DAVID GALARRIAGO - 2 yo /Accused: Cristian Fernandez, brother(12) - Jacksonville FL

Still No Plea Deal for 12-Year-Old Murder Suspect Cristian Fernandez in Florida

By Phil Keating

Published December 05, 2011
It seems likely that 12-year-old murder suspect Cristian Fernandez will not be offered a plea deal.

This means the boy, if convicted, could be in prison for the rest of his life.

On Monday, a judge in Jacksonville, Fla., set February 27, 2012, as the trial date for the youngest person ever to be charged as an adult with first-degree murder in that city.

Fernandez is accused of pushing his 2-year-old brother David so violently into a bookshelf that the youngster never woke up and could not be saved by the time he got to the hospital.

The prosecutor had offered a plea deal several weeks ago. Under that deal, the boy would have to admit to murder. Then, when he turns 21, he could be set free.

But for Fernandez’ defense team, that deal is unacceptable for two reasons: it would mean their client would have to admit to murder, and that it's possible Fernandez would have to spend the final three years of that sentence in an adult prison. The defense had been hopeful that the state attorney would come back with a new plea deal offer, but that has not happened.

Fernandez’ mother, who was 12 years old when she became pregnant with Cristian, is also being held in prison without bond. She’s charged with aggravated manslaughter of a child, culpable negligence, because an investigation by police of her laptop shows a Google search for “when some (sic) gets knocked out” at 10:54 a.m. Then “concussions on children” at 2:38 p.m.

Those searches were followed by activity checking the family bank account, downloading of music, and then, finally, at 3:07 p.m., the first search for the location of “St. Luke’s Hospital, Jacksonville, Florida.”

A doctor at the time told detectives that had the 2-year-old been rushed to the hospital immediately, he could have been saved.

The evidence -- not all of which is open to the public -- was weighed by a grand jury, which determined 12-year-old Fernandez should be tried as an adult.

Also in court today, the boy’s defense attorneys made a brand new motion to have the judge dismiss the entire felony murder case, saying the conditions of these charges is not applicable.

Both Cristian Fernandez and his mother, Biannela Susana, remain held without bond.

Prosecutor Angela Corey previously told Fox News “Yes, I have compassion for Cristian Fernandez , but it's not my job to forgive, it's my job to follow the law.”

As for the mother, two of her four children are now in Florida foster care. One is dead and the other goes on trial for first-degree murder less than two months from now.


http://www.foxnews.com/us/2011/12/05/still-no-plea-deal-for-12-year-old-murder-suspect-in-florida/#ixzz1fh3lIEKn

http://www.cbsnews.com/8301-504083_162-57337428-504083/12-year-old-murder-suspect-to-be-charged-as-adult-plea-deal-unlikely/

JACKSONVILLE, Fla. - Twelve-year-old Cristian Fernandez will be tried as an adult, and is unlikely to get a plea deal for the murder of his two-year old brother.

CBS Miami reports prosecutors believe that in March 2011, Fernandez acted with premeditation when he violently pushed his brother into a bookcase and beat him while his mother was out. The two-year-old victim died two days later from a fractured skull and bleeding in the brain.

Fernandez is the youngest person ever charged with first degree murder in Jacksonville.

Fox News reports a judge set February 27, 2012 as Fernandez's trial date, and it is unlikely the boy will be offered a second plea deal, meaning if he is convicted, he could face life in prison.

The prosecution offered a plea deal several weeks ago. Under that deal, Fernandez would have to admit to murder, and when he turns 21, he would be set free.

However, Fernandez's defense team deemed the deal unacceptable because their client would have to admit to murder, and might have to spend three years of that sentence in an adult prison. The defense is hoping the state's attorney will come back with a new plea deal, but that has not happened.

The boy's mother also faces a charge of aggravated manslaughter in her son's death. Biannela Susana, 25, first told police her son got injured in a fall, officers say. According to her arrest report, she put ice on the boy's head then looked up concussions on the internet, only calling for help hours later.

Both Cristian Fernandez and his mother remain held without bond.

Judge delays grand jury from hearing more evidence against Cristian Fernandez

The decision came after three motions by the defense.

Posted: December 8, 2011 - 12:51pm | Updated: December 8, 2011 - 1:20pm

Today a Jacksonville grand jury
won't hear evidence in what prosecutors have called a pending felony
charge against 12-year-old murder suspect Cristian Fernandez.

