IN THE CIRCUIT COURT OF THE STATE OF OREGON FOR LANE COUNTY

Case No: 20JU00212
In the Matter of:
JONATHAN DANIEL KIRKPATRICK,

OPINION AND ORDER:
MOTION TO WAIVE YOUTH TO
ADULT COURT

A youth (formerly).

THIS MATTER came before the Court on the State’s Motion to Waive Youth (hereafter “J.K.”)
to Adult Court filed on January 10, 2020. A hearing was held on January 28-31 and February 4,
2020. Youth appeared and was represented by attorneys Katherine O. Berger and S. Michaela
Kerns. The State of Oregon appeared by and through Erik V. Hasselman, Deputy District
Attorney.
I.

CASE BACKGROUND

On October 3, 2018 at 9:26 a hotel clerk called 911 after someone entered the hotel lobby saying
that there was a man injured across the street and down the block a bit. When police arrived less
than five minutes later medics were already providing medical support to the man. The man was
in serious distress, with labored breathing and apparently unconscious. Medics transported him
to the hospital emergency room where he died a short time later. His name was Ovid Neal III.
He lived in Eugene and was unhoused. He was 56 years of age. Earlier that night he had laid
out a tarp and blanket and lay down to sleep or rest.
The police investigation led to the conclusion that two juveniles, J.K., age 16, and his girlfriend
J.S., age 15, were involved in the death. A week later, the juveniles were contacted by law
enforcement and after police interviews, taken to the Lane County Juvenile facility where they
were lodged in detention.
In most cases, juveniles who are charged with crimes are within the jurisdiction of the juvenile
court. However, in 1994 Ballot Measure 11 was passed. ORS 137.707 implemented Measure 11
and it divested the juvenile court of jurisdiction and prohibited the state from filing juvenile court
petitions in certain cases. Specifically, it mandated that juveniles who were ages 15 years and
older at the time they allegedly committed enumerated crimes, among them murder and robbery
in the first degree, be charged as adults in circuit court and subject to mandatory minimum
sentences.
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 In October 2018, J.K. was charged with Aggravated Murder, Felony Murder and Robbery in the
First Degree. J.S. was charged with Felony Murder and Robbery in the First Degree. A year
later, in October 2019, the case was presented before a Grand Jury resulting in Indictments being
issued charging both J.K. and J.S. with Felony Murder, two counts of Robbery in the First
Degree, and Assault in the Second Degree.
As the case against J.K. proceeded, the Oregon Legislature was examining the need to overhaul
the criminal justice system’s response to juveniles alleged to have committed serious crimes. In
2019, that examination resulted in the passage of Senate Bill (SB) 1008 which significantly
altered Oregon law governing juvenile offenders. SB 1008 repealed the provisions in ORS
137.707 mandating that juveniles ages 15 and older be charged as adults when alleged to have
committed an enumerated crime. Instead, SB 1008 provides that a youth charged with an
enumerated crime may be charged in adult court only after a waiver hearing by the juvenile court
in accordance with ORS 419C.349 of the juvenile code. The effective date of the changes made
by SB 1008 was January 1, 2020.
After SB 1008 was passed, the parties in this case stipulated that its provisions applied. On
January 3, 2020, this Court transferred J.K.’s criminal case, 18CR68049, to juvenile court. On
January 9, 2020 the State filed a juvenile petition against J.K. alleging five Counts: one count of
Murder, two counts of Robbery in the First Degree, one count of Assault in the Second Degree
and one count of Manslaughter in the First Degree. A day later the State filed a motion to waive
J.K. to adult court pursuant to ORS 419C.349.
II.

APPLICABLE LAW

As the law is currently configured, a juvenile charged with a crime is within the jurisdiction of
the juvenile court and is subject to the statutory proceedings set forth in the juvenile code ORS
419C.001 et seq. However, as indicated, certain youth may be waived to adult court after a
hearing. For that to occur, the juvenile court must find that certain circumstances are proven.
ORS 419C.349. Firstly, to waive a qualifying juvenile charged with a qualifying crime to adult
court, the juvenile court must find that the “youth at the time of the alleged offense was of
sufficient sophistication and maturity to appreciate the nature and quality of the conduct
involved.” ORS 419C.349 (2)(a). Secondly, the court must also find that the preponderance of
the evidence establishes that “retaining jurisdiction will not serve the best interests of the youth
and of society and therefore is not justified.” ORS 419C.349(2)(b). In determining the latter
issue, the court is required to consider delineated statutory criteria. ORS 419C.349 (2)(b)(A)-(H).
A. Determining whether a youth was of sufficient sophistication and maturity to
appreciate the nature and quality of the conduct involved.
In Matter of J.C.N.-V., 359 Or 559 (2016), the Oregon Supreme Court, for the first time,
considered what it means when the legislature tasks the juvenile court to determine if the subject
juvenile is of “sufficient sophistication and maturity to appreciate the nature and quality of the
conduct involved.” The facts presented to the court were these: The petitioner youth was 13
years old when his girlfriend’s 20-year-old brother solicited his help in robbing and murdering an
adult acquaintance. The youth allegedly agreed to the plan and, along with the 20-year-old
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 instigator, robbed and murdered the victim. The evidence of the youth’s involvement included
that he repeatedly struck the victim with a tire iron provided to him by his accomplice,
repeatedly stabbed the victim with a knife in the chest and neck and helped dispose of the body
by dumping it into the river, later returning, finding the body on the shore and kicking it
completely into the water.
The state asserted that the youth’s admission that the 20-year-old had asked him to help murder
the victim, the evidence that he directly participated in the actual killing, his efforts to hide
evidence of the murder and his acknowledged apprehensions about being caught and going to jail
all showed that he was of sufficient sophistication and maturity to appreciate the nature and
quality of what he had done. The state also relied on a psychological evaluation of the youth
which indicated that based on a recognized “Sophistication-Maturity Scale” designed for use by
courts in making waiver decisions, the youth exhibited average sophistication and maturity for
his age, and therefore understood that his conduct was wrong. This was true, according to the
evaluator, even though the evaluation also indicated that the youth was immature in many ways,
“had not developed an internal locus of control,” was influenced and led by older youths, that his
“self-concept was not yet solidly developed” and that “he was unable to appreciate the impact of
his behavior on his victims.” 359 Or at 563.
The youth countered the state’s presentation through an expert in neuro-science who testified
about the limitations of adolescent brains in relation to adult brains. That expert explained the
undeveloped nature of adolescent neurological functioning and how adolescent brain
development causes adolescents to have “significantly more trouble than both adults and younger
children in making moral choices in emotionally-charged or social reward-based situations.” 359
Or at 564. The youth also presented a psychologist who had evaluated the youth and determined
that the youth was in most respects, “average” for the “normal 13-year-old.” That psychologist
also noted the general limitations 13-year-olds have with respect to empathy, remorse and
abstract thinking. The psychologist acknowledged that in the case at issue, the youth could
understand that what he was doing was against the law and that it was going to harm someone.
Even so, he opined that although the youth could appreciate the nature of the crime at that level,
he could not do so “at a level of having empathy because that’s much more challenging for a 13year-old with an immature brain” and that “the cognitive deficits associated with the typically
undeveloped brain of adolescents likely would have interfered with [the]youth’s capacity to
appreciate the nature and quality of the conduct involved.” 359 Or at 565.
The juvenile court issued the requisite written findings agreeing with the state’s argument and
finding that the youth “demonstrated a degree of maturity consistent with Youth’s biological age
at the time of the event, and in several respects reflected a degree of maturity consistent with an
older youth.***Youth was aware of the criminality of his conduct and told police he did not
want to ‘get in trouble’ or ‘go to jail.” 359 Or at 567.
Addressing the question of whether retaining jurisdiction was not in the best interests of the
youth and of society, the juvenile court drew on the evidence establishing the youth’s history of
unlawful and sometimes violent conduct, beginning at age 9, and evidence that those behavioral
difficulties did not occur when the youth was in the supportively structured environment of
juvenile detention. The court found there would be no significant difference between the
treatment the youth would receive up until age 25, but that it was only the adult system that
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 offered the youth supervision beyond that age. Based on these findings, the juvenile court waived
the youth into adult court where he was eventually sentenced to a 30-year prison term after
which he would become eligible for parole.
The youth appealed primarily arguing that the juvenile court misinterpreted the “sophistication
and maturity” requirement of ORS 419C.349(3), and that the legislature had intended to impose
a “requirement that a youth have a more adult-like understanding of the conduct and its
consequences than an average 13-year-old would possess.” 359 Or at 568.
The Court of Appeals rejected the youth’s argument and determined that the legislature had
drawn the “sophistication and maturity” requirement from the common-law test for criminal
capacity as it related to the insanity defense. That is, it required only that the person “understand
the physical nature and criminality of the act.” 359 Or at 569. The Court of Appeals further
explained that the legislature had imposed the “sophistication and maturity” requirement for the
purpose of excluding “children who are less sophisticated and mature than their same-age peers,
such as children who are ‘mentally retarded,’ ‘extremely emotionally disturbed’, or ‘too
immature to understand the nature of the act.’” 359 Or at 569 (quoting Matter of J.C.N.-V. 268
Or App at 518-20 (2015)).
Thus, the Oregon Supreme Court was presented with two views of what it means for a youth to
be of “sufficient sophistication and maturity to understand the quality and nature” of the criminal
conduct. The state asserted that the threshold was relatively low and simply required that the
youth meet the same standard used for determining criminal competency- a standard that only a
few intellectually challenged youth would fail to meet. The youth’s competing assertion was
that the statutory provision set a higher threshold and only permitted adult prosecution of
juveniles who possess greater maturity and sophistication than the average adolescent; that is,
“an adult like ability to appreciate the gravity and wrongfulness of their conduct and its
consequences on a deeper intellectual and emotional level.” 359 Or at 571.
In a thorough opinion, the Oregon Supreme Court traced the development of the relevant law
governing the treatment of juveniles in the criminal justice system. First, the court examined the
development of the law concerning the legal concepts governing when a juvenile would and
would not be held criminally culpable for otherwise criminal conduct. Second, the court
followed the development of juvenile court jurisdiction and the waiver of juveniles into adult
court. Against this backdrop, the court turned to the meaning of ORS 419C.349(3) 1 at the time
of its enactment in 1985, observing that the legislation provided a new and more stringent
standard for remand and new protections to youths who were waived into adult court.” 359 Or
575.

