20
Dec
11

stolen childhood, part 2

In yesterday’s post, I said the Commonwealth of Pennsylvania is playing fast and loose with Jordan Brown’s Constitutional rights and with the laws that are supposed to be protecting him.

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 

Listen to Otis Spann performing “Evil Ways”


12 Responses to “stolen childhood, part 2”


  1. December 21, 2011 at 10:06 am

    many of the police, court systum, judges, jury, prosecutor don’t have a brain and all they have is hate, revenge, is coldhearted, no compassion and thinks they are much better than kids. want to so quick blame a child for murder and any other crime and wroing doings. Well talk about abuse here. It’s suppose to be against the law to abuse kids. Is it? Well then Y in the hell is juveniles, prisons, court justice systum, police, judges, prosecutors and jury and society abusing Jordon, James, Blade, Alex and list goes on. Thats what court is doing. Abusing JUSTICE. I wanna say stop this justice abuse and stop it NOW! Is what it is. I say so, thats why. How much corrupted to charge kids lik jordon here as a adult age 11,12, 13, 14, 15 as a adult. I smell a rat in courts.

  2. December 21, 2011 at 10:09 am

    i say this jordons friends hope to God they don’t stop being friends with him. I f so ask were they really a friend to begin with. I like to be his friend. Stand up for him, encourage him, let him know hes a good kid, person.Jordon im praying for you.

  3. December 21, 2011 at 10:28 am

    Hi Dan,
    Just made a donation for my 15 year old son via the link, but saw on Paypal the money goes to the Juvenile Law Project. My kids traditionally give money every year to a charity or cause of their choosing, and this year he chose to help Jordan and his Dad. I just want to make sure that the money is going to go to help his dad with those day-to-day needs that it sounds like he REALLY needs help with – car, gas, living expenses. Not that we don’t want to help with legal bills, too, but want Jordan’s dad to make the call where the money is spent. Is this how it works? I would have emailed you privately, but didn’t see a link….
    ~Ann

  4. December 21, 2011 at 3:03 pm

    So shameful the way this case is being handled.
    quoted: The newspapers have already indicated that if the Superior Court does not rule in their favor, they will appeal to the Pennsylvania Supreme Court.

    Disgusting, how bast*** they can be, if that ever happen. (shaking head in disgust.)

  5. 5 matt
    December 21, 2011 at 4:09 pm

    Don’t mean to take away from Jordan, which appears to be a horrible miscarriage of justice that needs to be addressed by us all, but thought the readership might also be interested in this Young Kids, Hard Time update from fb.

    “clips of episode 2 of Young Kids, Hard Time coming soon. Two young brothers serving 60 and 30 year sentences, a teen who has never had a visitor in the four years he’s been locked up, and sobering interviews with two adult offenders serving 100 years. Sure to make you think. Stay tuned.” – Young Kids, Hard Time

    Assuming the brothers are Blade and Bennie Reed.

  6. December 21, 2011 at 8:24 pm

    Dan,

    Thank you for this summary, update and explanation of Jordan’s case. Thank you for all your time, efforts, sleepless nights, worries, frustrations, hopes, dreams, encouragement, fight, voice, etc. that you give to these kids. I can’t imagine where many of them would be without your voice, influence and fight for them.

    What has happened to Jordan, CR in AZ, and all the rest is absolutely shameful and disgusting and not becoming of our so-called “great nation”. Many times my husband and I have literally considered moving to another country. We don’t recognize this world we live in. But, its people like you that rejuvenate my own efforts to get up another day and fight the good fight.

    I can’t imagine where Jordan would be without you and all the other wonderful advocates who has invested so much of themselves into his case. One of the worst things to happen to a person is to be falsely accused. If you are truly guilty, you can reconcile with punishment. But, you can not get past being vilified, abandoned and humiliated when you know you are truly innocent.

    May Jordan’s case set some precedent which will help those who are suffering without the spotlight and voice Jordan’s case and the other’s have received. This would bring but a small glimmer of light out of such a dark state of affairs.

