By Bruce Vielmetti of the Journal Sentinel
May 20, 2011
Omer Ninham was just 14 when he was part of a gang that threw a 13-year-old Hmong boy to his death from the top of a Green Bay parking garage in 1998.
On Friday, the Wisconsin Supreme Court upheld his life-without-parole sentence over arguments that recent U.S. Supreme Court decisions, evolving standards of decency and new science about adolescent brain development demand that Ninham get at least a chance for release later in life.
Justice Annette Ziegler wrote the majority opinion; Chief Justice Shirley Abrahamson dissented, joined by Justice Ann Walsh Bradley.
“Under the circumstances of this case, Ninham’s punishment is severe, but it is not disproportionately so,” Ziegler wrote.
The court refused to find that such a sentence for a 14-year-old is categorically unconstitutional, or that it was unduly harsh and excessive in Ninham’s case, or that he proved that research on adolescent brain development amounts to a new factor that would mandate a resentencing.
Ninham was sentenced in 2000, but in the intervening years, the U.S. Supreme Court has found that the death sentence is cruel and unusual punishment for juveniles, and so is life without parole for juveniles convicted of any crime short of homicide.
Ninham’s attorneys at the Equal Justice Initiative in Alabama tried to extend the latter reasoning to his case because he was only 14 when he killed Zong Vang.
The group has two appeals to the U.S. Supreme Court, but each involves juveniles who received mandatory life without parole terms for lesser roles in less shocking crimes. The judge who sentenced Ninham had discretion to allow the possibility of parole.
Attorney General J.B. Van Hollen, whose office argued in support of the Ninham sentence, said in a news release, “The Supreme Court made a difficult, but correct decision,” and that prosecutors hope the decision will bring some relief to Vang’s family.
Michael O’Hear, a Marquette law professor and expert in sentencing rules and policy, quickly posted an analysis of the decision on his Life Sentences Blog.
In an email interview, O’Hear said the U.S. Supreme Court decision on life without parole for youth, Graham vs. Florida, left a lot of questions unanswered.
“Ninham clearly could have come out the other way, but it’s hard to say that the Wisconsin court acted contrary to Graham when Graham was so ambiguous. Ninham would be a very good case for the U.S. Supreme Court to take up in order to clarify what it was trying to do in Graham.”
Bryan Stevenson, director of the Equal Justice Initiative who argued Ninham’s case, said he will appeal to the U.S. Supreme Court.
“To say there is no chance for hope, redemption and rehabilitation for a 14-year-old is incompatible with what we know,” he said, noting that in many other areas, Wisconsin law contains special protections for young teens.
“There is no reason not to in the criminal justice context,” he said.
Stevenson tried to argue that a “national consensus” has emerged against life without parole for 14-year-olds, in part because only 18 states have imposed such sentences for only 73 such teens, according to court records.
The court noted, however, that the sentence is rarely imposed because 14-year-olds so rarely commit the kind of “horrific and senseless” homicide for which Ninham was convicted.
The law that allowed Ninham to be tried and convicted as an adult, and sentenced to Wisconsin’s harshest penalty, came as a result of outrage over the fate of an earlier 14-year-old killer. In 1983, Peter Zimmer killed his adoptive parents and brother in Mineral Point but could only be found delinquent and held until he turned 19, when he was released with a new name and a plane ticket to Florida.
The Journal Sentinel chronicled what became of Zimmer last year in “A teen killer’s dark secret.”
After years of getting tough on juvenile criminals, the justice system has felt increasing pressure from advocates to swing the pendulum back a bit toward more leniency and second chances. But courts have a hard time in the worst cases, such as Ninham’s.
“We describe the facts of this case with an understanding that this horrific and senseless crime cannot adequately be reduced into words,” Zeigler wrote.
Bullying turned fatal
Ninham and four other juveniles spotted Vang, whom they didn’t know, riding his bike in Green Bay. Richard Crapeau, 13, threw Vang off his bike, and Ninham punched him in the face. Then the group chased Vang up a five-story parking garage near St. Vincent Hospital and cornered him on the roof. Ninham and Crapeau grabbed Vang and swung him over the edge. At the urging of the three others, they let him go and Vang fell to his death.