1

Because the juvenile at issue was under 15 years of age, ORS 419C.352 was the relevant waiver statute. That
statute incorporated the requirements of ORS 419C.349 (3) and (4) which set forth the findings required for waiving
a juvenile to adult court. ORS 419C.349 (3) limited waiver of youth to cases were the “youth at the time of the
alleged offense was of sufficient sophistication and maturity to appreciate the nature and quality of the conduct
involved.” The Supreme Court determined that although ORS419C.352 was enacted by the legislature in 1995, in
response to Measure 11, there is no evidence that the legislature intended to alter the meaning given to ORS
419.C.349(3) by the 1985 legislature. 359 Or at 571n. 6.

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 The court began its analysis of the statutory text by considering the “ordinary meaning” of its
terms and observed that the “relevant text resolves naturally into three parts” requiring “that a
youth have (1) ‘sufficient sophistication and maturity’ to (2) ‘appreciate’ the (3) ‘nature and
quality of the conduct involved.’” 359 Or at 576. Analyzing the first part, the court observed that
it indicates “adult-like qualities.” The term maturity, said the court, is associated with “normal,
well-adjusted adults” and--drawing from a standard dictionary definition--indicates “having and
expressing the mental and emotional qualities that are considered normal to an adult socially
adjusted human being” Id. The term sophistication is “similar but carries with it a connotation of
heightened worldliness and discernment.” Id. Finally, the qualifier, “sufficient” refers to the
amount of sophistication and maturity “necessary to a particular situation or end,” and in the
context of the statute, that end is to “appreciate the nature and quality of the conduct involved.”
359 Or at 576-577.
Turning to part two of the text, the court applied the ordinary meaning of the word “appreciate”
concluding that it means “to comprehend it with knowledge, judgment and discrimination or to
judge it with heightened perception or understanding.” 359 Or at 577. With respect to the third
term, the “nature and quality of the conduct involved,” the court gave the words their ordinary
meaning as referring to “a thing’s essential character.” Id.
The state argued that although the words “maturity” and “sophistication” ordinarily describe
adult-like qualities, the qualifier “sufficient” indicates that the provision requires “no more than
an adult like mental grasp of the physical nature of an act and its wrongfulness.” Id. Thus, in the
state’s view, ORS 419C.439(3) required only that the youth “have a level of understanding
equivalent to the common law concept of criminal capacity,” meaning that the youth have a
“minimal understanding of limited aspects of a criminal act-a mental grasp of the physical nature
of an act and its wrongfulness.” Id. The Supreme Court rejected that view explaining:
“There are two problems with that interpretation of the statute's text. First, an
ability to have a mental understanding of the physical nature of an act and its
wrongfulness is not an ability that is particular to adults, as the defense of
immaturity makes clear. At a very young age, a child can know that she is holding
a flame to a building, that the flame will burn the building and that burning a
building is wrong. In 1985, when ORS 419C.349 was enacted, Oregon law
conclusively presumed that all children 14 and older would have criminal
capacity. At common law, it was understood that many children seven years of
age and older also would have that capability: The presumption of incapacity that
attached to that age group could be, and often was, rebutted. Thus, it seems
unlikely that the legislature used the words ‘maturity’ and ‘sophistication’ to
describe capabilities that all youths over age 14 and many children under age 14
were expected to have.
Second, the understanding necessary to establish criminal capacity—a mental
grasp of the physical nature of an act and its criminality—is a basic awareness
that would be better described by the word “know” than the word “appreciate.”
As noted, *** the word ‘appreciate,’ describes an ability to comprehend with
heightened understanding and judgment. The word ‘know’ describes an
awareness of a fact or concept. The statute's use of the word ‘appreciate’ rather
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 than ‘know’ is an indication that the legislature intended to require that a youth
have a deeper ability to understand than a basic mental awareness.
Based solely on their ordinary meanings, the legislature's choice of the words
‘sophistication,’ ‘maturity,’ and ‘appreciate’ suggests an intent to require an adultlike understanding of the nature and quality of an act that is beyond what
ordinarily would be associated with criminal capacity.”
J.C.N.-V, 359 Or at 578.
Having interpreted the text, the Supreme Court then addressed the context of the statute, first
turning to the state’s argument that the context of the term “quality and nature” indicates that the
words were sourced from the insanity defense known as the M’Naghten rule, suggesting that the
legislature intended the words to carry similar meaning. The Supreme Court agreed that lineage
of the words “quality and nature” may be found in the M’Naugten rule. That rule relieved a
person of criminal liability for otherwise criminal conduct if at the time of the person’s action,
the person was experiencing a “defect of reason from disease of the mind” to such an extent that
the person “did not know the nature and the quality of the act” he was engaged or “if he did
know the nature and quality [of the act], that he did not know that he was doing what was
wrong,” 359 Or at 579.
However, the court explained that by 1985, when the legislature enacted ORS 419C.349(3), two
developments had taken place. First, the M’Naugten rule had been broadened by case law
reflecting “expanding notions of mental incapacity” 359 Or at 579. This included Oregon, where
the Supreme Court’s “most recent expression of the rule described the defense in terms of a
disease of the mind that renders the person incapable of understanding the nature and quality and
consequences of his act or of distinguishing between right and wrong in relation to such act.”
359 Or at 579-80 (internal citations and quotations omitted).
More significantly, the court noted that M’Naughten and other common law criminal capacity
cases “almost uniformly refer to a capacity to ‘know’ the nature and wrongfulness of the
conduct,” while the Oregon Legislature “chose a different word ‘appreciate.’” 359 Or at 580.
This choice, discerned the court, was likely a reflection of the evolving thought about the
insanity defense. Indeed, said the court, the Commentary to Criminal Law Revision Commission
Proposed Oregon Criminal Code from 1970 to the statutory version of the insanity defense calls
attention to the purposeful use of the word “appreciate” rather than the word “know” to indicate
“a preference for the view that an offender must be emotionally as well as intellectually aware of
the significance of his conduct.” 359 Or at 581. Particularly in light of the commentary, said the
court, “it seems reasonable to assume that, when the legislature later enacted a requirement that a
juvenile ‘appreciate’ the nature and quality of the conduct involved, it intended to require more
than the minimal knowledge that was required to establish criminal capacity for purposes of the
M'Naghten rule.” Id.
Turning to the context of the legislature’s use of the words “sophistication and maturity,” the
court addressed the youth’s assertion that those words are informed by the United States
Supreme Court decision in Kent v United States, 383 U.S. 541 (1966). The Oregon Supreme
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 Court agreed that “the Oregon Legislature borrowed from the Kent criteria when it adopted the
waiver criteria set out at ORS 419C.349(3) and (4).” 359 Or at 583. The court then parsed the
Kent opinion:
“The ‘sophistication and maturity’ criterion set out in Kent contemplated a fairly
open and extensive examination of the mental, social and emotional development
of the youth in question: The broad group of sources that it instructed courts to
consider (‘the juvenile's home, environmental situation, emotional attitude and
pattern of living’) are evidence of that. Moreover, in Kent, the ‘sophistication and
maturity’ criterion was free standing. It required a court to consider ‘the
sophistication and maturity of the juvenile’ as an independent criterion relevant to
a waiver decision, indicating that the court should consider the full panoply of a
youth's capabilities that indicate ‘maturity’ and ‘sophistication.’ Based on the
ordinary meaning of those terms, those capabilities would be the capabilities of
normal adults that evidence heightened worldliness and discernment. Because
those terms were used to determine, among other things, whether a youth was
sufficiently blameworthy to stand trial as an adult, it seems logical that they
would include adult-like traits that relate to traditional notions of blameworthiness
beyond those necessary to establish criminal responsibility, such as capacities for
premeditation and planning, impulse control, independent judgment, and a more
hardened personality and outlook. Given our understanding that the statutory
phrase ‘sophistication and maturity’ came from the Kent criteria, it is logical to
understand the phrase as requiring an inquiry into the extent to which a juvenile's
mental, social and emotional developmental capabilities indicate adult-like
capabilities indicative of blameworthiness.”
359 Or at 583–84.
Although it acknowledged that the legislature had incorporated the Kent criteria in ORS 419.349,
the Oregon Supreme Court also drew an important distinction between the Oregon provision and
the Kent opinion: Kent spoke to a youth’s “general sophistication and maturity” while the
Oregon Legislature focused on “the particular aspects of ‘sophistication and maturity’ that are
involved in appreciating the nature and quality of one's own criminal conduct.” 359 Or at 58485. Further, the court explained, in narrowing the inquiry, the Oregon Legislature evidenced a
“commitment to the kind of inquiry contemplated by the Kent criterion” and also “to require that
the youth have some ability to appreciate the nature and quality of the youth’s conduct ***with
some level of sophistication and maturity-traits that are associated with normal adults ***that
would justify adjudication as an adult.” 359 Or at 585. Thus, concluded the court, “the inclusion
of the phrase ‘sophistication and maturity’ in ORS 419C.349(3) suggests that the legislature
intended that a court look for indicia of adult-like mental, social and emotional development as it
relates to a youth's ability to ‘appreciate the nature and quality of the conduct involved.’” 359 Or
at 585.
The court then addressed the youth’s contextual argument that at the time ORS 419C.349(3) was
enacted “there was a broad understanding among jurists and lawmakers that, because youths are
mentally, socially and emotionally less formed, they are inherently less capable of making
critical decisions and require society's protection.” Id. In doing so, the court added to its prior
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 discussion relating to the development of the common law and statutory law capturing concepts
about the criminal culpability of children. Then, focusing on the 1985 legislation at issue, the
court examined the state’s argument that because the “sophistication and maturity” requirement
applies equally to 13-year-olds under ORS 419C.352 and 17-year-olds under ORS 419C.349(3),2
the legislature intended the “sufficient sophistication and maturity” requirement to be “ a
straightforward individualized determination of a youth’s mental capacity to understand what he
or she was doing and that it was wrong and not a determination of a youth’s capacity in
comparison to other youths.” 359 Or at 587-88. The court agreed that the legislature did not
intend the sophistication and maturity determination to hinge on a comparison of the charged
youth with other same-aged youth. It disagreed, however, that the determination required no
comparison at all. Instead, concluded the court, the “sophistication and maturity” requirement
conveys a comparison of the charged youth “with the capabilities of normal adults.” 359 Or at
588.
Synthesizing its analysis of both the text and the context of the ORS 419C.349(3) the court
opined that:
“[I]t is not difficult for us to conclude that the legislature did not intend to make
waiver of juvenile court jurisdiction turn on a youth's criminal capacity. What the
legislature did intend is more difficult. Although it seems that the legislature
intended to require that a juvenile court make a finding that a youth have adultlike intellectual and emotional capabilities indicative of blameworthiness, it did
not set out with any specificity the standard that a court should use to decide what
those capabilities entail and whether a youth has a ‘sufficient’ modicum of those
capabilities. It is likely that the adult-like capabilities with which the legislature
was concerned were the capabilities that a typical adult would have and that a
court would consider in deciding whether a youth is sufficiently blameworthy that
adult prosecution is warranted, such as capacities for premeditation and planning,
impulse control, and independent judgment. However, the legislature did not
specifically describe those capabilities and the words that the legislature used do
not permit us to decide, as a matter of law, the capabilities that distinguish a
typical adult from a typical youth. As a result, based on its text and context, we
interpret ORS 419C.349(3) to permit a juvenile court to determine, as a matter of
fact, what those capabilities are and whether a particular youth possesses them to
a sufficient extent that the court can conclude that the youth can “appreciate the
nature and quality of the conduct involved,” including its consequences and
wrongfulness.”
359 Or at 589–90.
Finally, the court examined legislative history to ascertain if there was “evidence that supports or
undermines” its “tentative conclusion.” 359 Or at 590. The court found nothing in any

