“Has he woken up?” Cristian asked at one point, referring to his 2-year-old brother David.
“He’s still sleeping,” Soehlig replied, meaning that David was still in a coma. She gave Cristian a doll to help him demonstrate what he might have done to David. Later, she would point to the doll’s head, asking Cristian if he hit his brother there and, if so, how many times. The scene is captured in Juvenile Lifers, a documentary about incarcerated children made by Cyril Denvers and Anthony Headley. The directors were given access to court footage and documents for their film, which was partially funded by the French public-access channel France 5.
David would eventually die of his injuries—multiple fractures to the skull—and Cristian would be charged with killing him.
The morning before his interrogation, according to the plea that Cristian would later file, he and David, along with their sister and other brother, had been left at home unattended by their mother, Biannela Susana. Cristian called her at 9:20 am to say that David had hurt himself. When Biannela returned home, she found David unconscious, but left him there to take Cristian to school. She then waited more than eight hours before taking David to a hospital. An examination of her computer showed that she’d Googled the symptoms of a concussion and also did some online banking. (Biannela would eventually plead guilty to involuntary manslaughter and be sentenced to probation with no jail time. The documentary raises questions about her involvement in the crime.)
Undoubtedly, both Biannela and Cristian had difficult lives prior to David’s death. Biannela was 12 when she gave birth to Cristian—impregnated as the result of a rape. The two were at one point in foster care together, both wards of the state, after they were found wandering in a motel parking lot, unfed and dirty. Biannela also had abusive boyfriends, one of whom molested Cristian. Her last boyfriend shot himself in the head in front of her children.
During the interrogation, Cristian said first that David had fallen off a bunk bed, then that he’d pushed David against a bookshelf, causing his injuries. Biannela was in an interrogation room next door; at one point, Cristian was sent to talk to her and their conversation was videotaped. Biannela cried and told him to go away. After this ordeal, a male officer came in to put handcuffs on him. “I have to put these on you, buddy,” the policeman said.
At the direction of Angela Corey, state attorney for Florida’s Fourth Judicial Circuit, prosecutor Mark Caliel charged Cristian with first-degree murder as an adult, which at the time meant that Cristian would not only be kept in an adult jail pending the outcome of his case, but that he would face a mandatory sentence of life without parole before he’d even lost his baby fat. According to prosecutors, Cristian had intentionally murdered David by smashing his head against a bookcase. Many other people were not so sure.
* * *
Angela Corey, the prosecutor in charge of Cristian’s fate, has served as the state attorney of the Fourth Judicial Circuit since 2008. (The circuit includes Nassau, Clay, and Duval counties; Jacksonville is in the latter.) Corey began her prosecutorial career under the supervision of Ed Austin, a revered state attorney whose name now graces the new $350 million Jacksonville courthouse. An $800,000 pedestrian bridge connecting the courthouse with the building that houses Corey’s offices was proposed by the architect; despite much public consternation over this use of state funds, Corey pushed for it on the grounds that it was too dangerous for her or her prosecutors to walk to court at street level. (There is no recorded incident of a prosecutor being assaulted en route to the courthouse.)
Corey continued as a prosecutor after Austin resigned in 1991 to run for mayor of Jacksonville. She was elected as the Fourth Circuit state attorney in 2008, after Austin’s longtime successor, Harry Shorstein, announced that he’d be returning to private practice.
During her eight-year tenure, Corey has garnered national attention in a pair of controversial trials. Her press conferences, for which she often wears a large gold cross like a Benedictine nun, have been broadcast nationwide. In 2012, she made headlines with her prosecution of Marissa Alexander, the mother who fired a gun to scare off an abusive husband (no one was injured in the incident). Corey charged Alexander with aggravated assault, which carried a minimum sentence of 20 years in prison. Her prosecution of Alexander spurred online petitions and protests from domestic-violence groups, who argued that Alexander was being overcharged for protecting herself. Alexander ultimately served three years in prison. In an interview, Corey told me that she didn’t understand why her actions were “newsworthy,” arguing that Alexander had endangered her children, who were in the next room. “How am I the bad guy in that situation?” she asked.
