Pennsylvania Law Weekly
February 8, 2011
Jordan Brown, 13, was arrested nearly two years ago for the murder of Kenzie Marie Houk and her unborn child.
It is alleged that on Feb. 20, 2009, Brown shot Houk while she slept. The investigation by the Pennsylvania State Police alleges that Brown was preparing for school when he entered Houk's bedroom, placed a 20-gauge shotgun to her head and pulled the trigger. Houck was sleeping at the time. The boy allegedly put the gun away and then escorted his younger sister to the bus stop.
Brown, who was 11 years old at the time of the alleged incident, was arrested and charged as an adult with first degree murder — a requirement under Pennsylvania law.
Pennsylvania has 444 offenders serving life without the possibility of parole for crimes they committed as juveniles, more than any other state in the country. According to the Pittsburgh Post-Gazette , that figure represents about 20 percent of all juvenile lifers nationwide.
But if Brown is tried as an adult and convicted of first degree murder, he will be the youngest person in the U.S. ever sentenced to life without the possibility of parole. And his case has ignited international attention.
Brown's attorneys requested that the Lawrence County Common Pleas Court decertify Brown's case from adult court to juvenile court. In March of last year, after a lengthy hearing, Judge Dominick Motto ruled that Brown's case remains in adult court.
Motto ruled that Brown was not amenable to rehabilitation.
The Juvenile Act is premised on the idea that young offenders need not be punished, but provided treatment and services to aid in rehabilitation.
Motto based his findings, in part, on the fact that without accepting responsibility for Houk's death Brown would not be amenable to rehabilitation as set forth in the Juvenile Act.
Attorney Lourdes M. Rosado of the Juvenile Law Center in Philadelphia argued on behalf of Brown before the Superior Court.
Rosado argued that Motto's order should be vacated and Brown's case remanded to Lawrence County with the proviso that the court not consider Brown's assertion of innocence in determining whether he is amenable to rehabilitation.
Rosado argued that Motto's order infringed upon a fundamental constitutional right provided by the Fifth Amendment to the United States Constitution, namely the right against self-incrimination.
Christopher Carusone, chief deputy attorney general for the Office of Attorney General, argued on behalf of the prosecution.
The case had been turned over to the Attorney General's office by the Lawrence County district attorney because of a conflict of interest.
Rosado went through her argument without much interruption from the three-judge panel hearing the case, which consisted of Judges Judith Ference Olson, Cheryl Lynn Allen and Robert E. Colville.
Rosado pointed out that the 1977 state Supreme Court case Commonwealth v. Bethea found it impermissible to penalize an offender who went to trial as opposed to pleading guilty.
Bethea can be analogized to Brown's case in that the court refused to decertify because the defendant exercised his constitutional rights. Rosado argued that Motto premised his decision on Brown's failure to take responsibility and, therefore, his decision is tainted.
Olson did interrupt Rosado at one point, however, and asked: "Judge Motto expressed he considered the issue, 'this court is not concluding a child must confess,' it's a factor. How do we find that Judge Motto is fibbing?"
Rosado replied: "The court was incorrect in concluding that rehabilitation needs an admission."
That was the only question asked of Rosado.
Carusone, on the other hand, got up to argue and made it about two minutes into his argument before he was hit with a barrage of questions by the three-judge panel.
Allen asked how the Fifth Amendment right against self-incrimination factored into the prosecution's consideration. Carusone responded that Commonwealth v. Archer , a 1998 Superior Court case, provides that a lack of remorse is a factor that can be considered for purposes of decertification.
Allen came back to the Fifth Amendment issue at least five times during Carusone's argument.
Finally, she said: "Bottom line ... were the defendant's Fifth Amendment rights violated by the way the trial court handled the proceeding."
Carusone suggested that Brown did not invoke his right to remain silent.
Carusone said that Brown told the evaluating psychiatrist, "I didn't do it." Carusone alluded to a distinction between invoking one's right to remain silent and denying involvement in the offense.
Colville, a former prosecutor, seemed troubled by the role of remorse prior to a finding of guilt.
"I don't think you can use his Fifth Amendment rights against him to say he isn't amenable to rehabilitation," Colville said in a telling comment. "I haven't closed off this issue yet…"
Rosado saved two minutes of her argument for rebuttal.
At that time, Olson asked: "[You're] argument carries more weight if he [Brown] invokes his Fifth Amendment rights. He specifically denied [the offense], including facts not consistent with the facts of the case. Does that change your position?"
Rosado concluded her argument by saying there are additional issues in the case beyond invoking the right to remain silent, namely the presumption of innocence and the right to go to trial.
A decision is not expected for several months. In the meantime, Brown will remain at the Edmund L. Thomas Adolescent Detention Center in Erie.