2

Because Measure 11 youth ages 15 years and older were automatically charged as adults, the youth ORS 419C.349
(3) applied to were those who were charged with crimes not included in Measure 11.

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 legislative history that diminished its analysis of the text and context of the statute and
concluded:
“After considering the foregoing legislative history, we affirm our initial
conclusion, based on the statute's text and context, that the requirement that ORS
419C.349(3) imposes is not equivalent to a requirement that a youth have criminal
capacity. Rather, to authorize waiver of a youth who otherwise is eligible for
waiver under ORS 419C.349 or ORS 419C.352, a juvenile court must find that
the youth possesses sufficient adult-like intellectual, social and emotional
capabilities to have an adult-like understanding of the significance of his or her
conduct, including its wrongfulness and its consequences for the youth, the
victim, and others.
Although the standard imposed by ORS 419C.349(3) is not as easily met as the
state would have it, it also is not intended to be so difficult to meet that it
precludes waiver of youths whose adult-like capabilities make it appropriate for
them to be tried in adult court. The legislature did not intend to impose a
requirement that a youth have every one of the many capabilities of a typical
adult. Rather, the legislature intended that a juvenile court take measure of a
youth and reach an overall determination as to whether the youth's capacities are,
on the whole, sufficiently adult-like to justify a conclusion that the youth was
capable of appreciating, on an intellectual and emotional level, the significance
and consequences of his conduct.”
359 Or at 597–98.
Having reached its conclusion, the Oregon Supreme Court then endeavored to provide guidance
to a juvenile court charged with making the “sufficient sophistication and maturity” assessment:
“In making that determination, a juvenile court will be called on to consider its
own knowledge and assessment of the capabilities of typical adults and the
capabilities of the particular youth who is subject to waiver and any evidence on
that subject that the parties may offer, such as the evidence that the juvenile court
in this case considered. With regard to the capabilities of typical adults, a court
could, for instance, consider its own understanding and evidence that the parties
might offer indicating that adults have an ability to ‘measure and foresee
consequences,’ *** and are significantly better than adolescents at accurately
perceiving and weighing risks and benefits. ***
We cite those types of considerations and that type evidence not as fact, but as
illustrative of considerations and evidence that, under our interpretation of ORS
419C.349(3), a juvenile court may find helpful in deciding what constitutes an
adult-like capacity to ‘appreciate,’ or comprehend, with heightened understanding
and judgment, an act's consequences and wrongfulness. After arriving at that
understanding, the court must then determine whether the particular youth's
capabilities are sufficiently similar to those of a typical adult that the court can
conclude that the youth has the requisite appreciation of the nature and quality of
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 the conduct involved. That determination will again require the court to consider
its own assessment of the particular youth's capabilities, including evidence, such
as the court in this case considered, of the actions in which the youth engaged and
the youth's history. A court may reach a conclusion about a youth's capabilities
from inferences that the court draws from that evidence and from any expert
testimony that the parties may offer. Such evidence will necessarily be multifaceted; there is no one capability that a youth must have to demonstrate that the
youth meets the requisite standard. Instead, a court may well have to compile and
balance competing evidence relating to a youth's capabilities: As one researcher in
the field has observed, ‘maturity’ itself is not a unified concept; many youth—
especially in later adolescence—may be relatively mature in some ways and not
in others. They may be intellectually mature but socially immature; they may
have mature decision-making capacities in terms of abilities to consider and
weigh options yet be morally immature in the ways in which they apply those
abilities.’ *** When it enacted ORS 419C.349(3), the legislature intended to have
a trial court determine, from the evidence presented, whether the youth in
question has sufficient adult-like mental, social and emotional capabilities to
appreciate the relevant conduct, its consequences and criminality.”
359 Or at 598-99 (internal citations omitted).
Because the juvenile court had not engaged in the articulated analysis, the Oregon Supreme
Court reversed the decision of both the Court of Appeals and the juvenile court and remanded the
case to the juvenile court “for further consideration under the proper standard.” 359 Or at 600.
As indicated, in 2019 the legislature passed SB 1008 which significantly altered the law
governing juvenile who are charged with serious criminal acts. Of significance here are the bill’s
amendment of ORS 137.705 (Measure 11) eliminating provisions that deprived the juvenile
court of jurisdiction and required that youth charged with certain crimes be charged as adults.3
In concert with those changes, SB 1008 also amended ORS 419C.349 to subject those previously
exempted youth to waiver hearings. In doing so the legislature retained the waiver language that
was ORS 419C.349(3) renumbering it as ORS 419C.349(2)(a).4
Given that the legislature kept the “sufficient sophistication and maturity to appreciate the nature
and quality of the conduct involved” wording used in 419C.349(3) and made it also applicable to
youths who were previously excluded from the waiver hearing because they were mandated into
adult court, this Court assumes that the legislature intended renumbered ORS 319.409(2)(a) to
carry the same meaning it carried when it applied to a more limited class of youth offenders.
The Court further assumes that the legislature was aware of the Supreme Court’s J.C.N.V.
opinion. Therefore, given that there is no indication that the legislature intended to deviate from
the prior interpretation of the language at issue, this Court applies that interpretation here.

