Tuesday, January 15, 2008

Supreme Court brief: Memorial Middle School shooter's first lawyer sided with police against his client

Strong accusations against attorney Chuck Lonardo were included in the brief filed by attorneys for Memorial Middle School shooter Thomas Gregory White as they attempt to have his case returned to juvenile court. The briefs were filed in preparation for a Feb. 28 hearing.
Public defender James Egan claims Lonardo simply sat still and did nothing the first time White, who was 13 and a seventh grader at Memorial at the time, was interviewed.During the second interview, the brief claims "Lonardo actively participated with the police."
When police asked White who he brought the gun to shoot, Lonardo chimed in, saying, "Who were you gunning for, kid?" the brief said, adding that Lonardo later said, "If you think this is cool, kid, get it the hell out of your mind now."

Egan claimed White received ineffective representation, and had he been represented properly his case would likely have remained in juvenile court.

Following is the portion of Egan's brief dealing with Lonardo's representation, detailing the incident and Egan's basic arguments:

The underlying charges in this case are Assault in the First Degree (2 counts), Armed Criminal Action, Unlawful Use of a Weapon, and Attempted Escape. Relator, who was 13 years old at the time, is alleged to have taken a gun to Memorial Middle School on October 9, 2006. It has further been alleged that Relator fired a bullet into the ceiling of the school and attempted to shoot the school principal, Stephen Gilbreth. Relator is also charged with attempting to shoot school superintendent Steve Doerr. Finally, Relator has been charged with attempted escape from the Jasper County Juvenile Detention Center on October 11, 2006.
Relator’s parents retained the services of Attorney at Law, Charles Lonardo that
same day. Although no formal Entry of Appearance was filed, Lonardo formally began representing Relator immediately. The juvenile office filed three petitions: 1st Degree Assault; Armed Criminal Action; and, Making a Terrorist Threat. On October
11, 2006, the juvenile office filed an additional petition for Attempted Escape.

On November 28, April Foulks, a juvenile officer for Jasper County, filed a
motion to dismiss the juvenile petition and allow prosecution under general law. On that same day, a certification hearing was scheduled for December 6, 2006.
Before the hearing, the police interrogated Relator twice. Relator stated that part of his rationale was his low self-esteem and poor grades. Relator stated he could not improve his grades and got into trouble at home. Relator was failing four out of six classes.

Relator told the police that he thought about bringing a gun to school a week prior to the alleged incident. Relator told the police that after he fired the gun he attempted to leave the building. He added that he also planned to run away after. The police asked Relator who he was going after and Relator said he wasn’t going after anyone. He said that he just wanted to scare people. Relator denied that he tried to pull the trigger after the initial shot. Other times, Relator insisted he did not remember trying to pull the trigger a second time.

