NEW HOPE FOR JUSTICE

7. December 2008 by Rev Young.

As we gain ground in reforming juvenile justice policies, there seems to be another movement growing.  This movement is seeking to install practices and guidelines that would hold the criminal justice system accountable for their actions to prevent the wrongful incarceration of innocent people.  It will also, as a byproduct, keep our criminal justice system from stepping on the civil and constitutional rights of the accused insuring them of a fair trial and fair sentencing practices.  While this seems idealistic at the present time, I believe we will see sweeping changes as a result of diligent advocates, very public mishandling of cases (as is very evident with the 8 year old Arizona boy) and attorney’s who are willing to challenge our current system.  If you have not read the post at “Free Jonny”, please do so.  Justice Fellowship has joined forces with the Innocence Project to begin a movement in our country toward better prosecutorial practices.  Follow this link http://s246427087.onlinehome.us/freejonny/ .  You can also view the 48 HOURS Mystery program on Tim Masters (wrongfully accused and freed after 10 years) on the web.

However, even passed the incarceration of the innocent,  comes the question of the protection of rights.  If the rights of the accused are not protected they will not receive a fair trial, will receive exaggerated sentences, and spend years trying to undo the injustice through appellate courts.  Nathan Yabanez had no one looking out for him, no one defending him and consequently he lost his life to prison.  Now, through the appeals process, his current attorney is trying to undo the damage.  Read On……..

Making another bid for justice

New trial sought for teen convicted of killing mother

By Sue Lindsay, Rocky Mountain News (Contact)

Published December 6, 2008 at 12:05 a.m.
Updated December 6, 2008 at 1:35 a.m.

Text size  

• 0 Comments
• Email
• Print

Ybanez, 27, may get another chance for trial in mom’s death.

More Local News

• 9News Parade of Lights rolls out on chilly Denver evening
• Driver charged in death
• Teen sentenced for school blaze

More stories »

Ten years ago, 17-year-old Nathan Ybanez was convicted of murdering his mother.

His trial in Douglas County was remarkable for its brevity. It took three days from jury selection to conviction and sentence of life in prison without parole.

The trial was also remarkable because Ybanez’s attorney - hired by the teen’s father - never appealed the conviction. Appeals of murder convictions are almost always filed.

Now, another attorney, Michael Gallagher, is working to get Ybanez a fresh shot at justice, based on evidence suggesting Ybanez was physically, sexually and psychologically abused by his parents for years - evidence that was never presented at his trial.

“Nathan’s attorney called no witnesses,” Gallagher argued in his motion for a retrial. “He presented no evidence. He failed to cross-examine Nathan’s father, who retained him, about the abusive home environment.”

The reason, suggested Gallagher, was the attorney’s inherent conflict of interest.

“Simply put, Nathan could not be defended by an attorney hired by Nathan’s abusive father because that abuse was the heart of Nathan’s defense.”

Last month, a weeklong hearing on the motion for retrial was set to take place.

But an eleventh-hour move by prosecutors seeking more information about the sex abuse claims derailed that hearing until next year.

On Nov. 14, Ybanez observed his 27th birthday in a prison cell. Without extraordinary luck and the kindness of strangers, it’s where he’ll die.

No mention of abuse

Sixteen-year-old Nathan Ybanez was arrested early June 6, 1998, as he was dumping his dead mother’s body, rolled up in a blood-soaked rug, in Daniels Park near Sedalia.

Julie Ybanez, 43, was at her townhome in Douglas County the day before when she was clubbed and strangled with fireplace tongs.

Ybanez told police he was in the middle of a heated argument with his mother when he picked up the tongs and hit her in the head.

Ybanez and his friend Erik Jensen, then 17, were charged and later convicted of her murder in separate trials.

Ybanez’s father, Roger Ybanez, hired high-profile Denver lawyer Craig Truman for $90,000 plus costs and wound up paying him $30,000, according to court records.

Although the prosecution turned over interviews and social services records that indicated a history of physical and verbal abuse, this wasn’t investigated or mentioned in the teen’s defense, Gallagher said in his motion for a new trial.

“His attorney failed to develop or present any defense at all,” Gallagher said.

But prosecutors say Ybanez’s current defense team is merely taking issue with the defense strategy Truman chose in the face of overwhelming evidence of his client’s guilt.

Truman’s strategy

Truman is a criminal defense lawyer who has represented thousands of clients during more than 30 years of practice.

Prosecutors say Truman chose not to open the can of worms of abuse in the Ybanez home because that defense would have supplied a motive for first-degree murder. Instead, Truman argued that Ybanez’s friend Jensen strangled Julie Ybanez and was the dominant figure in the murder.

“It was against all this evidence that Mr. Truman had to work against,” prosecutor Derry Rice said in his response to Gallagher’s motion for a new trial. “Mr. Truman decided the best he could hope for was to create credibility with the jury and hope they would accept his argument that this was second-degree murder, not first-degree murder.”

Rice, Gallagher and Truman declined to discuss the case.

Gallagher also wouldn’t allow Nathan Ybanez to be interviewed for this story; however, the Rocky Mountain Newshas interviewed Ybanez twice on previous occasions.

Roger Ybanez has admitted losing his temper with his son several times during the year before his wife was murdered but flatly denies any sexual abuse. He declined to comment further for this story.

Gallagher said the financing of Ybanez’s appeal is confidential, but other sources said contributions came in after the Ybanez case received national publicity, including a story in Rolling Stone magazine.