This afternoon a coalition of private defense attorneys joined with
the Public Defender's Office to file three motions to block the grand
jury proceeding. Circuit Judge Williams Wilkes granted a delay while he
reviews the law.

The judge said he will have a decision within five days.

State Attorney Angela Corey previously said the pending charge
involves an investigation into the defendant committing an assault
against a 5-year-old half brother. Authorities also said the offense is
one that would be punishable by life in prison.

A motion that the prosecution filed in June shows the 5-year-old
reported that Cristian molested him, and that the defendant admitted it
to sex crimes detectives.

The defendant is the youngest person in the city's history to face a
first-degree murder charge. Authorities say he slammed his 2-year-old
half brother David Galarraga against a bookshelf in March, causing fatal
injuries.

The boys' mother, Biannela Susana, faces an aggravated manslaughter charge in the toddler's death.

http://jacksonville.com/news/crime/2011-12-08/story/judge-delays-grand-jury-hearing-more-evidence-against-cristian-fernandez#ixzz1fyh1DKSW

Defense for Cristian Fernandez files new motions

Motions include a request to dismiss a 'defective indictment.'
Posted: December 12, 2011 - 8:39pm | Updated: December 13, 2011 - 8:14am

By Bridget Murphy
Lawyers for 12-year-old Jacksonville murder defendant Cristian Fernandez recently filed a number of court motions after rejecting a plea deal from the State Attorney’s Office.
Public Defender Matt Shirk said now that the case appears headed to trial, more motions will follow.
“The fight has just begun,” he said Monday.
Read the defense's motions here or below the story (link opens on scribd.com)
The state already has countered some recent defense motions and at a
Jan. 3 hearing will oppose a defense motion that calls the murder indictment “defective.”
A judge’s ruling also is expected soon about whether the state can present a second case against Cristian to a grand jury. Prosecutors have said a conviction on that non-homicide offense involving an attack on a 5-year-old half brother also could mean a life sentence. Cristian’s 2-year-old half brother was the homicide victim.
Here’s a look at recent defense motions:
- Prohibit Presentation of Matter to Grand Jury: Last week, a group of private lawyers joined Cristian’s defense on a pro-bono basis. One of them, Bryan Gowdy, is the attorney whose argument won a reversal from the U.S. Supreme Court last year in a case involving a Jacksonville juvenile offender.
A judge had sentenced Terrance Jamar Graham to life in prison for a non-homicide offense he committed at 16. But the country’s highest court ruled that his punishment was unconstitutional. That ruling is at the heart of this defense motion.
It argues a grand jury shouldn’t be allowed to hear evidence against Cristian because he too could be charged with a non-homicide offense punishable by life in prison. Graham, now 24, should be resentenced later this month. However, defense lawyers said Graham’s new penalty shouldn’t have bearing on this motion.
- Dismiss Defective Indictment: The state can charge someone with first-degree murder by claiming premeditated murder, felony murder, or both. Here, the defense argues the indictment is charging Cristian with felony murder along with aggravated child abuse.
That means the state has to prove the killing happened when the defendant was committing another felony. But the defense argues the law as it stands now in Florida’s First District says felony murder can’t be established when aggravated child abuse merges with the homicide. It says a decision about the felony murder merger doctrine as it applies to the crime of aggravated child abuse is an issue pending before the state Supreme Court.
But Assistant State Attorney Mark Caliel said Monday the indictment would allow for a prosecution of first-degree murder either by a felony murder or premeditation theory. The words “from a premeditated design” are part of the language.
“The jury will have facts in evidence to find either way,” he said. In response, Shirk said the facts “don’t come close to proving a premeditated murder.”
- Compel Presentation of Information to Grand Jury: This filing asks the court to require the state to tell grand jurors about “all information and evidence favorable” to the defendant. Among other things, it asks a judge to compel disclosure of Cristian’s abuse history, along with “issues related to the competence of a 5-year-old child to testify.” The defense also questions the legality of the police interview with Cristian. A previous court filing by the state says he admitted molesting the 5-year-old. But the defense has said authorities didn’t tell Cristian’s parent or lawyer about the questioning, which happened while he was in custody for murder.
The state claims the defense is trying to prevent the government from exercising authority. Caliel has said favorable evidence means that relating to innocence or guilt, not mitigation.
- Order Recordation of Grand Jury Proceedings: This filing asks the judge to compel the state to record everything that happens during a potential grand jury proceeding. Among other things, the motion says the 5-year-old wasn’t able to say when the attack occurred. Caliel said in court the state would record witness testimony, but nothing in the law would compel them to tape it all.