3
4

SB 1008 Section 5.
SB 1008 Section 6.

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 B. Determining by a preponderance of the evidence that retaining jurisdiction will not
serve the best interest of the youth and of society and therefore is not justified.
In Matter of Kent, 31 Or App 1219 (1977), the Oregon Court of Appeals summarized the criteria
it had previously relied on in determining the appropriateness of waiving a juvenile into juvenile
court. Those criteria were the age of the youth at the time of the crime, the closer to age 18 the
more likely the court was to affirm a remand decision; the previous rehabilitation efforts the
child had been exposed to through the juvenile justice system, the court was less likely to deny a
waiver to adult court when the juvenile system had shown that it is “incapable of dealing with”
the child’s problems; the length of time the youth would be exposed to rehabilitative efforts
before juvenile court jurisdiction expired at age 21; and the number and severity of the criminal
acts and whether the behavior was impulsive or reflected a general pattern of juvenile violence.
Kent, 31 Or App at 1227-29.
The criteria identified in Matter of Kent, supra, along with the criteria set forth in the Kent v
United States, supra., two unrelated cases, were codified by the Oregon Legislature in 1985 into
the waiver provision set forth in ORS 419C.349 (4). With the passage of SB 1008, the legislature
retained the provisions in ORS 419C.349 (4), adding a directive that when the court considers
“[t]he protection required by the community, given the seriousness of the offense alleged”
criterion, it do so in light of “whether the youth can be safely rehabilitated under the jurisdiction
of the juvenile court.” 5
With this legal framework in mind, the Court turns to the evidence and arguments presented by
the parties. In doing so the Court is mindful that the legislature has directed the Court to
consider each component of the ORS 419.349(2)(a) and (2)(b) separately. That is, the first
inquiry, whether, at the time of allegedly committing the crime, J.K. “was of sufficient
sophistication and maturity to appreciate the nature and quality of the conduct involved” is a
stand-alone requirement and not one of the “many considerations going to the discretionary ‘best
interest of youth and of society’ determination required by [ORS 419.349(2)(b)].” Matter of
J.C.N.-V, supra, 359 Or 567 n.1.
III.

EVIDENCE ADDUCED AT HEARING
A. J.K.’s life experience and prior conduct.
1. J.K.’s life prior to age 10.

By any measure, J.K. did not have the childhood and upbringing our society desires all children
to have. Born in November 2001 to two young unmarried parents who were already well into
abusing alcohol and methamphetamine when J.K. was conceived, it is more likely than not that
J.K.’s mother was using methamphetamine during the first trimester of her pregnancy with J.K.

5

The amendments to ORS 419C.349 achieved by SB 1008 resulted in a renumbering of provisions. Due to that
renumbering, what was ORS 419C.349(4) is now ORS 419C.349 (2)(b)(A)-(H).

