Burden of Proof

The Case of Nathaniel Abraham: Should a 13-Year-Old Stand Trial for Murder?

THIS IS A RUSH TRANSCRIPT. THIS COPY MAY NOT BE IN ITS FINAL FORM AND MAY BE UPDATED.

ROGER COSSACK, CO-HOST: Today on BURDEN OF PROOF, he's the youngest person ever tried as an adult for first-degree murder. Nathaniel Abraham was just 11 years old when he allegedly shot and killed a man. Now Geoffrey Fieger, an aggressive and controversial Michigan lawyer, has joined counsel at the defense table.

ANNOUNCER: This is BURDEN OF PROOF with Roger Cossack and Greta Van Susteren.

COSSACK: Hello, and welcome to BURDEN OF PROOF.

The trial of Nathaniel Abraham changed course, Monday night, when attorney Geoffrey Fieger agreed to take his case. Fieger is well- known for his representation of Dr. Jack Kevorkian and his recent gubernatorial bid in Michigan.

GRETA VAN SUSTEREN, CO-HOST: The flamboyant Fieger argues that the case against Nathaniel Abraham should be tried in juvenile court and calls his trial in adult court regressive, draconian and medieval. Nathaniel's mother told the "Detroit Free Press," quote, "he stands for what we believe in, and that's all I need for my son."

COSSACK: And joining us from our Detroit bureau are two defense attorneys for Nathaniel Abraham, Geoffrey Fieger and Dan Bagdade and also in Detroit, Abraham defense lawyer William Lansat.

VAN SUSTEREN: And here in Washington, Eric Sinesvet (ph), former federal prosecutor Steve Berk and Pam Melick (ph). And in our back row, Chris Larimer (ph) and Matt Lanihan (ph).

Geoffrey, let me go first to you. Why? Why are you involved in this case.

GEOFFREY FIEGER, ATTY. FOR NATHANIEL ABRAHAM: That's a good question. Because the issue is so important. We have never, in this country, seen fit in the history of this country, 1789 to present, any state, anywhere, anytime, to try an 11-year-old as an adult and subject them to adult penalties, and that is incomprehensible, especially during a time when crime rates are going down. Even juvenile crime rates are going down, and in Michigan they've eliminated juvenile mental health facilities and yet found the money, billions, to build new prisons for children. VAN SUSTEREN: But Geoffrey, let me ask you this, though. You know, in some way -- you say that he's going to be sentenced as an adult. As I understand it, under this Michigan statute, he's being tried as an adult but he's still eligible to be sentenced as a juvenile. But more importantly, if you're tried as an adult, you get a jury. If you're tried as a juvenile, you don't.

FIEGER: Well, you can demand a jury in Michigan, but you're -- as a juvenile, but it's only a juvenile adjudication and you're treated much differently.

The absurdity of this situation is that if I represented an adult, say a 30-year-old who had the mentality of an 11-year-old, he or she could never be tried for this crime, and yet I've got an 11- year-old who the court-appointed psychologist has written a report to the judge saying that this child has the mentality of a six-year-old and has no ability to understand right from wrong or a legal reasoning whatever. This is an absurd situation. Children can't vote, children of his age can't sit on a jury because they can't understand the law, children his age, his mental age, can't even commit negligence. This is an absurd result, and the only countries in the world that allow it are Nigeria, Pakistan, Yemen and Saudi Arabia: wonderful company to be in, in terms of the treatment of juveniles, isn't it?

COSSACK: Geoffrey, this is a young man who has, since the age of eight, had 22 run-ins with the police...

FIEGER: Right.

COSSACK: ... had been involved in violent behavior before this, was in some ways, perhaps, a tragedy waiting to happen.

FIEGER: Exactly.

COSSACK: I recognize what you're saying, and obviously one feels, you know, uncomfortable about an 11 or a 13-year-old, but, you know, I wouldn't want to have lived next door to this young man. What do you do? What do you -- how does society protect themselves?