Read more at Jacksonville.com: http://jacksonville.com/news/crime/2011-12-12/story/defense-cristian-fernandez-files-new-motions#ixzz1gTd3Uauc

Judge denies Cristian Fernandez motion to block grand jury

Posted: December 16, 2011 - 4:55pm

The state attorney’s plan to seek another indictment against 12-year-old murder defendant Cristian Fernandez will go forward following a Jacksonville judge’s decision Friday.

Circuit Judge William Wilkes denied a defense motion seeking to block another grand jury proceeding.

Authorities want to charge Cristian with an attack on a 5-year-old half brother. A court motion the state filed in June said the boy told authorities Cristian molested him.

It also said Cristian admitted the attack while in custody for murder and aggravated child abuse charges connected to his 2-year-old half brother David Galarraga’s March death.

“We’ll be presenting the issue to the grand jury at the earliest possible convenience,” Assistant State Attorney Mark Caliel said Friday of the second case.

The prosecutor also defended the decision to seek an indictment on another so-called “life felony,” following State Attorney Angela Corey’s earlier statement that she wasn’t trying to put Cristian in prison for life.

“It’s a crime punishable by life. It’s not a mandatory life sentence,” Caliel said of the second investigation involving Cristian. “Simply because he’s a 12-year-old, we can’t ignore there’s been another victim assaulted.”

Public Defender Matt Shirk called the judge’s decision disappointing and said the defense team would decide next week whether to appeal the case. The defense has 30 days to do so.

Would be "improper"

In his order, Wilkes said granting the defense’s request to block a grand jury proceeding would violate the separation of powers between the executive and judicial branches set forth in the Florida Constitution.

“It is improper for the court, as judicial branch, to prohibit the state from performing its duties,” Wilkes’ order said.

The judge also rejected an argument by the defense that cited the U.S. Supreme Court’s 2010 decision in the Jacksonville case Graham v. Florida. The justices found it unconstitutional for a juvenile to get life in prison without parole for a crime that wasn’t a homicide.

“Defendant contends that … since he cannot be sentenced to life imprisonment for a non-homicidal offense, he cannot be so indicted for such an offense,” the judge wrote.

He decided the defense instead could react after any indictment, including by moving to dismiss it, or by appealing any possible future conviction.

Wilkes also said he wouldn’t compel prosecutors to tell grand jurors about Cristian’s history of abuse while seeking another indictment and wouldn’t require the state to record all of the grand jury proceedings.

The order came eight days after Wilkes temporarily blocked the grand jury from hearing evidence in the second case so he could consider the defense’s motions.

Caliel said he expects the grand jury may meet to hear the second case in the new year because of the difficulty of scheduling proceedings around the holidays.

Cristian is set to appear in court again Jan. 3 and has a February trial date related to his first indictment. Another judge set the trial date recently after the defense rejected the state’s second-degree murder plea offer.

Shirk said he not only expects the first-degree murder case to go to trial but also that the defense will be successful when it does.

“Successful,” the public defender said Friday, “in that he’s not going to get convicted of murder. Because the facts don’t prove murder.”


Read more at Jacksonville.com: http://jacksonville.com/news/crime/2011-12-16/story/judge-denies-cristian-fernandez-motion-block-grand-jury-0#ixzz1iVsLhCZu

Grand jury indicts Cristian Fernandez on sexual battery charge


Posted: January 5, 2012 - 9:54am

By Jim Schoettler




Grand jurors indicted 12-year-old Jacksonville murder defendant Cristian Fernandez this morning on a charge of sexual battery involving his 5-year-old half brother.

The charge, sexual battery by a person under the age of 18 upon a person under the age of 12, carries the potential of a maximum life sentence. Prosecutors said they don't intend to seek the maximum for Fernandez in either case, but rather hope for a compromise that will ensure he is punished and also treated for an eventual return to society. He is charged as an adult in both cases.

The indictment follows jockeying last month in which Fernandez's public defender rejected a plea in the murder case and then failed to block efforts by the State Attorney's Office to present the sexual battery case to the grand jury.

The state has been preparing the sexual battery case against Fernandez since last summer, but delayed bringing charges at the request of the defense as part of the plea negotiations in the murder case, said Prosecutor Mark Caliel. He said it had been the state's intent to incorporate the sexual battery case into the murder case before plea negotiations broke down.

