Skeldon: Will they try him as an adult?Written by Mark Skeldon | | firstname.lastname@example.org
After the tragic events in Chardon, Ohio, I have heard people discussing whether the perpetrator of these attacks would be tried as an adult. Although no charges have been filed as of press time, the perpetrator is identified in many media sources as being 17 years old.
Most people understand that in some instances juveniles are tried as adults, but the law in Ohio gives specific guidelines as to when this can happen, whether it is mandatory or the judge has discretion, and if the judge has discretion, what factors can be considered. This column is meant to give a brief overview of the way the Ohio law works in this area.
When a prosecutor in the juvenile court makes a motion to have a case transferred to adult criminal court the judge must transfer the case if the motion is properly supported, and probable cause exists. The following situations require a judge to transfer a child for proceedings in a criminal court:
1. The complaint filed in juvenile court alleges a crime that would be aggravated murder, murder, attempted aggravated murder or attempted murder if committed by an adult. If this situation applies and the juvenile is 16 or 17 the court must certify the juvenile to criminal court where he or she will be tried as an adult. Also, if the 16- or 17-year-old is charged with certain other serious offenses and uses a gun while committing the act charged, certification is mandatory.
This is very likely going to be the situation for the juvenile in Chardon.
2. If the juvenile commits one of the acts named above, is 14 or 15 and has previously been pronounced delinquent (juveniles are not found guilty, rather they are adjudicated delinquent) of certain other crimes (manslaughter, rape, aggravated burglary to name a few) then the judge must transfer the case to criminal court where he or she will be tried as an adult.
There are other situations in which the trial of a juvenile as an adult is mandatory, but these are the basics. Because these situations require mandatory transfer to criminal court, there should be much less disagreement and uncertainty surrounding them than a discretionary transfer to criminal court.
The juvenile court may (not must) transfer the case if the court finds that: The child was 14 or older at the time the act charged; the child is charged with an act that would be a felony if committed by an adult; there exists probable cause to believe that the child committed the act charged; and the child is not amenable to care or rehabilitation in the juvenile justice system.
Before considering a discretionary transfer, the juvenile court must order a mental examination of the child by a qualified agency or person. However, if the juvenile refuses to submit to a mental examination he or she has waived the requirement and no mental examination is necessary.
One of the factors that is considered in whether the child is amenable to care or rehabilitation in the juvenile system is the victim of the act charged. For example, if the victim suffered physical or psychological harm, or serious economic harm, or if the harms were caused to a vulnerable victim, transfer is more likely. On the other hand, if the victim of the alleged acts induced or provoked the acts charged that would work against transferring the case.
Another factor considered is whether there is sufficient time to rehabilitate the child within the juvenile system, and whether the child is emotionally, physically or psychologically mature enough for the transfer.
A few other factors that are considered include whether the act charged was for hire or gang related, and if the juvenile had a firearm and used, displayed or threatened to use the firearm.
Again, there are other factors considered but this list shows that the court is given specific factors when considering a transfer. It should be noted that if the child is eligible for mandatory transfer, these factors are not considered.
This process is guided by the Ohio Revised Code, giving the judge guidance as to when a child should be tried as an adult and when they should be left to the care of the juvenile justice system.
Mark Skeldon is a local attorney and practices of Counsel to the Law Offices of Borgstahl & Zychowicz Ltd. This column does not constitute legal advice. He can be reached at email@example.com or (419) 654-4752.)