FIEGER: Well, society does something: It doesn't close, as we did in Michigan, every juvenile and adult mental health facility, provide no outlet for counseling, ignore 22 other prior incidents and then finally, when we have a tragedy and a life is lost, then try him as an adult for murder to put him in an adult prison or a prison they built specially for juveniles, which is an identical replica of an adult prison. You don't deal with that. You treat them, and you had 22 prior notices. That just shows you the absurdity.

And the real absurdity is that try him as adult, imprison him, the recidivism rate is 10 times higher and the cost is 10 times higher, whereas if you had treated him like a juvenile and you had treated him in some mental health facility, the recidivism rate is much lower and the cost is much lower. Who did this? Who -- only a crazy person would set this system up like this.

VAN SUSTEREN: Dan, you were one of the original lawyers on this case, and you've been working with Jeffrey and Bill. Is the only difference between the juvenile process and the adult process in Michigan the prospect of a larger penalty, is that the big difference, and where the penalty would be served?

DANIEL BAGDADE, ATTY. FOR NATHANIEL ABRAHAM: Well, with regards to this particular statute, that's the main difference. Understand that in this statute there are three sentencing options for the judge. You touched on two of them: sentencing as an adult or sentencing as a juvenile. The third option is that the judge could delay sentencing, place Nate in some sort of a juvenile facility, monitor his progress and then revisit sentencing at a later date.

COSSACK: I understand, Dan, that that was an opportunity that was offered to the defense in this case and it was turned down, because the issue had to do with whether or not Nate would commit any other felonies, and apparently the defense was concerned with that.

BAGDADE: There was no offer made by the prosecution. That drives me crazy when the prosecution tries to give the impression to the public that they made an offer in this case. All they told us was, if your client is willing to plead guilty as charged, to murder in the first-degree, a crime that he is not guilty of, we would have no objection to delaying the sentence and seeing what happens.

FIEGER: And remember, also, in this -- under this statute, it's the prosecutor who made the decision to try an 11-year-old with a six- year-old mentality as an adult. So, this case is the result of the prosecutor's decisions, not the judge's, not ours, solely the prosecutor's. Had the prosecutor done what he should have done and charged him as a juvenile, I doubt very highly we'd be here talking to you now.

VAN SUSTEREN: Steve, you're a former prosecutor. How does a prosecutor make a decision as to whether to try as a juvenile or an adult? What do you do to exercise discretion?

STEVE BERK, FORMER FEDERAL PROSECUTOR: Well, you know, look, Greta, the prosecutor obviously has a fair amount of discretion, Mr. Fieger's absolutely correct on that. But you know, he's also making a lot of policy arguments, arguments that are compelling, and I don't really want to get into the merits on this show, today, but they're policy arguments, they're arguments for the legislature, they're arguments for the public, but they're not arguments for this particular case. The issue here is whether to prosecute -- you know, whether or not there has been this murder and whether or not the prosecutor properly charged.

VAN SUSTEREN: But this issue also is, though, it's not just whether or not there's been a murder, the question is, where do you try him. I mean, that's a -- that may be a policy decision, but it's also prosecutorial discretion; i mean, a prosecutor makes that decision. How do you make that decision?

BERK: Well, in the first instance, they look at the statute, and I can't, as I sit here today, tell you exactly what the statute says, but the statute gives the prosecutor some guidance and probably some elements and probably some factors in which to determine how to charge the case, and the prosecutor, in their discretion, has decided that this case is appropriate for going forward in the -- in the adult world, as opposed to the juvenile world. Whether that's a right decision or not, Greta, I don't know.

COSSACK: Geoffrey, you are a well-known lawyer, particularly in your area up there. Do you believe, perhaps, that your presence on the case may be a distraction to this jury?

FIEGER: A distraction? No.

COSSACK: Yes.

FIEGER: I'll leave others to decide what my presence does or doesn't do, but it's hardly a distraction to the jury. I want the jury to be totally -- and I've never heard that the jury becomes focused on anybody but me if I'm involved in the case...

VAN SUSTEREN: And how about Geoff...

FIEGER: But let me respond...