The police continued to question Relator and Relator told them he was telling them what he could remember. When asked who he was trying to scare, Relator answered all the teachers.
Norman Rouse, an assistant prosecutor from the Jasper County Prosecutor’s office
began participating in the interrogation and, told Relator that Relator was not being
honest, stating: “I know I’m being bullshitted. You’re bullshitting me and let me tell you something, you won’t win.”
Eventually, with the assistance of Relator’s attorney, the police got Relator to “admit” to firing the gun more than once. However, when asked again if he tried to pull the trigger again, Relator stated he didn’t know.
During the first interrogation, Lonardo simply sat and allowed the police to
interrogate Relator. In the second interview, Lonardo actively participated with the
police. For example, when Relator told the police it was hard to think about, the police told him he needed to think about it. Lonardo said, “[d]o so”
immediately after. Later, Relator’s attorney questioned Relator if
he tried to fire the gun a second time. Relator said no. Relator’s attorney responded by saying, “[y]ou’re telling me you never tried to
pull the trigger on that gun, be truthful with me.” Later, the police were asking Relator who he was looking for and Lonardo joined in and asked, “[w]ho
were you gunning for kid?” Still later, Lonardo is strongly advising Relator to be
completely candid and adds, “[i]f you think this was cool, get it the hell out of your mind now.”
On December 6, 2006, a hearing was held before the Honorable William C.
Crawford. Charles Lonardo, an attorney in Joplin, Missouri, continued to represent Relator at the hearing.
At the hearing, the Juvenile Office presented testimony from the Juvenile Officer,
April Foulks, the school Principal, Steve Gilbreth, Detective Brady Stuart of the Joplin Police Department,, Detective Mike Gayman of the Joplin Police Department, Kimberly Comstock, an employee at the Jasper County Detention Center, and Jhoseli Pedraza, a friend of Relator.
Relator presented evidence from Dr. Kevin Whisman, a licensed psychologist, Alisha Rodriguez, a fellow church member of Relator's family, and Phyllis Sanders, another fellow church member of Relator's family.
April Foulks testified that Relator brought a gun to school and fired a “warning shot” into the ceiling, damaging the school’s cooling system. She testified
that Relator had the intention of actually killing the principal of the school, Steve
Gilbreth.She testified that Relator has no prior experience with the Juvenile Court and that there is no repetitive pattern of delinquent behavior. She did add that the plan to bring the gun to school was made at least a week prior to the alleged incident. She testified that that the results of Relator’s psychological tests showed Relator to be “age appropriate” and that there was
concern regarding his sophistication due to the fact that he liked to play video games with an “M” (Mature) rating. (Exhibit E, p. A59) She added that Relator liked to play with explosives and that he admitted to playing with gun powder “which is not what generally 13 year-old boys do.” (Exhibit E, p. A59)
Foulks then testified as to the availability of options in the juvenile system,
particularly with regards to the Missouri Division of Youth Services (DYS). (Exhibit E, pp. A61-A63) She testified that if Relator was committed to DYS, he would “probably” be sent to Mt. Vernon. (Exhibit E, p. A62) She testified that she had concerns that Relator would be back in the community within a short period of time. (Exhibit E, p. A63) She states that in other serious offenses involving children with weapons, the children have been back into the community within six months. (Exhibit E, p. A63) 13 Foulks then testified that within 48 hours of the alleged incident, she was able to meet with the Jasper County Prosecutor and they came across the dual jurisdiction program.2 (Exhibit E, p. A63) This is a secure facility in Montgomery City where Relator would be housed with other juveniles. (Exhibit E, p. A64) The attorney for the juvenile office, Joe Hensley, then asked the Juvenile Court to admit the juvenile officer’s report into evidence. (Exhibit E, p. A67) The report was admitted with no objection. (Exhibit E, p. A67) Foulks’ report gives a timeline of events that starts in May, 2006 and ends with the alleged events of October 9, 2006. (Exhibit E, pp. A676-A678) In particular, the report states that the principal, Steve Gilbreth, stated that Relator “tried many times to pull the trigger.” (Exhibit V, p. A677) The report also states that Relator tried to escape from the juvenile detention center. (Exhibit V, p. A677) The report does not discuss any efforts made to find a suitable placement for Relator in the juvenile system. (Exhibit V, pp. A676-A678)
On cross-examination, Relator’s attorney asked the juvenile officer if it was true that Relator could be committed to DYS until he was 18. (Exhibit E, p. A69) The juvenile officer testified that this was a possibility. (Exhibit E, p. A69) She added that once a juvenile is committed to DYS, only DYS has a say as to when a juvenile is released into the community. (Exhibit E, p. A69) Even the judge does not have any say. (Exhibit E, p. A69) Foulks then testified, without objection, about a juvenile who had been committed to DYS until the age of 18, but was released into the community despite the request of the Sheriff’s department. (Exhibit E, pp. A69-70) Ms. Foulks added that the programs of DYS last only a year. (Exhibit E, p. A71)
Later on in the cross examination, Lonardo questioned Foulks regarding the alleged
attempted escape and after confirming that Relator did not escape, asked if he realistically could have escaped. (Exhibit E, pp. A76-A78) Foulks agreed that Relator did not escape but testified that she believed it was possible for Relator to have escaped.
Later in the cross-examination, Lonardo questioned Foulks about Relator’s
“fascination” with war (video) games and explosives and how this fascination is more
similar to that of an adult. (Exhibit E, p. A79) Foulks testified that the games, because of their rating, are not appropriate for his age. (Exhibit E, p. A79) She also testified that, based on her experience as a juvenile officer, former police officer, and parent, Relator’s fascination with gun powder was not typical for a juvenile his age. (Exhibit E, pp. A79- A80) All of this testimony was given without any objection from Lonardo. Foulks also testified that she consulted with Dr. Whisman about these issues before she put the information about video games and gun powder in her motion. (Exhibit E, p. A82) Finally, Lonardo questioned Foulks about Relator’s sophistication. (Exhibit E, p. A86) She testified that she sees Relator as an average boy – a 13 year old boy who is about to turn 14. (Exhibit E, p. A86)
15 The next witness that testified for the juvenile office was the school principal, Steve Gilbreth. (Exhibit E, pp. A90-A112) On direct examination, he testified as to the chronology of events. (Exhibit E, pp. A91-A94; A96-A102) Also, he testified that
although he knew Relator was a student, he had had no significant interactions with
Relator. (Exhibit E, p. A95) Mr. Gilbreth testified that when he confronted Relator, his hand was on the trigger and he was making forward motions with the gun. (Exhibit E, pp. A96-A97) When asked if he was pulling the trigger, Mr. Gilbreth testified “I’m
assuming that he was.” (Exhibit E, p. A98) Mr. Gilbreth then testified that he continued to encourage Relator to leave the school as he (Gilbreth) followed him around. (Exhibit E, pp. A98-A101) Again, Mr. Gilbreth was asked if Relator was pulling the trigger at this point. (Exhibit E, p. A102) He testified, “He was making a gesture like that’s what he was doing. I mean he was, yeah.” (Exhibit E, p. A102) Mr. Gilbreth then went on to testify, without objection, about the impact the incident had on other teachers, including one account of a teacher who stated she would retire at the end of the year and how one became very upset when another student mimicked the sound of a gun firing. (Exhibit E, pp. A102-A103)
Upon cross-examination, Mr. Gilbreth was asked, “Did you notice at all that he was
trying to pull the trigger on the gun?” (Exhibit E, p. A104) Mr. Gilbreth responded, “In my mind I knew that –I mean I wouldn’t state that I knew absolutely that he was trying to discharge the weapon, but he was making gestures.” (Exhibit E, p. A104)
Later on in the hearing, Detective Michael Gayman3 testified that Relator told him in
the walkthrough he was trying to pull the trigger when the gun was pointed at the
principal, Steve Gilbreth. (Exhibit E, p. A134) He also testified that his belief that Relator was trying to pull the trigger is solely based on what Relator told him during the walk-through. (Exhibit E, p. A135)
The next witness was Kimberly Comstock, a staff worker at the Jasper County
Juvenile Detention Center. (Exhibit E, p. A138) She testified that she heard Relator
make the comment, “I would have shot him in the head but my fuckin’ gun wouldn’t
shoot.” (Exhibit E, p. A140)
The last witness to testify for the juvenile office was a classmate of Relator named
Jhoseli Pedraza. (Exhibit E, pp. A145-A152)

