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Zoey_ JD
Zoey_ JD, JustAnswer Criminal Law Mentor
Category: Criminal Law
Satisfied Customers: 23209
Experience:  Admitted to NYS Criminal defense bar in 1989. Extensive arraignment, hearing, trial experience.
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My grandson was 19 when he and a 13 year old boy had mutual

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My grandson was 19 when he and a 13 year old boy had mutual sex. The family filed charges, my grandson was arrested. my grandson asked for his mother to be present but was denied. The detectives persuaded him to waive his rights. He signed a paper which waived his rights. My grandson has the mentality of a 14 year old. The DA wants him to accept a plea bargain of 20 years of which he has to do 12 years. The 13 year old was caught by his parents having sex with a 3 year old boy. Help please
Submitted: 5 years ago.
Category: Criminal Law
Expert:  Zoey_ JD replied 5 years ago.

I am sorry to hear of this, however, under the law, a 19 year old is an adult and must be charged as an adult. He is not entitled to have his family present during his interrogation. He just doesn't have to answer anything without a lawyer. And if he understands where he is, and why he was picked up, that he's been charged with a sex offense, and that he has a lawyer, he will be considered legally competent to assist his lawyer in the defense of his own case regardless of his disability. 14 year olds get prosecuted in adult court as adults for certain serious crimes all of the time, because the law recognizes that a 14 year old is capable of knowing the difference between right and wrong and of forming the intent necessary to commit a criminal act. So a 19 year old who thinks like a 14 year old can potentially be convicted of this offense. But a person who is chronologically 19 when he committs an offense, must appear in adult court, whatever his mental age.

Could his mental handicap have kept him from understanding exactly what rights he was giving up when he made damaging statements to the police? Yes, of course, and if he does not want to take a plea, whether he understood what he was waiving and the consequences of that waiver, and/or whether the police coerced or bullied him into giving up his rights and making statements could be examined at a pre-trial hearing designed to challenge the constitutionality of police conduct. If after such a hearing the judge decided that the police had improperly overstepped their authority, nothing your grandson said upon questioning could be used against him at trial.

Also, his handicap may afford a partial defense to the charge. That is something your grandson's lawyer should look into, of course. The family should make sure that the lawyer has records of your grandson's cognitive problems. If there's a doctor he's been seeing with regard to his difficulties, if he needs to take special medications that could further impair his judgment, the lawyer is going to have to know that as well. What he understood at the time he committed the act he was charged with is important.

The most important thing you've said in your paragraph is that your grandson has not taken a plea of any kind. The judge cannot do anything with the charge. Only the DA can reduce these charges to a lesser offense, and offer something less than the 20 years they are offering now. Perhaps with the right medical documentation, your grandson's lawyer can convince the DA to do this, if your grandson doesn't want to risk trial.

So while the things you'd most like done aren't going to happen, there are still many things an attorney can do to fight the case or to negotiate a more reasonable disposition under all of the circumumstances and to see to it that he gets his full right to due process of law.

Edited by FranL on 1/1/2011 at 10:37 PM EST
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