While Ninham was awaiting trial, he threatened to kill a judge and to rape and kill friends who had talked to police about the crime, and even through his sentencing date denied any involvement in the crime.
A jury convicted Ninham of first-degree intentional homicide.
Crapeau was also convicted and sentenced to life, but with the possibility of parole after serving 50 years.
The Milwaukee Journal Sentinel’s outstanding coverage of this teen killer earned the newspaper NOVJL’s first ever journalism award.
Violent incidents, light punishment started early for slaying suspect
SUSPECT: Markus Evans, 18, accused in the killing of Jonoshia Alexander and the shooting of Corey Daniels, has been involved in violent incidents since age 7.
By John Diedrich of the Journal Sentinel, May 28, 2011
Markus Evans, 18, has a violent history that began when he was in kindergarten. He was arrested 10 times before he was old enough to drive. He shot his cousin in the back at a family party in Gordon Park and received 14 months in juvenile prison. He is charged with shooting Jonoshia Alexander to death in December.
The Journal Sentinel has identified a series of cases in which defendants eluded justice because of breakdowns in the system:
Antoine Drew Jr. admitted to armed robbery, but a judge stayed his prison term and let him back on the street because he had a record free of convictions and knew his victim. Drew’s accomplice, Harold Cropp, received no prison time after he agreed to testify. After his release, Drew killed a man in another robbery and was convicted of felony murder. He received 18 years in prison.
Armando Barragan, an indicted Latin Kings leader, was investigated for six homicides or attempted homicides by the time he was 18. A juvenile court judge gave him a stayed sentence for shooting at a van full of people, allowing him to remain on the street, where he is accused of ordering an execution. Authorities later missed a chance to arrest Barragan because of communication failures and a miscalculation by law enforcement. Barragan was charged with aiding a felon and was cooperating with state authorities about a homicide while federal authorities were investigating him for a racketeering case. He remains at large and is believed to be in Mexico.
LZ Jolly, a purported gang leader, was charged in the execution of a man and was on the run for years. Jolly ended up with probation after many witnesses changed their stories.
Michael Lock, who ran a vicious and diversified criminal operation in Milwaukee, used his role as an informant to take out drug-dealing competitors and expand his illicit enterprises before he was ultimately brought down.
The Journal Sentinel has identified a series of cases in which defendants eluded justice because of failures in the system.
Markus Evans stabbed his teacher with a pencil in kindergarten. He was arrested at age 7 and again at 9 for felony battery to a school employee. There would be 10 arrests in all. At 14, he went after a high school safety aide with an iron rod. A few months later, a relative said, he shot and wounded another teenager.
At 15, Evans blasted his cousin in the back with a shotgun at Gordon Park. The cousin survived and begged prosecutors to get Evans moved to adult court, predicting his next victim wouldn’t be so lucky.
Two years later almost to the day – free once again – Evans pointed a shotgun at the back of Jonoshia Alexander’s head and killed the 17-year-old on her way home from Bay View High School, prosecutors say.
Evans is the latest violent offender able to elude justice time and again because of leniency from a parent, prosecutors and judges, miscalculations by law enforcement and poor communication between authorities, a Journal Sentinel investigation has found.
At Jonoshia’s funeral, the wounded cousin, Corey Daniels, asked mourners how someone with Evans’ history of violence could be locked up for little more than a year after shooting him in the back.
The complex answer lies in a juvenile justice system designed to rehabilitate offenders who are willing to change but ill equipped to constrain those who are not. An examination of Evans’ records reveals a system of second chances offering little more than speed bumps for an increasingly brazen predator.
Prosecutors, probation workers and judges ratcheted up their responses bit by bit, failing to recognize Evans’ full-bore criminal behavior.
The newspaper found Evans got many breaks along the way. Prosecutors offered a plea deal that kept him out of juvenile prison; police didn’t lock him up when they could have; probation workers didn’t report violations; and a judge sentenced him to 40% less time than she could have for shooting Daniels – letting Evans walk free by December, when Jonoshia was killed.