    The Constitution was formed for a reason. It is only worth the paper it is written on unless we protect it and insist on its enforcement. It is our duty to all our children not to allow these autrocities. As I told CR’s mother, it is not only about CR, although that should have been enough. His case would send a message to other law enforcement that they can get away with a rush to judgement, poor police work, bulling techniques and railroading the most defenseless in our society. Less than a week after 9 year old CR signed the plea deal, Jordan Brown was arrested and a duplicate saga began. The two cases are identical. I can only praise Chris Brown, his parents, extended family and those few friends who has stuck by Jordan.

    May all involved in this case get what they deserve. I’m praying Jordan, his father and loved ones will be financially set for life after this case is won. After the extended trauma they have all gone through, financial stability and no more financial worries should be the least our society should provide them.

    I’m hoping those who have grossly violated Jordan and his family in this manner receive the justice they deserve.
    I’ve come to realize the autrocities these kids go through at the hand’s of those who are supposed to protect and serve them is far worse than any crime they may or may not have committed.

    Stay strong, Dan. You are doing a good thing. Thank you for not staying silent.

  7. 7 Frank Manning
    December 21, 2011 at 9:27 pm

    Our Constitution and Bill of Rights are encased in special vaults at the National Archives that will protect these founding documents from a direct nucelar attack on Washington, D.C. What is protecting them from these rogue judges and officals in PA? Why has no one gone to federal court for a habeas writ for Jordan. I don’t have much confidence in governemnt at any level, but at least the federal courts have a proven track record of protecting the fundamental rights of persons accused of crimes. There’s a goddam good reason why 5 of the 10 amendments in the Bill of Rights pertain to the rights of such persons. Since 1925 at least the federal courts have vigorously upheld and protected these important fundamental rights against all levels of govt. You’ve quoted the law of the land above. These local thugs are in violation of the law. Only the federal courts can authorize the use of ALL NECESSARY MEANS to compel them to obey the law. Do it already for god’s sake!

    • December 23, 2011 at 2:37 pm

      when is enouth enouth of seeing kids charged as adults? Jordon is no adult what so ever, was not age 11 and still not a adult. I say reason why they do charge kids as adults is to get a fast buck. All about money is what court, judges, cops think. They don’t give a rip for kids today. How sad ANd disgusting it is.

  8. 9 Jeanne
    December 24, 2011 at 9:41 am

    Very interesting. If it is true that the media is trying to elude that the case is being held-up because the defense did not go along with them being admitted into trial proceedings, then this is very far-fetched on their part.
    The interpretation that I get from this is that they would be asking a defense lawyer to disregard Jordan’s rights as well as their professional duty to protect his rights. In short they would be asking Jordan’s lawyers to do something that is unethical. For example, if a Judge denied their request to make the proceedings public, it is not any duty of the defense to intercede and “o.k. we’ll let them it”. This matter was between the media and the Judge/Court.

    The matter does sound quite familiar though. It is like denying a child his fifth amendment right. What happened there and likely in many cases, was that access to transfer into a juvenile system was indirectly (or very directly) requiring an admission of quilt. We learned this was unconstitutional. In the very same manner, the media’s request was denied by the Judge. The media chose to appeal the decision, which is indirectly (or very directly) denying a child his right to a speedy trial. The latter appeal by the media is prohibiting a constitutional right, ironically, right before our eyes. Pennsylvania cannot just sweep the constitution under the rug. I believe in freedom of press, but protecting a child’s constitutional right far outweighs their argument in my opinion.

    To learn that the defense is held responsible for protecting Jordan’s rights, when they appealed the initial decision by Judge Motto, appears unrealistic. Had the superior court ruled it was constitutional to require an admission of guilt in order to transfer a case to juvenile, then I could see this but there was clear judgment that required the Judge to re-evaluate his prior ruling. The punishment, therefore, should fall on the prosecution. It was their paid expert that provided the dubious testimony that contributed to Judge Motto’s initial ruling in the first place. If you recall, the judge had to remove the expert psychologist’s testimony from his forethought the second time around. The case then transferred to the juvenile system. The fact that this falls on the defense seems very wrong. It should be re-evaluated. There is no logic to it.


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