Gallagher is asking the court to grant Ybanez a new trial, allow an appeal of his conviction or rule that his sentence to life without parole is unconstitutional. The district attorney’s office contends that Ybanez is entitled to none of these.

“The evidence against the defendant was overwhelming,” Rice wrote. “The evidence showed he killed her because she tried to keep him from using drugs, getting bad grades in school and from hanging around friends who affected his behavior adversely. He killed her because she wanted to send him to a military school to get him away from these negative influences.”

But Gallagher maintains the jury needed to hear about the abuse Ybanez suffered that was central to his defense.

Evidence of abuse is commonly presented as a defense in murder cases. Nathan Thill, for example, convicted of killing one person and wounding another at a Denver bus stop in 1997, presented evidence of severe childhood abuse and mental health problems. It was enough to keep a jury from being able to reach a verdict in his murder trial, and spared him a possible death sentence.

Ran away repeatedly

The abusive home Ybanez grew up in was no secret to his close friends and their parents, who had reported problems to social services, school counselors and police.

Friends told police that Ybanez’s father beat him and that the teen kept a bat in his room for protection, according to court records. Friends said that Ybanez’s mother was obsessively controlling and verbally abusive.

Eric Jensen’s parents had tried to help Ybanez and were among those who reported the abuse. Social services did nothing and police sent him back home, said Pat Jensen.

“The police became an active participant in sending him back to the torture chamber where the same thing happens all over again,” she said.

Ybanez had run away from home repeatedly, once appearing on on a friend’s doorstep in the middle of the night in 1997, barefoot, in his underwear with a rock in his hand.

He said he had fled his home after his father went on a rampage, and he carried the rock for self-defense in case his father found him.

Ybanez called police and asked them to find another place for him to live in August 1997, refusing to say why he had run away but telling them he was “unable to live at home with his parents.” The police report states that “Nathan requested social services be contacted for relocation, unable to function at home.”

Ybanez told social services that his “dad tried to strangle him” and he was “afraid to go home.” But he was returned home to his parents.

The jury in Nathan Ybanez’s murder trial heard none of this.

In his opening statement during the trial, Truman told the jury Ybanez’s parents disciplined him “out of love” and concern for his future. He said the teen’s friends and their parents had wrongly characterized their actions as abuse.

When Ybanez’s father testified as a prosecution witness, Truman didn’t cross-examine him about the abuse, instead allowing Roger Ybanez to establish that his son grew up in a loving home, Gallagher said.

During his closing argument, Truman agreed with prosecutors that perhaps there was a “hole” in his client’s soul, Gallagher said.

‘Better off in prison’

The first time Ybanez spoke publicly of the alleged abuse was during his testimony in Jensen’s sentence reconsideration hearing in 2005.

He described being beaten by his father on numerous occasions and being hit with wooden spoons by his mother when he was very young.

He described one night that his father threw him against the wall and began choking him.Ybanez said he was scared of his father.

“Because you never know what would upset him and it was always something usually small that you never would have thought and when he was upset, you never were certain what would happen,” he said.

Ybanez also first described a number of incidents of sexual abuse by his parents during this hearing.

“When he testified at (Jensen’s reconsideration hearing), all this all came pouring out of him in the courtroom,” said Jeff Pagliuca, Jensen’s defense attorney.

“There is no doubt in my mind that this kid was significantly traumatized and that led to the whole thing,” Pagliuca said.Ybanez was not examined by a clinical or forensic psychologist or psychiatrist before his murder trial, Gallagher said. Only a battery of basic psychological tests was performed, he said.

Gallagher contends that Ybanez’s case “is a test of the integrity of our judicial system.”

He argues that Nathan Ybanez needed to be advised of his attorney’s conflict of interest and needed to waive it if he wanted a lawyer hired by his father to represent him.

Truman was hamstrung because of the conflict, Gallagher contends, and failed to present the abuse evidence that could have persuaded a jury to reject a first-degree murder conviction.

In addition to contending that his defense attorney failed him, Gallagher also argues that the sentence Ybanez received is unconstitutionally harsh.

Since Ybanez was convicted, Colorado law has been changed so that juveniles convicted of murder as adults can no longer be sentenced to life in prison without parole.

What’s next?

* A five-day hearing on the motion for a new trial or reconsideration of sentence is set to begin Feb. 23.

The Ybanez case

* August and September 1997: First police reports that Nathan Ybanez has run away from home.

* Jan. 31, 1998: Roger Ybanez asks police for assistance in taking Nathan Ybanez to military school.

* March 18, 1998: Another runaway report.

* June 5, 1998: Nathan Ybanez kills Julie Ybanez at their townhome. Erik Jensen is present.

* June 6, 1998: Nathan Ybanez is arrested dumping his mother’s body in Daniels Park.

* Oct. 18, 1999: Ybanez’s trial begins with jury selection in Douglas County District Court.

* Oct. 21, 1999: Ybanez is convicted of first-degree murder and sentenced to life in prison without parole.

* February 2005: Ybanez testifies in the sentence reconsideration hearing for his friend and co-defendant Erik Jensen.

* September 2005: Ybanez’s case is featured in a four-part series by the Rocky Mountain News on juveniles serving life prison terms without possibility of parole.

* Aug. 24, 2007: Motion filed for a new trial or sentence reconsideration in the Nathan Ybanez case.

Posted in Legal News, Juvenile Reform Advocates | Print | No Comments »