Evans’ case is unusual because he was just 7 at his first arrest, but children’s court veterans say it highlights all-too-common failures of the system to identify and restrain the most dangerous young offenders.
“When you look at this case, it just says there ought to be a hell of a lot of more communication with those who interact with those kids – schools, cops, probation, prosecutors – everyone,” said retired Judge Michael Malmstadt, who served 13 years in children’s court but did not handle any of Evans’ cases . “Looking back at it, this kid raised an awful lot of warning signs.”
Evans, 18, is now in the adult court system. He faces life in prison if convicted of killing Jonoshia.
Prosecutors say Evans is faking mental illness in hopes of avoiding prison; they point to prison phone calls in which he lucidly suggests as much. He has acted up repeatedly and violently in court. A judge ruled Evans is competent to stand trial. His lawyers promise an appeal.
MaryHellen Evans said her son is ill and she tried for years to get him help.
“Markus is the kind of kid that would keep you on pins and needles,” she said in an interview with Journal Sentinel columnist James Causey.
Sandra Stewart, Jonoshia’s grandmother, said Evans is dangerous and should not have been set free, regardless if he is mentally ill.
“Shooting a gun at a human being, shoot them in the back?” she said. “You shouldn’t get a second chance.”
A violent lifestyle
One of eight children, Evans was born with cocaine in his system to a mother with bipolar disorder and a father with schizophrenia, according to court records.
Violence was part of his everyday life. The county opened a civil case intervening to protect the children, according to officials. Details of that case are sealed.
Syronia Clark, great-aunt to the children, said they often attacked each other with few consequences from their mother. The injuries were serious enough to send the children to the hospital, she said. Clark was not surprised when Evans jabbed a pencil in his kindergarten teacher’s hand.
“That was the way it was at their house. They did that kind of stuff to each other,” Clark said. “I feel the kids are really victims because she was just weird.”
Under Wisconsin law, children must be 10 to be delinquent. Those younger than 10 can still end up in children’s court, but are treated as needing protection and services, not punishment. Evans’ early crimes fit that category.
There would be many more arrests after his 10th birthday – marijuana possession, vandalism, using pepper spray and a weapons charge, according to court records. Evans shot a girl with a BB gun, according to Clark. He also took a gun to school, for which he was expelled, according to court documents.
The arrests went to children’s court but did not end up before a judge. Intake workers, the first to review the case, can suggest other options. Prosecutors make the final call. It is not clear what happened in those arrests. Children’s court officials denied Journal Sentinel requests to see some of his files.
Malmstadt said Evans is unusual because he was so young when first arrested. That indicated to the retired judge that there were likely even more earlier incidents when other options, short of arrest, were tried. Court officials said they see only a handful of offenders younger than 10 in Milwaukee each year.
The first arrest should have sounded the siren that Evans needed help and long-term supervision, sparking communication among courts, police and schools, Malmstadt said.
“There are not many cases that require that kind of communication, but we should figure out which ones require that,” Malmstadt said. “If you look back at this kid, maybe we should rethink what we are doing with very young kids.”
Presiding Milwaukee Children’s Court Judge Marshall Murray also is concerned about poor communication about young violent offenders. Murray noted the law limits sharing of information to protect children from a one-time mistake following them through life.
“All of us would like to have all the information possible,” Murray said. “How do you share information and know it will not go anywhere?”
Murray said he cannot talk about specifics on Evans because his case is open. But judges don’t have the benefit of hindsight, he said.
“When a decision goes in the right direction, it is just a decision,” he said. “When it goes in the wrong direction, it becomes a ‘mistake.'”
Trouble at high school
Evans was 14 in December 2007 when he armed himself with an iron rod and went after safety aide Shiloh Gardner at Genesis High School, an alternative school for troubled students in the former North Division High School building, according to court and police records.
Evans had been serious trouble, showing up drunk and stoned, according to Gardner.
“Markus was one of those kids who had no hope, didn’t care and acted out,” Gardner told the Journal Sentinel in a recent interview.
