The following story was originally published in the April 2011 edition of Upon Further Review, a publication of the Philadelphia Bar Association. Re-printed here with permission of the Philadelphia Bar Association.
Follow Up Story: The Jordan Brown Murder Trial
In February’s edition of Upon Further Review, we told the story of the embattled trial of Jordan Brown, where the parties have been fighting for over a year about whether the 13 year-old defendant will face trial as an adult or proceed through the juvenile-justice system. Now, after an interlocutory appeal, the Pennsylvania Superior Court ruled last month in Commonwealth v. Jordan Anthony Brown, 2011 Pa. Super. 47 (March 11, 2010), that the Fifth Amendment right against self-incrimination applies to juvenile decertification proceedings.
As background, in Commonwealth of Pennsylvania v. Jordan Brown, the 13 year-old defendant is charged as an adult for the alleged murder of his father’s fiancé, Kenzie Houk, and her unborn child. They were killed when she was shot in the back of the head while she was sleeping. Brown was just 11 years-old when Houk was murdered. If convicted as an adult, he faces a mandatory-minimum prison sentence of life.
In March of last year, a judge denied Brown’s petition to transfer his case from the criminal court to the juvenile court under the Juvenile Act provision of 42 Pa.C.S. Sec. 6322, at a hearing commonly known as a decertification hearing. At the decertification hearing, the trial court considered that he had not admitted to the murders in determining that he is not amenable to rehabilitation in the juvenile-justice system. At a decertification hearing, the Pennsylvania Juvenile Act, 42 Pa.C.S. Sec. 6322, requires that the juvenile establish by a preponderance of the evidence that the transfer of his or her case will serve the public interest. Under Section 6355 (a)(4)(iii), the Juvenile Act enumerates certain factors that a court must consider in determining whether the transfer serves the public interest, none of which require the acceptance of responsibility or an admission to an offense. However, one factor requires a court to consider “whether the child can be rehabilitated prior to the expiration of the juvenile court jurisdiction,” which is when the child reaches the age of twenty-one.
Brown took an interlocutory appeal from the trial court’s order denying his petition to decertify his case and transfer the matter to juvenile court. The Pennsylvania Superior Court heard oral arguments on January 25, 2011.
In its majority opinion, the Pennsylvania Superior Court, with a panel comprised of Allen, J., Olson, J. and Colville, S.J., held that the trial court’s taking into consideration the fact that Brown did not admit to the offense in determining that he could not be rehabilitated before the expiration of juvenile court jurisdiction violated his Fifth Amendment right against self-incrimination.
The Court conducted a comprehensive survey of state law across the nation on the issue of Fifth Amendment jurisprudence in the context of decertification proceedings. In doing so, the Court adopted the majority view among states, holding that the Fifth Amendment applies to juvenile decertification hearings, which are adversarial in nature and have “severe, potential consequences.”
The Court went on to explain that the pure-use immunity protections contained in 42 Pa.C.S. Sec. 6338 (c)(1), which merely prevent the use of statements, admissions or confessions of a child in relation to the decertification process, are not adequate enough to trump Fifth Amendment protections. However, the Court seemed to imply that if Section 6338 (c)(1) contained derivative or transactional use immunity, the result could have been different. Now, one shouldn’t be surprised if a member of our legislature introduces a bill to expand the protections of Section 6338 so as to alleviate the Fifth Amendment concerns discussed in this opinion.
Finally, the Court concluded that the trial court’s decision effectively required Brown to admit guilt in order to be determined to be amendable to treatment in the juvenile-justice system, which necessarily compels incrimination. The Fifth Amendment is concerned with compulsion, and without adequate protections of immunity, compelling a child to incriminate himself or herself to qualify for treatment in the juvenile system runs afoul of the right against self-incrimination. The child’s choice would come down to admitting guilt, or facing trial as an adult. Thus, if a child had to admit guilt to be considered amenable for juvenile treatment, that would constitute a penalty for exercising a constitutional right.
The Superior Court vacated the trial court’s order denying decertification and ordered a new decertification hearing.
Judge Colville wrote a dissent, based on the record, in that Brown never specifically asserted his Fifth Amendment rights during his psychiatric evaluations or at the decertification hearing. Here’s my take on this: If the trial court did not think Brown had Fifth Amendment rights, there would be no reason to so advise Brown. With a 13 year-old defendant, and a trial court unaware of his Fifth Amendment rights, to require a specific objection would expect the blind to be able to lead the blind. The law always requires that a waiver of constitutional rights be done knowingly and intentionally. Important to note is that it does not appear that Brown was ever advised of his rights against self-incrimination or that an on-the-record colloquy was conducted to advise him that he had any such rights. So it is questionable whether 13 year-old Brown could have knowingly waived this important constitutional right.
The Commonwealth has not filed a petition for allowance to appeal in the Pennsylvania Supreme Court.
To access the opinion, click here.