VAN SUSTEREN: ... How about -- let me ask you this, though: how about the prosecution. Are they happy to see you or unhappy?

FIEGER: No, I'm sure they're unhappy.

But with response to what Steve, I think, just said, there is no guidance to the prosecutor; the prosecutor has total discretion.

And we're not talking about policy, here. We're talking about constitutional issues. This child can't even testify in his own behalf. A six-year-old, a six-year-old mentality doesn't have the ability to confront witnesses and testify in their own behalf. Now, if that doesn't go to a due process, equal-protection argument, I don't know what does. These aren't policy. This isn't some trivial issue. This goes to constitutional mettle here, now. We're putting a retarded 11-year-old on trial, who doesn't even have the ability to testify in his own behalf, because he doesn't have the ability to comprehend what he's testifying about. How do you do that?

VAN SUSTEREN: And as I'm sure those issues will be battled out in court, there's also jury selection, and how will the prosecution try to prove an 11-year-old's intent to commit murder. Stay with us.

(BEGIN LEGAL BRIEF)

Unabomber Theodore Kaczynski has signed a contract providing hundreds of letters of prison correspondence to a graduate library at the University of Michigan. Kaczynski, a Michigan alumnus, is providing the letters at no charge. Library officials say names of people who wrote to him will be deleted.

(END LEGAL BRIEF)

(COMMERCIAL BREAK) VAN SUSTEREN: Nathaniel Abraham is being tried as an adult in Pontiac, Michigan for first-degree murder. He was just 11-years-old at the time of the shooting.

Bill, what is the status of the jury selection? And in placing your client before the jury, are you concerned by the fact that he's now aged by two years, and are you doing anything to make him look, perhaps, the 11-years-old at the time of the offense?

WILLIAM LANSAT, ATTY. FOR NATHANIEL ABRAHAM: Yes, Greta, clearly that's a factor that we have to wrestle with. He still looks very young but, clearly, we've lost the ability to project him at the time that this offense occurred when he was 11.

If I could just respond one moment to the prosecutor on your show that talked about standards in the statute, one of the earlier motions we brought before the court -- we did a survey of all the state statutes in the United States, if there's anything at all similar to what Michigan is doing here, and we couldn't find any but for Minnesota. There are no standards to guide the prosecutor in this statute.

VAN SUSTEREN: Does that make a sense -- does that make the statute constitutionally infirm, or does Michigan -- can the legislature just do what it wants and gives the authority of the prosecutor to do it by the seat of the pants, so to speak?

LANSAT: Correct. We raised that issue to the court. We said it was constitutionally inform -- infirm because it's a violation of procedural due process because there are no standards, and they could do any age. Not only that, they could do a nine-year-old, they could do an eight-year-old. There are no standards given to the prosecutor. Any other statute in the United States of America that wants to treat someone under 13 has some judicial standards, that they go before a court, they go before the judge with standards.

VAN SUSTEREN: And I take it you lost on that issue, is that right?

LANSAT: We lost, but the fact remains, contrary to what I think your guest said, the prosecutor, there are absolutely no standards in that statute to govern whether or not the prosecutor should or should not elect to try someone at any age in the same manner as an adult in Michigan, and that's why we believe that statute is constitutionally infirm.

COSSACK: Dan, Nathaniel Abraham made a statement, after he was arrested, to police. Some have described it as a confession, others as a statement. Initially, the magistrate, hearing this said that the statement shouldn't come in, and yet the court overruled that. Tell us about it.

BAGDADE: Well, you're right when you say it was not a confession. The prosecution has been trying to characterize Nate's statement from day one as a confession. Nate never confessed to anything because Nate didn't do anything wrong. What he did was make a statement, an honest statement, about the fact that he was out in a field, on a hill, shooting at trees and a stray bullet may have hit and killed someone. From day one he has never changed that statement.

And I'll just conclude that remark by saying that, over the last number of months, I have visited with Nate regularly. I've gone over to the children's village to see him and, periodically, I will ask him about what happened just to see if he changes his mind. He has never changed a single fact. And for a young man operating at such a limited mental capacity, I think that's very telling.

