April 27, 2011
DELAWARE, Ohio – The biggest question in the case of a 12-year-old boy charged in the killing of his mother’s fiance isn’t whether he pulled the trigger, but whether he understands the court process he’s been thrust into.
Nicholas Boleware, a middle-schooler who moved to Delaware County with his mom from Mississippi six months ago, was formally charged with a delinquency count of murder yesterday in the shooting death of his soon-to-be stepdad, Jeffrey Reece, 38. Reece died of multiple gunshot wounds in the head on Saturday, an autopsy showed.
A young defendant such as Boleware poses a challenge for both prosecutors and defense attorneys, who likely will question whether he is competent to stand trial. Both of Boleware’s attorneys, Chad Heald and Michael Cox, declined to comment on the case, as did Delaware County Prosecutor Carol O’Brien.
To be ruled competent, Boleware would have to be able to aid in his defense and understand the court proceedings – from the role of the judge to what evidence means, said defense attorneys and prosecutors. Many 12-year-olds haven’t even studied that unit in civics class yet.
“Twelve-year-olds are not known for their common sense and rational decision-making,” said Douglas Althauser, a defense lawyer and former juvenile justice liaison for the Department of Youth Services. “If a boy was so rash that he could shoot an adult, could he also have the ability to understand the long-term consequences of a plea agreement?”
“The biggest question on this case,” said Dennis Hogan, chief counsel of the Franklin County prosecutor’s juvenile division, “is whether the child is competent to stand trial. If he’s not of the maturity to understand all of that, the case could be temporarily dismissed until he’s old enough to understand.”
With juveniles, their age and lack of experience often leaves them inherently incompetent. And with no uniform guidelines, the courts have struggled to apply adult standards to juvenile cases, said Althauser, who coordinated the drafting of a set of proposed juvenile-competency conditions.
“There are 88 juvenile courts, and there are probably 88 different standards for competency,” he said.
That frustrates defense attorneys, who have to deal with changing conditions depending on what county their client is in.
“One of the goals of having a statute is to create more uniformity so everyone’s applying it in the same way,” said Jill Beeler, chief counsel for the juvenile division of the Office of the Ohio Public Defender. Under the proposal, which has yet to be introduced at the Statehouse, juveniles would be considered incompetent if they couldn’t assist in their defense because of mental retardation, developmental disability, lack of developmental capacity or mental illness.
“We want to give that child some credit to learn,” Althauser said. Aided by classes and support services, children would have 90days to a year to achieve competency under the proposal.
That’s the crux of Hamilton County’s competency program. It has a dedicated competency docket and in-house psychology clinic for juveniles who are ruled incompetent. Most children attend outpatient sessions on Saturdays, but about 5 percent are being assisted in a detention facility, said counselor Jim O’Connell.
“It’s essentially a program where we try to educate them about the entire court process,” he said. “A 12-year-old, it’s not that he’s ever lost competency, it’s that he’s never had it to begin with.”
Counselors work with kids for about a year, getting them up to speed on the justice system. Because of that, fewer cases are dismissed after an incompetency ruling.
But not all counties have such resources. Hogan recalled the case of a 9-year-old who was charged with poisoning her great-great-grandmother. The charges ultimately were dismissed for incompetency and never refiled.
“At this point we don’t even have that kind of system set up where there are programs or facilities for the child to become competent,” said Kathy Press, first assistant prosecutor in Franklin County Juvenile Court.
Even if Boleware is found competent, because he is younger than 14 he can’t be tried as an adult. Prosecutors could file a “serious youth offender” motion, which gives a child the right to a jury trial in juvenile court. Should he be convicted, he could be given a suspended adult sentence for murder, 15 years to life, plus three years for the use of a gun.
He would be held until he was 21 in a state youth detention facility, and if he completed that term satisfactorily, he would never serve a day of his adult sentence.