When children pull the trigger, prosecutors face a tough call

The case of Daniel Gudino - the Colorado Springs 13-year-old accused of shooting his 9-year-old brother to death and wounding their mother - is one of those vexing cases that prosecutors know comes with the territory.

Fourth Judicial District Attorney Dan May's office hasn't indicated yet whether they will seek to try Gudino as an adult or leave it in juvenile court.

The decision is not entirely up to the prosecutors - Gudino is a year shy of the 14-year-old mark at which a district attorney can charge someone as an adult without a judge's approval.

Whatever decision is made, it will be closely watched and criticized.

"I believe that if the young man is tried as an adult that it's going to be a huge story," said Mary Ellen Johnson, executive director of the Colorado Springs-based Pendulum Foundation, which opposes adult prison time for juveniles.

Johnson said she is encouraged that prosecutors are taking their time on making a decision.

"I think that's a pretty good sign," she said. "Ten years ago, we had a whole different mind-set," she said this week, while attending a national conference in Washington, D.C., on teens serving life without parole.

Johnson is convinced the pendulum is swinging away from prosecuting juveniles as adults.

"Absolutely," she said. "I think people are a lot more uncomfortable now."

The numbers statewide show violent juvenile crime is down as are cases of juveniles serving life in prison without parole.

In reaction to a spike in violent juvenile crime in the early 1990s, prosecutors in Colorado convicted 56 juveniles who were sentenced to life in prison. However, after January 2000, only seven more were added to that group.

All but one of the 56 inmates are male. None were younger than 14 when they committed their crime, according to Department of Corrections records.

Part of that trend relates to a 2006 law that diverted juveniles to the Youth Offender System.

Under that system, a judge can sentence a youth to a seven-year-term that is served in a separate state prison in Pueblo. If the offender flunks that system, he can be sent to regular adult prison to serve up to a total of 40 years.

Bob Grant, a former Adams County district attorney who often opposed Johnson on legislative issues, contends the fewer cases may signal that the laws worked the way they were intended by deterring other juveniles with the prospect of doing hard time in an adult prison.

Grant said another factor may be improvements in the juvenile corrections system over the past six years may have led prosecutors to feel more comfortable trying suspects as youth offenders.

"We went through a period of time when juvenile corrections was, to put it mildly, a joke," he said.

The decision on whether to try a teenager as an adult is one of the hardest a prosecutor ever makes, Grant said. It's second only to deciding whether to seek the death penalty, he said.

Grant acknowledges the argument that advocates like Johnson make that juveniles often lack the maturity to make the decisions that land them in trouble.

However, Grant said also looks at it from the victim's viewpoint.

"Neither the victim nor the victim's family really cares much about how old the finger is on the trigger," he said. "The outcome is the same."

Craig Silverman, a former Denver deputy district attorney, said there are several factors that a prosecutor weighs when deciding whether to prosecute a juvenile as an adult.

"First and foremost, you have to consider the seriousness of the crime," he said. And in a case where a youth is accused of killing his brother and wounding his mother, "it doesn't get any more serious than that," he said.

Next, the prosecutor has to consider the age of the defendant - "13-years-old is different than 17. Frankly, it's different than 12," Silverman said.

The numbers also bear that out. According to data compiled by the Colorado State Court Administrator's office, of the 1,175 cases where juveniles were tried as adults between fiscal years 2004-2008, there were 11 involving defendants who were 13 years old, less than one percent.

Silverman said prosecutors also have to weigh whether the juvenile has a criminal record and whether there are mental health issues.

Finally, there are the parents. While not the most important consideration, what the parents wish is also a factor, Silverman said.

In this case, where both parents have stood beside their son in court, that can be a factor, he said.

"You can't help but think of these parents and the hell they're going through," he said.