Relator’s attorney also presented evidence. The main witness was Dr. Kevin
Whisman, a licensed psychologist. (Exhibit E, p. A153) Dr. Whisman testified to a
number of issues, though he never specifically states that Relator was not dangerous, that he could be rehabilitated, and that he did not appreciate the nature of his actions. (See Exhibit S, p. A462) He did testify that he believed Relator’s motivation for the alleged incident to be that he wanted to be expelled from school. (Exhibit E, p. A197) He also testified that Relator’s comment regarding wanting to shoot the principal and would have but for the gun jamming was likely made to “establish his order. To fit in.” (Exhibit E, p. A215)
Regarding Relator’s cognitive abilities, Dr. Whisman testified that Relator’s score on the processing speed scale was in the retarded range. (Exhibit E, p. A174) Dr. Whisman testified that Relator’s reading fluency was at the seventh percentile. (Exhibit E, p. A178) He did state that he felt Thomas did not have the same level of maturity as he has seen in other juveniles, particularly in regard to his cognitive abilities. (Exhibit E, p. A166)
Dr. Whisman testified he never had a conversation with Relator regarding explosives
but did about video games. (Exhibit E, p. A171) When asked if his fascination with ‘M’ rated video games was similar to that of an adult, Dr. Whisman testified, “I don’t know if I could say that.” (Exhibit E, p. A171) Dr. Whisman also testified that he never talked with Relator about gun powder and that he does not recall discussing explosives with Foulks. (Exhibit E, p. A172)

