Following an inept and dishonest investigation by police and a rush to judgment fueled by an excess of conjecture and a paucity of evidence, Jordan was taken into custody less than 13 hours after the February 20, 2009 murders of his stepmother Kenzie Houk and her unborn baby boy. Jordan was initially charged as an adult with homicide by the now-disgraced former Lawrence County PA prosecutor John Bongivengo, spurring a national debate on juvenile justice because Jordan potentially could have been the youngest juvenile in the U.S. sentenced to life-without-parole, a mandatory sentence in Pennsylvania.
In Pennsylvania the procedure is to automatically charge a child as an adult when the child is alleged to have committed murder, and then for the child to petition the court to be decertified as an adult and remanded to the juvenile court. This should have been a straightforward call because Jordan was just 11 years old at the time. But nothing in this case has been straightforward.
Most troubling, the person who more possibly committed the murder—Kenzie’s former boyfriend Adam Harvey—was never seriously investigated by the police, even though Kenzie’s life had been threatened by him as documented in two protection orders. Harvey has reportedly admitted or implied to more than one person that he was behind Kenzie’s death, and yet he continues to live free in Lawrence County. Facts have surfaced that suggest he is being protected by someone in a position of power.
The state’s legal tactics and overall posture in trying to railroad Jordan for the murders raise serious questions about just who is protecting Harvey, whether actively or passively.
A preliminary hearing was held on March 24, 2009 in which the prosecution failed to produce credible evidence linking Jordan to the crime; Lawrence County district attorney Bongivengo said he only had to show that a crime had been committed and that Jordan could have committed it. On May 6, 2009 Jordan pleaded Not Guilty at a formal arraignment hearing before the Lawrence County Common Pleas Court, Judge Dominick Motto presiding.
A little more than three months later, arguing that the state has failed to produce sufficient evidence to support the charges against Jordan, his attorneys filed a writ of habeas corpus on August 26, 2009 requesting Jordan’s release. They also requested that information illegally gathered by police be suppressed. Both motions were denied and the case moved into the decertification phase.
Almost a year after Jordan was taken into custody, at a January 29, 2010 decertification hearing Jordan’s lawyers presented evidence and testimony satisfying the statutory requirements for decertification. But the state argued, absurdly, that Jordan must give up his Fifth Amendment right against self incrimination and admit guilt in order to have been eligible to be tried as a juvenile for a crime he was alleged to have committed when he was 11 years old. The novel theory advanced by the state was that Jordan must express remorse for an alleged act in order to be deemed “amenable to rehabilitation” and therefore be eligible to be tried in a juvenile court that is theoretically aimed at the rehabilitation of delinquents. Judge Dominick Motto was somehow induced to agree with this patently unconstitutional argument, and on March 29, 2010 he denied Jordan’s motion to be decertified and scheduled Jordan for trial as an adult.
At a May 12, 2010 hearing, Jordan’s attorneys argued that Judge Motto’s order denied Jordan the presumption of innocence and his fundamental Constitutional right against self-incrimination, and filed an interlocutory appeal. After a lengthy delay Judge Motto approved it.
Almost two years after Jordan was taken into custody, oral arguments were heard before the Superior Court in Pittsburgh on January 25, 2011 regarding Judge Motto’s denial of Jordan’s petition to have his case transferred to the juvenile court. Jordan’s attorneys were joined by the Juvenile Law Center of Philadelphia in arguing the case. It wasn’t until March 11, 2011 that the Superior Court ruled that Judge Motto’s earlier decision did indeed deny Jordan’s Fifth Amendment right against self-incrimination. The court directed that the matter of Jordan’s decertification be returned to the Lawrence County Common Pleas Court and Judge Motto for a new ruling.
Again, Judge Motto took his sweet time in complying with the Superior Court’s order. It wasn’t until August 23, 2011—two and a half years after Jordan was wrongfully detained—that Judge Motto issued a ruling that Jordan would be tried as a juvenile. It took two and a half years to uphold a Fifth Amendment right that Jordan had all along, but that the state for its own reasons tried to deny him.
At this point, you’re probably asking yourself: “That’s great, but doesn’t Jordan also have a Sixth Amendment right to a speedy trial? Whatever happened to that?”
One of the rights guaranteed by the United States Constitution to defendants in criminal proceedings is the right to a speedy trial. The Sixth Amendment is intended to ensure that defendants are not subjected to unreasonably lengthy incarceration prior to a fair trial. But what length of time is deemed “unreasonably lengthy”?
In Barker v. Wingo (1972), the Supreme Court said any time longer than a year crosses the threshold!
In the Baker v. Wingo ruling, the Supreme Court laid down a four-part case-by-case balancing test for determining whether a defendant’s speedy trial right has been violated. According to Wikipedia, these four factors are:
- Length of delay: A delay of a year or more from the date on which the speedy trial right “attaches” (the date of arrest or indictment, whichever first occurs) was termed “presumptively prejudicial,” but the Court has never explicitly ruled that any absolute time limit applies.