Then, in 2013, Corey failed to convict George Zimmerman in the death of Trayvon Martin. Some critics, like the now-retired Harvard law professor Alan Dershowitz, said in no uncertain terms that Zimmerman went free because Corey had overcharged him. (Corey responded by calling Harvard Law School and threatening to sue for libel.) As the special prosecutor in the case, Corey charged Zimmerman with second-degree murder, which requires intent, rather than a lesser charge like manslaughter. Corey’s office also concealed information from the defense that had been taken from Trayvon Martin’s cell phone, which was later revealed by one of her staff members. (Corey subsequently fired him.)
But these high-profile cases only hint at the governing ethos in Corey’s office. In nearly every relevant category, Duval County (by far the largest in the Fourth Circuit) embodies the outdated ideas that have fueled mass incarceration in this country—theories that everyone from the Obama administration to the Koch brothers have declared useless. In 2010, Duval had the highest incarceration rate in Florida—significantly higher than every jurisdiction of comparable size or larger, even though crime everywhere in the state was at a historic low. Despite this fact, Corey has opposed efforts to change the sentencing structure for nonviolent offenses to alleviate overcrowding at local jails.
Duval is one of the few counties in America in which the number of death sentences hasn’t decreased—a significant outlier during a decade of nationwide decline. One in four Florida death sentences comes from Duval, even though it has less than 5 percent of the state’s population; per capita, it’s the highest in the nation. Corey’s top homicide prosecutor, Bernie de la Rionda, is known for seeking the death sentence even when circumstances seem to weigh against it. For example, Michael Shellito was convicted of homicide and sentenced to death in the 1990s, when he was 19. There is extensive evidence that Shellito was suffering from severe mental illness and has a low IQ. The Florida Supreme Court overturned the death sentence, yet de la Rionda, acting at Corey’s behest, filed an appeal in the decision. One recent case is that of James Xavier Rhodes, a now-24-year-old man who is facing a death sentence for shooting a young woman at a MetroPCS store. Darlene Farrah, the victim’s mother, has asked Corey to grant her daughter’s killer a plea deal for a life sentence—to no avail.
During her first year in office, Corey doubled the number of felony cases in which minors were tried as adults. According to Human Rights Watch, the Fourth Circuit sends 75 percent of the young people charged as adults to prison or jail—the highest rate in the state. (By contrast, Miami-Dade County weighs in at around 12 percent.) This suggests that Corey is less likely than other state attorneys to consider alternatives to prison time.
Yet Corey argues that her decisions as a prosecutor couldn’t possibly be to blame for these disproportionate numbers. “We have so many sets of rules we are bound to follow,” she said. “There are so many checks and balances.”
* * *
It’s unclear where those checks and balances were when Corey charged Cristian Fernandez with first-degree murder as an adult and then fought his transfer to a juvenile facility—because, she alleged, he was “too dangerous” to be around other young people. Under Florida law, first-degree murder requires an intent to kill and carries a mandatory life sentence; in the Fourth Circuit, all juveniles charged with murder are automatically charged as adults. (Under current Supreme Court law, juveniles are no longer eligible for mandatory life sentences, though they can still be charged as adults.)
Sending 12-year-old Cristian to an adult prison certainly numbers among Corey’s many troubling decisions. Because children and teens are in such danger of being raped or physically assaulted, federal law formerly required that juvenile inmates be kept in complete isolation. In January 2016, President Obama issued an executive order banning solitary confinement for juveniles in federal prisons, effectively banning the incarceration of minors in adult prisons. While held in solitary confinement, juveniles received minimal yard time and infrequent access to other recreational activities. Perhaps most significant in Cristian’s case, adult prisons don’t have educational or counseling facilities; there are absolutely no opportunities for rehabilitation. Nor are adult prisons set up to allow young people the opportunity to spend time with their families. (In Cristian’s case, his isolation was compounded by the fact that his mother surrendered her parental rights; Cristian was, in essence, an orphan and not allowed to see any relatives.) Records from the prison indicate that Cristian was allowed two visits from a mental-health counselor and a handful of phone calls over a period of 30 days. Otherwise, he stayed in solitary.
