Requiring remorse is unconstitutional, judge panel says
March 13, 2011 9:00 AM
By Michael A. Fuoco Pittsburgh Post-Gazette
Jordan Brown, only 11 when he was charged two years ago with killing his father's pregnant fiancee, was denied his constitutional right against self-incrimination last year when a Lawrence County judge rejected arguments that he should be tried as a juvenile, a Superior Court panel has ruled.
In the latest twist in a case being watched by juvenile justice experts nationwide, Superior Court Judges Judith Ference Olson and Cheryl Lynn Allen on Friday formed a majority, agreeing with defense arguments that Jordan, who claims innocence, cannot lose his bid to be tried as a juvenile for not saying he is remorseful. The judges vacated the lower court ruling and ordered that another hearing be held to determine whether Jordan should be tried as an adult or a juvenile.
At the hearing last year, Jordan sought to be decertified as an adult and to be adjudicated as a juvenile. But Lawrence County Judge Dominick Motto ruled last March that Jordan's refusal to take responsibility for the crime dimmed his prospects for rehabilitation in the juvenile justice system and therefore he would stand trial as an adult.
"By finding that Appellant had to admit guilt or accept responsibility for his actions as a condition to proving that he was amendable for [juvenile] treatment, the trial court placed Appellant in a situation that needlessly encouraged Appellant to sacrifice his Fifth Amendment rights against self-incrimination," Judge Allen wrote in the 49-page majority opinion.
Judge Robert E. Colville dissented, writing in the minority opinion there was no evidence that Jordan ever sought to invoke his right against self-incrimination. But even in dissent, Judge Colville said the case raised for him "important and complex questions as to the interplay between the Fifth Amendment and the juvenile decertification and transfer process."
Police said Jordan fatally shot Kenzie Houk, 26, with a 20-gauge shotgun as she slept in their New Beaver farmhouse on Feb. 20, 2009. Her unborn son, who was nearly full term, also died. Jordan was charged with the homicides as an adult but has been in the Edmund L. Thomas Adolescent Detention Center in Erie since shortly after the slaying.
Dennis A. Elisco, one of Jordan's attorneys, said the defense team was "extremely pleased" with the Superior Court decision.
"It's precisely what we had hoped for, and we believe it was the appropriate ruling. In this case, it was extremely important on a larger scale to the juvenile justice system in Pennsylvania. My client is Jordan Brown, but this has such significance beyond Jordan."
If convicted of first-degree murder as an adult, legal experts say, Jordan, now 13, would be the youngest person in the country to serve a life sentence in prison without parole. If he is tried and found delinquent in juvenile court, the state could not incarcerate him beyond his 21st birthday.
Police say Jordan hid a 20-gauge shotgun under a blanket so Ms. Houk's daughter would not see it, shot Ms. Houk and then left for school, discarding a shell casing outside their home.
The victim's family members have said Jordan was jealous of Ms. Houk, whose baby would have been named Christopher, after his father. Jordan's attorneys have denied there was any animosity.
Jordan told state police that he, Ms. Houk, and her daughters, Adalynn, 4, and Jenessa, 7, were the only ones home on the morning of the crime but that he had seen a suspicious black pickup truck near their home that morning before he went to school. Police said his story about the truck changed several times before his arrest.
Deborah Houk of New Castle, who is raising her daughter's two girls, didn't know of the Superior Court ruling until a reporter told her Saturday. She was upset with the decision, saying Jordan should be tried as an adult.
"How many times are we going to go through this?" she said. "What is this teaching young children? Now we have to go through all of this again because they're not satisfied with the answer? The bottom line is the punishment comes to the family and friends of the Houks."
Mr. Elisco said the opinion, eliminating as it had the use of Jordan's failure to accept responsibility as a basis for denying him juvenile status, had essentially eliminated any reason that Jordan should not be adjudicated as a juvenile.
"We believe this ruling provides a blueprint to decertify him [as an adult]. It's just matter of logistics." He said he believed that action on the case would happen this week.
Judge Motto based his decision to try Jordan as an adult largely on his refusal to take responsibility for the crime, which both defense and prosecution psychologists testified is necessary for rehabilitation. The law says statements children make to psychologists can't be used against them in juvenile court. But Jordan, who was charged as an adult, lacks those protections.
In arguments before the Superior Court panel in January, Lourdes Rosado, another of Jordan's attorneys who is with the Philadelphia-based Juvenile Law Center, said he was penalized for exercising his constitutional right against self-incrimination by being required to say he is remorseful for something he claims he did not do.
Michael A. Fuoco: 412-263-1968. First Published March 13, 2011 5:00 AM