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Judges ponder age as mitigation in murder

An appellate court considers the wisdom of murder charges for kids as they review Lionel Tate's case.

By Associated Press
Published September 3, 2003

WEST PALM BEACH - Appellate judges hearing the case of Lionel Tate, who is serving a life sentence for killing a playmate when he was 12, questioned Tuesday whether some children on trial for murder might be too young to be locked away with no hope of parole.

Tate's attorney, Richard Rosenbaum, argued before the state's 4th District Court of Appeal that the boy was too immature to understand what was at stake when he was on trial for killing 6-year-old Tiffany Eunick in 1999, possibly while imitating the moves of professional wrestlers.

Judge Fred A. Hazouri asked what's to stop state prosecutors from charging a 6-year-old with murder if the child gets angry at a ball game and kills another player with a bat.

"At what point do we say as a society that that is just too young?" Hazouri said.

Assistant Attorney General Debra Rescigno did not address what would be a reasonable age cutoff for a murder conviction. She said Tate's life sentence was deserved because he beat Tiffany Eunick for more than five minutes, strangling her, jumping and stomping on her, and slamming her into a metal pole.

It wasn't "your everyday playground fight," Rescigno said.

But Judge Martha C. Warner also asked what safeguards protect a young child from Florida's broad law that allows any person, regardless of age, to be prosecuted as an adult. Cases involving children are sent to a grand jury, which determines whether the case should proceed, but jury members are told to disregard a person's age, she said.

"There's no discretion exercised at all in this - no societal judgment," Warner said. "Age is not a consideration. That is what was argued through the whole trial."

The three judges noted that Florida has never before sentenced a child so young for murder. Rosenbaum said Tate is the youngest child in the country to be serving a life sentence for murder.

Tate's supporters have taken his case to the pope in Rome, to a United Nations human rights meeting in Geneva and to Tallahassee to plead for clemency. On Tuesday, about 25 people lined the entrance to the courthouse, each holding a sign reading, "This is a child."

The judges asked how Florida's law evolved to include children. The law offers no alternative but a life sentence without parole for a child under 17 convicted of murder. A 17-year-old can receive a death sentence.

Judges have used discretion when sentencing children convicted of lesser crimes.

Earlier this year, two brothers, who were 12 and 13 when they beat their sleeping father to death with a baseball bat, were convicted of second-degree murder in Pensacola. But a judge threw out their convictions and ordered mediation that resulted in both pleading guilty to third-degree murder. Alex King, now 14, is serving seven years, and Derek King, now 15, received eight years.

Two years before, a judge sentenced Nathaniel Brazill to 28 years after he was convicted of second-degree murder for fatally shooting a teacher in a school hallway. The conviction was upheld by the 4th District Court of Appeal in May.

Rosenbaum said Tate can't be compared to Brazill, who was 13 when he killed teacher Barry Grunow, because he had a weapon and intended to do harm, telling another student of his plans before the crime.

He said Tate's actions qualified as "pure accident."

Rescigno said Tate hasn't acted innocent from the start, giving conflicting statements to police and neighbors right after Tiffany died. Nine months later, he said he was imitating professional wrestlers. In March, he changed his story again and said he accidentally killed Tiffany when he jumped on top of her as she lay at the bottom of a staircase while his mother was babysitting. He weighed 160 pounds; Tiffany weighed about 50.

Rescigno said children Tate's age "are cognizant enough to know they're hurting someone and to stop their actions" and that Tiffany "would have been crying out in pain" during a beating that could have lasted 30 minutes. Experts testified at Tate's trial that Tiffany died of a fractured skull and lacerated liver.

Tate and his mother, Kathleen Grossett-Tate, have insisted he never meant to hurt Tiffany and even turned down a plea deal that would have required Tate to serve only three years in a juvenile prison.

Rosenbaum said Tate's refusal of the plea offer shows how "clueless" he was about court proceedings.

His mother said it showed he was innocent and never should have been sent to prison.

"Lionel was 12 years old then, and he was a child. He's now 16 years old and he's still a child, and he was treated more harshly as a child than some adults," said Grossett-Tate, a Florida Highway Patrol trooper. "It was clearly an accident then, and it is still an accident."

[Last modified September 3, 2003, 01:32:04]


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