The Skakel case - two interesting legal issues.

Kennedy cousin can be tried for murder as adult, high court says

Issue 1: Should a person who was a juvenile at the time of the crime but is now an adult be tried as a juvenile or an adult?

As I understand it, this issue is crucial because a defendant charged as a juvenile can only be sent to some sort of youth facility until they become adults. Thus charging Skakel as a juvenile would make his trial moot.

It would seem to me that there are two possible areas of difference between a juvenile court and an adult court. 1 is that the defendant is treated differently, in light of his current status (e.g. sealing records and the like). This would not apply to Skakel. 2 is that the crime itself is treated differently, in acknowledgement of the fact that a child cannot be held to the same level of responsibility as an adult. This would seem to apply to Skakel as well.

With regards to the maximum penalty issue, it would seem to fall into the second category. So I would incline to let him walk, though obviously the court has ruled otherwise. (It is also possible that the maximum penalty reflects the possibility of rehabilitation for youthful offenders. But suppose Skakel actually has rehabilitated. It would then seem counterintuitive to not let him off the hook for that very same reason.)

Issue 2:

Now as I understand, a person cannot be punished for laws that were not in effect at the time of the crime (I seem to recall that this is some Constitutional right, but I may be wrong in this). So the question is: at the time of the murder, the laws were such that the statute of limitations would have expired by this point. Question is, is the statute of limitations comparable to a law that a person is being punished under? I would tend to think not. (I would think the statute of limitations does not come into play until it is actually reached).

Of course, I do not have a tremendous command of these issues, so I may be missing the boat completely. If so, feel free to correct and enlighten.

I do not practice criminal law, so what follows is a WAG or two. The ex post facto provision probably does not apply to “procedureal” protections as contrasted with “substantive” protections. For example, if swallowing goldfish was not illegal before the act was committed, swall, that is substantive, and cannot be punished after the fact. However, if the forum for punishing it went from 12 jurors to 6 jurors, or at one time required both a grand jury indictment and preliminary hearing on information before a judge (what they did most of the time in Perry Mason where there was no jury), those would be procedural.

I haven’t followed the Skakel case all that closely, but it seems to me that this is all procedural. The forum, juvenile court vs. common pleas court is probably procedural and subject to change from time to time. Same with the statute of limitations, which is a procedural protection for defendants passed by the legislature to protect the defendant from having to answer old charges where noboby remembers anything or everyone is dead. Most jurisdicitons have no statute of limitations on murder charges, and the legislature has teh authroity to extend the statute of limitations or reduce it (at least in civil cases.)

Could you clarify this a bit? Is the forum change dependant on the ex post facto provision? I would have thought it has nothing to do with it - it does not involve a change in the law. The law is still that juveniles are subject to juvenile courts - the question is whether this law means “juvenile at the time of the crime” or “juvenile at the time of the trial”.

An ambiguity in a criminal law (unless it relates to speech) is probably subject to interpretation as not ex post facto, but I remind you I do not practice criminal law.

IIRC the point of a juvenile tribunal is to protect the juvenile from adult prison. There is an argument to be made that an adult does not need that protection.

In short, what I described above is probably only useful as a way to look at things because your questions would be better answered by someone who has studied the controversies of criminal constitutional law, which I haven’t done since Reagan was sleeping in the Oval Office.

I am not am american lawyer but it does seem an odd justification for raising to adult court though it could make sense under a rigid sentencing regime. In my jurisdiction a youthful offender is transfered to an adult institution at 18. This may not be possible under Florida law.

While formal justifications do vary the separate juvenile justice system is not generally in place simply to keep youth out of adult institutions. The seperate scheme tends to reflect a view that youth have a lower apreciation for the gravity of their acts which translates into a lower level of moral responsibility. Youth are also thought to be more easily rehabilitated.

The application to move the crime to adult court will then focus on the maturity of the offender, past record and seriousness of the offence to demonstrate that we shouldn’t be treating the offender as a kid. In most jurisdictions it has become easier to move a case to adult court in the past decade or so. In murder trials the seriousness of the offence is sufficient to mean that the vast majority of cases are now raised to adult court. In Canada a compromise law was enacted in recent years that makes it very easy to move the case up but caps the sentence at 10 years.

**Izzy[b/], I believe that **DPW[b/] was refering more to the statute of limitations argument regarding the substantive/procedural distinction which can be pretty hazy at times. I don’t know that it has much application to the adult court issue. The crime fell under jurisdiction of the juvenile court because he was under age at the time. There are undoubtedly differences in the law regarding moving the crime to adult court but it is not clear that they are a key issue here.