Connecticut Boy Changes Harsh Sentencing Law Protecting Juvenile Offenders, Law Won’t Apply To Him

April 1, 2011 - PRLog -- HARTFORD, Connecticut  – This Wednesday, a young man will be incarcerated and sent to maximum security prison for one year due to an adolescent misstep.

In the case of State v. David Fernandes Jr, a then 15-year old boy was initially charged in juvenile court with Conspiracy to Commit Assault in the Second Degree. He had no prior criminal record and, in fact, no previous contact with the court system at all.

Assault in the second degree has been classified by the legislature as a class D felony. This is the lowest level of felony and thus the lowest charge for which a child can be transferred to the adult criminal docket. It is highly unusual for a child to be transferred under these circumstances.

“I have been involved in the defense of juvenile delinquency cases for over 20 years and currently supervise all of the public defenders assigned to juvenile courts in Connecticut,” said Christine Perra Rapillo, director of Juvenile Delinquency Defense. “I know of no other cases where a child with no record was transferred on a Class D felony.”  

According to the record in the juvenile court, the transfer had nothing to do with Mr. Fernandes. The law in 2005 allowed the prosecutors unbridled discretion to transfer any felony case from the juvenile docket to the adult criminal docket.

“The juvenile court record reflects that this 15-year old boy, with no criminal record, who was charged with videotaping a fight, was moved to adult court because ‘the judge wanted to keep the cases together,’” said Rapillo. “There were codefendants who, although teenagers, were adult in the eyes of the law and the prosecutor and the judge opted for convenience over true justice.”

“My son had never been in trouble before or since this incident in which he taped a fight out of fear and self preservation against being bullied himself,” said David Fernandes Sr. “He voluntarily turned the tape over to police within an hour of the incident.”

Officer Hoffman, the senior Juvenile police officer, testified that "he did not arrest David after the incident because he did not see a crime." The arrest came from a different youth officer twelve days after the incident because the police department received an order from the court.  

Since Mr. Fernandes’ arrest in 2005, the way that young people are treated who become involved with the justice system has changed dramatically. The United States Supreme Court has issued two decisions adopting scientific research on adolescent brain development that shows young people are physically unable to make the decisions of a mature adult. In Roper v. Simmons and Graham v. Florida, the Supreme Court ruled that an adolescent’s developmental differences mean that they must be held to a difference standard of culpability than a grown up. In 2007, the Connecticut General Assembly relied on this same research when they enacted legislation that will eventually raise the age of juvenile court jurisdiction to 18.

“Were the young people involved in this incident to be arrested today, it is likely they would have all started out in juvenile court,” said Rapillo. “There would have been no need to deprive them of the juvenile court’s rehabilitative protections to satisfy the desire for a convenient prosecution.”  

Mr. Fernandes chose to take his case to trial because he believed that he had been unjustly transferred to adult court. At trial, David was found by a jury, innocent of "Conspiracy to Commit Assault in the Second Degree" which was the initial charge at Juvenile Court. The second charge of "Accessory to Commit Assault in the Second Degree" was added just before trial by the prosecution without going back to the Juvenile Court for proper Due Process, once again violating David's civil rights.  

In the end, the Connecticut Supreme Court agreed with the unanimous decision by the Connecticut Appellate Court that the process was unfair. In the appeal of this case the Connecticut Supreme Court found that the transfer statute that moved Mr. Fernandes without any type of hearing did not provide children with adequate due process to protect their interest in maintaining juvenile status. Everyone coming after Mr. Fernandes will get a hearing on whether the case should be transferred. It is manifestly unjust that he would be denied the same recourse.

“The Supreme Court decision in State v. Fernandes was a great victory for the young people of Connecticut - except for David Fernandes,” said Rapillo.  

The Connecticut Criminal Defense Lawyers Association (CCDLA) wrote a proposed Bill to change the statute to put Due Process hearings back at juvenile court where the Connecticut Appellate Court ruled they should be.

In these final hours before Mr. Fernandes is incarcerated Wednesday, the family is desperately trying to rally support hoping Kevin T. Kane, Chief States' Attorney, will intervene.

“We requested a Stay of Execution for my son while we petition the Federal Supreme Court and that was denied by the State Supreme Court in only nine days, said David Fernandes Sr. “This is unbelievable to us since convicted rapists have been given a Stay by the State of Connecticut while they petitioned to the Federal Supreme Court.”  

Mr. Fernandes has already served eighteen months under house arrest which will not be counted toward time served. He was denied any divisionary program even though he fully qualified as a first time offender. The judge gave no reason for the denial.  

Interested parties can support David Fernandes Jr. by signing the petition at www.change.org or by contacting Kevin T. Kane, Chief States' Attorney at (860) 258-5800 or via email at conndcj@po.state.ct.us.