For Their Own Good

Harris County juveniles certified as adults are jailed in isolation 23 hours a day — without being convicted of a crime.

That sentiment was echoed by forensic psychologist Dr. Seth Silverman, whose report to the court stated that Christian might be harmed by being transferred to the adult jail due to the lack of rehabilitation there, and could benefit from a supportive juvenile setting. The prosecutor never presented evidence that treatment available in the juvenile system would be ineffective, according to court records.

In addition, it came out at the hearing that Christian had discovered only a year earlier that the reason his mother was serving time in prison was for suffocating Christian's baby sister and dumping her in a trash can when Christian was two years old.

Still, at the end of the hearing, Shelton certified Christian. The court order does not list any individualized reasons; it's simply a form order signed by the judge. Christian was then taken to the county jail and placed in segregation. It wasn't until months later that he was indicted.

Lawyers from the prestigious international law firm Jones Day, which has offices in Houston, are currently working on Christian's case pro bono. They have filed a petition for writ of mandamus seeking relief from the state's First Court of Appeals to essentially reverse the certification decision and have Christian placed in juvenile detention.

Jones Day attorney Jack Carnegie takes issue with several aspects of the certification process. For starters, he believes that judges should be forced to include individualized findings as to why juveniles are being certified, as opposed to simply signing a generic form.

"The form orders make the same findings in every case," he says, "and that results in these cases turning solely on the severity of the crime, and there's a real question about whether those other factors that the Legislature says the court is supposed to consider are being properly considered."

Or as Marrus of the University of Houston puts it, "What judges tend to do is rubber-stamp...rather than consider all of the information and the individualized nature of the child's case, which is what the juvenile court is supposed to do."

Carnegie and Marrus are not alone in their suspicions and concerns.

Criminal defense attorney Vivian King, who has represented a teen during a certification hearing, says she thinks the process is "a joke. The judges don't listen to the facts and they just certify the kids. There's no meaningful consideration of the evidence, the age; I didn't see any of that."

Dena Fisher was a juvenile probation officer for 15 years before becoming a prosecutor in the Harris County D.A.'s office. She says just thinking about the certification hearings makes her "squirm."

"I think that certification is a very big decision made with usually only one side of the story, the officer's testimony," she says. "And it's supposed to be based on the best interest of society and whether the kid can be rehabilitated. It is usually a very quick decision on a very important matter."

This, however, is not the routine in every county, says Sean McAlister, a former Harris County juvenile prosecutor.

"In Fort Bend County," he says, "it's a much more formal and involved process. You see, Harris County has always sort of read between the lines...so they dismiss with a lot of the formalities. And even though technically that's okay, you have other counties like Fort Bend that actually go through the process of calling all their witnesses, almost like a trial."

Three judges currently preside over certification hearings in Harris County: Shelton, who has been on the bench since 1994; Judge John Phillips, who was elected in 2002; and Judge Michael Schneider, who started the job in 2006. Nearly every year, Shelton has certified the most juveniles, almost double Schneider's number. In 2007, Shelton approved 40 versus Schneider's 15. Phillips's numbers fall between the two.

Neither Shelton nor Phillips returned numerous requests to address the allegations. Schneider, however, responded.

"I can tell you that in my court," he says, "we follow the criteria in the Family Code in every single case. Not only do we look at the seriousness of the case, but also whether the juvenile system has something to offer as opposed to the adult system." As to why the percentage of certifications is so high, he says, "I don't know."

Schneider also says he had no idea that certified juveniles were kept in 23-hour isolation when they were transferred into the county jail.

"It's something I've never considered because it's never been presented into evidence," he says. "This is the first time I've heard of it."

In Texas, it is up to prosecutors to choose which youths they want certified and to request certification hearings.

"We try to send the worst of the worst over to adult court," says Juvenile Division Chief Bill Moore, "the people we really want to get out of society."

Moore says he believes his attorneys do try to address all the factors as required by law during a certification hearing and that it is not a rubber-stamp proceeding.

"I think they get a fair shake in court," says Moore. "The percentage [of certifications] does seem high, but if it's true, I guess it means we're doing a good job picking them."

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