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.

In the decades since, juvenile justice changed, evolved, and, depending on the perspective, regressed in response to social and political pressures of the times. In 1923, Colorado passed a “direct file” law, which empowered prosecutors to try some children, the worst of the worst, as adults in the criminal court. Just about every year since then Colorado has amended direct file protocol—not overnight, but more of an erosion, and ultimately such that prosecutors needed to justify to a judge why a juvenile offender did not deserve the protections of the juvenile system and ought to be transferred to adult court. This careful deliberation was very much a move back to the future of juvenile justice as it was originally conceived.

By the late 1980s, however, DAs complained that judges weren’t approving these transfers, or weren’t doing enough of them to appease the prosecutors. In part, some judges were concerned about mandatory sentencing requirements passed in 1985 that doubled, almost overnight, mandatory minimum and maximum sentencing guidelines. Crimes that used to get one or two years in prison now got three or four, and so on. The “mandatory” part, of course, precluded judges from amending a sentence based on someone’s age, personal background, or circumstances of the crime. What if, on second thought, after all the evidence was heard, a judge was convinced the child-defendant needed mental-health services along with jail time, or perhaps instead of jail time? Or, what about a kid who kills an abusive parent in self-defense? And so on. There were just too many what ifs. And so, judges indeed were reticent to approve transfers. Then again, what if there was a crime, or were crimes, so horrific, perpetrated by kids, that judges—especially judges in politically charged municipalities—shelved all those other what ifs?

There are certain cases that change the way a community—even a nation—thinks, like New York City’s Central Park jogger. On April 19, 1989, Trisha Meili, a 28-year-old investment banker with Salomon Brothers, was running in the park when she was assaulted and raped. Her battered body was discovered about four hours later. By then, she was suffering from hypothermia. Her numerous injuries included a skull fracture. Her recovery languished as the police picked up a group of teens for questioning. In an unusual move, their names were released before they were charged (typically juvenile names are withheld unless a child is charged in adult court). Five teens—four of whom confessed—were convicted a year later.

The crime was horrific, but the idea that teens—children—could do something like this was morally, logically, and scientifically incomprehensible. The case set the stage for a legal shift in the early 1990s where children became juveniles, retribution replaced rehabilitation as a catch phrase, and juvenile programs became “corrections.” During this period, nearly every state enacted legislation that favored punishment over prevention. Like most things, this shift in juvenile justice took awhile to reach Colorado. But when it did, it had gained momentum.

The Centennial State had plenty of cases like the Central Park jogger one—all involving teens. Most notably, there was the case of William James Bresnahan Jr., who beat and stabbed his parents on a family camping trip. And Richard Mijares, who shot his mother and buried her in a shallow grave. The list goes on. In Colorado, guns were part of the problem: These crimes became more lethal in the 1980s and 1990s. Between 1983 and 1993, murders increased by 25 percent and arrests of juveniles charged with violent crimes increased by 75 percent. There were all kinds of theories, reasoned and otherwise. Some said the violence was caused by rap, heavy metal, or violent movies. Others blamed West Coast gangs; the Bloods had settled in north Park Hill. And while Denver had a long history of gangs, they’d always been more of the homegrown variety. In addition to the Bloods, along came the Crips. These gangs had a network that reached across the country, which scared policy-makers who couldn’t figure out a cause or a solution to the apparent violent crime wave.

During the summer of 1993, it seemed like the violence was escalating on a daily basis. One day at the Denver Zoo a toddler was shot in the head. In another instance, a three-year-old was shot in the arm. Each day seemed to bring more news of bloodshed and death; the local media dubbed the apparent crime wave the Summer of Violence. Parents, politicians, pretty much the entire population was spooked. The violence seemed so random, victims so young. Kids were dying, but increasingly, kids were also killing. Denver’s DA, Bill Ritter, and other prosecutors took their worries to Governor Roy Romer, an attorney and father of seven. He agreed that something had to be done, and that the juvenile courts weren’t doing their job. He called the legislators back from summer vacation for a special 10-day session. In the end, 11 laws were passed and some redefined how Colorado treated juveniles. Suddenly, the Division of Youth Services became the Division of Youth Corrections—an ostensibly subtle, yet unmistakable sign that the philosophy regarding juvenile offenders had changed. The old 1923 strategy of direct file was once again passed into law.

Direct file became a fast lane to adult prison without the two-day transfer hearings and judges to consider the prosecutor’s request. After the Summer of Violence, it was the DAs who decided whether a 14-year-old was a child or an adult. The strange thing about Colorado’s new direct file statute was that there was no option to send an offender back to juvenile court. Until 2010, the DAs had no criteria to consider before charging a juvenile as an adult. But even now there is no system of checks and balances to evaluate how thoughtful prosecutors really are. More often than not, they do not have to explain their decision to a court of law. The decision to direct file was—and is—theirs alone. The DA not only chooses the charge, but also the venue (juvenile or adult court). A juvenile’s records are no longer sealed, sentences are harsher, and opportunities for mental-health services are nowhere near the same as those made available in the juvenile system. It is the only decision in which a DA does not have to prove his or her case in front of a judge or jury. (Even in death-penalty cases, a DA can decide to pursue the sentence, but a jury ultimately decides the offender’s fate.)