(Editor’s Note: This is the fourth in a series of articles where Law Week explores the cases of 48 juveniles whose life-in-prison sentences violate a U.S. Supreme Court opinion.)
By Hannah Garcia, LAW WEEK COLORADO
Within the years-long staircase of the appellate system, maybe it’s fitting that a veteran prosecutor told the justices of the Colorado Supreme Court “the judicial system does recognize a strong value in finality.”
The case, Frank Vigil Jr. v. People, was argued on March 5, the fourth involving juvenile life without parole in front of the state’s high court in the past 10 months, all seeking answers in how to apply the U.S. Supreme Court’s ruling in Miller v. Alabama.
As more cases make their way up and through the state’s appellate system, and divisions within the Colorado Court of Appeals offer conflicting remedies, an answer for the state’s 48 juvenile life-without-parole inmates will likely have to come from Colorado’s court of last resort.
AN ECHO CHAMBER
The decision in Miller dismantled mandatory schemes that offered no “meaningful opportunity to obtain release,” calling such sentences a violation of the Eighth Amendment’s prohibition of cruel and unusual punishment, but the case’s outcome did not clarify if the new rule applied to inmates convicted prior to the decision.
Inside the high-ceilinged chambers of the Colorado Supreme Court, 1st Judicial District chief appellate deputy district attorney Donna Reed argued that Miller provides a new procedural rule, not a substantive right to be extended retroactively to inmates like Frank Vigil Jr.
Vigil, who was 16 at the time, was convicted of the kidnapping, gang rape and murder of 14-year-old Brandy DuVall, whose brutalized body was found west of Golden on May 31, 1997. Vigil was among seven members of the Deuce-Seven Crenshaw Mafia Gangster Bloods who were implicated in the murder, and he was sentenced to life without the possibility of parole among other consecutive penalties for his participation in killing the teenager.
Details of DuVall’s death were absent from arguments over legal logistics and case law precedents, with Reed only referencing the crime as “indescribable.” The prosecutor talked about the “value of finality” within the criminal justice system, emphasizing the wide-spanning burden on time and costs as well as the emotional consequences.
“When you’re talking about a ’97 case, to go back and reopen the case puts a strain on resources and emotions and victims and witnesses,” Reed said.
“Ultimately, the court said it wasn’t applying a categorical ban on a life-without-parole sentence (for juveniles),” Reed said. “It was the process that was required in imposing such a sentence.”
Kathleen Lord, an appellate attorney with experience representing juvenile life-without-parole inmates on appeals, countered with a call for a categorical application of Miller to Vigil and others with the same sentence. Lord referenced appellate decisions that call for retroactivity, and a majority of state and federal courts that have found the same.
“We can do it in Colorado,” Lord told the justices. “Concerns about finality are always present, but they’re slightly less here. We’re not challenging verdicts, we’re talking about a constitutionally proportionate sentence.”
PROSECUTORS, NOT PERSECUTORS
One commonality shared among Colorado’s juvenile life-without-parole inmates is that they were charged as adults, a decision historically reserved for prosecutors.
First Judicial District Attorney Pete Weir, whose office prosecuted the Tate and Vigil cases, said “(aside from the death penalty) the decision of whether or not to charge a juvenile as an adult is the most significant, serious decision that a (district attorney) makes.”
Each direct-file decision is an individual one, according to Weir. It’s a balance, he said, between the interests of the community as well as the juvenile defendant.
“I think it’s dangerous to look at them as a collective, as ‘the 48’,” Weir said. “I’ve yet to see one that didn’t merit significant removal from the community. Even though they were under the age of 18 when the crimes were committed, these were horrific, horrible crimes that each one of these individuals committed. It becomes a policy decision: what do you do with them?”
Some juvenile lifers in the state are appealing based on the merits of their original trials, some based on varying levels of complicity.
The district attorney talked about a culture shift in how youth cases are prosecuted, both within the civil juvenile system and the criminal justice system at large.
“But if you have an innocent person or someone less blameworthy than we thought, I don’t care if they’re 16, 17 or 35, you’d want to fix that problem. I’m not sure age has much to do with the problem (of wrongful convictions),” said Hal Sargent, a veteran juvenile prosecutor in Weir’s office who litigated Vigil’s original trial.
