Only 13 states have set a minimum age at which children can be tried or face adjudication in juvenile court, according to the National Juvenile Defender Center. In eight of those states, the age is 10.
New Mexico does not have any such law.
Terry A. Maroney, a Vanderbilt Law School professor who specializes in juvenile justice, said while such prosecutions are considered rare, it's hard to know exactly how many young children have faced or have been charged with first-degree murder since most of proceedings are typically sealed and laws vary by state. Those cases also are hard to prosecute because it's difficult to prove if the child "was too young to determine the finality of death, and if the child had the capacity to make moral decisions," Maroney said.
In the case of the 10-year-old New Mexico boy, prosecutors have opted not to try him as an adult.
"It's actually a good sign since no matter what charges he faces, he still will only be punished until he's 21" if he is found guilty, said Schwartz.
Cooley said the boy's defense team plans to call more than three dozen witnesses to testify on the boy's behalf about the abuse he faced and the failure by the state to intervene. He also said he'll be able to show that the boy did not fully grasp his actions that day and was exposed to constant violence. The boy's dad also kept loaded guns around the house, Cooley said.
Already, the defense team won a victory earlier this year when a state appeals court blocked prosecutor's attempt to force the boy's sister, then 6 years-old, to testify. Prosecutors say she saw the shooting.
But Cooley said that didn't matter. "Here you had a 250-pound man who liked to kick these kids around," Cooley said. "The state failed to protect them. That's the issue."
Follow Russell Contreras at http://twitter.com/russcontreras .
Copyright 2013 The Associated Press.
Sick Of The 9-5 Grind? Work From Home Online With This New System...