Tuesday, October 27, 2009

A Sentence Too Cruel For Children

By Alan K. Simpson
Friday, October 23, 2009

Rather than serving in the U.S. Senate for almost 20 years, or having so many other wonderful life experiences, I could have served a longer sentence in prison for some of the stupid, reckless things I did as a teenager. I am grateful to have gotten a second chance -- and I believe our society should make a sustained investment in
offering second chances to our youth.

When I was a teen, we rode aimlessly around town, shot things up, started fires and generally raised hell. It was only dumb luck that we never really hurt anyone. At 17, I was caught destroying federal property and was put on probation. For two years, my probation officer visited me and my friends at home, in the pool hall, at
school and on the basketball court. He was a wonderful guy who listened and really cared. I did pretty well on probation. At 21, though, I got into a fight in a tough part of town and ended up in jail for hitting a police officer. I spent only one night in jail, but that was enough. I remember thinking, "I don't need too much more of this."

I had a chance to turn my life around, and I took it. This term, the U.S. Supreme Court will decide whether other young people get that same chance. On Nov. 9, the court will hold oral argument in Sullivan v. Florida and Graham v. Florida, two cases that will determine whether it is constitutional to sentence a teenager to life in prison without parole for a crime that did not involve the taking of a life.

There is a simple reason the criminal justice system should treat juveniles and adults differently: Kids are a helluva lot dumber than adults. They do stupid things -- as I did -- and some even commit serious crimes, but youths don't really ever think through the consequences. It's for this reason that every state restricts children from such consequential actions as voting, serving on juries, purchasing
alcohol or marrying without parental consent.

The Supreme Court recognized the differences between teenagers and adults when it held a few years ago, in Roper v. Simmons, that it was unconstitutional to impose the death penalty on defendants younger than 18. Locking up a youth for the rest of his life, with no hope for parole, is surely unconstitutional for the same reasons. The person you are at 13 or 17 is not the person you are at 30, 40 or 50. Everyone old enough to look back on his or her teenage years knows this.

Peer pressure is a huge part of youth behavior, whether one grows up in Washington, D.C., or Cody, Wyo. The guys will say, "Go get the gun. We'll pick up just enough money for tonight." And almost unthinkingly, you'll do it. There is simply no way to know at the time of sentencing whether a young person will turn out "good" or
"bad." The only option is to bring him or her before a parole board -- after some number of years -- and give the person the chance to declare, "I'm a different person today" -- and then prove it.

Parole boards can examine how youth offenders spent their time in prison. Did they read books or work in the library? Did they make furniture? Get a college degree? Those are critical questions for review.

If at that review a parole board finds out that a miscreant hasn't changed, then keep him or her in prison. But some juvenile offenders make real efforts while they are in jail, and we should make honest adjustments for them.

We all know youths who have changed for the better. When I was a lawyer in Cody, the court sometimes appointed me to represent juvenile offenders, and parents who knew of my history often asked for help with their children. I once handled the case of an 18-year- old who stole a car and drove it to Seattle. I later hired him as
chief of staff for my Senate office, and he turned out to be one of the most able of the people I put in that job.

I was lucky that the bullets I stole from a hardware store as a teenager and fired from my .22-caliber rifle never struck anyone. I was fortunate that the fires I set never hurt anyone. I heard my wake- up call and listened -- and I went on to have many opportunities to serve my country and my community.

When a young person is sent "up the river," we need to remember that all rivers can change course.

The writer, a Republican, was a U.S. senator from Wyoming from 1977 to 1996. He is among former juvenile offenders who have submitted a friend-of-the- court brief in support of the petitioners in Sullivan v. Florida and Graham v. Florida.

http://www.washingt onpost.com/ wp-dyn/content/ article/2009/ 10/22/
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Monday, October 5, 2009

Denver Post Article - 10/5/09

denver and the west
Colorado judge weighs Ybanez case in his mother's death
New lawyers fault defense of man convicted as teen in mom's '98 death
By Felisa Cardona
The Denver Post
Posted: 10/05/2009 01:00:00 AM MDT

Nathan Ybanez, shown in 2005, was convicted in the beating death of his mother, Julie. His new attorneys believe his lawyer at the trial had a conflict of interest after being hired by the teen's father. (Denver Post file photo )

Eleven years after Nathan Ybanez was caught unloading his mother's body from the trunk of her car, a judge is considering whether to grant him a new trial or reduce his prison sentence of life without parole.

Ybanez and his friend, Erik Jensen, got into a fight with Julie Ybanez in June 1998. She was beaten and strangled with a pair of fireplace tongs in her Highlands Ranch apartment.

In legal papers filed Sept. 28, Ybanez's new defense lawyers claim that his trial attorney was ineffective at defending him, that Ybanez was denied his right to appeal his sentence and that the term should be reduced because Colorado's sentencing law changed in 2006 allowing juveniles convicted of murder the possibility of parole after 40 years.

Ybanez's new defense team, Chad Williams and Michael Gallagher, presented evidence at a week-long hearing in February and the legal papers are considered a final argument before Douglas County District Judge Nancy Hopf renders a decision.

The judge could schedule a hearing for oral arguments or she could rely on the legal briefs and issue a ruling.

Abuse claims disputed

Nathan Ybanez, now 27, says repeated abuse by his mother and father, Roger Ybanez, culminated in the murder.

Roger Ybanez denies the abuse allegations. Prosecutors believe Nathan Ybanez committed the crime because his parents threatened to send him to military school as a result of his rebellious behavior.

The new lawyers criticize former defense attorney Craig Truman for not raising the issue of abuse with jurors and say Truman was hired by Roger Ybanez to defend his son, creating a conflict-of-interest in presenting an abuse strategy during the trial.

"He needed an attorney willing and able to investigate and aggressively pursue all defenses . . . ," the legal briefs say. "He also needed a guardian to consider his best interests, to monitor his attorney-client relationship and to act as a fiduciary on his behalf. He had neither."

The defense also argues that Truman didn't present witnesses and social-service documents that would have shown Ybanez was abused.

But Douglas County prosecutors Laura Rosenthal and Jason Siers say Truman did represent his client's interests and that he asked Ybanez about abuse and the teenager repeatedly denied he was a victim.

Prosecutors say Truman discussed three trial strategies with Ybanez: he was a cold-blooded killer; he was an abused child who snapped; or Jensen instigated the murder.

Initial strategy criticized

Ybanez and Truman chose a second-degree murder defense strategy focusing on Jensen as the planner and Ybanez as a passive follower, prosecutors said.

Truman didn't call witnesses to testify about the purported abuse because much of it was accusatory toward Roger Ybanez, and not the victim, Julie Ybanez, prosecutors argue.

They also say a doctor hired by Truman to evaluate Nathan Ybanez found the teenager had psychopathic tendencies that could not be cured, and that the defense lawyer did not think the information would help his client.

If a new trial is denied, Ybanez's lawyers want the judge to re-sentence him to a lesser term and argue that the trial court did not advise him of his right to appeal. Truman did not file an appeal for Ybanez.

Prosecutors concede that the trial court erred in not advising Ybanez that he could appeal his sentence but believe he should just be resentenced to the same term he has now.

Jensen was convicted of conspiracy to commit murder and sentenced to life in prison without parole.

Felisa Cardona: 303-954-1219 or fcardona@denverpost.com