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 In February 2004 J.K.’s twin sisters were born. Another girl was born to the couple in November
2005.
J.K.’s childhood lacked the support, security and stability that young children need to be healthy
and well-adjusted. He was in the care of parents who barely cared for themselves and had little
capacity or inclination to properly care for their children. Instead, his parents were caught-up in a
cycle of illegal drug use and the attendant criminality that drug use brings. His childhood was
marked by frequent moves, instability, chaos and exposure to the criminal life-style and drug and
alcohol abuse of the adults in his orbit. There is no evidence that J.K. ever had a stable home
environment for any appreciable length of time.
What is more, the relationship between J.K.’s parents was rocky. They argued and yelled at each
other regularly. Sometimes there was physical violence between them and that violence was
witnessed by J.K. and his sisters. His father and mother periodically separated. In November
2006, shortly after J.K. turned five, California Child Protected Services (CPS) substantiated a
report of child neglect when J.K. and his sisters were in the care of their mother. In 2007, J.K.’s
father was sentenced to one year in jail where J.K. visited him. By the time J.K.’s father was
released from jail, J.K.’s mother was in another relationship. J.K. still saw his father who would
take J.K. and his sisters “partying” with him. Not long after his release from custody, J.K.’s
father moved to Oregon leaving J.K. in California with his mother. J.K. had irregular and
minimal contact with his father for the next 7 years.
In sum, during J.K.’s early years, his parents were unable or unwilling to provide him with the
sort of parenting that best helps children develop good self-esteem and a positive sense of where
they stand in the world. By all accounts, J.K.’s parents were not focused on their children. J.K.
did not attend preschool. He missed 13 days of kindergarten and 26 days of first grade. J.K.’s
parents provided J.K. with no structure, routine or positive and appropriate discipline. Nor did
they model for J.K. a healthy way of being in the world. Quite to the contrary, the life they
modeled for J.K. was chaotic, criminal, unstructured, arbitrary, volatile and sometimes violent.
Perhaps the most stable period of J.K.’s life was between late 2007 and late 2011 when J.K. was
between 6 and 10. That was when his mother was intimately involved with a woman named
Holcomb. In the beginning of that relationship, J.K.’s mother was in drug court and was not
using illegal drugs. She was, however, overusing prescribed pain medication. The family lived in
an apartment with two other adults, including J.K.’s paternal grandmother Brown, and other
family members who came and went. The children did not have their own room. Holcomb and
grandmother Brown attempted to provide the children with their basic needs. Holcomb tried to
bring structure to the chaos that the children lived in. She worked with Brown to make sure the
kids were at school on time, she made sure they did their homework, helping them when needed,
and made sure they followed through with what they were supposed to do. Holcomb also tried to
give them opportunities to have fun, they had a movie night and would “hang out” together.
Even though she was an I.V. dependent methamphetamine user, Brown did the laundry to make
sure the children’s clothes were clean and cooked the children’s meals. J.K.’s mother did not
actively parent and mostly left the parenting to Holcomb and Brown. J.K. developed a close
relationship with both Holcomb and Brown and looked to them for direction and support.
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 Even with Brown and Holcomb in his life, the environment J.K. lived in was untenable for a
child. The apartment was overpopulated, and the adults coming and going were using drugs and
alcohol. There were frequent arguments between the adults with a lot of screaming and yelling.
The neighborhood in which the apartment complex was located was deteriorating, people were
using drugs on the street, and there was a lot of street crime and violence. The entire situation
became so bad that Holcomb and J.K.’s family moved to Holcomb’s grandmother’s place. That
residence was short-lived and they returned to the apartment complex they had lived at earlier
and back to the same situation they had left.
Despite the instability and unhealthy exposures of his homelife, J.K. had no significant
behavioral problems during the time he was living with his mother and Holcomb. He is described
as a happy kid who enjoyed doing kid things although Brown also recalled that he sometimes
isolated and spent a lot of time in the room she shared with him. Holcomb described him as
being very loving, recalling that he would sit on her lap and have her “love him.” Sibling
relationships seemed normal. He was never violent. He spent time outside running around with
his cousins. He generally followed the rules set for him, occasionally getting in trouble for not
“checking in” with them when he was supposed to. He was respectful to Holcomb and
grandmother Brown.
From the beginning of his education, J.K. had difficulty learning in school. At some point in the
early grades, school officials suggested that J.K. be tested to determine if he would benefit from
special education. His mother declined testing because J.K. had told her he “did not want special
education.” J.K. had trouble retaining the information he learned and appeared to be on edge and
anxious most of the time. Medication was suggested but his mother declined because she did not
want J.K. medicated. Although he had difficulty learning, J.K. had no significant behavior
problems in school. During the three full school years that Holcomb was involved in his life,
J.K.’s school attendance markedly improved -averaging about 9 days missed a year. In all,
during this time he attended three different schools.
In 2011, the little bit of stability and positive support J.K. had in his life ended. First,
grandmother Brown went to prison. Second, shortly before J.K.’s 10 birthday, Holcomb left the
family after finding J.K.’s mother smoking methamphetamine with his mother’s cousin.
2. J.K.’s life from age 10 to age 14.
In late 2011, J.K. and his siblings were living with their mother in a mobile home. J.K.’s sister
showed up at school with a black eye, reporting that “her mother and her maternal grandfather
disciplined her and the other children with a long, white spoon and a black/and or purple belt.”
CPS interviewed the children and each of them reported a similar experience. They were
“punished with a belt and spoons on their legs, butt, belly, and chest (locations generally covered
by clothing) or hand.”
The CPS report, recounted, among other things, that “the children reported going to bed hungry,
that they were often late to school or absent because their mother would not get out of bed in the
morning to help them get ready for school. They also reported that their mother “spent most of
the time in her bedroom [with her new boyfriend] Matt and that their grandpa was in charge of
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 discipline which frightened them.” CPS found that the propane tank was empty and there was no
hot water for showers. The mobile home was old, run-down and badly in need of repair. There
were garbage bags of dirty clothing on the porch. J.K.’s mother denied having a long white
spoon and black-purple belt as described by the children but in a search subject to a warrant
items fitting those descriptions were found in the house. J.K.’s mother admitted to CPS that she
was overwhelmed, depressed and in need of counseling and parenting classes. She told CPS that
J.K. had ADHD and that her children were “out of control.”
Shortly after CPS involvement, the family left the mobile home. It appears that the family then
moved in with J.K.s maternal grandmother and then moved in with J.K.s maternal greatgrandmother. In May 2012, grandma Brown was released from prison. By then the twins were
living with one family member and J.K and his youngest sister were living with their mother and
her boyfriend among other people. The situation for J.K. had terribly deteriorated. There were
11 people living in the house along with two dogs. The house was a mess all the time. There
were constant parties and fights. People were using methamphetamine in the garage. As Brown
put it, the place “was not a safe environment for children to live.” J.K.’s mother was using
methamphetamine and having difficulty. According to Brown, when she returned from prison
she found a different J.K. He was smoking marijuana with his mother’s apparent approval and
was rarely home. His mother did not know where he was and did not know what he was doing
and it appeared he simply did what he wanted. Brown recalls that when she was at the house,
J.K.’s mother told Brown that she was going to the store and simply never returned leaving
Brown to care for J.K. and his sister. Brown tried to care for the children but within a few weeks
had to leave the home because her parole officer would not allow her to stay there. J.K. and his
sister then went to live with their maternal grandmother.
The record does not clearly trace what became of J.K. and his siblings after they moved in with
their maternal grandmother in mid-2012. At some point thereafter, J.K.’s family, including his
mother’s boyfriend, moved to an apartment. The children had no structure and were not
attending school. Brown tried to help get the children to school by driving from her home in
another town to their apartment. She would then get them up and ready for school and put them
on the bus. When Brown was unable to do this, the children did not go to school. The
relationship between J.K.’s mother and her boyfriend was unhealthy, they frequently fought and
he was physically and verbally abusive. The children saw this abuse and Brown was present
when the boyfriend called one of the girls “lazy” and “fat” and publicly referred to them as
“whores” when they were present. In Brown’s view, J.K. “would rebel” against this
environment by leaving the home. He was home infrequently, no-one paid attention to where he
was, and no-one knew what he was doing.
In February 2015, J.K.’s sister reported that her mother had punched, kicked, and hit her and her
siblings. In early March 2015, a CPS Safety Assessment determined there were no present safety
threats. A few weeks later another Safety Assessment determined a high rating for neglect,
moderate rating for abuse, and an overall high rating. In this Assessment CPS noted that J.K.’s
mother “provides insufficient emotional/psychologic support as well as alcohol/drug use.” A
June 2015 Safety Assessment resulted in the identification of “one or more safety threats” and
J.K.’s mother was directed to clean her home. The Safety Assessment again indicated high
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 neglect and moderate abuse ratings. In July 2015, another Safety Assessment identified “no
current safety threats.”
By late summer 2015 the family had again moved. The house had five bedrooms and housed
four families totaling 17 people. At some point the house went into foreclosure and eviction
notices were issued. Some of the people moved out but J.K. and his family stayed. A neighbor
reported to police that people with children were “squatting in the house,” that there was no
electricity in the house and children were asking to access power from various neighbors so that
they could charge the adult’s phones. Additionally, children from the house were asking
neighbors for food. When CPS intervened, they discovered a home with no electricity, no
furniture, no beds. There were puppies in the house and every room had urine and feces on the
flooring. There were full bags of garbage in the kitchen. The police discovered that J.K.’s mother
had a warrant for Failure to Appear on a reckless driving charge and arrested her on the warrant
and also for child neglect and endangerment. J.K. was in school when CPS arrived and placed
him and his siblings in foster care. They stayed in foster care for 2 days. CPS called J.K.’s father
and told him to meet them in Sacramento to take charge of his children.
From 2011 until moving to Oregon, J.K. attended six middle schools and one high school. When
he was in 6th grade, J.K. missed 11 days of school. He was absent from 7th grade a total of 60
days (nearly half of the school year). In his 8th grade year he missed 68 days (more than half the
year). His Porterville high school records indicate that he was enrolled for 60 days and was
absent a total of 38 days. He completed zero credits before moving to Oregon. J.K.’s California
school disciplinary records for 2013 to 2015 reflect a troubled life. He received discipline for
disregarding instruction, being disrespectful to other students and staff, including swearing at
them and using unacceptable gestures. He punched a student in the stomach, took a book from a
student and gave it to another student, threw things at a student across the class, was defiant to
authorities yelling “fuck you, this is bullshit” and was twice under the influence of marijuana
while in high school class.
The Court cannot discern with any precision what J.K.’s life was like when he was out on the
streets of Porterville “doing what he wanted” with no parental support or supervision. J.K.
provided information to both psychologists engaged in evaluating him. He acknowledged
committing a variety of crimes, including stealing clothing and alcohol from stores, riding in a
stolen car, smoking marijuana and drinking alcohol. His narrative included fantastic descriptions
of being in very close proximity to extremely violent situations. His narrative denied acting
violently himself. J.K. informed one evaluator that when he was in middle school he was
referred to a program but he “did not follow through with it.” The evaluator did an internet
search and found a program with the same name given by J.K. That program is a juvenile
diversion program for first time offenders. One would assume that if J.K. committed an offense,
was offered diversion and declined, there would be a record with juvenile authorities.
Apparently, there is no such record. Indeed, other than J.K.’s statement about the middle school
program offer, there is no evidence indicating that J.K. had any involvement with the California
juvenile system and there is no evidence that he was ever arrested or cited for a criminal offense.

