September 1, 2012

Ten-year-old unlikely to face trial, lawyers say

Prosecutors may pursue the case in the courts to remain involved in what happens to the child.

By Beth Quimby bquimby@pressherald.com
Staff Writer

Juvenile defense lawyers say it would be highly unlikely for a 10-year-old girl to be found competent to stand trial in a Maine juvenile proceeding and virtually impossible for a 10-year-old to be found competent to stand trial in adult court.

"This is uncharted waters. It is a very odd case," said Walter McKee, an Augusta trial lawyer.

The girl, now in the custody of the Maine Department of Health and Human Services, was charged Thursday in the death of Brooklyn Foss-Greenaway. The baby's mother, Nicole Greenaway of Clinton, said she left her daughter overnight in the care of the girl's mother, Amanda Huard of Fairfield, on July 8. No charges have been filed against Huard.

Juvenile law experts said that when a police report is filed against a juvenile, the matter typically goes to a juvenile community corrections officer, who determines whether the case should be diverted from the court system to a mental health counselor or community service program.

But the district attorney can decide to go ahead and prosecute the case, said Edwin "Ned" Chester, a Portland juvenile defense lawyer.

Chester said prosecutors may have decided to pursue the case in the courts, rather than diverting it to DHHS, in order to remain involved in what happens to the 10-year-old. Unlike adult court, which seeks to punish criminals, the juvenile system is set up to balance the interests of protecting the community and the welfare of the child, he said.

"This is the only way the district attorney can have any significant input into the process," he said.

Chester said the state's move will trigger an evaluation by forensic services to determine whether the child is competent to stand trial either as a juvenile or an adult. Chester and McKee said it is highly unlikely that a 10-year-old would ever be declared competent to stand trial as an adult.

"Usually you are having this discussion around children who are 14, 15 or 16," McKee said.

In the past year, the Maine juvenile code was amended to account for chronological immaturity, which means that sheer youthfulness must be considered in assessing competency.

Under Maine law, in order to be found competent to stand trail in a juvenile proceeding, the juvenile must meet a long list of criteria, such as having a rational and factual understanding of the proceedings, an ability to consult with legal counsel with a reasonable degree of rational understanding, have a factual understanding of the role of the judge, defense counsel, attorney for the state and mental health experts, appreciate how possible dispositions imposed in the proceedings will affect the juvenile and display logical and autonomous decision-making.

"There is a lot of discussion about the adolescent brain development because people recognize that the adolescent brain is very different from an adult's. But we are not even talking about adolescent, we are talking about prepubescent," McKee said.

He said the vast majority of hearings to decide whether a juvenile should be tried as an adult result in a decision to proceed through the juvenile system.

Staff Writer Beth Quimby can be contacted at 791-6363 or at:

bquimby@pressherald.com

 

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