New Mexico boy, now living in Oklahoma, set to go to court in dad's killing

ALBUQUERQUE, N.M. — A 10-year-old New Mexico boy who attorneys say experienced years of abuse from his father is scheduled to go to court for his dad's 2009 shooting death.

By RUSSELL CONTRERAS, AP Modified: August 15, 2013 at 10:10 am •  Published: August 15, 2013
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ALBUQUERQUE, N.M. — The 10-year-old New Mexico boy lived in an abusive, filthy home and had tried desperately to get help to stop the beatings he and his younger siblings had for years faced at the hands of their abusive father, his attorney says.

Then, one day in 2009, prosecutors say, he put a gun to the head of his 250-pound father and killed him at their Belen, N.M., home.

After years of stops and starts, the boy is scheduled to face a jury this month for first-degree murder in a rare prosecution expected to highlight the debate over whether children that young are capable of the pre-meditation required for such a serious charge. Experts say the boy, now 14 and living in Oklahoma, is just one of a handful of very young children in the nation's history to face such a conviction.

"I've been practicing law for 20 years and this is the saddest case I've ever seen," said the boy's attorney, William J. Cooley. "I don't know why this is even going to court."

Lemuel L. Martinez, 13th Judicial District Attorney, declined to talk about the case with The Associated Press. But he defended the decision to pursue the first-degree murder charge. "We are going to court because we believe we have enough evidence to meet the burden of proof," Martinez said.

The case is scheduled to go to trial Aug. 26 in a Valencia County courtroom, but defense attorneys want a change of venue and are seeking to have the 911 call made by the boy thrown out. His attorneys say the father, 42-year-old Byron Hilburn, had strong ties to law enforcement members in the area and that might taint a potential jury pool. They want the case moved to Sandoval County, north of Albuquerque.

The Associated Press is not naming the boy since he is being tried as a child in children's court.

If found guilty, the boy will be in state custody until he is 21 and must take part in a plan for rehabilitation.

There have been few other cases where young children have faced murder charges, according to the Robert Schwartz, executive director of the Juvenile Law Center in Philadelphia.

The most well-known example came in 1989 when Cameron Kocher, then 9, shot a 7-year-old playmate with a high-powered rifle in rural Pennsylvania after the playmate said she was better at the video game than he was. Kocher was tried as an adult but eventually pleaded no contest to involuntary manslaughter. He was placed on probation until he turned 21.

In 2000, a 6-year-old Michigan boy shot a first-grader at school with a gun he found at the house where he was living. The prosecutor declined to charge the boy, saying common law doesn't allow a child under the age of 7 to be held criminally responsible.


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