The attorney representing the Marshall County High School shooting suspect has filed motions challenging the Marshall County Circuit Court’s jurisdiction and to give the Attorney General time to weigh in.
In the first open hearing on the case on Monday, Defense attorney Tom Griffiths, representing the now 16-year-old suspect Gabe Parker, said the case was rushed through juvenile court. Parker was 15 at the time of the shooting on January 23, where he allegedly opened fire on classmates, killing two and injuring several others. He is being tried as an adult on felony charges of murder and assault.
Griffiths said he believes the juvenile District Court did not follow proper procedure. "The juvenile law exists in order to protect kids, all kids." He said the legislature has determined that people under the age of 18 should be treated differently and that juvenile code has been analyzed and upheld "as the right thing to do."
He said juvenile code requires eight factors be considered and said that wasn't followed in the Parker case. He said, "Instead, what we had was a rushed, pro forma hearing... This is the worst thing that has happened in Marshall County in anyone's memory. This is the case that has more focus in the news and in the mouths of every single person in this commonwealth and instead of doing a full hearing, instead of examining all eight factors, instead of people going through what is required by juvenile code, they rushed through it in 25 minutes." He added that there was only a ten-minute testimony from a single witness. He said, "this is not the way it is supposed to be done."
Griffiths contends there was not an 'eight factors' test and that the court did not make any findings on six of the factors. He called for the case to be remanded back to District Court for a hearing on these factors.
According to KRS 640.010, in matters involving alleged 'youthful offenders' if the District Court determines probable cause exists then they shall consider the following factors before determining whether the case should be transferred to Circuit Court:
- The seriousness of the alleged offense;
- Whether the offense was against persons or property, with greater weight being given to offenses against persons;
- The maturity of the child as determined by his environment;
- The child's prior record;
- The best interest of the child and community;
- The prospects of adequate protection of the public;
- The likelihood of reasonable rehabilitation of the child by the use of procedures, services, and facilities currently available to the juvenile justice system; and
- Evidence of a child's participation in a gang.
After considering these factors, the statute states, if "two (2) or more of the factors specified... are determined to favor transfer, the child may be transferred to Circuit Court..."
Griffiths said, "A court may very well, after analyzing those factors in the juvenile court here in Marshall County, may say 'no, we choose to send it back up.' But at least, Judge, they would have done a full hearing on the most serious case that any of us are going to see. Instead of rushing through and throwing a case up here that just shouldn't be here."
He also took issue with the "automatic transfer" of the case. He said this statute is a 'loophole' created to bypass the juvenile code when 'guns are used' in a crime. He said this statute (KRS 635.020), as applied to his client, is unconstitutional because his client is facing 'aggravated penalty' and as such "takes it out of the normal sentencing statute and the normal sentencing law."
Assistant Commonwealth's Attorney Jacob Ford said the juvenile code "also protects the public. And it protects the victims." Ford said, "Gabe Parker has no Constitutional right to go back to District Court as a juvenile." He said the 'timeframe' of the hearings is irrelevant. "The defendant had ample notice of these hearings. He made no motion to continue until the hearing itself. Offered no witnesses, offered no evidence, sat completely still, has done nothing," he said.
"It doesn't take more than 10 minutes of testimony from the detective to find probable cause that Gabe Parker was over the age of 14, allegedly used a firearm and allegedly committed a felony," Ford said. As to whether the automatic transfer was a 'loophole,' Ford said, "it's the law" and is within the juvenile code.
Ford said of the eight factors, only two need to be found, by statute. Those two were: 'The serious of the alleged offense' and 'Whether the offense was against persons or property with the greater weight given to offense against persons.' Ford said there's nothing that could be rebutted and said "no expert in the world" would say "this was not a serious offense to murder two children and seriously injure many others."
Ford said Parker, if found guilty, already "has the benefit" of not receiving capital punishment or life without parole. But rather, Parker would get the third-highest penalty: life without parole for 25 years. "The Constitution is not a 'get out of jail free card' for juveniles with no regard for human life," he said.
At the start of the hearing, Griffiths expressed a concern that the state Attorney General's office did not have 'sufficient notice' on the briefing schedule and the Monday hearing, citing a series of emails last week. Griffiths filed a motion to allow for more time for the AG's office to respond and be heard.
"I am concerned, Judge, if we go forward with the hearing today that the Attorney General based on their email from Friday if the court rules in our favor that they're going to throw down a flag and say 'they're going to cry foul.' If, on the other hand, the court rules in favor of the Commonwealth and the case ends up in an Appellate posture, later on, they're going to argue that we've waived the issue for appeal," Griffiths said.
"I don't want this to become the tail that wags the dog," Griffiths said and moved the court to continue the hearing for three weeks to allow the Attorney General time to respond. Griffiths said he would re-file the motion so that there was no question.
Ford said KRS 418.075 contains no deadline for which the AG's office has to respond to such matters. However, he asked the Court to withhold entering a judgment to give the AG's office time to file a response.
Circuit Court Judge Jamie Jameson said the record will stay open for three weeks to give the AG’s office time to respond. Jameson said he would also put out an order and notify the AG's office of the Court's intent to leave the record open for three weeks. He said if something is filed then the defense can have another week to reply. Jameson said at that point the matter would be considered closed unless someone files a motion to be heard in Court.
Jameson said unless the AG's office requests an oral argument on their response, the next hearing is scheduled for August 3 at 1 p.m.