VAN SUSTEREN: Geoff, where did Nate get the gun? And, also, I have read that the sight on the gun which he used to aim may have been defective. Is that true, and how does that affect your defense, if at all?

FIEGER: Well, you need to see the scene. The scene, if I can set it up for you, is 300 feet away from where the person was shot. We're talking about the dead of night, October 30th, I believe, 1997. You can't see anything through the trees. A marksman who had been trained by the Navy Seals couldn't intentionally make such a shot, if that's what they were planning to do.

This is a terrible tragedy here. A terrible occurrence occurred. But the fact of the matter is that Dan and I and Bill are here to prevent a second tragedy, and that is the -- really, the taking by society of another life.

VAN SUSTEREN: Well, why do you think, then, Geoff, that this is being done? The way you three portray it is that this was an accident, this is a horrible tragedy. He's being treated as a child instead of as an adult.

FIEGER: They need bodies to fill up these new prisons they built for kids. They -- literally, they need bodies to fill them up. I kid you not. They closed every mental health facility in this state and took every cent and more and literally built matching prisons, exact duplicates of adult penitentiaries, so that kids who get charged and convicted under this new law will be put in there until they're 21 and then be transferred to the adult facility so that they'll know what prison's like when they spend the rest of their life -- literally.

VAN SUSTEREN: Steve, have you ever seen a prosecutor do anything like that? I mean, do you -- I mean, that's what Geoff says is happening. Do you have a response?

BERK: No, no. Really, I can't take that seriously.

FIEGER: What? You've never seen a prosecutor charge for political reasons?

BERK: Well, wait. Geoff, let me -- wait, let me say what I think might be the reason here.

FIEGER: Try Kevorkian. BERK: We've got a situation where we've got a young -- a child. He is 11-years-old, but he had 22 prior incidents of violence or crimes. And, again, I don't know what those were exactly, but the prosecutors looked at this and they said: Look, here's somebody with a long criminal history, here's a heinous crime, apparently there's been violence in the past, this is the case that we're going to choose to move forward on this statute.

Now, whether that's a right decision or a wrong decision -- obviously he has good defense counsel. They will argue that it was a wrong decision to charge that way. But is it a rational decision -- irrational decision? I don't know based on his record.

FIEGER: I think you're right on that because I think that the prosecutor looked at this kid, a poor, mentally incapacitated, or certainly a mentally troubled 11-year-old, and said he would be a good candidate for this. Nobody will challenge us in doing this. He was wrong.

VAN SUSTEREN: Is there a race issue here, Geoff?

FIEGER: Yes.

COSSACK: Geoff...

LANSAT: Greta, can I jump in one second?

FIEGER: Of course there is.

COSSACK: Let me ask Geoff one question.

Geoff, you're going to be having to pick this jury. What are you -- who are you looking for to be on this jury? Who's going to understand your case?

FIEGER: Hopefully somebody who understands that children are different than adults, somebody who understands...

COSSACK: But, do you want parents?

FIEGER: I think I want anybody who can comprehend that when they were 11-years-old, they were substantially different than they were siting on the jury. I want somebody who would understand this simple concept: Why can't 11-year-olds sit on the jury? The answer is because they couldn't comprehend legal culpability. Well, if they couldn't comprehend it, then how does Nathaniel Abraham who can't even comprehend anything, literally, regarding the law, understand right from wrong or understand specific intent or have the mental ability and the state of mind to have committed these crimes?

LANSAT: Greta, can I just jump in one second? Greta?

VAN SUSTEREN: Go ahead.

COSSACK: Let me ask you to hold on just for one second because we're going to take a break. Because up next: Will an increased media spotlight change the dynamic of the case against Nathaniel Abraham, and could his trial ever be moved to the juvenile justice system? Stay with us.

(COMMERCIAL BREAK)

(BEGIN Q&A)

Q: Why was Ohio prison inmate Douglas Kassander charged with escape, forgery, falsification and theft?

