Direct Fail

Welcome to Colorado. One of seven states in the country where district attorneys can unilaterally decide when to criminally prosecute kids as adults.

December 2011

This article was a finalist for the 2012 National Magazine Awards in the public interest category. It was also a finalist for a 2012 City and Regional Magazine Award in the civic journalism category

Sixteen-year-old Gary Flakes didn’t want to go to the police station, but his dad—his namesake, the career soldier—thought it was for the best, and Flakes didn’t want to disappoint him. He’d only been living with his dad in Fort Carson for 19 months; before that, he’d only ever visited his dad for a summer or short stays. He’d grown up with his mom, or as Flakes puts it, his “Moms” in Detroit, but his grades started slipping. He was partying, riding around, and then things got serious: He started dabbling with guns. In August 1995, his mother sent him on a train to Colorado to move in with his dad.

He came to love the mountains, felt a connection to them that he couldn’t explain. The openness. The freedom. It was so different from Detroit where everything—everyone—felt so closed in. In the Motor City, it seemed, nothing changed, at least not for the better: the neighborhood, the people, the problems. Here, though, he could go anywhere. He ran track at Fountain-Fort Carson High School, played basketball at a youth center and for his high school team, too. He picked up a job as a courtesy clerk at Albertson’s. He’d drive to work in his uniform—a white company shirt and blue khaki pants—but he didn’t mind. He was pulling in his own money. He enjoyed being with his dad and helping out his new family; a baby sister was born the day he arrived in Colorado.

Just when it seemed like all was well with Flakes’ new home, it went bad. In the shadow of the Garden of the Gods, he slipped into his old Detroit ways. He got expelled from school in January. Next thing he knew, he was driving around in a white Mazda after a Valentine’s Day dance on February 14, 1997, with a friend, Jeron Grant, who kept talking about getting “something off my chest.” Flakes, who was driving, turned onto Canoe Creek Drive in the affluent Broadmoor area, and passed two boys walking down the street. He drove past, turned around, and pulled up next to them.

Fifteen-year-old Scott Hawrysiak and 13-year-old Andrew Westbay were best friends who’d spent Valentine’s Day night playing video games at a nearby house. Near midnight, they were headed home when Jeron Grant’s white car pulled alongside them. Grant—a total stranger to the boys—got out of the car and shot Westbay in the neck with a 12-gauge shotgun. He was dead before his body slumped to the ground. Hawrysiak turned and started running, but another shot hit him in the back of the head. Grant walked up to him and fired a third blast, which missed. Grant got back into the car, and he and Flakes drove away.

Two innocent middle-schoolers were dead. The Colorado Springs community had no answers. No one to hold responsible. For three weeks detectives logged more than 1,400 hours on the case, tracking down leads, until one Crime Stoppers tip claimed “Jero” and “Flakes” were there. That’s the break the cops—the community—needed. Police showed up at Flakes’ home on March 15, 1997. They asked him some questions and left, but his dad—the good soldier—convinced him it was time to talk.

At the station, a detective asked Flakes if he could tell the story without implicating himself. Flakes’ dad interjected. Should we get an attorney? Near as Flakes can recall, his dad asked this question at least twice. If his dad had said We want an attorney, things would have been different. By law, the conversation would have ended right there. Instead, the detective told them no, they didn’t need an attorney, and Flakes said what he thought they wanted to hear. He knew he wasn’t the shooter, so he told them what he thought would allow him to go home. Instead, the detectives turned him around and placed his wrists in handcuffs, telling him he was under arrest for first-degree murder.

As far as the district attorneys were concerned, this was a worst-of-the-worst case: kids killing kids, and justice would require a tougher sentence than a few years in kiddie jail. So the DAs decided they would try Flakes as an adult. One moment, he was a high school junior who couldn’t legally drink or vote, and the next the state said he was an adult. Prosecutors went with a “direct file”—the nuclear option of juvenile justice.

Jeron Grant confessed that he was the shooter. But at his trial, which preceded Flakes’ day in court, the jury didn’t find Grant’s confession believable. “If you’re going to murder somebody, you’re going to remember every detail,” one juror said. Grant was convicted only as an accessory to the murders, leaving Colorado Springs with two dead boys and still no shooter.

As Flakes’ trial got under way, the Springs was seething to a point just shy of pitchforks. During his three-week-long trial, prosecutors went through the motions. His defense didn’t call many witnesses. The hours dripped by. Yet Flakes remained oblivious. He was just grateful the courtroom was warm. The holding cells were freezing and the bologna sandwiches at lunch left a teenage boy hungry. Even when the conviction came back—two counts of accessory to murder, and one count of criminally negligent homicide—he didn’t get it. He couldn’t understand the consequences of the Valentine’s Day murders. According to the state of Colorado, Flakes—the teenager—was gone. He was an adult on his way to prison for 15 years. He’d be in prison until he was 31. He’d go in a boy and come out a man. At his sentencing, he’d asked—begged, really—the victims’ families to forgive him. “I’m sorry for everything that happened on February 14, 1997,” he said. “I cannot even imagine the love you have lost…. Please forgive me. Find someplace in your heart to please forgive me.”

If you’re looking for a birthplace of the concept of juvenile justice, Chicago is a good place to start. In 1899, it created the nation’s first juvenile court system, predicated on the idea that child offenders are psychologically different than adults and ought to be treated accordingly. It didn’t take long for other states to follow suit: By 1903, Colorado had its own separate juvenile justice system, which ensured parens patriae, the idea that the state treats a child as a parent would. This created an independent system of justice for children that, among other things, ensured anonymity (records would be sealed), encouraged rehabilitation (juvenile detention centers would provide things like educational opportunities and mental-health services), and required judges to consider extenuating factors, like home life and abuse, when adjudicating.