At the end of the hearing, Judge Crawford announced that he was going to certify
Relator. (Exhibit E, p. A223) In particular, Judge Crawford pointed out that the Juvenile Court is not required to give equal weight to each of the listed factors and also that the Juvenile Court is not required to make an express finding on each one. (Exhibit E, pp. A218-A219) Further, Judge Crawford pointed out that the case law specifically indicates that the serious nature of the offense is the dominant criterion. (Exhibit E, p. A219)

Judge Crawford went on to say that the evidence showed that Relator did attempt
to kill the principal Steve Gilbreth, and did make several attempts to pull the trigger.
(Exhibit E, p. A221) Judge Crawford also stated he had probable cause to believe that
Relator had the intention of harming other students. (Exhibit E, p. A221)
He later added that there are not tools within the juvenile justice system to deal with the violence demonstrated in this case. (Exhibit E, p. A222) Next, he stated that the evidence showed the incident had traumatized other students and faculty. (Exhibit E, p. A221) Finally, Judge Crawford states that Relator could not benefit from any programs available to Relator in the juvenile justice system. (Exhibit E, p. A223) Judge Crawford, concluded that, based on the evidence presented, rehabilitation seemed impossible and that certification was necessary to protect the community. He dismissed the four juvenile petitions and certified Relator to be prosecuted under the general law. (Exhibit K, pp. A480-A487) On the same day, the Jasper County Prosecutor filed a complaint on three charges: 1st Degree Assault; Armed Criminal Action; and, Attempted Escape. (Exhibit N, p. A556) Relator made his initial appearance in adult court on December 14, 2006.
(Exhibit N, p. A555) On January 3, 2007, the Honorable Richard Copeland set a
preliminary hearing for January 17, 2007. (Exhibit N, p. A555)
Two days later, Relator, now represented by the Public Defender's Office, filed a
motion for change of judge pursuant to rule 32.06, and the case was transferred to the Honorable Joseph Schoeberl. (Exhibit N, pp. A554-A555) On January 9, 2007, the
Prosecutor also filed for a change of judge and the case was transferred to the Honorable Stephen Carlton on January 10, 2007. (Exhibit N, p. A554)
On January 10, 2007, Relator filed a Motion to Declare § 211.071 RSMo.
Unconstitutional and Remand Case to Juvenile Court. (Exhibit N, p. A554) On January
11, 2007, Relator filed a Motion to Disqualify the Jasper County Prosecutor's office and appoint a Special Prosecutor. (Exhibit N, p. A554)
On January 30, 2007, a hearing was set for January 31, 2007 in front of Judge Carlton. (Exhibit N, p. A554) At this hearing, Judge Carlton set a preliminary hearing for February 26, 2007. (Exhibit N, p. A554)

On February 26, 2007, the State filed two additional charges: 1st Degree Assault and
Unlawful Use of a Weapon, counts four and five respectively. (Exhibit N, p. A553;
A556) and the preliminary hearing was rescheduled for March 5, 2007. (Exhibit N, p.
A553) On February 26, 2007, the Missouri Court of Appeals, Southern District, denied
Relator's petition for a Writ of Prohibition in case SD28298. (Exhibit N, p. A553) On
March 5, 2007, this Court declined Relator's petition for a Writ of Prohibition in case SC88350. (Exhibit N, p. A552) These petitions focused primarily on the constitutionality

The record is silent on this part, but counsel can attest that Judge Carlton did not feel he had the authority to rule on the motion to remand or to disqualify the prosecutor of certification per se and the constitutionality of § 211.071 RSMo. In addition, the preliminary hearing was held and Relator was bound over on all five counts and his case was assigned to Respondent. (Exhibit N, p. A552)

