In Franklin Co., a murder charge shines light on the issue of prosecutorial discretion

An interview with The Appeal's Joshua Vaughn

  • Joseph Darius Jaafari/PA Post
Good morning, Context readers. Today, we’re diving into a controversial case that has captured media attention across the nation. It involves two kids’ game of “cops and robbers” that turned deadly. We’re also going into updates into coronavirus coverage, but with a heavy emphasis on where you get your news, and how to be cautious of what you see on the internet. Send us your thoughts in our Listening Post. We love hearing from you. —Joseph Darius Jaafari, staff writer

Via Creative Commons

The Franklin County Courthouse in Chambersburg, Pa.

Two weeks ago, a tragedy in Waynesboro became the focus of national attention. It involved a 13-year-old boy who shot and killed his brother during a game of “cops and robbers.” The teenager was charged with criminal homicide, a charge that covers crimes ranging from involuntary manslaughter to first degree homicide.

The charge is being criticized by criminal justice reform groups that say Franklin County District Attorney Matt Fogal should use his discretion to charge the minor with a less serious offense. But Fogal and the Pennsylvania State Police say their hands are tied by a law forged in the mid-1990s by the Pennsylvania legislature that requires all murder cases – regardless of age – be tried in adult court.

But the prosecutor – who has been the focus of Philadelphia Inquirer profile as well as New York Times story that both quote him as being sympathetic to the Black Lives Matter movement and the campaign for criminal justice reform – can indeed file a lesser charge against the minor in this case, reports Joshua Vaughn with The Appeal.

I spoke with Josh about his story. Below is an edited version of our conversation:

Joseph: Why did this case draw your attention?

Josh: First off, this happened two blocks away from where I used to live. But what drew me to it as far as a news item is the boy’s age. He’s 13, and we’re putting him into the adult system. Not only into the adult system, but also charging him with one of the most severe crimes for anything we have on the books, and we’re incarcerating him without bail. All of these things are adult consequences, and we’re leveling them onto a 13-year-old.

Joseph: The U.S. Supreme Court has said juveniles don’t comprehend their actions in the same way as adults, to the point where there have been at least three rulings that have limited juvenile sentences for severe crimes. What’s been the shift in how we treat juveniles?

Josh: When we began developing the idea of the juvenile justice system in the early 20th century, there was an understanding that children weren’t just small adults. There was an understanding that when children act out in a way we consider to be delinquent, part of that is a societal failure, that there was something missing in that child’s life that needed to be addressed. As crime rose in the 1970s into the ‘90s, our approach changed to “get tough” and a mindset of “adult time for adult crimes.” The thought was that if you’re committing a crime, you’re developmentally ready to be held accountable. And the reality is that’s just not the case.

Joseph: What do you mean by that?

Josh: A juvenile acting out in violent ways is probably a sign that the young person is, in fact, not as mature as we want them to be and not understanding the repercussions of their actions. A 13-year-old does not have the same level of impulse control as a 30-year-old. Children sometimes do awful, terrible, tragic things, but they’re different people years later. And the Supreme Court recognized that.

Joseph: Pennsylvania law requires children to be charged as adults with certain crimes. Isn’t Franklin County’s district attorney just following the law?

Josh:  Kinda. The way the law is written is that there is no juvenile jurisdiction for certain crimes, such as rape or murder. Once someone is charged with those offenses, there’s not a whole lot that can be done by the prosecutor. But that’s all after the charges are filed. There is nothing saying in a case like this what prosecutors must file. The charge is completely at their discretion.

Joseph: Do you have examples of prosecutors exercising their discretion?

Josh: Yes. In Franklin County, in fact. In 2011, a 10-year-old girl was accused of shaking a baby, resulting in the baby’s death. District Attorney Matt Fogal charged the girl with murder, but the charged was 3rd degree murder – a bailable offense. And though it was charged in adult court, Fogal said he wouldn’t oppose moving the case over to juvenile proceedings. In the new case involving the 13 year old, Fogal chose the criminal homicide charge. If the prosecutor chose manslaughter, the teen’s case would’ve been sent to juvenile court. If a 3rd degree murder charge had been filed, the teen would’ve been eligible for release on bail. But Fogal is saying he had no choice.

