Participants: These Cases are posted on the internet for your convenience. The case YOU will argue is assigned randomly so that we have roughly equal numbers of people arguing both sides of both cases. (In other words, you can't request one case or the other) YOU MUST REGISTER, be assigned a case and obtain the research materials packet before beginning work.

--------------------------------------------------------------------------------------------------------------------

STATE OF MONTANA,

Plaintiff and Respondent.

v.

MARK DAEMON

Defendant and Appellant.

--------------------------------------------------------------------------------------------------------------------

FACTUAL AND PROCEDURAL BACKGROUND

When Mark Daemon was 12, he and his mother Elvira moved to Ponderosa City, where they lived next door to Bob Afflickt, then 17. Bob had dropped out of high school and had numerous misdemeanor level offenses, including theft and possession of marijuana. He saw a probation officer regularly and had been through a chemical dependency treatment program. Bob liked to "mentor" Mark, and taught him to shoot a pistol. Mark's first brush with the law was when the Forest County Sheriff caught Bob and Mark discharging firearms within two miles of the city limits. Soon after, Mark was arrested for shoplifting, then for possession of marijuana, and was placed on parole.

On June 17, 1999 at about 1:30 am, Bob, now 18, decided to rob a convenience store for beer and cash. The plan was hastily put together. Bob figured that because it was a week night, no one would be around and it would be easy. Mark, now 13, was hanging out at Bob's place, and it was decided that he should go along as a lookout. Both took guns with them.

While Bob held the store clerk at gunpoint and robbed the till, Mark grabbed a 12-pack of beer and then waited near the door by a large magazine rack. Neither young man realized that there was a customer in the store. When the customer tried to sneak out past the magazine rack, he encountered Mark by the door. Mark, startled, pulled his pistol and fired several times, killing the customer, Starling Williams, a well-known local businessman. The two young men then ran from the store with $73.00, and dropped the beer as they fled. Based on the clerk's description, police located and arrested Mark and Bob later that night. Mark was charged deliberate homicide and theft. Bob was charged with deliberate homicide by accountability and theft.

When questioned, Mark was withdrawn and refused to talk to anyone, even his court-appointed lawyer. When asked questions in court hearings, he would mumble yes or no, but said little else. He woke up screaming with nightmares while in the Forest County regional juvenile detention facility, tried to hang himself, and was placed on suicide watch. Meanwhile Bob, claiming to be deeply remorseful for what he had done, promised to turn his life around if he only was given a second chance. He agreed to cooperate with law enforcement in exchange for a plea agreement that reduced his charges to negligent homicide.

Because Mark was over the age of 12 and had used a firearm in the commission of an offense that would be punishable as a felony if committed by an adult, the County Attorney filed charges directly with the 26th Judicial District Court for Forest County (in Montana, having charges filed directly in District Court means being tried as an adult). In compliance with Montana Law, the Court then held a hearing to determine if Mark's case should be transferred back to Youth Court.

At this time, Elvira Daemon gave some information to Mark's defense attorney. Her story revealed that Mark was eight years old when his father, Jesse Daemon, went to prison for deliberate homicide. Jesse had shot a man in a dispute outside of a bar. He was a violent man who often beat his wife and son. At the time of Jesse's trial, Mark was temporarily removed from his home and referred to Shodair Children's Hospital in Helena for an inpatient psychiatric evaluation. The psychologist at Shodair reported that Mark suffered from anxiety, depression, insomnia, had nightmares when he did sleep, and had flashbacks of being beaten. Mark was diagnosed as having Post Traumatic Stress Disorder (PTSD) as a result of his father's severe abuse of him at a young age. His record from Shodair noted that he was not normally a violent child, but overreacted when startled. The psychologist strongly recommended that Mark receive ongoing outpatient therapy.

After his evaluation, Mark was returned to the custody of his mother, Elvira. She had a deep distrust of authority, was upset that the court "took her baby away," and feared that the system would take Mark away again. Therefore, she also did not follow through and obtain therapy for Mark. In fact, she admitted that she often told him not to trust authorities and never to talk to strange adults.

Mark's defense attorney used this information, and argued at the hearing that Mark was only 13, a seriously mentally ill youth who had never received any sort of therapy, had a past record of very minor nonviolent offenses and should not be tried as an adult. He said that Mark's refusal to cooperate was because of his mental state and distrust of authorities, but that Mark felt remorse. He pointed out that Mark did not intend to shoot Mr. Williams, but overreacted when startled, a hypersensitivity probably related to his PTSD, as were his symptoms while in the detention facility. He noted that the changes made to MCA § 41-5-206 by the 1999 Legislature added a provision that the best interest of the youth was to be considered as a factor in whether to transfer the case to Youth Court. It was not in Mark's best interest, the defense argued, to subject him to prison time with inadequate mental health treatment. Placement in a secure residential facility for youths with mental illness was what he needed.

The Forest County Attorney argued that Mark should be tried as an adult. The psychologist appointed by the county to assess Mark and report findings to both sides said that Mark had no remorse for the killings, that Mark's behavior fit the profile of Conduct Disorder, a classic diagnosis of a youth with little conscience. The psychologist said the Shodair report was over four years old and not indicative of Mark's current mental state. The County Attorney explained that Mark was heading down a road to future violent crime, and that the juvenile system was inadequate to hold him for the length of time he would need for rehabilitation. She noted that Mark did act in a premeditated manner in deciding to rob the store with Bob, and added that Mark could receive adequate therapy in a corrections setting.

