Maine news, sports, weather from Portland Press Herald / Maine Sunday Telegram, Portland, Maine

July 26, 2012

Court weighs trying Portland rape suspect as adult

Also at issue is whether police improperly obtained evidence against the young defendant.

By David Hench dhench@mainetoday.com
Staff Writer

Earlier this month, a judge ruled that Mohammed Mukhtar was a juvenile when he was arrested in connection with the rape of a woman in Parkside, saying the felony case needed to be brought in juvenile court.

On Thursday, the state moved to try Mukhtar as an adult even though he is 17.

"You could be prosecuted as an adult and face adult penalties," Judge Richard Mulhern told Mukhtar in explaining the seriousness of the state's request. Mukhtar indicated that he understood.

Mukhtar was arrested in May and charged with breaking into a High Street apartment and raping a woman. He faced up to 20 years in prison if convicted of the Class B crime.

But his attorney, Jonathan Berry, argued successfully that Mukhtar's birthday of record, Jan. 1, 1994, was arbitrarily assigned to him when he came to this country as a refugee from Somalia and that his real birthday was Oct. 25, 1994.

He now stands charged with the juvenile equivalent of rape, burglary, aggravated criminal trespass and misdemeanor criminal trespass.

If Mukhtar is tried as a juvenile, he likely would serve no more than three years in the Long Creek Youth Development Center, until he is 21. Either way, a felony conviction would be on his record for life.

The state considers four factors in deciding whether to charge a juvenile as an adult, said Christine Thibeault, juvenile prosecutor for the Cumberland County District Attorney's Office: the nature of the crime, the characteristics of the juvenile involved, public safety and whether there are adequate sanctions in the juvenile system.

The case has raised potentially sticky legal questions about how Mukhtar was treated when authorities thought he was an adult and how much evidence, including his earlier criminal record, gets expunged, which could have implications for the rape case.

The hearing Thursday was a juvenile proceeding, but was open to the public because the charge is the equivalent of a felony. Mukhtar, who has been held at the Long Creek Youth Development Center since he was declared a juvenile, denied the charges, essentially a not guilty plea.

Mukhtar, a slightly built youth, hung his head as he sat alongside his attorney at the defense table, and exchanged a few words with his mother in the audience, while waiting for the judge.

"He does have a future, He does have plans. He's scared," Berry said after the hearing. "He's experiencing the same emotions as any other child in this situation would experience." Mukhtar's mother, who does not speak English, declined comment through an interpreter who attended the hearing.

Berry has asked for a probable cause hearing to force the state to show it had reasonable grounds to arrest Mukhtar. As part of the defense strategy, Berry also plans to try to suppress evidence from an earlier arrest.

Mukhtar was pulled over in April by Portland police and charged with driving without a license. Police charged him with a misdemeanor and took him to the Cumberland County Jail, where he was booked and fingerprinted.

When the Parkside attack occurred, police found fingerprints on the foil wrapper of a condom in the victim's apartment. Police say they matched those prints to those on file for Mukhtar.

The state believes police had every right to arrest Mukhtar on the misdemeanor driving violation and were entitled to take his prints because juveniles are treated the same as adults when it comes to motor vehicle offenses auch as driving without a license.

If a judge agrees that police should not have arrested Mukhtar at that point and that his prints should not have been taken, Berry said, the subsequent arrest of his client based on those prints is faulty.

Jim Burke, a law professor at the University of Maine School of Law, said the facts of the case are unusual but Berry's argument against the subsequent arrest is based on well-established civil rights protections.

"In law, it's what we call 'fruit of the poisonous tree,' " Burke said. "If the tree is bad you can't use the fruit of it. If the chain starts with improperly acquired evidence, everything that flows from that can be suppressed."

A hearing on whether Mukhtar should be tried as an adult or a juvenile has yet to be scheduled. The state also requested he undergo a psychological examination.

Mulhern scheduled a hearing for Sept. 5 on Berry's motions on whether police had probable cause to arrest and whether they could rely on the fingerprints taken earlier.

 

Staff Writer David Hench can be contacted at 791-6327 or at:

dhench@pressherald.com

 

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