On April 6, 2011, a young man was incarcerated and sent to maximum security prison for one year due to an adolescent misstep.
In the case of State v. David Fernandes Jr, a then 15-year old boy was initially charged in juvenile court with Conspiracy to Commit Assault in the Second Degree. He had no prior criminal record and, in fact, no previous contact with the court system at all.
Assault in the second degree has been classified by the legislature as a class D felony. This is the lowest level of felony and thus the lowest charge for which a child can be transferred to the adult criminal docket. It is highly unusual for a child to be transferred under these circumstances.
“I have been involved in the defense of juvenile delinquency cases for over 20 years and currently supervise all of the public defenders assigned to juvenile courts in Connecticut,” said Christine Perra Rapillo, director of Juvenile Delinquency Defense. “I know of no other cases where a child with no record was transferred on a Class D felony.”
According to the record in the juvenile court, the transfer had nothing to do with Mr. Fernandes. The law in 2005 allowed the prosecutors unbridled discretion to transfer any felony case from the juvenile docket to the adult criminal docket.
“The juvenile court record reflects that this 15-year old boy, with no criminal record, who was charged with videotaping a fight, was moved to adult court because ‘the judge wanted to keep the cases together,’” said Rapillo. “There were codefendants who, although teenagers, were adult in the eyes of the law and the prosecutor and the judge opted for convenience over true justice.”
“My son had never been in trouble before or since this incident in which he taped a fight out of fear and self preservation against being bullied himself,” said David Fernandes Sr. “He voluntarily turned the tape over to police within an hour of the incident.”
Officer Hoffman, the senior Juvenile police officer, testified that "he did not arrest David after the incident because he did not see a crime." The arrest came from a different youth officer twelve days after the incident because the police department received an order from the court.
Since Mr. Fernandes’ arrest in 2005, the way that young people are treated who become involved with the justice system has changed dramatically. The United States Supreme Court has issued two decisions adopting scientific research on adolescent brain development that shows young people are physically unable to make the decisions of a mature adult. In Roper v. Simmons and Graham v. Florida, the Supreme Court ruled that an adolescent’s developmental differences mean that they must be held to a difference standard of culpability than a grown up. In 2007, the Connecticut General Assembly relied on this same research when they enacted legislation that will eventually raise the age of juvenile court jurisdiction to 18.
“Were the young people involved in this incident to be arrested today, it is likely they would have all started out in juvenile court,” said Rapillo. “There would have been no need to deprive them of the juvenile court’s rehabilitative protections to satisfy the desire for a convenient prosecution.”
Mr. Fernandes chose to take his case to trial because he believed that he had been unjustly transferred to adult court. At trial, David was found by a jury, innocent of "Conspiracy to Commit Assault in the Second Degree" which was the initial charge at Juvenile Court. The second charge of "Accessory to Commit Assault in the Second Degree" was added just before trial by the prosecution without going back to the Juvenile Court for proper Due Process, once again violating David's civil rights.
In the end, the Connecticut Supreme Court agreed with the unanimous decision by the Connecticut Appellate Court that the process was unfair. In the appeal of this case the Connecticut Supreme Court found that the transfer statute that moved Mr. Fernandes without any type of hearing did not provide children with adequate due process to protect their interest in maintaining juvenile status. Everyone coming after Mr. Fernandes will get a hearing on whether the case should be transferred. It is manifestly unjust that he would be denied the same recourse.
“The Supreme Court decision in State v. Fernandes was a great victory for the young people of Connecticut - except for David Fernandes,” said Rapillo.
The Connecticut Criminal Defense Lawyers Association (CCDLA) wrote a proposed Bill to change the statute to put Due Process hearings back at juvenile court where the Connecticut Appellate Court ruled they should be.
In these final hours before Mr. Fernandes is incarcerated Wednesday, the family is desperately trying to rally support hoping Kevin T. Kane, Chief State's Attorney and Michael Regan, State’s Attorney For Judicial District of New London will intervene.
“We requested a Stay of Execution for my son while we petition the Federal Supreme Court and that was denied by the State Supreme Court in only nine days, said David Fernandes Sr. “This is unbelievable to us since convicted rapists have been given a Stay by the State of Connecticut while they petitioned to the Federal Supreme Court.”
Mr. Fernandes has already served eighteen months under house arrest which will not be counted toward time served. He was denied any divisionary program even though he fully qualified as a first time offender. The judge gave no reason for the denial.
UPDATE (as of Wednesday, April 6, 2011)
Today is the day that David will be incarerated. No response from the officials we are petitioning except from Chief State's Attorney Kane.
We have been told directly by Chief State's Attorney Kane never to contact his office again. David's father asked if we could contact his office as citizens. Kane responded, "Never again."
We've heard nothing from State's Attorney Michael Regan who has direct jurisdiction on this matter.
It is our intention to update you (and the media) on what happens next to young David - and to keep this petition going.
Thank you again for your support. This is heartbreaking.
Update as of April 8, 2011: Words from the father of David Fernandes Jr:
Family and friends
It is with great sadness that Tammy and I have to report that the State of CT has now incarcerated my son. The Governor and the State's attorney did not step in despite our petition pleading that they do so. Frankly, we did not expect them to intervene; they had the chance to do the right thing several times but did not. Why should they start now?
Tammy and I are heartbroken that we could not protect son from a state that have a pre-determined conviction from day one. While in court today we watched a 19 year old mother that let her child get severely beaten by her boyfriend (who was sentenced to 10 years in prison) get a 1 year sentence that was fully suspended because in the judges words she was young. She was 19 my son was 15.
Please keep up the petition moving to anyone I want our story to be heard http://www.change.org/petitions/stop-the-incarceration-of-a-15-year-old-to-maximum-security-prison-in-connecticut-2#signatures
David was so strong and courageous that he was actually calming many family members that came to the court and stated that he created a law so the state could not do this to anyone else.
I have a hard time wrapping my mind around the simple facts of this case
1. He had never been in trouble before or since
2. He turned over the tape to the police within an hour of the incident and did so voluntarily
3. He was not arrested, in fact the juvenile police Officer stated on the witness stand he did not arrest him after viewing the tape because in his opinion (with 19 years of experience as a youth officer) he did not see a crime
4. The order to arrest my son came from the court
5. The court pulled this case up to the adult court for no reason other than convenience. (a new law was created as a result of this case so other children accused of a Class C or D felony must get a due process hearing)
6. Our son spent 18 months under house arrest and that does count for anything in terms of sentence reduction or time served
7. Our son was denied any program that would preclude jail time or a felony conviction
8. The State added the additional charge of accessory to assault that the Juvenile court did not find probable cause for. (the new law created by this case will prevent the state from doing this in the future).
9. Again, just as with every other legal precedent that has been set by this case, our son is immune to benefitting from this legislation despite the fact that his case was the driving force behind these legislative changes.
10. We are petitioning the Federal Supreme Court and, typically, a stay of execution is allowed while this is being done. Despite the fact that the State has allowed murders and rapists to have stays of execution they have denied David this right due to the nature of his case. We cannot understand why the State is doing this.
We have not stopped fighting this case we have two motions in right now with the State and one with the Federal Supreme Court.
We are going to continue to petition EVERYONE with the authority to help our son. Please sign the petition linked earlier in this email and send it to anyone and everyone you can. David's incarceration does not mean we're done fighting; we are still going to exhaust every avenue we have and utilize every resource available to us. Please help us load this petition with as many signature as possible. Post it on your Facebook circulate it we need to notify as many people as possible about our son's plight.
LT Dave Fernandes
Fleet Liaison Officer