Colorado changed its direct-file statute in 2012 with House Bill 1271, which limits eligibility to defendants who are age 16 or older and accused of serious, violent crimes or repeat offenses. Juveniles direct-filed into the adult system can request a reversal hearing in front of a judge under the new law.
Before the bill, Sargent said the number of filings were down 40 percent statewide and 70 percent in the 1st Judicial District, which encompasses Jefferson and Gilpin counties.
“We detain a third of the kids we did a decade ago,” Sargent said. “Commitments are dramatically down, in part, because our focus from the first day is treatment. How do we change behavior in the future?”
After the changes in direct-file procedures, juvenile defendants facing adult charges “tend to sit for a year-plus” before they are removed. Because he said the decision to move a youthful offender into the adult system is a careful one based on the offense and offender, it puts others in the juvenile system at risk.
“Prosecutors aren’t bad people,” Sargent said. “We have our own filtering system. A kid kills someone, but that doesn’t mean, ever, that we’ve asked for a life sentence because of that. It has to be a lot more. It’s only (for) the worst of the worst of the worst that historically we’ve sought a life sentence.”
John Hower, chief deputy district attorney in the 18th Judicial District, prosecuted the original trial against Terrance Wilder, who was convicted of the 1998 beating and shooting deaths of Rev. Joel England and Roderick Marable. Wilder was 17 when he committed the crimes.
“Wilder, I believe, said he was remorseful,” Hower said, referencing premeditation and deliberation as part of the reason he was tried as an adult, along with fleeing and then beating one of the victims after a gunshot did not kill him. “Quite frankly, any expressions of remorse after the fact weren’t very convincing.”
“I’m very comfortable with Wilder’s sentence,” Hower said. “It was appropriate. The fact that it was mandatory doesn’t change that.”
Sargent said he honed his focus on juvenile crime after the Brandy DuVall murder, and even 18 years later, he remembers the details of the moment leading up to the 28 stab wounds that killed her, moments that must have seemed like an eternity of sexual violation and torture, in startling clarity.
When talking about Miller’s guidelines, Sargent and Weir said prosecutors already consider those implications. But there’s a difference between childhood ignorance and sadism, they said.
“We know that kids can be changed, most of them,” Sargent said. “Maybe this sounds harsh, but there’s a point when the question really isn’t, ‘What did they experience?’ but ‘How dangerous are they now?’” Sargent said.
THE LAST RESORT
A handful of Miller challenges have made their way to the Colorado Supreme Court, Vigil on March 5 and Tenarro Banks, Erik Jensen and Michael Quinn Tate, last year on June 3, and another was granted certiorari on March 2 in Nathan Ybanez v. People. No fi nality has yet come in the form
of a binding precedent. And those cases are just the bowsprit of a boatload of juvenilelife-without-parole cases navigating its way through disparate appeals.
Of Colorado’s 48 juvenile lifers with no chance at parole, most if not all have filed some kind of appeal, from post-conviction claims to Rule 35(c) appeals. Those with accompanying rulings still don’t have a definitive answer on the realities of Miller’s reach.
The Colorado Court of Appeals ruled on Banks’ case in 2012 and determined that life with parole after 40 years is “the only statutorily authorized penalty” after applying Miller, citing a change in sentencing statute from 2006. The remedy was adopted by another division of the court in People v. Albert Valles.
In August, another division in the appellate court went a step further by requiring an individualized decision on the legitimacy of a life-without-parole sentence before reverting to the 40-to-life scheme.
In Tate’s appeal, the Colorado Court of Appeals issued an unpublished opinion in 2013 that relied on language in the Miller decision that did not categorically ban the sentences. In a Feb. 26 ruling, the appellate court in People v. Terrance Wilder called for “an individualized determination based on factual findings whether life without parole is appropriate” based on Miller’s guidelines. The opinion offered three outcomes to comply: re-impose the life-without-parole sentence, impose a life sentence with a chance for parole “after a specified number of years” or impose a sentence deemed appropriate.
“All that Miller requires is that people have hope,” Lord said. “And that’s what we’re asking for. That’s all that the retroactive application of Miller would do in our state. If it’s not applied retroactively, these people will die in prison with no hope and be treated differently than others.”
—Hannah Garcia, HGarcia@circuitmedia.com