Caliel said the motivation behind seeking the new charge was the allegation involving the victim and not retaliation for the defense bucking the state's efforts to resolve the murder case. Caliel, who is prosecuting both cases, spoke to the Times-Union after he and State Attorney Angela Corey emerged from the grand jury room about 10 a.m.

"When [plea] negotiations broke down, we made it clear we were left with no alternative. We can't ignore our additional victim," Caliel said. "We told them [the defense] that out of professional courtesy and it was at that point in time that they tried to block us from doing our job."

Public defender Matt Shirk called the sexual battery case “weak” and motivated by the states' desire to sway public opinion.

“My question would just be how many more ways can the State of Florida attempt to completely destroy this child’s life?” Shirk said. "We'll fight to protect this little boy since we're all he has."

Caliel declined to discuss details of the sexual battery case, including the victim's identity. A court motion the state filed in June said Fernandez's half-brother told authorities Fernandez molested him. It also said Fernandez admitted the attack while in custody for murder and aggravated child abuse charges connected to his 2-year-old half brother David Galarraga's death in March.

In denying the defense's attempt to thwart today's indictment, a judge said the defense could react after any indictment, including by moving to dismiss it, or by appealing any possible future conviction.

Caliel said the state only has the discretion to charge someone as an adult in Florida for an offense punishable by life in prison or death. Because the sexual battery charge has a potential maximum penalty of life in prison, the grand jury was allowed to consider indicting someone under 14-years-old and charge that person as an adult, Caliel said.

Fernandez is set to appear before Circuit Court Judge Mallory Cooper tomorrow on a defense motion to dismiss the murder case, which is scheduled to go to trial next month. He will also be arraigned on the sexual battery charge.

Fernandez, who turns 13 next week, is the youngest person to be charged with murder in Jacksonville history. He remains in custody after his arrest in June.


Read more at Jacksonville.com: http://jacksonville.com/news/crime/2012-01-05/story/grand-jury-indicts-cristian-fernandez-sexual-battery-charge#ixzz1ibhFyhJe

12-year-old now faces 2 adult felony charges

Cristian Fernandez charged with sexual battery on 5-year-old stepbrother

Updated On: Jan 07 2012 12:05:56 AM EST
JACKSONVILLE, Fla. -

Cristian Fernandez, the boy charged with first-degree murder in the death of his 2-year-old half brother, is now facing another adult felony.

Fernandez was in court Friday, one day after the Duval County grand jury indicted Fernandez on a charge of sexual battery on his 5-year-old stepbrother.

Also Friday, the defense asked Judge Mallory Cooper to throw out the original indictment in the killing of his 2-year-old half brother, David Galarriago.

Cooper denied the motion.

"We’re still hopeful that we can resolve this case short of trial," Assistant State Attorney Mark Caliel said. "It’s a very unique case. There’s a lot of special circumstances that we have to deal with when dealing with the Cristian Fernandez case, and the state of Florida’s hope is that we can resolve this case short of a trial."

Public Defender Matt Shirk had tried to stop the state from indicting Fernandez on the sex charge, but that motion was denied.

"This case is an extremely weak case factually, which is another reason we question why and believe this is an attempt to sway public opinion," Shirk said.

Prosecutors said they became aware of the allegations of sexual assault against the 5-year-old stepbrother in June, and they had a duty to seek charges for that young victim.

"I have an obligation to victims of crime to file charges when they can be proved beyond a reasonable doubt," State Attorney Angela Corey said. "And without regard to the extenuating circumstances involved with the defendant, it's my obligation to charge."

Corey has said prosecutors would not seek life in prison, the maximum sentence that comes with the sexual battery charge, if Fernandez is convicted.

Fernandez pleaded not guilty to the charge Friday.

Fernandez's trial date on the murder charge is set for Feb. 27, but that could be pushed back depending on what happens with his mother, Biannela Susana, who's charged with manslaughter in this case.

Fernandez is the youngest person to ever be charged with murder as an adult in Jacksonville.


http://www.news4jax.com/news/12-year-old-now-faces-2-adult-felony-charges/-/475880/7654140/-/140s9rp/-/

Florida judge protects journalist's privilege
January 17 2012

A Jacksonville, Fla., judge has ruled that the state's journalist's
shield law protects a newspaper against a prosecution subpoena for a
letter sent by a woman pending trial on a manslaughter charge.

