Florida: 12-year-old faces life without parole

Jacksonville 12-year-old charged with 1st-degree murder of brother----He's the youngest ever in the city to be charged with such a crime.

Months before Jacksonville police say 12-year-old Cristian Fernandez beat his 2-year-old half brother to death, investigators started asking why the toddler's leg was broken.

The family said David Galarriago had an accident while playing on a jungle gym, according to court papers.

Thursday, prosecutors say that wasn't just a lie but a warning sign about the rampant abuse that ultimately took the toddler's life and made Fernandez the youngest person in city history to be charged with 1st-degree murder.

"It is disturbing, but when you know you have to balance the safety of other children in the home and in the community, it is not so disturbing," State Attorney Angela Corey said after a grand jury indicted Fernandez.

With the indictment, Fernandez is being transported from a juvenile detention center to the Duval County jail although Corey said he'll be placed with the jail's juvenile inmates. He faces adult charges that already have criminal law experts wondering how well Fernandez could have understood his actions.

"Especially if it's a beating death, you could argue that the child did not have the intent to kill, which would be necessary even for second-degree murder," said Robert Batey, professor of criminal law at Stetson University College of Law. "Or that the child was not capable of the cool thinking beforehand that's implied by the notion of premeditation."

Galarriago died in March with a fractured skull, a bleeding brain and bruising to his left eye and nose, according to court documents.

Assistant State Attorney Mark Caliel, who is assigned to prosecute Fernandez, said evidentiary rules prevent him from going into detail about what happened before the case is in open court.

"It was something that was done with a lot of reflection," he said as he described a heartbreaking scene starting with the boys' mother, Biannela Susana, 25, giving birth to Fernandez when she was just 12.

Caliel, who is father to an 11-year-old girl, said he never thought he would be prosecuting someone so young for a crime so serious.

"It's a tragic set of events to say the least," he said.

Susana is charged with aggravated manslaughter by culpable negligence and is scheduled to go to trial in September. Police say she initially told investigators that Galarriago was hurt in a fall at the family's Southside apartment.

The warrant for her arrest says Susana came home to find the 2-year-old unresponsive but did not call 911. Rather, she put ice on his head, turned to websites for information about concussions and waited hours for the boy to wake up, police say, but he never did.

Nobody was home at the Alden Road apartment Thursday afternoon. The unit points toward a tennis court and a small playground amid a handful of modest, beige-colored buildings where the few people milling about Thursday said they'd never heard of the family.

Corey said the family is from the Miami area and wasn't in Jacksonville long before Galarriago was killed. Prosecutors said a father did not appear to be around and Susana had other children who were taken into protective custody.

Before Fernandez's indictment, the youngest person charged with a Jacksonville homicide was 13-year-old Thomas Thompson. He was convicted and sentenced to life in 1994 for shooting an off-duty corrections officer, Tammy Jo Johnson, to death in a robbery outside a Westside bar.

Christopher Slobogin, director of the criminal justice program at Vanderbilt University Law School, said many states don't even allow such a charge for children Fernandez's age. But Florida's laws allow prosecutors to "direct file" cases in criminal court for children even younger than Fernandez.

"Even in Florida, kids this young are rarely prosecuted in adult court, even for crimes this serious," Slobogin said.

Slobogin pointed out that Lionel Tate was charged with 1st-degree murder at the same age in 1999 for the beating death of a 6-year-old girl he was baby-sitting in Broward County and received a life sentence. That conviction was overturned by an appeals court in 2004 after the panel found it wasn't clear whether Tate understood the charges.

Even in that case, Slobogin said, the 1st-degree murder charge was only filed after the family rejected a plea deal in juvenile court.

Because of his age, Fernandez will not face the death penalty.

If convicted of 1st-degree murder, he would be sentenced to life without parole.

Source: Florida Times-Union, June 5, 2011

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