The Fernandez case attracted significant attention outside of Florida, including a Change.org petition and posts on social media proclaiming that Cristian was the “youngest person charged with first-degree murder in Jacksonville.” But in our interview, Corey pointed out that Cristian “was not the youngest person in the history of Florida indicted for murder.” That title, she said, belongs to a brother and sister who were 12 and 13, respectively, when they were convicted in a county east of Orlando.
Corey also insisted that Cristian’s case isn’t unique—her office, she told me, has prosecuted many other young people as adults. And, of course, she’s right: Under her direction, 89 kids were direct-filed to adult court during the fiscal year 2014–15. So far in this fiscal year, 77 kids were charged in adult court at her discretion; 65 of them were black, and nearly half were under 16. When I asked about the number of minors she charges in adult court, Corey replied that “the juvenile system was not designed to deal with kids who commit really violent crimes, or even kids who are repeat offenders, especially of violent crimes.” She argued in favor of a “hybrid” system for young people who commit what she called “very adult crimes.”
A typical example of one of these kids might be Jonathan Eddie Hartley, a black 15-year-old who was sentenced to life in prison for shooting a delivery person during a stickup. Given the average life span, Hartley will spend the next 63 years in prison. He had no previous criminal record and pleaded guilty hoping for a lighter sentence. “We couldn’t leave him in juvenile,” Corey said.
The Supreme Court has prohibited mandatory sentences of life without parole for juveniles, ruling that young people are more likely to be rehabilitated—a view that is supported by recent discoveries in neuroscience. The Supreme Court also found this year that young people, because of their “immaturity, recklessness and impetuosity,” are less culpable than adults. And while every American jurisdiction has a mechanism for charging juveniles as adults, Corey’s office has apparently not changed its overall approach with respect to juveniles. Corey’s thinking seems to be stuck in the era of the so-called “superpredator,” a term popularized in the 1990s by political scientist John DiIulio to describe juvenile criminals with no hope of rehabilitation. DiIulio’s theory has since been wholly discredited; while he predicted an explosion in teen homicides, such crimes have in fact declined. He even joined an amicus brief in the case Miller v. Alabama acknowledging this fact, stating that “the fear of an impending generation of superpredators proved to be unfounded.”
Corey’s views differ: “Medical personnel are not subject-matter experts in the criminal-justice system; our prosecutors and judges are.” She argued that while mental-health experts are asked to give input in cases involving troubled juveniles, “medical research is constantly changing.”
According to Matt Shirk, Jacksonville’s elected public defender, Corey’s office also uses the threat of being charged as an adult as a way to coerce children into pleading to the maximum juvenile sentence: “They come in and say, ‘Your client needs to take the…max or we are going to direct-file.’” And an investigation by The Florida Times-Union found that Corey’s office periodically used the threat of adult prison to force many kids to plead to more time than they might otherwise have faced in the juvenile system.
* * *
The day I met Shirk, he was wearing a crisp white French-cuff shirt under a suit jacket with little Republican-elephant cuff links. He’s mostly bald but trying to hide it with a comb-over and a smile. Back when he and Corey were running on the 2008 Republican ticket, she used to refer to him as her “darling”—Shirk had interned under Corey, which created an unusual closeness between the prosecutor and the future public defender, whose job would be to fight her in court on behalf of his indigent clients.
Shirk, who had very little experience in public defense when he ran for the office (for example, he’d never defended a homicide case), campaigned on a platform of fiscal responsibility and a pledge never to question the integrity of the police. Since his election, Shirk has boasted that he consistently returns money to the state earmarked for the investigation of mitigation evidence for death-penalty clients. (I couldn’t confirm this assertion, because the public defender’s office hasn’t been audited since Shirk took it over.) This is an unusual situation, given that public defenders nationwide complain about being underfunded, leaving them at a disadvantage against better-resourced prosecutors. Shirk also began his term by firing most of the longtime public defenders in the office and appointing his friend Refik Eler as his second-in-command. While it would be speculative to say exactly how this affected the outcome of cases during Shirk’s tenure, these moves have puzzled many of the former public defenders in the office.