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 3. J.K.’s life in Oregon 2015 until the day Ovid Neal was killed.
When California CPS called J.K.’s father they asked him if he had a job and a place to live. He
answered yes to both and arrangements were made for him to travel to California to get his
children. To say that J.K.’s father was unprepared to parent four children he had not had
significant contact with for nearly 7 years is an understatement. When CPS called, J.K.’s father
lived in a two-bedroom apartment with a couple he knew from Porterville. His father made
minimum wage washing trucks at a truck stop. There is no evidence that J.K.’s father was
continuing to use methamphetamine. There is evidence that he had a significant marijuana
dependency, experiencing severe withdrawals if the drug was not available to him, and that he
continued to use alcohol to his detriment.
With seven people, including 4 adolescents, living in a two bed-room apartment, the residence
soon erupted in conflict. J.K.’s father was unable to adequately respond to his children’s needs
and behaviors. He did not have the money to meet their material needs and he did not have the
time to manage their lives. According to J.K.’s father, when he was home, J.K. followed his
rules. When his father was not home, his father did not know what he was doing. J.K.’s father
worked long days and much of the parenting was done by the couple he lived with. J.K.
continued smoking marijuana, and like his father, demonstrated significant withdrawal
symptoms if the drug was not available. The evidence indicates that J.K.’s father would
sometimes give J.K. marijuana and sometimes J.K. would take it without permission. J.K. was
not fully compliant with rules and resented the couple he was living with attempting to parent
him, to set limits, or to direct him.
When he arrived in Oregon, J.K. enrolled in Springfield High School, attended, and had marginal
success earning two A’s and a C- in non- core classes. However, he received 5 F’s in core
classes. The school suspected that J.K. has educational disabilities and prepared to evaluate him
to determine if he had an underlying disability or if his failure to progress was due to his lack of
attendance in prior grades. In preparing for that evaluation, school officials reviewed J.K.’s
school history and determined that in total he had missed 1.3 years of school days. The
evaluation was never completed.
J.K. moved to the Willamette Leadership Academy in 2016 for his 10th grade year. School
records indicate that he had trouble focusing, socialized in class and did not complete
assignments. One instructor noted that J.K. was “respectful toward his teacher and peers.
Typically, positive in general. Can be sleepy in class. Works slowly and is slow to get started.
Has difficulty understanding directions/questions the first time.” By 2017 J.K. was engaging in
unacceptable behavior. In February he was suspended for “involvement with bringing pills to
school in exchange for marijuana.” In April, he was suspended for “communicating a threat
(Menacing)” it is not clear who the threat was to. In total, J.K. attended four terms at the
Leadership Academy. His GPA was 1.56. J.K. left the Leadership Academy and was enrolled in
another school but there is no evidence that he attended for any appreciable length of time.
On June 1, 2017, a physical confrontation occurred between J.K., Parrish, one of the people the
family was living with, and J.K.’s father. According to J.K. and his father, this conflict resulted
in J.K. being assaulted by Parrish and J.K. running away. J.K.’s father called the police and
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 reported that J.K. was missing. The next day J.K. showed up at the Springfield Police
Department and reported that both his father and Parrish had abused him. A welfare check was
done and J.K. was released back into his father’s care only to be transported by a crisis assistance
unit to an emergency shelter for runaway youth. The emergency shelter offered reunification
counseling between J.K. and his father, there was one meeting between them, but J.K. and his
father never followed up with additional counseling. A police log notes that J.K. reported that
“there is physical abuse and that his father is an alcoholic and he was scared to go home.” Police
interviewed J.K.’s sisters and they denied abuse. One sister indicated that the day before she
learned that J.K. was cutting himself and told her father and J.K. “socked” her father in the face.
The police report further indicates that J.K. was adamant that he did not want Parrish arrested.
When police spoke with J.K.’s father, they observed that he had a “moderate smell of alcohol”
on his breath.
Because of this incident, DHS Child Welfare was called. DHS directed that J.K.’s father move
the children from the residence and assisted him in paying for temporary housing. The family
then moved to a studio hotel room where they lived from mid-July 2017 until late September
2017 when, with financial assistance from DHS, the family moved into a three-bedroom
apartment in Eugene. Not long after that a friend of J.K.’s, Nicholas Stewart, also moved in.
In the late fall of 2017, J.K. and J.S. began their relationship. J.S. was 14 at the time and is 14
months younger that J.K. By this time J.S. had already completed a course of residential
therapeutic treatment for delinquent youth operated by the Lane County Department of Youth
Services (DYS). J.S. was also on probation with Oregon Youth Authority (OYA) for breaking
into and stealing items from cars. The court infers that J.S. had prior significant criminal
behavior and involvement with the juvenile justice system because youth, particularly 14-yearolds, are not typically committed to OYA for the property crimes committed by J.S unless there
has been a history of criminal behavior and other, less severe, intervention measures have failed.
In December 2017, J.K.’s father sent his sisters to California to live with their mother because
they were not going to school and J.K.’s father was getting in trouble with truancy authorities.
By January 2018, the twins were back living with J.K. and his father while J.K.’s youngest sister
remained with their mother. In January 2018, J.K.’s father was cited for driving while under the
influence and entered a diversion program. J.K.’s father was working in Harrisburg and regularly
spent nights at a friend’s trailer in Harrisburg rather than driving back to Eugene.
J.K.’s father’s testimony at trial was somewhat contradictory. He testified that none of his
children consistently followed his rules and they were out of his control. He also testified that
usually J.K. would do what his father asked him to do. In August 2018, J.K.’s father called the
police and reported that J.K. assaulted him. Although the evidence is not entirely clear, it appears
that J.K.’s father told the police that he was “sick and tired” of J.K. assaulting and threatening
him. When he was asked about this incident at the hearing, J.K.’s father was reluctant to say
anything that put J.K. in a negative light. He denied knowing how many times he had called the
police about J.K. because he had also repeatedly called the police about his daughters. He
testified that when he called the police in August, it was because J.K. had hit him in the back of
the head and that was the only time he could recall him doing so.
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 J. K.’s father was then presented with the pictures of his face with a red raised swelling above the
eye, he ceded and recalled that he provided this photograph to the police when they responded to
his call in August. It is unclear if the picture was related to the August call or a prior incident.
J.K.’s father recalled that he was mad at J.K. “for smoking weed in the house and we got into a
heated argument and it led to the broken tv and the bruise on my face.” He further recalled that
he and J.K. argued about marijuana a lot “I was going through a DUII program and I was not
smoking and so I tried to be strict about not having it in my house.” J.K.’s father resisted the
State’s questioning about reporting to the police that J.K. had threatened to kill him and, finally
agreed that the “phrase came up in a heated argument” and also acknowledged that J.K. said he
would “beat my ass.” Although the police responded to J.K.’s father’s August call and
apparently took into their possession the photographs of facial bruising allegedly caused by J.K,
the police did not follow up and J.K. was never contacted about it.
By all accounts, throughout 2018, J.K’s father was unable to parent his children and they were
out of his control. J.K.’s father testified that the twins were repeatedly in the hospital for
overdosing on alcohol. They were staying out every night and would not come home until 4:00
A.M. They were defiant, would not go to school and would not listen to their father’s instruction.
Neither would J.K. According to his father, J.K. spent a good deal of his time living on the
streets with “riff raff” friends and would then return home before he went back on the street. As
2018 progressed J.K.’s father saw that J.K.’s difficulties were increasing. His alcohol use
increased, and he would return home intoxicated. His marijuana use was increasing. His
outbursts towards his father were getting worse and his behavior was becoming even more
concerning. At times, J.K. would become so distraught that he would pull his hair, punch
himself in the head and say that maybe he “should just kill myself.”
Aside from what is discussed above, there are few records documenting J.K.’s involvement with
law enforcement up until the day he was taken into custody for the death of Ovid Neal. The
evidence details two calls to law enforcement in 2017 reporting that J.K. had run away. In
October 2017, law enforcement logged that J.K. was a suspect in an assault III. No evidence was
produced regarding the reason for this detail and no evidence concerning such an assault was
produced. In February 2018, J.K. was apparently cited for being a minor in possession of liquor
and in April 2018 he was noted as an “involved other” in a disorderly conduct report. There is no
evidence that law enforcement or DYS followed up with J.K. about any of it.
Although it is clear from the evidence that J.K. was avoiding significant contact with law
enforcement, it is equally clear that J.K. was in an increasingly deteriorating state and that he
was engaging in both unlawful and self-destructive behaviors. Both Stewart and J.S. testified
about their experiences and observations of J.K. in 2018. They describe J.K.’s relationship with
his father as uneven. Sometimes they got along well and sometimes they didn’t. J.K.’s father was
sometimes upset that J.S. was living in the apartment and that she brought a cat with her.
Sometimes things would be difficult between J.S. and J.K. and that also caused problems with
J.K.’s father. J.K.’s father did not want a lot of people coming into that apartment, but J.K.
continued to bring people in. Stewart never saw J.K. physically strike his father. They yelled at
each other. J.S. recalled that J.K. would sometimes threaten his father during these disputes and
sometimes his father would “instigate” the conflict and try to get J.K. to strike him. She testified
that she witnessed J.K. hitting his father “a few times” but her testimony was vague, and it is
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 difficult for the Court to credit its veracity. As indicated, J.K.’s father worked in Harrisburg and
frequently did not return to the apartment at night. Food or money for food was provided by
J.K.’s father and sometimes Stewart’s mother. They did not eat regular meals, but when they ate
meals, J.K. did the cooking. He also ran the household and appeared to do so whether his father
was home or not.
The relationship between J.K. and J.S. was of central importance to J.K. For the first six months
or so of their relationship, J.S. lived with her mother and J.K. and J.S. got along well. During that
time J.S. overdosed on alcohol while with J.K. and J.S. was sent to a residential drug and
alcohol treatment center in Roseburg, Oregon. She “got out” of the treatment program in July
2018. The treatment did not hold, and she returned to drug and alcohol use after about a month of
remaining sober. She absconded from her probation and a warrant was issued for her arrest.
About 6 months after J.K. and J.S. began their relationship, J.S. began living in the apartment
with J.K. Prior to this, Stewart had been sharing the master bedroom with J.K. When J.S. moved
in, she stayed in the master bedroom with J.K. and Stewart slept elsewhere in the apartment.
According to J.S. the relationship became unhealthier over time. J.S. testified that when J.K.
drinks he “is mean and does not listen to what I have to say and argues with me and he does his
own thing and what he wants. When he is not drinking he is sweet and cares and listens.” J.K.
was, by all accounts, emotionally dependent on J.S. and when things did not go well between
them, when he perceived that she was rejecting him or was unavailable, he responded in a selfdestructive and emotionally desperate and manipulative manner. Specifically, he would hit
himself in the head and hit his head against objects, sometimes so seriously that he knocked
himself out. During one argument he stabbed himself in front of J.S. conveying that he was
going to kill himself and it was her fault. During another argument, he “tried” to jump off the
parking garage. J.S. recounted frequent instances when J.K. would cry when he was upset. “He
held a lot of stuff in to the point to where he would kind of collapse and break down.” How long
it took J.K. to calm down depended on the circumstances. If J.S. comforted him it usually helped
and J.K. was able to recover in a matter of minutes. If they were arguing it could take “a very
long time, usually hours,” before J.K. was restored to calm. J.K. displayed this emotional lability
frequently and when he did so he was usually under the influence of alcohol.
Throughout 2018, J.K., J.S. and Stewart were frequently in downtown Eugene “hanging out”
with friends who were both minors and adults. They smoked marijuana and drank alcohol
regularly. J.K. smoked marijuana every day and drank heavily consuming both beer and hard
liquor. They obtained marijuana and alcohol by giving money to adults who would then purchase
it for them. They also joined their group of friends in going to stores, grabbing beer, and running
out of the store without paying. To get money to buy marijuana and alcohol, J.K. and J.S. would
ask friends for money, ask family for money-saying they needed it for food, and steal from
others. Stewart recalls J.K. and J.S. bringing home change, marijuana and other times they had
stolen from vehicles. J.K. and J.S. were always together when this occurred, and it occurred