Evans first confronted Gardner at a school Christmas event, knocking programs out of his hands. Gardner hauled him to the office.
Evans somehow got hold of an iron rod and charged at Gardner. A secretary managed to get the rod away from him before anyone was hurt.
Evans then warned Gardner, “I will bring a gun tomorrow and shoot you,” according to court documents. He fled before police arrived.
Gardner said he should have called police about Evans three days earlier when Evans and another student attacked Gardner. He managed to fight them off and didn’t report it.
“I was trying to get along with the kid,” said Gardner, who was new to the job. “After I saw the type of kid he was, no way. I learned my lesson. You can’t do that. They eat you alive.”
Delinquency petition filed
Evans eventually turned himself in for charging and threatening Gardner. At children’s court, Assistant District Attorney Steven Licata wrote that Evans showed an “obvious lack of candor” about grabbing the rod and threatening to shoot Gardner.
Intake worker Danette Parr also reported that Evans denied everything. But Parr described Evans as a “respectful youth” who got along with school staff, attended school every day and had “no significant behavioral concerns.”
Parr’s report also said Evans was in counseling and on medication for attention deficit hyperactivity disorder and for being bipolar.
Mental health issues are a factor in at least one-third of all juvenile delinquency cases in Milwaukee, according to officials. Despite Evans’ record of mental illness, he did not receive a psychological evaluation and was not referred to a program for mentally ill juveniles in the Gardner case, records show.
A delinquency petition was filed alleging that Evans committed disorderly conduct while armed. Evans was released to live at home. Wisconsin law says judges should try to keep a child in his home if public safety is not jeopardized and the child can follow rules.
Evans skipped his next two hearings, triggering an arrest warrant.
Evans was suspected of shooting another teenager at a gas station around this time, according to police and court records. A relative told authorities that Evans was shipped to Arkansas to hide with family at the time he missed court appearances, according to records.
Evans appeared in children’s court four months later. Judge Dennis Cimpl decided to let Evans remain at home but added monitoring by St. Charles Youth & Family Services, a private firm contracted by Milwaukee County.
Evans skipped his next hearing, too.
A report from St. Charles said Evans followed rules and attended school. Toward the end of an otherwise positive report was a comment from his mother, MaryHellen. She repeatedly told staff Evans was “verbally abusive” and threatened his younger sister at home. The St. Charles caseworker, Tobias Butler, recommended anger management classes and family counseling.
In September 2008, Evans agreed to a deal from the prosecutor: He admitted to disorderly conduct in exchange for dropping the charge that he had been armed. The deal meant the most the judge could give him was a year of probation supervision. The original count could have meant up to two years in juvenile prison.
Milwaukee Chief Deputy District Attorney Kent Lovern said he could not comment on decisions made in Evans’ cases because of the pending homicide case.
Cimpl, the judge, gave Evans nine months’ probation. Juveniles on probation in Milwaukee usually meet at least once a month with agents, who are supposed to report violations back to the judge and can recommend 10 days in lockup per violation.
After three years at children’s court, Cimpl had grown dissatisfied with county probation procedures and had taken the unusual step of ordering juveniles back into court to see for himself how they were doing.
“I was concerned, because I was seeing so many repeats, and I figured the only way to prevent that was to put them on probation to me,” the judge said in an interview earlier this year .
But Cimpl didn’t order Evans back. The judge was being moved to adult court. He didn’t want to load up his replacement’s calendar.
“If I had decided to see this kid in November 2008 for a review, maybe, maybe something would have happened. I don’t know,” Cimpl said in March. “You talk about Monday morning quarterbacking; that is what you do.”
Evans’ adult homicide case was recently moved to Cimpl’s court after a judicial substitution. Evans’ first appearance is Wednesday.
During his first months on probation for attacking Gardner, Evans’ violence escalated.
The records do not indicate if Evans was following the judge’s orders by doing community service and going to school. He was arrested for loitering and possession of tobacco four days after he was put on probation, according to records. No violations, including that arrest, were reported by probation agents, the records show.
In December 2008, Evans attacked another school aide, diving across a desk to hit him at Hamilton High School, according to court records.
