DA wants 14-year-old charged as adult

Prosecutors today said they will seek to try a 14-year-old Colorado Springs boy as an adult in the murder of his younger brother.

Fourth Judicial District Judge David Shakes set a May 3 hearing on whether Daniel Gudino should be tried as an adult rather than a juvenile.

Deputy District Attorney Shannon Gerhart requested the hearing after Shakes indicated he was unwilling to let the case linger for several more months while psychiatrists continue to evaluate the boy.

Gudino has been jailed without bond since May 18, when Colorado Springs police arrested him on suspicion of first-degree murder in the death of his 9-year-old brother, Ulysses, at their home in the 1800 block of Chapel Hills Drive. He is also accused of attacking their mother, Maria Gudino.

Both of the boy’s parents were in court today, as they have been for nearly every one of his hearings.

If charged as an adult and convicted, Gudino would be the youngest first-degree murder defendant in Colorado to serve adult prison time in more than a century.

None of the juveniles currently serving life sentences in the Colorado Department of Corrections were younger than 14 when they committed their crimes, according to a department spokeswoman.

Since January 1999, when the state Judicial Department began keeping records, 15 defendants who were 13 years or younger have been charged with first-degree murder. However, all of those cases were handled in juvenile court, said department spokesman Jon Sarche.

State law allows prosecutors to try teenagers as young as 14 in adult court. However, Gudino was 13 at the time of the murder. So the final decision on moving his case to an adult court, where the penalties can be much more severe, is up to the judge.

The decision to seek to try Gudino as an adult comes after months in which the youngster has been evaluated by psychiatrists. Prosecutors wanted those reports, which were completed last week, to help make their decision. However, Gerhart described the results as “somewhat inconclusive.”

At a brief hearing Wednesday, Gerhart and Deputy Public Defender Norene Simpson initially requested more time for further evaluation. Simpson said security concerns limited the doctor’s ability to observe and evaluate Gudino. She said the boy was shackled to a bed during an overnight stay for an evaluation outside the jail.

Shakes, however, said he was not willing to extend the deadline indefinitely for prosecutors to decide how they wanted to proceed.

“I’m not willing to set the matter out for several months,” Shakes said. “I’ll give you a few weeks to make that decision.”

At that point, Gerhart said prosecutors would request a hearing, which is expected to take several days, on whether to transfer the boy to adult court.

“It will be up to the judge,” she later told the Gazette. “We want him to have all the facts and then let him decide where Daniel should be tried.”

“He (the judge) is going to have the full range of options, from juvenile probation to adult prison,” she added.

If Shakes rules that the Gudino should be tried as an adult, Gerhart said the charges against the boy will not necessarily be first-degree murder, which carries a mandatory penalty of life in prison without parole.

Simpson said the defense will argue that the case should stay in juvenile court.

“I’m anxious for the court to hear about Daniel and his family and why he should not go to adult court,” she said. “We’re ready to do that.”

Wednesday’s decision comes two days after prosecutors agreed to accept a guilty plea to manslaughter from a 16-year-old Colorado Springs girl accused in the fatal shooting of a man accused of sexually assaulting her. That case remained in juvenile court, where the girl faces two years of probation plus counselling when she is sentenced on May 25.

The decision to try teens as adults, known as “direct files,” is a controversial topic in the criminal justice system.

Defense advocates point to the case of a 17-year-old Colorado defendant who committed suicide in an adult jail in June 2009 after being charged as an adult. They also note that Colorado is one of 13 states that allow prosecutors to make the decision on charging juveniles as adults.

The Colorado Springs-based Pendulum Foundation has led the fight against direct files and had vowed to put the issue to voters through a referendum this fall.

Foundation Executive Director Mary Ellen Johnson said she was disappointed to hear that Gudino may be tried as an adult.

“With all the information they have on Danny we were hoping that the DA would say let’s just charge him as a juvenile,” she said.

Johnson said she appreciated that prosecutors were seeking to further evaluate the boy.

“I suppose that the judge felt that it has dragged out far enough,” she said.

According to the Colorado Legislative Council, prosecutors filed adult charges on 179 juveniles in 2009.

In El Paso County, the practice has been used sparingly. Earlier this year, the district attorney’s office charged five juveniles as adults in a series of armed robberies. In The DA charged four juveniles as adults in 2009 and 12 in 2008.

Colorado prosecutors have resisted any attempts to limit their ability to make direct files on juveniles.

“We support the statute as it exists,” said Ted Tow, executive director of the Colorado District Attorney’s Council. “In general, the council believes that the decision to direct file is most appropriately left in the hands of the district attorneys.”

Tow and Johnson, however, were meeting with several legislators Wednesday afternoon to see if there were any amendments to the existing law that both sides could support.

For more court coverage, go to the Sidebar blog at Gazette.com