NEVADA SUPREME COURT: ACLU says law unfair to juveniles
Youths accused of crimes with guns considered eligible for
February 1, 2008
By SEAN WHALEY
REVIEW-JOURNAL CAPITAL BUREAU
CARSON CITY -- A state law that favors trying juveniles charged with crimes
involving the use of guns as adults is unconstitutional and a violation of the right
against self-incrimination, the ACLU of Nevada contends.
The group, with the Juvenile Law Center in Philadelphia, have filed a "friend of the
court" brief at the request of the Nevada Supreme Court in two separate cases
challenging the constitutionality of the law.
The Las Vegas cases, involving William Molina and Marques Butler, both 17 years old
at the time, have attracted the attention of several national groups, some of whom
have been asked by the court to weigh in on the constitutionality of Nevada's
"presumptive certification" law.
"It's a great opportunity for us to comment on a crucial issue of criminal justice,"
said Lee Rowland, an attorney with the ACLU.
The law says juveniles age 14 or older suspected of using or threatening to use a
deadly weapon in a crime are presumed to be eligible for prosecution as adults.
Molina is charged with crimes involving the armed robbery of a Las Vegas taco shop
in 2006. He has said he was not involved in the crime.
Butler is charged with several crimes arising from the armed robbery of two men in a
Las Vegas park in 2006.
Both were sent to adult court for prosecution.
Both are represented by Las Vegas attorney Kristina Wildeveld, who has raised
constitutional issues in the cases.
A date for arguments in the two cases, which have been combined, has not yet been
set by the Supreme Court.
By pleading not guilty to the charges, Williams automatically was transferred to adult
court, the brief said.
To stay out of adult court, the law allows a juvenile to present evidence that
emotional, behavioral or substance abuse problems contributed to the commission of
But to use the process successfully, juveniles essentially have to plead guilty to the
crimes for which they are charged by undergoing psychological evaluations and other
types of testing, the brief said.
And once the determination has been made on whether to prosecute in juvenile or
adult court, any of the information presented seeking to keep a case in juvenile court
can be used against the youth in further court proceedings, a violation of due
process rights, the brief said.
"Highly prejudicial facts presented to maintain juvenile court jurisdiction may be
used against the child at any stage in the criminal process," the brief said.
Lourdes Rosado, an attorney with the Juvenile Law Center, said Nevada's law creates
a non-choice for juveniles.
The juvenile either admits to a crime in an effort to stay in juvenile court, requiring
an unconstitutional act of self-incrimination, or is sent to adult court for prosecution,
"We don't want kids to be put in that position," Rosado said. "The consequences are
huge for juveniles."
Molina faces up to 36 years in prison if convicted as an adult. He faces a minimal
sentence in juvenile court.
Rosado said other states use an evaluation process to determine whether a youth
should be tried in juvenile or adult court, but the information gathered to make such
a determination is limited to that use only and cannot be used later for prosecution.
The Clark County district attorney's office, in a response brief filed in Molina's case,
argued that the law does not violate a juvenile's constitutional rights.
All that must be shown to keep a case in juvenile court is that substance abuse or
one of the other identified factors contributed to a juvenile's delinquent acts, the
Rosado praised the Supreme Court for seeking participation from the Juvenile Law
Center and the other organizations.
"The court wants to get all the best information, the best arguments, in front of it,"
EDITORIAL: Is this a 'juvenile' crime?
Nevada's 'presumptive certification' law challenged
February 5, 2008
Nevada state law says juveniles 14 and older are presumed eligible for prosecution
as adults if their alleged offense involved use of a deadly weapon.
Take the current Las Vegas cases involving William Molina and Marques Butler, both
of whom were 17 at the time they were accused of robbery.
Molina, who professes his innocence, is charged with the 2006 armed robbery of a
Las Vegas taco shop. Butler is charged with several crimes arising from the armed
robbery of two men in a local park in 2006.
Both young men are represented by Las Vegas attorney Kristina Wildeveld, who has
filed briefs that raise constitutional issues.
To stay out of adult court, state law allows juveniles to present evidence that
emotional, behavioral or substance abuse problems led to the commission of their
(By definition, it would seem that committing an armed robbery is pretty good
evidence of a "behavioral problem." But we'll leave a more detailed dissection of this
psychological lingo for another day.)
Note what's missing from the list above. Juveniles accused of committing a crime
with a deadly weapon cannot avoid trial in adult court -- where the penalties can be
far more severe -- by arguing that they simply weren't there and didn't do it.
Molina, for instance, faces up to 36 years in prison if convicted as an adult. He would
face far milder consequences in juvenile court.
In essence, the brief by Ms. Wildeveld argues, in order to undergo the psychological
evaluations and other testing that might allow them to stay in juvenile court, her
clients would have had to plead guilty.
When he pleaded "not guilty" to his charge, Williams was automatically transferred
to adult court, the brief says.
What's more, once the determination has been made whether to prosecute in
juvenile or adult court, any information presented while seeking to keep the case in
juvenile court can be used against the youth in further proceedings -- a violation of
due process rights, Ms. Wildeveld argues.
The Philadelphia-based Juvenile Law Center and the ACLU of Nevada have filed
friend-of-the-court briefs, pointing out that in other states, information gathered
during the evaluation process which decides whether to retain the case in juvenile
court cannot be used in a subsequent prosecution.
Now, common sense has to ask, if the defendant didn't do it, why would he want a
chance to argue he did it because of drugs or because his father beat him? Attorneys
should not be urging innocent people to plead guilty just to get a better deal.
But Ms. Wildeveld and the "friends of the court" make a good point. To hold the
threat of harsher punishment over a defendant's head in an effort to extract a de
facto guilty plea comes very close to coercion in violation of the Fifth Amendment.
On the other hand, adult court is precisely where many such offenders belong. Much
of our juvenile justice system comes down to us from the days when the typical
offenses of "juvenile delinquents" involved theft of lawn ornaments or stealing apples
from a fruit stand -- when it could sensibly be argued these were "good kids at
heart" who might well be reformed by spending a few months on a farm,
Few who have ever looked down the barrel of a loaded handgun brandished by a 17-
year-old during an armed robbery would agree with Ms. Wildeveld that these are
The plaintiffs have a point, even if they may not like the obvious two-part solution.
Yes, any information the defendant volunteers during the well-defined process of
deciding court jurisdiction (but not, for instance, at the time of his arrest) should be
confidential, to preserve the accused's vital Fifth Amendment rights.
But the Legislature also needs to considerably narrow any loopholes that allow
armed 16- and 17-year-old thugs to avoid serious punishment for their serious
crimes merely by pleading that they smoke dope or had a tough childhood.
People don't commit armed robbery by accident. Nor does it qualify as a "childhood