Circuit Court Judge Elizabeth Senterfitt quashed the state attorney's
subpoena to The Florida Times-Union on the basis of the qualified
journalist's privilege. The subpoena sought the production of a letter
written by Biannela Susana, the jailed mother of 12-year-old Cristian
Fernandez, who was charged with murder in the death of his 2-year-old
brother. The state also charged Susana with aggravated manslaughter in
the death.

Susana sent the letter from jail to a Times-Union reporter. The
newspaper incorporated the letter into a news article appearing in the
newspaper on September 1, 2011, which included quotes of various
statements from the letter.

The Times-Union moved to quash the subpoena, arguing that the
journalist's privilege, codified at Section 90.5015, Florida Statutes,
protected the letter. Under the statute, "a professional journalist has a
qualified privilege not to be a witness concerning, and not to disclose
information, including the identity of any source, that the
professional journalist has obtained while actively gathering news."
Additionally, the Times-Union alleged that the letter was also
privileged pursuant to Section 33-210.103(1) of the Florida
Administrative Code, which provides that inmate mail to and from the
news media is privileged.

Judge Senterfitt heard arguments and ordered the newspaper to submit
the letter to her. After in camera review, the court found that the
state had not met its burden under the shield law. Specifically, the
party attempting to subpoena information must show by clear and specific
evidence that: (1) the information sought is relevant to the issues in
the case; (2) the information cannot be obtained by means less
destructive of First Amendment rights; and (3) a compelling interest
exists in disclosure sufficient to override the interests protected by
the privilege.

Judge Senterfitt also agreed with the Times-Union that the letter was
privileged under the Florida Administrative Code, which appears to be
the first time such a ruling was made in the context of a journalist's
privilege case.

http://www.lexology.com/library/detail.aspx?g=8dea8efa-d78f-46d0-9af1-b961c2e40265

Cristian Fernandez has Public Defender Replaced with Private Attorney

7:24 PM, Feb 1, 2012




Cristian Fernandez






JACKSONVILLE, Fla. - Murder suspect Cristian Fernandez will have private counsel during his trial, a judge ruled today.

Judge Mallory Cooper today granted a motion in the Fernandez trial filed by his guardian ad litem to replace the public defender with private counsel.

The city's youngest murder suspect, Fernandez, 12, is charged with murder in the first degree and aggravated child abuse. He is accused of hitting his half brother David Galarriago on the head at least twice on March 14, killing him. He was indicted in January on a separate sexual battery charge on a victim unrelated to a murder charge from last year.

If found guilty on the new charge, Fernandez could face a maximum life sentence. Although Assistant State Attorney Mark Caliel said his office is not pursuing the maximum.

Fernandez's mother, Biannela Susana, is scheduled for trial Feb. 27, according to the Duval County Clerk of Courts website.

She was indicted in June, charged with aggravated manslaughter of a child, also in relation to Galarriago's death.

http://www.firstcoastnews.com/news/article/239280/3/Cristian-Fernandez-has-Public-Defender-Replaced-with-Private-Attorney

Wonder who is paying for this. And why.

Teen murder suspect unshackled in court
Published: Feb. 28, 2012 at 12:10 PM

JACKSONVILLE, Fla., Feb. 28 (UPI) -- A
judge allowed 13-year-old Cristian Fernandez, accused of murder, to
appear in Jacksonville, Fla., court unshackled for the first time since his arrest.

Fernandez appeared Monday for the first time without the leg
restraints and handcuffs he has been required to wear in court since the
death of his 2-year-old brother last year, The (Jacksonville) Florida
Times-Union reported.

The motion to remove his restraints, filed by his defense attorneys,
was granted by Circuit Judge Mallory Cooper, who noted Fernandez was
neither a flight risk nor a security risk.

Fernandez, who is being tried as an adult, poses no risk unrestrained, Cooper said in her order.

Fernandez, the youngest person in the state's history to be charged
with first-degree murder, was indicted in June for allegedly slamming
his 2-year-old brother against a bookshelf, killing him.

Fernandez's mother, Biannela Susana, 25, was also charged with
aggravated manslaughter because she was not home when the incident took
place. Prosecutors said her negligence led to the death of 2-year-old David Galarraga.

http://www.upi.com/Top_News/US/2012/02/28/Teen-murder-suspect-unshackled-in-court/UPI-27061330449022/#ixzz1njfQWZWW