A: He was mistakenly released from jail and did not point out the error to the guards. He was caught the following day and he has pleaded innocent to the charges.

(END Q&A)

COSSACK: We are back with the trial of 13-year-old Nathaniel Abraham who is being charged as an adult in a Detroit courtroom for murder. Before the break, Bill Lansat, I cut you off. Go ahead.

LANSAT: Yes, thank you, Roger.

I just wanted to respond to the prosecutorial charging here. I guarantee you, if they would have known that Nate Abraham's functioning is as low as it is, a six-year-old level, an eight-year- old level in many areas, and that is going to be undisputed at the trial, they would have never used him quote, unquote, as the "poster boy" to tryout this statute. That is how ridiculous this is.

You know, at the end of the day, here, you have got a child barely functioning as a child, and that is all you have. You've got somebody who is not even functioning as an 11 year old, barely, six- year-old, eight-year-old.

There is elements of environmental neglect, there's elements of emotional impairment. His functioning is well below what he should be: six-year-old, eight-year-old in several critical areas. So don't tell me that if a prosecutor knew all those factors, that this young man would have been the person under that statute. No way.

COSSACK: But, Bill, he knows it now, I mean, so why wouldn't they change?

LANSAT: Exactly, and that's what bothers us. That's what bothers Dan, that's what bothers Geoff. That what bothers all of us: knowing the kind of situation you have, exactly what Geoff said, knowing the kind of functioning you have in this kid. Why don't they do the right thing and simply treat him as the juvenile, as Geoff has requested that be done, and get him to treatment, get him the help he needs. That is what needs to be done.

COSSACK: But can't he be released at 21? If he is convicted under this statute, can't he be release at 21 if they feel that he has progressed and changed his habits by the time he turns 21? FIEGER: Only two -- two things have to happen: One, that the judge elects to sentence him under -- as a juvenile; two, that that sentence is appealed and reversed by the court of appeals; and third, that he commits no other assaultive or, possibly, criminal behavior within the system. And this system is terrible to begin with. He is likely to do that, so that they bring him right back and charge him again.

VAN SUSTEREN: Geoff, have you gone to the prosecutor, it's a woman, it's not a man, but have you gone to her since you have gotten on this case, and made these arguments?

FIEGER: No, I don't do that.

VAN SUSTEREN: Why?

FIEGER: Because that is not what I do. They understand -- we are picking a jury right now. They understand right from wrong. They understand the law, and they understand the implications of their actions, and they are the moving party here. They bring it. I am not going to operate from a position of weakness. I am operating...

VAN SUSTEREN: I don't think that is a position of weakness. If your argument is, at least one argument, is that you have, a young man, a boy, being tried for first-degree murder who would be incompetent to testify because of his young, because of his age, yet he is competent to stand trial, that isn't necessarily a weak argument.

FIEGER: No, I know it is not a weak argument, but I am not going to make it to them. I am going to make it to the judge.

VAN SUSTEREN: They have the authority to dump the case, though, I mean...

FIEGER: So? That doesn't mean I make arguments to them in private. I make them in public to the judge.

LANSAT: Greta, those arguments were raised in a 100-page memorandum of law with attachments, you know, with a whole group of exhibits.

FIEGER: Not really, excuse me Bill, not really. We are going to have to do it. They weren't really done under those auspices, and we are going to be raising those arguments.

VAN SUSTEREN: And that raises my last question based on the dispute -- or difference I just heard.

Dan, three lawyers is like 12 chefs in a kitchen. How are you going to do this?

BAGDADE: Well, I don't think there is any question but that Geoff is going to be the lead trial attorney at this point. Geoff and I have known each other for a long time; we've talked about this case for months and months. Geoff is well aware of the situation. I have kept him abreast of it. Geoff is going to be the lead trial attorney, Bill and I will be supporting him.

FIEGER: We will work fine together, too. That's not -- believe me, that is the least of our worries.

VAN SUSTEREN: OK, we've got to go. That is all of the time we have for today.

Thanks to our guests and thanks for watching.

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