Shirk has also managed to accumulate plenty of dirty laundry during his time in office. He was investigated by the Florida Commission on Ethics for a number of violations. One of the most severe involved hiring three attractive young women, aggressively flirting with them, and then firing them after his wife came to work, threatened the women, and issued an ultimatum: that Shirk get rid of all three or she would file for divorce. According to the testimony, Shirk was overly friendly with the women and sent them sexually suggestive texts and e-mails, including a request for one woman to “hurry back” because he and another female employee were “getting into the shower”—Shirk’s personal office shower, which he had built with city funds that had been earmarked for other purposes in the new office’s construction. (He’s now being sued by at least one of the women for terminating her employment.) The Florida Commission on Ethics suggested that Shirk resign immediately. Another attorney has filed a complaint with the ethics commission accusing Shirk of misstating his assets and promoting his wife’s business, contrary to ethical rules. (Shirk didn’t respond to a request for comment on the matter.)
Shirk’s record on death-penalty cases has been abysmal thanks to Eler, his second-in-command, who defends most of these cases. Eler has been cited four times by Florida appellate courts for providing ineffective counsel—failure to investigate, failure to call proper witnesses, and encouraging clients not to argue that they have reduced culpability due to a mental disease or defect—all in death-penalty cases. Eight of his clients in Duval County alone have been sent to death row—more than any other public defender in Florida.
Given this track record, it’s not surprising that indigent defendants in Jacksonville are opting to represent themselves in court. One client of Shirk’s office, Gregory Lamont Green, was offered a 12-month plea deal by the prosecution. But his public defender failed to follow up with him about the offer; it expired, and Green was sentenced to 10 years. After handling his own appeals and losing, Green has just won on a federal habeas petition and was released after serving six more years than he needed to.
Of late, however, Shirk’s relationship with Corey has soured. He filed a bar complaint over 1,000 pages long against two of her prosecutors, alleging that they concealed evidence in the case of a man who was held in jail for 589 days, even though the prosecutors knew someone else had committed the crime. Shirk has also taken to attacking Corey publicly, arguing among other things that she permitted a jail guard to assault an inmate, and that she opposed a special court designed to keep military veterans who had committed nonviolent offenses out of prison. Shirk now says that underfunding is a constant problem for him, because the state attorney’s office is funded “at least two to one” in comparison—something that he emphasized when I asked him about the challenges of defending against Corey’s office.
* * *
When Cristian’s case went to trial, Rob Mason, director of the public defender’s juvenile division, was assisting Shirk with the defense. But by all accounts, Shirk—who was running for reelection at the time and campaigning with Angela Corey—appears to have used the case to attract the spotlight. Shirk and Corey began working out a deal; she sent him a plea agreement for second-degree murder in November 2011. Both attorneys thought this was a very good deal, even though it meant significant prison time for Cristian. Corey argued that she and Shirk were working beautifully together until some pro bono interlopers came to break up the party.
These lawyers were the Jacksonville attorneys Hank Coxe, George “Buddy” Schulz, and Melissa Nelson, who’d been working on the case of Terrance Graham, which was moving to the Supreme Court and would eventually result in the Court prohibiting mandatory life without parole for minors. After hearing about Cristian’s case, the three attorneys got involved, first by consulting with Shirk. Cristian rejected the plea deal—and once he did, Corey added another charge: sexual molestation of his 5-year-old brother, also brought as an adult charge.
Cristian’s guardian ad litem, appointed by the court, filed to remove Shirk from the case and substitute private pro bono counsel. During the year that Cristian’s case was pending, Shirk had visited the boy just three times and had reams of evidence in storage that he hadn’t even begun to review. For her part, Corey regards Cristian’s pro bono counsel as political opponents—in fact, Melissa Nelson is now her opponent in the Republican primary—and accused me twice during our interview of being overly influenced by their views, naming Coxe and Schulz in particular.
