sentencing laws that have affected juveniles.

In 1996, for example, they gave police more latitude to interrogate suspects younger than 18 without an adult present.

The law now allows authorities to seek waivers from parents, who frequently don't understand the process or consequences.

Denver teen Chris Selectman was convicted of felony murder when he was 16, partly based on an interrogation conducted outside his mother's presence. At trial, the accounts of Selectman and the interviewing officer diverged, but the prosecutor seized on the interviewing officer's account, a fact that helped seal the conviction, Selectman and his attorneys believe.

"They began to build their case upon a misconception," Selectman says in a letter from prison.

Colorado also is one of 14 states with three controversial laws on its books: direct-file discretion; the charge of felony murder; and life without parole.

"Prosecutors have been given enormous powers that can be a source of injustice," says Kathleen Lord, chief appellate deputy for the state public defender's office, who has vigorously fought felony murder convictions against juveniles. "When you throw in felony murder and the life sentence, you don't need as much evidence to throw a kid away."

Prosecutors are bringing felony murder charges against youths far more often than adults, according to state court administrator data. Prosecutors must prove only an underlying offense, such as burglary, and that someone died in the course of the crime. Of 15 juveniles sentenced to life without parole since 1998, nine were convicted of felony murder. That compares with 30 of 127 adult cases.

The Sam Mandez case, handled on appeal by Lord, raises the question of whether a flawed murder investigation and felony murder combined to convict a youth whose fingerprints were found at the murder scene, halting a fuller probe into the killing.

"I just don't believe in our system after going through that," says Kim Wise, who sat on the Mandez jury. "It's terrible law. If more people went through it, they would understand."

Although national data on juveniles convicted of felony murder aren't available, Human Rights Watch reports that 26 percent of juvenile lifers who self-reported nationally on the subject said they'd been sentenced for felony murder - a figure well below Colorado's 60 percent since 1998.

Another twist of the felony- murder law surfaced in the 1996 case of 17-year-old Trevor Jones.

Although jurors hashed out the circumstances surrounding his fatal shooting of 16-year-old Matthew Foley and found him guilty of reckless manslaughter, an accompanying robbery count led to a felony murder conviction as well.

With the two conflicting convictions surrounding Foley's death, an appeals court threw out reckless manslaughter, and its six-year sentence, and kept the felony murder conviction - with its automatic life-without- parole sentence.

Nathan Ybanez's prosecution illustrates the adult system's weaknesses in handling parent- killers.

Ybanez, who was 16 when he strangled his mother with a fireplace tool, was not given access to a guardian ad litem - a legal advocate assigned to defendants in juvenile courts when abuse or another conflict in the home is suspected - even though abuse allegations in his case were known to the court. Instead, his father steered his defense, and the abuse was never detailed for the jury.

Though state law gives an adult court judge discretion to appoint a guardian ad litem, lawyers and judges say it isn't used often.

Dietrick Mitchell, who was 16 when charged with first-degree murder after authorities said he intentionally drove over teen Danny Goetsch, went on trial at a time of rising public concern over gang activity. Prosecutors focused on Mitchell's self-portrayal as a gang member as a motive for murder, even though there was scant evidence that he was a gangster.

Because prosecutors direct- filed on him as an adult, Mitchell - identified as an alcoholic years earlier - had no chance for rehabilitation programs available in the juvenile system when he was convicted at age 17. His attorneys say Mitchell's case illustrates the simultaneous expansion of get-tough measures and decline of treatment options.

The Pendulum Foundation promises to renew its reform campaign this year, possibly by going around the legislature - through a ballot initiative. Their own polls reflect that citizens want rehabilitation options for teen offenders, Pendulum officials say.

"We want fairness and compassion injected into the system," says director Mary Ellen Johnson.

Denver Post computer-assisted reporting editor Jeffrey A. Roberts and staff research librarian Monnie Nilsson contributed to this report.