The court ruled that Mark was to be tried as an adult. Mark's attorney agreed to allow him to plead guilty to deliberate homicide, reserving the right to challenge and appeal the pretrial issues.

At the sentencing hearing, upon the recommendation of the County Attorney, the Judge sentenced Mark to 40 years, placing him in the custody of the Department of Corrections, leaving placement to the discretion of the Department. The DoC placed him at Pine Hills School for boys until his 19th birthday, at which time he would be remanded to Montana State Prison to serve out the remainder of his term. Mark's attorney argued that the court's sentence was excessive because Mark was under 18, that his PTSD diagnosis constituted a significant mental impairment, and that he was merely an accomplice. In response, the County Attorney noted that Mark still had a chance to be rehabilitated, and that, under MCA § 46-23-201 (2), Mark would be eligible to apply for parole after serving 25% of his time. In theory, he could be out of prison in his early twenties.

After the sentencing hearing, Mark's attorney filed an appeal on the following issues:

ISSUES:

Issue 1: Did the District Court properly retain jurisdiction over Mark's case, trying him as an adult, rather than transferring the case back to Youth Court?

Issue 2: Did the District Court abuse its discretion in refusing to apply an exception to the State's mandatory minimum sentencing guidelines in Mark's case?

Materials for both issues:

In re K.M.H., 231 Mont. 180, 752 P.2d 162 (1988)

Materials for Issue 1:

Mont. Const. Article II, § 15

Mont. Const.Article VII, § 4 (1)

MCA § 41-5-206 (1999)

MCA § 45-5-102 (1999)

State v. Butler, 1999 MT 70, 977 P.2d 1000 (1999)

In re J.K.C., 270 Mont. 342, 891 P.2d 1169 ( 1995)

In re T.N., 267 Mont. 81, 881 P.2d 1329 (1994)

Materials for Issue 2:

MCA § 41-5-1504 (2) (1999)

MCA § 41-5-2503 (1999)

MCA § 46-18-101 (1999)

MCA § 46-18-222 (1999)

MCA § 46-23-201 (1999)

MCA § 53-21-102 (7) (1999)

MCA § 53-21-126 (1) (1999)

State v. Niemi, 252 MT 531, 830 P.2d 1280 (1992)

U.S. v. Cantu, 12 F.3d 1506 (9th Cir.Wash.,1993)

NOTES ON AUTHORITIES: Be sure to read all statutes carefully! Remember when you read the Montana cases above, they are ALL based on older versions of the Montana Code. Montana law on juvenile offenders has changed a great deal in the past several legislative sessions. This case offers a great example of the interaction between the legislative and judicial branches of government. Changes in statutory law (the MCA) affect how the courts rule on cases. And, some of the cases included here directly led the legislature to make further changes in the Code.

As you work on this case, understand that the court can use the older Montana cases as controlling authority, EXCEPT where statutory law has changed (and is constitutional). So, one challenge is to see which ways the old case law is still "good law" and can be applied to our case scenario, and, on the other hand, which ways the changes in statutory law now mean that the old case law now no longer applies in the same way.

One of the biggest changes occurred in 1997, when the legislature changed the procedure by which a juvenile is tried as an adult. In the past, charges were filed first in Youth Court and a hearing would be held to determine if a case should be transferred to District Court. Most of the cases in the packet are based on this old method. In 1997, the law changed so now it is the other way around: a juvenile who commits certain types of felonies, such as the felony in the above model case, can be charged by direct file in District Court. Butler upheld this procedure, but also required a hearing held to determine if the case should stay in District Court, or be transferred back to Youth Court. The 1999 Legislature added the hearing requirement to the MCA.

There is not yet a lot of case law on this new method. Be sure to read the Butler case thoroughly, because it explains the old law and how it was changed. Butler had a substantial impact on changing the Montana Code to what it is today.

The second major change that affects our case above was a 1999 addition to MCA § 41-5-206(3), which added the "best interest of the youth" to the factors used in considering whether to transfer a case to Youth Court or to keep it in District Court. There is currently no case law on how this "best interest of the youth" language is applied, so Youth Attorneys on both sides are asking the court to decide how to interpret this new statute based on the facts of the case.

For issue 1,we are assuming for the purpose of this case that the hearing procedure was correct under the Butler guidelines, the findings are what is at issue. KMH and TN are cases dealing with youth who committed violent crimes and may have been mentally ill, where the court upheld the youth being tried as an adult. JKC is a case where the court ruled that the court abused its discretion in transferring the case to district court. Also remember that Montana's Constitution generally gives people more rights than does the US Constitution.

For issue 2, the Niemi case is a major Montana case on how exceptions to the mandatory minimum sentencing guidelines of MCA § 46-18-222 might be applied. KMH applies again when addressing the mental illness aspect of our case.

Cantu is a 9th Circuit case that applies Federal Law to sentencing in the case of a person with PTSD. Keep in mind in reading this case that Montana law and Federal law are different, and that Montana law is controlling in our case. Although the statutes are quite different, this case is what is called persuasive authority, a respected opinion that the court will listen to, even though it isn't required to follow the holdings. "Mark's" attorneys will want to bring out the similarities to show how the case facts can be applied to help "Mark," while the State's Attorneys will want to hone in on the differences to show that this case does not apply at all.