- Reason for the delay: The prosecution may not excessively delay the trial for its own advantage, but a trial may be delayed to secure the presence of an absent witness or other practical considerations.
- Time and manner in which the defendant has asserted his right: If a defendant agrees to the delay when it works to his own benefit, he cannot later claim that he has been unduly delayed.
- Degree of prejudice to the defendant which the delay has caused.
In Strunk v. United States (1973), the Supreme Court also ruled that if the reviewing court finds that a defendant’s right to a speedy trial was violated, then the indictment must be dismissed and/or the conviction overturned. The Court held that, since the delayed trial is the state action which violates the defendant’s rights, no other remedy would be appropriate. Thus, a reversal or dismissal of a criminal case on speedy trial grounds means that no further prosecution for the alleged offense can take place.
If this is the law of the land, why then is Jordan still in custody? Why have the charges, which were bogus to begin with, not been dismissed?
In the United States, the length of time can either be defined by statute or determined by a court under a substantive theory based on the Sixth Amendment which states: “In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial.”
Pennsylvania statutes defining the period of speedy trial time include various exceptions to this rule, most notably situations in which the delay preceding the trial is due to the request of the defense. Even though the state initially took actions to deny Jordan’s Fifth Amendment rights, actions which were ultimately ruled unconstitutional, the two and a half years it took to uphold Jordan’s basic rights do not count against the state, but against Jordan!
Now the Commonwealth of Pennsylvania is allowing yet another delay in Jordan’s receiving a timely and fair trial, and the state is apparently preparing to argue that this, too, is the fault of the defense—an untrue and absurd assertion that is just as outrageous as its Fifth Amendment gambit.
On September 23, 2011 Lawrence County juvenile court judge John W. Hodge denied a request by three newspapers, the Pittsburgh Post-Gazette, Pittsburgh Tribune-Review, and the New Castle News, to make public Jordan’s scheduled court hearing, which was to have commenced on September 27, 2011. The judge and prosecutor both agreed, as did the defense, that state statutes governing access to juvenile proceedings in criminal matters clearly indicate that they must be automatically closed in cases where the child was under 12 at the time of the crime.
The newspapers disagreed, and filed an appeal with the Superior Court on September 26, and the Superior Court ordered that Jordan’s trial be delayed and gave media lawyers 62 days to submit other documents before the court hears the request on January 10, 2012. The newspapers have already indicated that if the Superior Court does not rule in their favor, they will appeal to the Pennsylvania Supreme Court.
Now here is the present rub: according to Pennsylvania state statutes concerning timely trials for juveniles, the state’s deadline for commencing Jordan’s trial should have commenced only ten days from the time he was charged for the crime as a juvenile, otherwise the child must be released and charges dismissed. According to Chris Brown, this deadline was October 2. The only exception to this 10 day rule is if the prosecution requests a 10 day extension to locate evidence or witnesses, or if the defense requests a continuance. Neither side requested more time.
When October 2 came and went and Jordan was not released from detention, Jordan’s lawyers filed a writ of habeas corpus with Judge Hodge, which was dismissed without a hearing on the justification that the Superior Court had removed the case from Hodge’s jurisdiction. But had the Superior Court stopped the 10-day clock and thereby denied Jordan his Sixth Amendment rights?
Two weeks ago, Jordan’s attorneys were joined again by the Juvenile Law Center in filing an appeal to the Superior Court of Judge Hodge’s ruling denying the habeas corpus writ. We have heard through the grapevine that the state will argue that because the defense did not support the media’s demand to be admitted into the juvenile court proceedings, the delay should count against Jordan’s release in the same way as if the defense had requested a continuance. More novel, unconstitutional theory!
The defense has been told that the Superior Court is fast-tracking the appeal and that oral arguments will likely be held around the time of the media’s January 10 court date. “They say it’s fast-tracking,” said Chris Brown, “but to me it seems like a lifetime. Jordan should have been released almost three months ago—and remember, he’s been locked up without a trial for almost three years for something he didn’t do. He’s already been robbed of his childhood. The way this is looking, if the state gets its way it could be years before Jordan gets his day in court and a chance to prove his innocence.”
Is it possible the state wants Jordan’s case to never go to trial where it will be revealed that he has been held all this time without any evidence connecting him to the crime? Is it possible that a dismissal of his case on Sixth Amendment grounds will help hide the fact that Kenzie was murdered with a handgun and not Jordan’s shotgun as the police have claimed? Is it possible that they want to conceal the fact that an eyewitness account supporting the hare-brained theory of the police was coerced from a traumatized little girl? Is it possible that they want the public to forget that the real perpetrator of this heinous crime is living among us today and flaunting his guilt with his friends?
Those of us who have been closely following this sad and shameful affair can only conclude that in Pennsylvania any evil thing is possible.
Groove of the Day