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April 28, 2010

Motto asked to reconsider Jordan Brown ruling

Nancy Lowry New Castle News

NEW CASTLE — Defense attorneys are asking Judge Dominick Motto to amend his ruling so they may file an appeal for Jordan Brown.

The 12-year-old Jordan is charged as an adult with two counts of homicide in the deaths of his father’s pregnant fiancee, Kenzie Marie Houk, 26, and their unborn child.

She was shot in the back of the head while in her bed the morning of Feb. 20, 2009.

In a March 29 ruling, Motto, Lawrence County president judge, rejected the defense team’s petition to transfer the case to juvenile court.

Defense attorneys David Acker and Dennis Elisco filed a document late Monday asking the judge to reconsider that decision.

“This would open the door for us to appeal the ruling to Superior Court,” Acker said yesterday. “If the judge will not amend his order, we have 30 days from (his next) ruling to file an appeal before the Superior Court.”

Acker said he takes issue with Motto’s assertion that Jordan, who was 11 at the time of the shooting, is not amenable to juvenile rehabilitation because he has not admitted guilt or taken responsibility for the offense.

Acker and Elisco contend that no Pennsylvania appellate court before trial proceedings has ever addressed whether  a court can consider a child’s failure to admit guilt as a factor in determining whether the child would be responsive to juvenile rehabilitation.

“This issue involves a question regarding the presumption of innocence and the fundamental right against self-incrimination,” the Monday filing said.

The basis of the defense attorney’s argument is that the Nevada Supreme Court recently declared unconstitutional the requirement for a juvenile to incriminate himself to rebut adult certification.

The high court ruling said the presumption violated the Fifth Amendment right against self-incrimination.

“(In this case) the court’s opinion requires the defendant to admit to the charged but unproved criminal action,” the  defense attorneys’ filing states. “Clearly ...there is a substantial ground for difference of opinion.”

Acker and Elisco contend that appealing the judge’s order will move the court process along, “... in that an order of the Superior Court reversing this ... order and transferring the case to juvenile court will avoid the necessity for a jury trial.”

They add that pretrial publicity will be  significantly reduced by concluding the matter.

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