RECENT OPINION: STATE V. VANG, September 8, 2010

Consider the improbability — evidence of deliberate, unfeeling killing; a nine-year-old conviction; a postconviction limitations period long since lapsed; an often contentious Minnesota Supreme Court — and a decision, by a vote of six-to-zero, to void Jerry Vang’s conviction and sentence for first degree murder.  The rest of the story?  In 2001, Jerry Vang was 14 years old.

Truncated Proceedings

In August of 2001, Vang got his hands on a gun and allegedly opened fire in a St. Paul alley, killing one person and wounding another.  He was charged by delinquency petition with various counts of 1st and 2d degree murder.  In September of that year, the state filed a certification motion.  On November 6, 2001, Vang’s case was scheduled for hearing.  Vang’s attorney and the prosecutor informed the assigned judge that the case was resolved.  The Court’s opinion describes what happened next:

“Vang’s attorney asked Vang a series of leading questions to confirm that Vang understood he was ‘giving up’ his certification hearing, would be ‘treated as an adult,’ and would be sentenced as an adult.  However, Vang did not stipulate to any of the factors required to certify the proceedings for action under the laws and court procedures controlling adult criminal violations. The juvenile court made no findings or ruling on the adult certification issue.  Instead, the juvenile court simply accepted Vang’s guilty pleas to first-degree murder (drive-by shooting) and the attempted first-degree murder (drive-by shooting). Based on Vang’s guilty pleas, the court convicted Vang of adult criminal violations and imposed an adult sentence of life imprisonment for the first-degree murder (drive-by shooting) conviction and a concurrent 200-month prison sentence for the attempted first-degree murder (drive-by shooting) conviction.”

The written order memorializing the November hearing was captioned “Juvenile Division” and listed the juvenile court file numbers.  It, too, omitted findings on any of the factors required for certification.

Vang wrote the state public defender well within the 90-day filing deadline, asking for an appellate attorney.  The agency wrote back saying there was nothing that could be done for him.  Vang wrote again, in February 2002, April 2005, June 2005 and October 2008.  Three times more, the state public defender’s office said no.  After Vang’s fifth letter, in October 2008, the state public defender appointed Vang a lawyer.

Big Shoulders

Under ordinary circumstances, Vang’s claims would have been time-barred.  But Vang’s were not normal circumstances, according to the majority opinion authored by Justice Meyer; they were, rather, “exceptional and extraordinary,” and justified an exercise of the Court’s inherent authority.  Inherent authority is the principle that big courts must sometimes use their big shoulders to set things right.  Minnesota Constitution article VI, section 2, writes Justice Meyer, grants us “constitutionally independent authority to review determinations by the other state courts.”   I was critical of the Court’s assertion of inherent authority last term in Lessley, the jury waiver case, and I still believe that the Court’s recent exercises of inherent authority ignore its older self-imposed limitations on that power.  But, actually, I don’t care.  I am not offended by the idea of a court with big shoulders.  (It is interesting, though, that the Court elects not to hear the case under the postconviction statute’s “interests of justice” exception, when the Court made such a to-do about that exception’s viability only a week earlier in Gassler v. State.)

Criminal Actors Only Part Way Formed
This is not Jerry Vang.  It is just a picture of a kid who reminds us what fourteenyearoldness looks like.  At one level, State v. Vang came out the way it did because of a jurisdictional flaw:  the judge who sentenced Vang as an adult criminal was still sitting in juvenile court.  He was wearing the wrong hat.  The Ramsey County Attorney’s office later fastened on this holding, assailing it as technical and finicky.  But that criticism misses the larger point, and the current of outrage that surges through the Court’s opinion.

In 2001, a defense attorney pled out his (or her) fourteen-year-old client to the two top counts of a murder indictment three months into the case.  For heaven’s sake, why?  Was the state was huffing and puffing about seeking life without the possiblity of parole?  So what?  How likely was that to happen in Minnesota when the client was 14?  The defense attorney apparently deemed it meet that the child should waive, not simply his certification hearing, but “cert” altogether — in other words, every protection that the juvenile justice system afforded him.  A judge and a  prosecutor were persuaded to go along with this.  Did it occur to no one to read the statute or rule?  A child cannot waive the jurisdiction of the juvenile court.  He cannot waive the obligation of the trial court to “fully investigate[ ] and carefully consider[ ]” whether the juvenile court ought to surrender its jurisdiction.  The trial judge in Vang’s case made no findings whatsoever, seemingly never consulted the certification factors in the juvenile rule.  And then, compounding this sorry tale of cascading failures, the state public defender botched things too.

The elephant in Vang’s living room is the United States Supreme Court’s recent decision in Graham v. Florida.  True, our Court never cites Graham, and Graham’s holding — it is cruel and unusual punishment to sentence a juvenile nonhomicide offender to life without parole — does not reach the issues in Vang.  (Minnesota law, incidentally, does in one instance permit life without parole for juvenile offenders who do not kill; see Minn.Stat.§§260B.125(1) and 609.3455(2)).  Nonetheless Graham and, before it, Roper v. Simmons, the juvenile death penalty case, have inscribed onto our jurisprudential conscience what every parent already knows — that juvenile personality structures are still in flux.  In both cases, the Supreme Court relies on sociological and psychological literature that shows juveniles to possess a kind of “diminshed capacity” (Roper’s phrase) as compared to adults.  Per Graham:

Roper established that because juveniles have lessened culpability they are less deserving of the most severe punishments. 543 U. S., at 569. As compared to adults, juveniles have a “`lack of maturity and an underdeveloped sense of responsibility'”; they “are more vulnerable or susceptible to negative influences and outside pressures, including peer pressure”; and their characters are “not as well formed.” Id., at 569-570. These salient characteristics mean that “[i]t is difficult even for expert psychologists to differentiate between the juvenile offender whose crime reflects unfortunate yet transient immaturity, and the rare juvenile offender whose crime reflects irreparable corruption.” Id., at 573. Accordingly, “juvenile offenders cannot with reliability be classified among the worst offenders.” Id., at 569. A juvenile is not absolved of responsibility for his actions, but his transgression “is not as morally reprehensible as that of an adult.” Thompson, supra, at 835 (plurality opinion).

The interesting issue remaining in Jerry Vang’s case is, remanded for what?  Now 23ish-year-old Vang never got his certification hearing.  He cannot go back and re-create the mental miasma of fourteenyearoldness.  The certification factors addressing juvenile justice options are moot.  It will be a nice mess for someone to try to sort out.


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