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"The fundamental flaw in the defense of Erik's case was nobody took a look at the Nate Ybanez child-abuse issue," says Jeff Pagliuca, Erik's current attorney. "That's what I'm most critical about. It's almost intuitive that kids don't kill their parents, sons don't kill their mothers, unless there's something substantially wrong in the family. That's a defense. That's a good defense for both of these kids to the charge of first-degree murder. Nobody investigated that at all, and that's really tragic because that's really the defense here."
At Erik's trial, his attorney hadn't cross-examined Roger or Julie's mother when they painted a picture of a glowing church girl for the jury. The possibility of child abuse was never mentioned.
Erik should never have been charged with more than second-degree murder, Pagliuca maintains. And if he'd been convicted of that charge, at least he'd have hope of someday being paroled.
"Erik Jensen could live the rest of his life without committing another crime," Pagliuca says. "He a perfectly decent, nice, normal human being who's grown up a lot in prison, so it's a waste for him to be there."
If the current appeal of Erik's case isn't successful, the Jensens plan to file another. And another. And another -- until the case eventually makes its way into federal court, where Erik thinks he might have the best chance. The Jensens won't quit.
Mary Ellen Johnson, executive director of the Colorado Springs-based Pendulum Foundation, knows where the Jensens are coming from. "All the white, middle-class people whose kids are serving life," she says, "have told me that they said to their kids, ŒJust trust in the justice system and just do what they tell you to do.'"
Johnson got involved in the issue back in 1992, when one of her daughter's classmates killed his parents. She ended up working for his defense, was devastated when he was convicted of first-degree murder and sentenced to life without parole, and went on to join Pendulum, a non-profit juvenile-justice advocacy organization. Her group lists 47 people serving life without parole in Colorado who were sentenced for crimes they committed before they turned eighteen (see sidebar).
"I feel that for some reason in America, there is this thing about our darling kids when they become teenagers, especially boys, that there's this primal fear that we have of them," she says. "So when they do wrong, we're going to punish them and punish them hard."
Johnson isn't opposed to life without parole for everyone convicted of murder. She even contends that some of the juveniles sentenced to life need to stay locked up forever. But people like Erik and Nate can be rehabilitated, she insists.
A bill introduced by state Representative Lynn Hefley last session would have given the system more discretion in dealing with juveniles convicted of first-degree murder. "Some people said, 'They made their bed, let them lie in it.' Well, yeah, on the taxpayers' dollar for the rest of their lives," says the Republican from northern El Paso County. "Some of them can be rehabilitated; other states have proven it. In order to right the wrongs, we have to be educated and pass legislation to change these laws. We have to."
Hefley's proposal was reduced to creating a task force to examine the issue of juvenile justice, and report back to lawmakers. That version of the bill passed, but Governor Bill Owens vetoed it.
"I think there would've been some findings," Hefley says, "and some people were afraid of that."
While her legislation was pending, it caught the attention of the New York-based Human Rights Watch. Of the 41 states that sentence juveniles to life without parole, 27 have mandatory sentences. Of those 27, Colorado was chosen as the focus of "Thrown Away," a Human Rights Watch report on juvies doing lwop.
The U.S. Supreme Court recently determined it is cruel and unusual punishment to execute sixteen- and seventeen-year-olds because teens do not possess the same mental capability as adults. The ruling has no bearing on juveniles doing life without parole, however.
"The reasoning behind the Supreme Court's decision with respect to the death penalty and juveniles has to do with the ultimate human question of the state taking a human life," says Bob Grant, former Adams County DA and now executive director of the Colorado District Attorney's Council. "It doesn't have to do with a life sentence -- whether it's ten, twenty, forty or natural life in prison."
Grant believes mandatory life sentencing for juveniles convicted of first-degree murder is in the best interest of society. "It doesn't matter to the victim, to the deceased, whether the one who pulls the trigger is thirteen or thirty," he notes.
Terrence Johnson, Mary Ellen Johnson's son, is now Nate Ybanez's attorney. He says he plans to file a civil suit against Roger for allegedly abusing his son. Terrence is also handling Nate's 35c, which charges that not only did Nate's original attorney fail to appeal his conviction, but the fact that Roger was paying the lawyer's fee constituted a conflict of interest.
Roger has since remarried and works for a mortgage broker in Dallas. He says he wasn't happy with Nate's defense, either. As for the charges of abuse that Nate made in February, "I don't remember any of that."