Appeals Court: Gang rape participant not an adult

The Minnesota Court of Appeals has overturned the certification of a 17-year old to stand trial as an adult for his participation in a gang-related rape of a girl on St. Paul's East side.

Jim Her was certified to stand trial as an adult last year in the 2011 attack on the 14-year-old girl in an abandoned house on White Bear Avenue. He did not actively participate in the rape, according to court documents, but he was in the room and he didn't try to stop it.

Her is suspected of having been a TB22 member -- a St. Paul gang -- for four to five years. The gang is said to be one of the most violent Hmong gangs in the Twin Cities.

The District Court certified him to stand trial as an adult because of the seriousness of the crime but today the Court of Appeals struck down the order because it didn't adequately consider whether the man could be helped better in the juvenile justice system.

Appellant here had absolutely no prior programming, formal or otherwise. The psychological evaluation and certification study reports both noted that appellant has no programming history and concluded that the factor supports EJJ designation. Dr. Hertog concluded that, based on his 23 years of treating juveniles, appellant fell into the category of a juvenile who was amenable to treatment and for whom appropriate programming was available. In addition, he opined that it was highly likely that appellant would benefit from treatment. Moua also testified that appellant has never received any type of probation. This court has previously held that this factor favors EJJ designation when the child has not participated in any programs.

The district court said "the punishment and programming in the juvenile justice system would be inadequate for a violent crime of this nature" and "would not be commensurate with the seriousness of this heinous offense," once again emphasizing the seriousness of the crime over all other factors, Judge Edward Cleary wrote today.

Prosecutors had said if Her's case were handled in the juvenile system, he could return home and join the gang again, and after age 21, he'd be outside the arm of the law in this case.

But being judged in the juvenile justice system, doesn't make the threat of an adult prison sentence go away, Cleary said.

"The (district) court ignored the fact that designating appellant EJJ (extended jurisdiction juvenile) does not mean that he necessarily avoids the prison sentence that would be imposed upon an adult. Appellant must successfully complete the EJJ programming; if he violates the terms of EJJ programming, the adult prison sentence could, and most certainly would, be executed," Cleary said.

But in a dissent, Judge Carol Hooten focused on what's happened to the victim in this case:

The record also establishes that the victim, who had been a good student prior to the rape, has left school, no longer lives in her home, has psychological issues, and engages in self-injurious behavior. It was reported that the sexual assault instilled fear in the victim, her family, and the community and there was testimony that the victim and her family are afraid of the gang.

She said Mr. Her had repeatedly ignored his father's directives not to associate with gang members, and even recruited his younger brother to join the gang. And, she wrote, it wasn't until after he was charged with participating in the rape that he went back to school and began to get decent grades.

Judge Hooten said certifying Her as an adult "offers a far greater level of protection of the public safety."

Nine defendants were charged in the crime. The ringleader, Vang Tou Ger Vue, 19, pleased guilty last fall. He was sentenced to 21 years in prison.

Here's the full opinion.

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