This time, Evans didn’t escape. He fought with Milwaukee police officers who put him in restraints and hauled him off in a wagon, according to reports.
But Evans was not taken to the county juvenile lockup, an option for police in more serious juvenile cases. It is unclear from records if officers knew Evans was on probation, or if his probation worker knew of the arrest.
Officers do not have the same access to records for juveniles as they do for adults, said police spokeswoman Anne E. Schwartz. They must call children’s court and wait for a worker to check the records.
“We need access to the information which we don’t have. Bottom line,” she said.
Evans could have been locked up by an intake worker and ordered to appear before a judge.
A statement from Milwaukee County Behavioral Health Division said: “Typically, intake workers are made aware of arrests when they occur if law enforcement transports the youth to the detention center. The decision to not release a child at the time of arrest is at the discretion of law enforcement.”
Evans was released to his mother.
A week later, MaryHellen Evans bought her son a motorized toy car. He hit parked cars in the neighborhood with it, prompting police to order her to take the car away, she said .
Markus Evans was enraged. He tried to light his mother on fire, pouring gas around the house, she said. She didn’t call police.
Family gathering shooting
The public first became aware of Evans’ violent streak just after Christmas 2008.
Evans and friends came to a family party at Gordon Park pavilion. Evans got into an argument with family members and left. He returned with a shotgun.
Corey Daniels, 39, a distant cousin, was outside with a couple dozen other family members. The last thing Daniels remembers was hearing a “voom” and hitting the ground.
After firing the shotgun, Evans bolted with the weapon, which was not recovered by police.
Daniels was rushed to Froedtert Hospital, where he survived and began a long recovery. From his hospital bed, Daniels heard that Evans remained free even though he was still on probation and there was a warrant for his arrest.
Evans and his mother had been seen at a Chuck E. Cheese’s, he said. Then, on his way home from the hospital, Daniels stopped at a Red Lobster and saw Evans enjoying dinner with his family.
“He was in plain sight,” Daniels said. “It was beyond scary.”
Several more weeks would pass before Evans was in custody. He appeared in children’s court in February 2009. An intake report says Evans, then 15, was “out of control” and “appears to need structured … placement.”
Daniels asked the prosecutor to seek a waiver of Evans into adult court, where the penalties are tougher. State law allows 15- and 16-year-olds to be waived to adult court for any crime.
The prosecutor on the case, Assistant District Attorney Joy Hammond, was not at Evans’ hearing – Daniels heard it was because of a family emergency. Assistant District Attorney Phyllis DeCarvalho appeared in her place and did not seek a waiver to adult court, records show. Once Evans had his first hearing, there was no way for Hammond to try to move the case to adult court – the law does not allow it.
Evans’ attorney Michael Holzman said when the prosecutor doesn’t seek a waiver, he typically enters a plea quickly.
“We pleaded not guilty as soon as we could to avoid waiver,” he said. “I am not sure it was a strategy, but that is what we did.”
Waivers to adult court are rare. In Milwaukee County last year, seven children were waived out of 1,555 delinquency cases opened – less than one-half of one percent, according to state data. Statewide, 2% of juveniles are waived to adult court – more than four times the figure in Milwaukee.
Even if the prosecutor filed for waiver, moving Evans’ case to adult court was not a sure thing, Cimpl said. The law says the judge has to consider the juvenile’s mental health, prior record, seriousness of the offense, suitability of facilities and public safety.
Despite his violent history, Evans had never seen the inside of a state juvenile prison. That may have weighed in his favor, Cimpl said. Officials still had an option they had not tried, even for a serious crime like a shotgun shooting.
“It could have gone either way,” Cimpl said.
Juvenile offender program
Keeping the case in children’s court meant the most Evans could get was two years in juvenile prison.
A juvenile can be held for up to five years under the “Serious Juvenile Offender Program,” but the law limits which crimes qualify. First-degree reckless injury while armed, the charge filed for the shooting of Daniels, is not one of them. Had Evans stolen a car or broken into a house while armed, he could have been locked up for five years even if he hadn’t shot anyone.