The pro bono team set to work to help Cristian, who was then in dire straits. He’d been held in an adult jail for three weeks while his case was pending, before being transferred to a juvenile facility. At the adult jail, he was kept in solitary confinement, and at one point was reprimanded for standing on his bed to look out the window. While he was there, another investigator was sent to question him about allegations that he had sexually abused his 5-year-old brother. Even though Cristian had a lawyer and a guardian ad litem at this point, neither one was notified. After this interrogation, Cristian asked clarifying questions about his right to an attorney. (Eventually, his statements to investigators were tossed out because the judge determined that Cristian didn’t understand his rights.)
But in our interview, Corey continued to insist that things were going well in Cristian’s case until the troublemakers got involved: “Because a few people got out on social media and started the Change.org [petition] and started focusing on all the negatives, and what they ignored was that the first six months after Cristian Fernandez committed murder, we didn’t charge him at all…. We mutually [i.e., with the public defender’s office] conference-called forensic psychiatrists, juvenile forensic psychiatrists, that could tell us what could cause a child of 12 to commit murder. I kept trying to assure people that, look, this is a complicated situation…. He killed his 2-year-old brother and then sexually abused his 5-year-old brother. We have to do something. We have to protect the community from this young man.”
Even after the pro bono team took over, Shirk continued to act as if he were Cristian’s counsel, though he didn’t always act in the boy’s best interests. He even gave an interview to the directors of Juvenile Lifers in which he claimed that Cristian told him that his mother had killed David and that he was taking the blame for her. This assertion hasn’t been verified in any way, and it violates attorney-client privilege. (While Shirk claimed in the same interview that Cristian had given him permission to make that statement, it’s doubtful whether Cristian could legally do so, let alone that he actually did. Neither Cristian’s guardian ad litem nor his pro bono attorneys were consulted.)
Buddy Schulz perhaps sums it up best: “I mean, Matt Shirk is a politician. He is—again, I emphasize, based on my observation—he was incompetent. He was more interested in his public image than in defending this child.”
According to the members of the pro bono team, they dug into the case and reviewed evidence that had been left unexamined; commissioned their own expert to examine cell-phone evidence that had been ignored by both Shirk and Corey; and built a case for Cristian’s defense over a period of several months. Ultimately, with fresh evidence in hand, they struck a new plea deal with Corey, rather than risk a jury trial that could result in Cristian’s incarceration in an adult prison.
Cristian is now 17 and serving his time in a juvenile therapeutic facility. The plea deal that Cox, Schulz, and Nelson negotiated called for seven years in juvenile detention—still severe, but better than the second-degree-murder plea, which would have carried at least a decade in adult prison. As part of the deal, Cristian wasn’t forced to plea to the molestation charges, but he’s prevented from seeing his siblings or being around any other children under 16. Since Cristian’s mother has given up custody of Cristian, this ban means that Cristian has no family with whom he can be in contact. Still, compared to the chaos and abuse he experienced at home, juvenile hall provides greater stability than he had known before.
Cristian should get out in 2018, at age 19, although as part of his plea he must remain on parole for at least five years. Any mistake during that time—stealing a candy bar, or smoking a joint, or any failure to follow the strict conditions of his parole—means that he can be rearrested and sentenced to more time.
In the final moments of Juvenile Lifers, Corey can be seen watching angrily in the courtroom as Cristian receives a much lighter sentence than the one she’d sought. In 2011, Corey told a local reporter that she went to court because she “wanted to see: What does a 12-year-old who did this look like? Is he going to look like what you would envision?”
In fact, Cristian looked like a 12-year-old kid.
When I spoke with Corey, she still couldn’t seem to believe that anyone cared about Cristian’s case. “The problem with the juvenile system,” she told me, “is that I don’t think it can address the problems that create the kind of mind that can kill and rob or continue to do violent acts to other people.” As for Cristian, she reiterated: “We have to do something. We have to protect the community from this young man.”
Original Article
Source: thenation.com/
Author: Jessica Pishko
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