regularly.
The record regarding J.K.’s drug use in 2018 convincingly establishes that he was regularly
drinking alcohol to excess and was constantly under the influence of marijuana. There is no
collateral support for J.K.’s self-report that he was regularly using Xanex. There is collateral
evidence that J.K. was using cocaine during this period. J.S. acknowledged that J.K. started using
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 cocaine while she was in the Roseburg treatment center and there were “a few times when he
asked for my consent for him to [use cocaine]” to which she agreed.
There is some evidence that J.K. resorted to violence while on the streets of downtown Eugene.
J.S. described a detailed scene wherein J.K. fought another person to protect her after that person
assaulted her. Under pressing examination by the State’s attorney, J.S. also testified that there
may have been one or two other instances when J.K. had engaged in physical fights but her
testimony was vague, and she appeared to be authentically unable to identify any specifics.
However, there is disturbing evidence that both J.K. and J.S. may have participated in a violent
robbery of a seriously mentally ill and unhoused man around midnight on October 2, 2018, less
than 24 hours before Ovid Neal was killed. Specifically, at 1:29 in the morning of October 3, a
60-year old man presented to the emergency room reporting he had been assaulted some 90
minutes earlier. He had an approximately one-inch laceration to the back of his scalp along with
facial bruising. There were no broken bones. The man’s laceration was closed with five staples
and he was discharged.
The victim recounted to the police and his caseworker that he was assaulted by “a couple of
downtown kids” whom he described as a white male with short brown hair and a white female
with blond hair (J.S. has dark hair). The victim viewed the female “as the more vicious” of the
two, saying he would recognize her anywhere, and recounted that he was attacked with a big
stick or sign post, knocked unconscious and woke sometime later when a passerby helped him
and retrieved his wallet that was taken from him but left at the scene. The attack took place
around the corner from where Ovid Neal was attacked.
The evidence indicates that the attack on this victim was part of a pattern of attacks by
“downtown kids” who would watch the ATM from the parking garage across the street on
“benefits day” (about the 3rd of the month when social security checks were deposited) to
identify people to assault and rob. These attacks were well known “amongst the downtown
crowd.” The detectives handling the investigation into Ovid Neal’s death confirmed that police
were aware that “there’s a group of these juveniles assaulting and robbing transients downtown”
and police had cleared by arrests 8 such cases the prior summer. Although the suspects in the
assault did not meet the description of J.K. and J.S., who had been arrested the prior day,
detectives suspected “they’re all part of the same social circle.” After J.K. and J.S. had been
arrested there was another incident that police were also investigating.
The police did not tie J.K. and J.S. to the October 2, 2018 attack of the 60-year-old mentally ill
victim until J.S. told law enforcement that she and J.K. were responsible for the attack. J.S.
provided this information in October or November 2019 when she and her lawyer were
negotiating a plea deal. On November 27, 2019, J.S. entered into a plea agreement. That
agreement anticipates the transfer of her case to juvenile court and contains an agreement that the
state will not request that the case be waived to circuit court. The plea agreement also guarantees
that the state will not prosecute J.S. for the October 2 assault.
In the hearing at bar, J.S. testified about the October 2nd attack and recalled that she and J.K.
were together that night at the parking garage when they saw an “older guy.” They followed the
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 man through downtown ending up back at the garage. J.K. started looking for a rock. J.S. picked
up a rock and showed it to J.K. who responded that he needed a larger one. He saw another rock,
dug it out of the ground and told J.S to “distract the guy” so that he could hit him from behind
and then take his money. J.S. testified that she told J.K. that she did not want to do that and that
she does not remember the rest of the conversation. She also testified that when the man started
to walk away, J.K. went up behind him, hit him in the back of the head with the rock, the man
fell and J.K. looked through his pockets and wallet finding nothing. The man started to get up
and then fell down again when J.K. hit him with his fist. J.S. had the rock and the two walked
down the street and J.K. placed the rock under a tree grate. According to J.S., it was this rock
that J.K. used to assault Ovid Neal.
B. The Day Ovid Neal III was attacked.
The totality of the evidence indicates that on the day Ovid Neal was attacked, J.K. and J.S. went
downtown as they typically did. Around 3 or 4 P.M., J.K., J.S., Stewart, another female and an
adult male got together and shared a half gallon of vodka. The three males consumed most of it
and J.K. became very intoxicated. Thereafter, J.K. and J.S. had some sort of disagreement and
J.K. left. Sometime between 4 and 7 P.M. J.K. and J.S. were near the Eugene Library having
difficulty. They were arguing and J.K. was extremely upset that he was “losing” J.S. According
to employees from Downtown Youth Initiative (DYI) both J.S. and J.K. were “drunk.” In
particular, J.K. appeared to be “really intoxicated.” He was slurring his words, “definitely could
not walk a straight line” and was very emotional and sad. One DYI employee told an investigator
that J.K. was “incomprehensible” Other youth and DYI employees tried to calm J.K. but were
unsuccessful. He persisted in saying that J.S. would no longer be in his life and that he was going
to kill himself. As people were trying to assist him, J.K. got up and purposefully ran head-first
into a glass storefront window, hitting it so hard that the window shook and J.K. received a “big
goose egg” on his head.
J.S.’s recollection of the above interaction was consistent with the DYI employee reports. She
recalled that after J.K. walked off alone, she and others looked for him. They found him sitting
on the curb crying and very distraught. He started “freaking out” saying that she had left him and
when people were trying to help him he got up and “hit his head” on glass and then ran off. She
followed, and they got on the bus. J.S. testified that this incident was different from prior
incidents when J.K. had emotional breakdowns because it did not seem that he was aware of
what had actually happened, that he had left J.S., not the other way around, and that he was
incomprehensibly talking about the whereabouts of his possessions.
After leaving the library on the bus, J.K. and J.S. went to a market a few blocks from where Ovid
Neal was assaulted. Video surveillance from the market shows J.S. walking through the market
parking lot and entering the store around 8:00 P.M. J.K. follows her some good distance away.
He also goes into the store. The evidence indicates that while in the store J.K. was in such a
distraught state that employees of the market tried to render assistance. Interior market video
shows J.K. follow J.S. out of the store. As he walks there is a detectable sway or drag in his gate.
They then walk toward the parking garage near the place of Ovid Neal’s assault. Video captures
them walking through a nearby hotel parking lot, checking car handles, presumably to see if any
cars are open with valuables inside.
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 C. The death of Ovid Neal III.
The medical examiner testified that Ovid Neal had multiple injuries to his face and a triangle
shaped laceration caused by a blunt object. His skull was fractured. There were internal injuries
to his brain that were caused by something striking his head or his head striking something. He
did not die immediately after the blows were struck. In all the medical examiner estimates that
Mr. Neal was struck 9 or 10 times.
Ovid Neal was attacked while he lay on his bedding on a public sidewalk. On one side of the
sidewalk is a building wall. On the other side, a busy Eugene street and across the street is a bank
and ATM. The area in which Ovid Neal chose to sleep was dark. In the stairwell of a parking
garage just steps from where Mr. Neal was attacked, law enforcement found items strewn along
the stairs and on the garage’s upper floors. Among the items was a carry bag and a citation
issued to Ovid Neal. Law enforcement also collected a rock from a trash can located near the
entrance of the stairwell. The rock was stained with blood-like drops. Forensic testing
established a very high likelihood that the DNA of Mr. Neal, J.K. and J.S. was on the rock.
It did not take long for law enforcement to obtain video recordings from businesses located near
where Mr. Neal was attacked. No recording captured the actual attack, but several showed that
two people were likely involved. Those recordings ultimately led law enforcement to J.K. and
J.S. They were contacted by police a week later and taken to the police station for questioning.
J.K. was respectful and moderately cooperative during the interview. He acknowledged that he
was involved in the assault of Mr. Neal but first claimed that he only struck him with his fists
and kicked him. He also offered a motive other than robbery. As the interview continued and it
becomes obvious that the detective had information about the rock and had spoken with J.S., J.K.
acknowledged that he had used a rock in his attack. He first asserted that he did not know how
many times he threw the rock and eventually said 3 or 4 times, later settling on 4 times. He
demonstrated how he threw the rock, raising his hands above his head. He also asserted that it
was dark, and he did not know how many times the rock struck his victim. He was distraught
throughout the interview, sometimes breaking down. He repeatedly asserted that he only meant
to “knock out” Mr. Neal. He also admitted that he and J.S. went through Mr. Neal’s belongings
looking for valuables and that they took a gold colored pipe, some marijuana and dab.
As indicated, J.S. entered into a plea agreement in November 2019. In that agreement J.S. agreed
to admit to all charges on the theory that she aided and abetted J.K. As part of the plea petition,
J.S. also agreed to cooperate with the state in the prosecution of J.K. As was expected, her case
was transferred to juvenile court and on January 3, 2020 a juvenile petition was filed against her.
On that same day J.S. admitted to the charges. She is lodged in the Oak Creek Youth
Correctional Facility in Albany Oregon awaiting adjudication.
J.S. testified at the hearing. She will be 17 in March. She was 15 years 7 months when she was
involved in the death of Mr. Neal. She has been at Oak Creek for fifteen months due to a
probation violation in a prior matter. J.S described herself as J.K.’s former girlfriend. J.S.
recollected some of what took place the night Ovid Neal was attacked. She recalled that J.K.
wanted money. She described that when they were at the parking garage not far from where Ovid
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 Neal lay, J.K. asked her to go and see if the person was a male or female. She went and did so,
returning to J.K. and reporting that she thought the person was a male. After that she
accompanied J.K. to retrieve the rock he had used against the victim of the previous night.
While J.S. was standing look-out, J.K. used the rock against Ovid Neal, robbing him of his
belongings. She went to where Mr. Neal lay, and he was still breathing although she could tell
there was something wrong. J.K. brought Mr. Neal’s belongings up the stairwell to an upper
floor of the garage and they went through them. She found 11 dollars in a container, J.K. found
some cigarettes, loose change, some marijuana, dab and a pipe. J.S. wiped the blood off the rock
with her sweatshirt and put the rock in the garbage can. The two of them then left the scene. J.S.
described that J.K. was very upset and really scared.
The Court carefully observed J.S. during her testimony. The Court compared her testimony to
the video evidence of the area around the time and place Mr. Neal was attacked. It appears that
J.S. did not fully recall her participation in the crime. Indeed, after carefully reviewing the video,
the Court concludes that J.S. was more deeply involved in the crime than simply standing lookout. The video evidence does not support J.S.’s testimony that, at J.K.’s request she left J.K. and
went to check on whether Ovid Neal was a man or a woman and then returned and told J.K. he
was a man. Additionally, video evidence suggests that when J.K. and J.S. walked toward the tree
grate to retrieve the rock used to assault Ovid Neal, J.S. had something white in her hand. Video
evidence also shows that when the couple returned from the area where the rock was located,
both J.S. and J.K. had something white in their hands. Based on J.K.’s body language, the Court
estimates that the item he carried was heavier than the item J.S. carried. Although the video
evidence supports the conclusion that J.K. likely inflicted the blows on Ovid Neal, it also
demonstrates that J.S. was, during the period the attack and robbery occurred, repeatedly in
proximity to Ovid Neal and her role was more than acting as look-out.
After the attack, J.S. contacted Stewart and told him that J.K. needed to talk to him. Stewart took
the bus downtown and found J.K. and J.S. In Stewart’s opinion J.K. appeared to be intoxicated.
He was also “freaking out and scared” and said that “he might have hurt someone really bad or
might have killed him.” Stewart did not believe J.K. and J.K. showed him that he had blood on
his shoes. They showed Stewart 11 dollars and marijuana and J.S. told him they had gotten it
from “beating someone up.” J.K. eventually calmed down and they went to the park where J.K.
tried to wipe off his shoes on the grass. J.K. and J.S. found out the next day that Ovid Neal had
died. After that they stopped going downtown.
When J.K. and J.S. were arrested the police searched the apartment they were living in and found
a brass marijuana pipe. Lab testing shows that DNA from both Ovid Neal and J.K. was present
on the pipe. The police also found clothing consistent with the clothing J.K. and J.S. were
wearing in the video the night of the assault as well as shoes consistent with the shoes J.K. was
wearing that night. At the time of his arrest, J.K., who is 5’10, weighed 140 pounds. A
photograph taken the day he was arrested shows a thin young man with rather sunken eyes
marked by dark circles.

