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Sat Oct 25 14:40:12 SAST 2014

Protests over 13-year-old boy facing murder trial

Sapa-AFP | 19 March, 2012 08:25

Image by: Gallo Images/Thinkstock

Protests continue to build over a plan to try 13-year-old Cristian Fernandez for first-degree murder, making him the youngest person in Florida ever to face such charges.

Fernandez was 12 when a Florida grand jury indicted him last year for murder in the beating death of his two-year-old half brother, David Gallariago.

His case, scheduled for trial later this year, has raised opposition from around the world claiming that he should be tried as a juvenile and not as an adult, which could result in him facing life in prison without parole if convicted.

Fernandez was arrested in March last year over death of his half-brother, who suffered brain trauma after being pushed into a book case.

In a pretrial hearing last December in Jacksonville, State Attorney Angela Corey said she would offer a plea deal lessening the charges to second-degree murder, which calls for a maximum sentence of life imprisonment.

However, public defender Matt Shirk refused the deal, wanting Fernandez to be tried as a juvenile, in which case incarceration for any conviction can only extend 36 months.

Mark Caliel, an assistant state attorney, said prosecutors do not intend to seek life imprisonment, but that has not quieted a swell of protesters.

Alicia Torrez, a Jacksonville mother with two children who attended school with Fernandez and Melissa Higgins, a juvenile justice advocate in New Hampshire, coordinated a rally of two dozen people that marched on the county courthouse.

They presented Corey a petition with 180 000 signatures from supporters around the world opposed to Fernandez being charged as an adult.

Among their concerns they cited that psychological testing ordered by the child's defence team indicated that Fernandez is a candidate for rehabilitation despite having been a victim of chronic abuse.

In addition, they say that court records indicate that Fernandez's mother, Biannela Susana, 26, waited six hours after arriving home and finding her younger son injured before taking him to the hospital.

Doctors have said that the child might have survived had he received medical assistance sooner. Susana has been charged with aggravated manslaughter in the case as prosecutors say her negligence led to the death of the boy.

Higgins, whose website www.justiceforjuveniles.org presents studies advocating against adjudicating juveniles as adults, created a petition on Change.org that calls attention to Fernandez's case.

"Cristian's story touches a lot of people when they get to know the details of the case," she said. "He is clearly a child who has had a difficult background and his role in what happened is not clearly defined."

In October 2009 before Susana moved her family to Jacksonville from Miami, Fernandez's stepfather killed himself with a 9mm in front of the family to avoid arrest on child abuse charges.

Caliel said after a three-month review of the case, the state made the decision to charge him as an adult.

"We do not believe the juvenile justice system is equipped to appropriately handle the defendant... given the limited jurisdiction of that system which expires when the defendant turns 21 and limits incarceration to 36 months," said Caliel.

"We just felt the rehabilitation programs and punishment for the crimes committed could not be accomplished in the limited time he would spend in the juvenile justice system."

Caliel said the state is seeking a hybrid sentence in which he is incarcerated in a juvenile setting for the duration of the incarceration sentence (until age 21) followed up with court supervised rehabilitation.

"He will not be sent off to an adult prison, and by law he cannot," he said.

Caliel said he is hoping to reach a plea bargain before the trial and that even if the case goes to trial prosecutors would preempt a possible life sentence with by the proposed hybrid sentence.

But Higgins said that Corey has other options.

"She could offer a plea where he serves a shorter period of time and the judge withholds adjudication, allowing his records to be sealed," Higgins said.

"Then he doesn't have to carry a murder conviction as an adult which will increase his chances to re-offend."

In a February hearing, the judge ordered leg shackles and handcuffs removed from Fernandez at the request of his attorneys.

Harry Shorstein, who served as state attorney prior to Corey and who supervised an internationally recognised juvenile programme which has been scuttled by her, said it's inappropriate to file a premeditative murder charge against an adolescent this age.

"I think it illustrates a lack of understanding of the adolescent brain and its development," he said. "It's totally different from an adult and yet to be fully developed."

Shorstein said that he believes Corey "thought was this case would enhance her reputation among the ultra-conservatives."

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