On March 9, Relator was arraigned in front of Respondent. (Exhibit O, p. A570)
Relator filed an objection to the information filed by the Jasper County Prosecuting
Attorney’s office. (Exhibit O, p. A570) A motion hearing was set for March 23, 2007
and was then rescheduled for April 20, 2007. (Exhibit O, pp. A569-A570) On April 20,
2007 a hearing to remand the case to Juvenile Court was set for June 15, 2007. On June 8, 2007, Relator filed a Second Amended Objection to the Information. (Exhibit F, pp. A225-A292) On June 14, 2007, the State filed a response to the objection to the information. (Exhibit Y, pp. A684-A685) On June 15, 2007, a hearing was held on the issue to remand. (Exhibit G, pp. A293-A386) Respondent allowed Relator to present
testimony from Vince Hillyer, the President of Boys and Girls Town of Missouri
(BGTM). (Exhibit G, pp. A305-A322) In addition to being the President of BGTM, Mr.
Hillyer is a licensed clinical therapist with a Masters Degree in Social Work. (Exhibit G, p. A307) In both his capacity as a social worker and as the President of BGTM, Mr. Hillyer testified that he had reviewed Relator’s application and had met with Relator, and decided to accept him. (Exhibit G, pp. A308-A309) Relator can stay at BGTM until he is 21.5 (Exhibit G, p. A313) Mr. Hillyer also testified that he “didn’t see Relator as child beyond reproach” and is “extremely amenable to treatment.” (Exhibit G, p. A311) Mr. Hillyer testified that BGTM is a suitable facility for Relator. (Exhibit G, pp. A311-312)
He did testify that it wasn’t a secured facility but it was in a rural area. (Exhibit G, p. A312) He also testified that the buildings are locked. (Exhibit G, p. A312)
Mr. Hillyer then testified that BGTM is accredited by the Missouri Division of Youth
Services (DYS) and that BGTM has the only contract with DYS for juveniles adjudicated
in Juvenile Court. (Exhibit G, p. A312) He testified that at any given time, there are 20 to 30 juveniles at BGTM who are in the custody of DYS. (Exhibit G, p. A313) He also testified that Relator could attend DYS first and then attend BGTM. (Exhibit G, p. A313)
Mr. Hillyer testified that BGTM has successfully treated juveniles who have brought
guns to school. (Exhibit G, p. A314) Mr. Hillyer then gave a specific example in which someone was actually hurt and how this juvenile has been successful. (Exhibit G, p. A316) Mr. Hillyer lives on the BGTM campus and does not believe Relator to have a violent nature that would put his own children at risk. (Exhibit G, p. A314) Mr. Hillyer testified that juveniles can be held accountable for their actions without being given a criminal record. (Exhibit G, p. A315)
5 § 211.041 RSMo. allows a juvenile under the juvenile court’s jurisdiction to remain
there until he reaches the age of 21.

The State then questioned Mr. Hillyer. (Exhibit G, pp. A316-321) It asked if Mr.
Hillyer was aware of the allegation of attempted escape. (Exhibit G, pp. A317-318) Mr. Hillyer said he was. (Exhibit G, p. A318) The State then asked if he was aware that Relator was not asserting that he had a mental disease or defect that affected his mental state. (Exhibit G, p. A318) Mr. Hillyer said that he was not. (Exhibit G, p. A318) The State asked if that had any bearing on his decision. (Exhibit G, p. A318) Mr. Hillyer said that it did not. (Exhibit G, p. A318) The Court then asked Relator’s attorney to ask Mr. Hillyer about whether Relator could attend BGTM if he had a felony. (Exhibit G, p. A321) Mr. Hillyer said he could with a court order. (Exhibit A, pp. 321-322) The hearing was then deferred until the afternoon. (Exhibit G, p. A322)

In the afternoon, Respondent stated that he did not feel that Mr. Hillyer’s testimony
was relevant and required Relator to argue the Second Amended Objection to the
Information and to make an offer of proof as to what Relator’s other witnesses would say, so the Court could determine if the testimony of any further witnesses was relevant.
(Exhibit G, pp. A324-A325)