Joseph: So, Fogal isn’t being honest in saying that his hands are tied.

Josh: The direct file certainly creates lots of limitations to how things are done, but to sit and say that everyone’s hands are tied in a case like this is just wrong. They have discretion. They could have done something different, but they didn’t.

Joseph: Fogal has been on record supporting the Black Lives Matter movement. Does that support square with his charging decision in this case?

Josh: The boy was white, so we’re certainly not talking about the BLM issue, as far as race is concerned. But a big part of the conversation right now is at least asking actors within the criminal justice system to use discretion and to explain their actions. Where I think this case matters as far as the context with BLM is that prosecutors have used this law overwhelmingly against Black children. In 2017, charging records showed 460 children were charged in adult court, and 70 percent were Black children. Black children are 10-12 times more likely to be charged as an adult in Pennsylvania. These decisions are heavily affecting Black children, even if in this case it is not a Black child who is the focus of it.

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Chambersburg post office.

Brett Sholtis / WITF

Chambersburg post office.

  • Refusing to wear masks: What started as a post online about a customer at a postal worker asking a federal worker to wear a mask has turned into a local culture war about the science of masks. Without federal guidance or leadership on enforcing and mandating masks, the politicization is putting people’s lives at risk, reports WITF’s Brett Sholtis, who went into a postal office in Chambersburg and found a handful of confrontational employees refusing to wear masks. Making it worse? The county representative, Doug Mastriano, openly flouts the rules and science.

  • Rumors abound: Last week, I saw people posting online that they “knew someone” who registered to get a COVID-19 test, didn’t end up going and still got a positive test result in the mail. It seemed ridiculous, but, if true, it would be an insane boosting of COVID-19 case numbers. I reached out to 30 people who posted the same story, talked to 20 of them, and none could come up with the names of these friends or relatives. It’s hard to debunk rumors without proof, and the story has taken on its own life, spreading online – internationally – without any kind of verification. I’m hesitant to label this a complete farce, because otherwise reliable people are saying they have spoken to loved ones who are making the claims. So far, three different news outlets have attempted to verify or debunk the claims but have come up with nothing. As an editor for San Angelo (Texas) LIVE wrote, “For now, and unless anyone comes forward with a credible account of authorities informing he or she tested COVID-19 positive but that person had never been swabbed for a test, this is nothing more than a Facebook rumor. We have no reason not to trust the COVID-19 test results issued by county health authorities.”

  • Fake news: Again, adding fuel to the misinformation fire, actual fake news outlets are posing as regular news sites to spread unverified information related to the coronavirus. Pennsylvania Breaking News, a self-described conservative website, made claims of reports that six counties are moving into the red phase. The story was widely shared online. To be clear: this is untrue. So, what makes a news site legitimate? And how do you know what you’re reading is true? For one, do you know who is writing the content? What are their editorial guidelines? What are their correction guidelines? What are their ethics? Pennsylvania Breaking News has none of those listed. A similar site with a similar name, South Carolina Breaking News, was removed for posting fake news articles, as well. Be wary – and smart – with your news consumption, Contexters.

  • Vote safe: The November election will be here sooner than we think. With the coronavirus expected to remain a problem into 2021, a bipartisan coalition is already working to inform voters about their options for casting a ballot by mail in the general election. VoteSafe Pennsylvania is launching a statewide educational campaign today, an effort backed by all five living former governors of the state. For details, go to pa.votesafe.us.

  • Against transparency? Gov. Tom Wolf plans to veto a bill that passed the legislature unanimously, setting up what is likely to be the first override of a Wolf veto. The bill in question is fairly straightforward — in times of emergencies, like the coronavirus, state agencies should still endeavor to fulfill requests for information filed under Pa.’s Right to Know Act. Ben Pontz breaks down the issue here.

  • This is winning? Besides being barred from traveling to Europe, Oceania and Asian countries, you can now add the Bahamas to the list of places Americans aren’t allowed to travel. The United States’s poor handling of the epidemic, mixed with an exceptionally American problem of denying the science around wearing masks, demoted the U.S. passport from one of the more powerful passports (with access to 185 countries Visa-free) in the world to having nearly the same access as Mexico and Uruguay, according to the Henley Passport Index.

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