Venango County teenager can request transfer to juvenile court


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On his Facebook page, 13-year-old Zachary Proper appears shirtless, flexing for the camera with a goofy grin and his baseball hat askew.

Today, he is in the Venango County Jail, charged with two counts of criminal homicide in the deaths of his grandparents, Dorothy Fross, 67, and George Fross, 69.

Police said the middle schooler sneaked up behind his grandmother and shot her dead, then gunned down his terminally ill grandfather, emptying the gun into him as he lay wounded on the kitchen floor Sunday, upset that they had insulted his mother.

In Pennsylvania, anyone charged with criminal homicide, regardless of age, ends up in adult criminal court. So in the eyes of the law, Zachary is still very much an adult. But the law also allows for child defendants -- even those charged with the most horrific crimes -- to ask to have their cases transferred back to juvenile court, where the court cannot hold them beyond their 21st birthdays and where the primary goal is rehabilitation, not punishment.

Zachary's attorney, Neil Rothschild, could not be reached for comment.

Zachary's case comes at a time when the way the state treats the young criminals is at a crossroads. A June U.S. Supreme Court decision struck down automatic life sentences for juvenile offenders -- including murderers.

For Pennsylvania, which leads the nation in the number of inmates serving life sentences for crimes they committed as juveniles, the ruling means the state will have to refashion sentencing laws for juveniles convicted of murder. A bill in the state House would give judges the option of sentencing juveniles under 15 convicted of murder to a minimum of 25 years to life.

And on Nov. 1, the state will adopt new rules of criminal procedure that will lay out tighter timelines and greater oversight by judges for the decertification process so juveniles do not have to linger in custody. For young defendants seeking to have their case moved to juvenile court, time is the enemy: The older they are, the less likely they are to have their case transferred.

"What has happened in some jurisdictions is that these cases have tended to drag on because of the need for expert witnesses," said Jim Anderson, executive director of the Juvenile Court Judges' Commission. "By the time you get several continuances, that can make a big difference as to whether the juvenile is amenable to rehabilitation or not.

"Delay in the criminal justice system to get the decertification case heard really works to the favor of the prosecution, because it makes it less likely that the juvenile can be rehabbed before the age of 21."

Under the current system, there's little guidance as to when petitions should be filed, but it generally happens sometimes after the preliminary hearing. In a decertification hearing, both sides are permitted to present expert reports and witnesses. Much like in a criminal trial, both sides are permitted to cross-examine witnesses.

Under the law, judges weigh a number of factors in determining whether to transfer a case back to juvenile court, including whether the child is amenable to treatment.

An affidavit describing the crime reveals Zachary's family believed he was troubled. His mother, Karen Kapp, called police because she was concerned about him being drunk and high and worried he had stolen his grandmother's car. In an interview with Oil City police Chief Robert Wenner, Zachary claimed a friend killed his grandparents, but when pressed he confessed to killing them because he claimed they had called his mother a whore.

And while the horrific nature of the crime may weigh against an attempt to have his case transferred, Marsha Levick of the Juvenile Law Center said the law makes it clear that even young people accused of murder can have their cases tried in juvenile court.

"When you're dealing with someone as young as this child ... despite the obvious horrific nature of the crime, it may be exactly the kind of case that should be transferred back to juvenile court," she said.

Indeed, the decertification process was created specifically for young people accused of murder in the 1970s, when juveniles charged with homicide were the only young people who automatically ended up in criminal court. And Ms. Levick said there are several cases of juveniles charged with homicide who successfully had their cases moved to juvenile court, though the state has not shied away from trying children in adult court.

Jordan Brown was 11 when he shot his father's pregnant fiancee in the back of the head as she slept in the family's home in Lawrence County. After a lengthy court battle, his case was transferred to juvenile court, where he was found responsible for the crime this year and was placed in a secure juvenile facility.

In the meantime, Zachary is alone in a cell in the Venango County Jail, where he is in protective custody because he is a juvenile, according to Deputy Warden Kelly McKenzie. He takes his meals and showers alone. He'll be allowed one visitation a week via phone through a glass partition. The law allows for him to be transferred to a juvenile facility, but if he stays in the jail he'll likely start school there in the classroom, an experience that will be vastly different from the one he had at Oil City Middle School.

"We actually are provided a teacher through Franklin High School," he said. "If it comes to that point, he'll go up and see her all by himself."

region

Moriah Balingit: mbalingit@post-gazette.com, 412-263-2533 or on Twitter @MoriahBee. First Published October 11, 2012 4:00 AM


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