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Court of Criminal Appeals Reforms Juvenile Certification Procedure By Jack Carnegie


ix years ago, I got a call from a former colleague, Christene Wood, asking me to take on a pro bono matter that would end up changing the juvenile certification system. Christene knew Cameron Moon, a 16-year-old boy who had gotten in “some trouble” (an alleged murder). A few days earlier, the juvenile court certified Cameron for trial as an adult. Like other children deemed “adults,” Cameron was now in an adult facility in solitary confinement 23 hours a day to “protect” him from adult prisoners. By statute, juveniles have no right to an immediate appeal of the certification order. Cameron was later convicted and sentenced to 30 years in prison. Adult certification is supposed to be reserved for “exceptional cases.” Public policy is to rehabilitate children where possible through one of the proven effective programs available in the juvenile system. The certification statute therefore prohibits juvenile courts from certifying children as adults based on the category of the crime alone. It permits certification only when “the welfare of the community requires criminal proceedings,”1 and requires juvenile courts to consider other factors including the child’s sophistication and maturity, record and previous history, and likeli-

hood of rehabilitation.2 That is the theory. The reality was different. Between 1997 and 2008, juvenile courts in Harris County certified 1,524 children as adults and denied the State’s certification requests only 83 times. Typically, after abbreviated proceedings, the courts entered form orders that made the same findings in every case—some with no apparent relation to whether the welfare of the community required criminal proceedings. Children with IQ’s in the 70s were found sufficiently “sophisticated and mature” based on nothing more than “some evidence” they were capable of assisting their lawyer. Despite this, appellate courts almost never reversed certification. In Cameron’s case, the juvenile court’s form order made no finding that Cameron’s record and previous history supported certification. It recited that Cameron was “of sufficient sophistication and maturity to have … waived all constitutional rights heretofore waived[,]” never mind that, by statute, juveniles have no capacity to waive their rights. It also found he could “aid in the preparation of HIS defense.” The State, however, introduced no such evidence; nor was it evident why community welfare requires adult criminal proceedings because a child can help his lawyer. The juvenile court also said Cameron should be certified because it was more “convenient.” On December 10, 2014, the Court of Criminal Appeals reversed Cameron’s certification, and consequently his conviction, as an adult.3 It agreed the State introduced no evidence to support the juvenile court’s sophistication and maturity finding. More importantly, it held that a juvenile’s “capacity to waive his constitutional rights and help a lawyer to effectively represent him” is not a basis for certification and characterized this finding as “misguided.” It also agreed that the State introduced insufficient evidence to support the finding re-

garding Cameron’s amenability to rehabilitation; there was in fact substantial uncontroverted evidence that he was an excellent candidate. The Court of Criminal Appeals’ decision is critically important. It reminds lower courts that adult certification is reserved for exceptional cases and that the statutory standards for certification must be more thoughtfully applied and reviewed in the future. It clarifies the statutory “sophistication and maturity” element. It ends the use of form orders that make substantially the same findings in every case. It requires juvenile courts to “show their work” and reveal the real reasons each individual child is being certified so the rationale for certification can be meaningfully reviewed. Appellate courts must then base their review on the reasons expressly stated in the order—not other things the juvenile court “might” have found but did not. It further recognizes the difference between the “seriousness” of a crime and the category of a crime; not all crimes that fall into a particular category are the same. Despite the significance of the Moon decision, more remains to be done. Perhaps most importantly, the legislature should restore the right to immediately appeal certification decisions so that other children who are wrongly certified do not spend a third of their life in adult facilities before the error can be corrected. Jack Carnegie, a partner in the Houston office of Strasburger & Price, LLP, focuses on business litigation and arbitration involving the oil and gas and chemical industries. He has an active appellate practice and is Board Certified in Civil Appellate Law. Endnotes

1. Tex. Fam. Code. §54.02(a)(3). 2. Tex. Fam. Code. §54.02(f) 3. Moon v. State, 2014 Tex. Crim. App. LEXIS 1918 (Tex. Crim. App. Dec. 10, 2014)

March/April 2015


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