The case went to new Judge Stephanie Rothstein in April 2009. A veteran prosecutor, Rothstein had been on the bench in children’s court less than a month.
The Journal Sentinel requested transcripts of Evans’ hearings, which are sealed. Rothstein declined to release them or talk about the case.
This time Evans received a psychiatric evaluation. He also was evaluated for a program for children with possible mental illness – Wraparound Milwaukee – that could have kept him out of corrections and provided more services. But officials determined Evans was too dangerous for Wraparound.
The probation agent and prosecutor recommended Rothstein give Evans the maximum two years in juvenile corrections, according to records.
Daniels and several of his family members begged officials to lock up Evans for an extended period.
“After all this is not an auto theft, a brick through a window or any other crime most teenage boys are accustomed to,” Daniels wrote to Rothstein. “This was an act of violence that frightens the community at large….To hear he may only serve two years is a horrific thought.”
Evans didn’t even get two years.
Rothstein placed Evans in state juvenile corrections for 14 months.
Talked of faking mental illness
Evans’ history in juvenile corrections was rocky.
He went to Lincoln Hills juvenile corrections facility and was moved to Mendota Juvenile Treatment Center, after showing signs of mental illness, records show.
At Mendota, Evans was put on medication for a diagnosis that included “intermittent explosive disorder.”
Evans showed no remorse for the shooting and took pride in intimidating others, according to John Pankiewicz, a court-appointed psychiatrist who recently evaluated Evans and reviewed his records. Evans also talked about faking mental illness at Mendota, Pankiewicz said.
“He was bragging that he was beating the system,” Pankiewicz testified last month.
In April 2010, Evans was moved back to Lincoln Hills, where he would remain until Rothstein’s 14-month order expired.
State corrections officials decide how much of a juvenile’s ordered time is behind bars and on supervised release. Officials typically release juveniles with several months left on the order so they can have time to adjust to freedom while under supervision, said Shelley Hagan, director of the state Office of Juvenile Offender Review.
Evans was part of a small number of juveniles kept behind bars full term, then released with no supervision. Hagan said corrections generally does that only when a juvenile makes it clear he is returning to a life of crime.
“If they say something like, ‘I know where I hid my gun. I am going to get it.’ They are just waiting us out,” Hagan said, noting she was not talking specifically about Evans’ case.
Of the 400 juveniles released a year, a dozen or so are held to the last day of the order, as Evans was. Once he reached the end of the judge’s 14-month order, the law required corrections to let him go.
Evans was released last June. He moved in with his mom and was soon menacing the neighborhood.
Latoshia Stewart, the mother of Jonoshia Alexander, lived in his neighborhood, near N. 4th St. and W. Keefe Ave. Stewart knew to avoid the surly 17-year-old. She usually crossed the street when she saw Evans, but one day came face-to-face with him. He stared her down.
“I could tell he was a bully,” Stewart, 35, said in an interview with the Journal Sentinel. “He made me hold my eyes down.”
Evans broke into a neighbor’s house in mid-December. The neighbor confronted Evans, pointing a gun at him. Evans later told police he went up to the neighbor and kissed the gun, daring him to fire.
Evans rushed back into his mother’s house and loaded a shotgun. Police are investigating if it was the same weapon he had used to shoot his cousin.
Evans first pointed the shotgun at his mother and then at himself. He said he was a maniac and the police wouldn’t take him, according to court documents. He stormed out of the house and fired off a shot.
Evans later told police that he was so angry he planned to rob a liquor store and shoot the clerk. Then he spotted Jonoshia, at 7 p.m., as she got off the bus. Jonoshia was coming home after practice for a Christmas program. She was a dancer and singer.
Evans ditched his plan to rob a liquor store and instead ordered Jonoshia at gunpoint into an alley, according to court records.
The teenage girl was found dead in the alley, shot in the back of her head.
Evans admitted he was armed and in the alley with Jonoshia.
Detectives asked him if he did it.
“She’s dead isn’t she?” Evans said.
To read previous stories in this series, go to jsonline.com/dangerousandfree