Relator then made his offer of proof by paraphrasing from the Second Amended
Objection to the Information. (Exhibit F, pp. A225-A292.; (Exhibit G, pp. A325-370)
Included were the allegations of Mr. Lonardo’s ineffective assistance of counsel.
(Exhibit, pp. A354-A360) He also paraphrased what he believed Dr. Whisman, Dr.
Stephen Peterson, and Sue Kidd what have testified to. (Exhibit G, pp. A329-A330;
23 A334-A335; A356-A358 ) At the end of this hearing, Respondent gave Relator three
more weeks to come up with any additional arguments. (Exhibit G, p. A385)
On July 6, 2007, Relator filed these additional arguments (Exhibit H, pp. A387-A407)
and requested a continuance to depose certain witnesses he had intended to present on
June 15, 2007. (Exhibit I, pp. A437-A438) This was granted (Exhibit O, A438).
Relator deposed three witnesses: 1) Charles Lonardo, Relator’s attorney in Juvenile
Court; (Exhibit A, pp. A1-A23) 2) Sue Kidd, the Service Coordinator Supervisor for
DYS; (Exhibit B, pp. A24-A32); and 3) Kimberly Comstock, a staff member in the
Jasper County Juvenile Detention Center. (Exhibit C, pp. A33-A44).
During his deposition, Charles Lonardo, whose practice typically focuses on
bankruptcy, family law – divorce, adoption, juvenile status - admits that this was his first certification hearing but that he did little, if any, research on the case law, nor did he review all of the relevant statutes. (Exhibit A, p. A5) He stated that he was not familiar with Kent v. United States, 383 U.S. 541 (1966) and though he had read In re Gault, 387 U.S. 1 (1967), in law school, he did not review it while representing Relator. (Exhibit A, P. A5) He believed that all of the statutory factors had to be considered by the Juvenile Court judge and that they all had equal weight. (Exhibit A, p. A12) He also stated that he thought all that was necessary was to show, by a preponderance of the factors, that certification was not appropriate. (Exhibit A, p. A6 & A12) In addition, he focused on Relator’s lack of sophistication and maturity. (Exhibit A, p. A9) Also, he stated that he wanted to show the Court that Relator was not a danger, was likely to not reoffend, and could be rehabilitated. (Exhibit A, p. A10)
He stated that he thought that since this was a juvenile hearing, all evidence was
admissible. (Exhibit A, p. A14) He also stated that he believed that a certification order was a final order for purposes of appeal. (Exhibit A, p. A6) He also acknowledged that he did not investigate alternatives to certification and never thought about it. (Exhibit A, p. A9) He stated he did call a DYS representative to testify regarding its programs since he did not think of it and that he had a “hunch” as to what a DYS representative would have said. (Exhibit A, p. A14) In addition, he stated it was his experience that juveniles committed to DYS were back in the community within a year. (Exhibit A, p. A8) Mr. Lonardo stated that he was not aware if Relator’s case was a case where it would be
possible for him to remain in DYS custody until he is 21. (Exhibit A, p. A8) Mr.
Lonardo also stated that the facts of this case have never been in dispute and that he allowed his client to make statements about the incident without any kind of agreement in place. (Exhibit A, pp. A7-8; p. A14) He stated that he did not think Norman Rouse’s treatment of Relator was inappropriate and that is what he would have done. (Exhibit A,
p. A14) Mr. Lonardo also stated that he was a product of his upbringing and that he
believed you have to confront kids when they are in trouble, and that is what he felt
Norman Rouse was doing. (Exhibit A, p. A14) Mr. Lonardo also reiterated that the facts were not in dispute. (Exhibit A, p. A14) Finally, Mr. Lonardo stated he did not believe the interrogation led to a false confession. (Exhibit A, p. A15)

(Photo by Ron Graber)

1 comment:

Anonymous said...

They can do all this crap over and over again, but it keeps him in the jail longer and that works for me. As long as he is locked away, the kids and teachers in the community are safe. I have no doubt that he would attempt to finish what he started. Especially since some are telling him that he was the "victim" in his attempt to kill others.