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 D. J.K.’s time in juvenile detention.
J.K. spent a little over one year in juvenile detention. Shortly after he was lodged in detention
J.K. was given a mental health evaluation and placed on medication to treat depression and
anxiety. Detention provided J.K. with a structured environment, clear rules and consistent
consequences for rule violations. He had a regular schedule that required him to get up at a
certain time, do chores, go to school and participate in group. The detention staff employ a
behavioral management system that uses an escalating hierarchy of consequences ranging from a
verbal warning to locked confinement in the youth’s room for up to six hours. There is a point
system and a youth who earns enough points is rewarded by being placed on Level Three which
grants them extra privileges. To get enough points every day to be on Level Three, a youth must
do “everything they are supposed to and a little more.” Juvenile detention has a mental health
specialist that meets with youth. There are daily “check ins” with staff and youth can also have
one-on-one discussions with staff.
The evidence, including testimony from a juvenile detention worker indicates that for the most
part J.K. did “really well” while in detention. He was almost always on Level Three.” Testimony
indicates that once J.K. had some time being sober he began to change. Importantly, he practiced
the coping skills the mental health specialist suggested and sought out the mental health
specialist when he was having difficulty. He also frequently sought out other staff to talk with
when he felt himself struggling. He was generally respectful and followed directions “pretty
well.” He helped other youth with their struggles and he assisted staff by doing extra chores. At
one point there were some youth planning an assault on another youth and J.K. let a staff
member know about it. He began learning to play the guitar and read books in his room. For the
first time in his life, J.K. had success in school and was proud to earn a “C” average.
Even though J.K. did surprisingly well while in detention, he also violated rules. DYS records
show the following behavioral write-ups. 10/24/18 War stories and disrespect; 12/5/18 Verbal
aggression during basketball towards peer; 4/22/19 said he was going to “beat the ass” of a
female probation officer; 4/20/19 had drawings and a letter from a peer in his room; 5/2/19 threw
a pencil at a peer; 6/19/19 had a letter from his sister and rap music that glorified drugs and
gangs.
The most concerning of these incidents was the threat to harm a probation officer. J.K. was in
class when he saw an OYA Probation officer walk by and remarked that he didn’t like her and
was going to “beat her ass.” Log notes indicate that at the time detention staff and his teacher
observed that J.K. was acting more aggressively and was inexplicably “on edge.” Dentition staff
spoke with J.K. about his behavior and he was consequently placed on “eval” which includes
room confinement.
The other incident that involved a threat of violence occurred during a basketball game. J.K. and
another youth whom J.K. was having ongoing difficulty with because, in J.K.s view, the youth
was making racist comments and was purposefully challenging J.K. During the game the youth
said something and J.K reacted aggressively threatening that he was going to “catch another
charge,” a veiled threat to do bodily harm. J.K. was told to sit on the side lines but was unable to
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 calm down and continued to make comments. Because of his behavior J.K. was placed on “eval”
and again placed on room-lock.
Although it does not involve aggression, the issue with J.K. developing a “relationship” with a
13-year-old peer in detention is also concerning. Detention staff found a letter written by the
youth in J.K.’s room. The letter was directed to J.K. and indicated that the two had kissed and
that she reciprocated J.K.’s affection. Staff also found in the youth’s room a romantic letter that
she had written to an “unidentified youth” who was also in detention. When asked about the
letter, the youth indicated the person was her “drug supply” and was not taking his medications
but was giving them to her. When pressed, the youth named another male who was no longer in
detention. Detention staff were unable to verify if the youth had received medication for anyone
and were unable to determine if J.K. was involved, although the evidence certainly pointed in his
direction.
In each of the above incidents, J.K. was confined to his room on “eval” status. As part of eval a
youth is required to do a writing assignment where he must answer in writing specific questions
which staff then discusses with him. J.K.’s responses to these questions indicate that he was able
to identify the behavior that got him into trouble and to identify his “thinking errors,” although
not always with a great degree of insight. He was able to identify the consequences he received
for engaging in the behavior. His answers show that he was thoughtful in answering and that he
took responsibility for his actions. All his responses were respectful. In writing, J.K. answers a
question asking him to define what “long-term” and “short-term” means and then to discuss the
long-term and short-term consequence of his behavior. In each response J.K. answers similarly:
short term means “not to [sic] long and long term means a long time.” Revealing an impaired
concept of time and undeveloped ability to see how his behaviors may impact his life into his
future, J.K. then reasons that the short-term consequence of his behavior was going to his room
and the long-term consequence was losing his ability to be on Level Three.
E. J.K.’s time in Lane County Jail.
J.K. was lodged in Lane County Jail on his birthday early in November 2019. He, like similar
inmates, is in his cell 21.5 hours per day. During the 2.5 months he has been in jail, J.K.
received two formal misconduct reports. A little over a week after he was lodged, J.K. broke a
rule by attempting to send a letter to his “girlfriend” in juvenile detention. Jail officials informed
J.K. that attempting to write another person in custody was a violation of jail rules. A week later
J.K. attempted to circumvent the rule by writing to his father and asking him to relay a letter to
the same youth in detention. J.K. received a disciplinary action for that infraction.
A few days after he received the discipline for again attempting to send a letter to the youth in
detention, J.K. received a warning about “fishing.” That is, he attempted to communicate with or
pass something to an inmate in another cell by tying a string to an item and tossing it from one
cell to another. A little over a month later, J.K. was “caught attempting to cheek his medication”
and was given a written misconduct.
The jail records phone calls after informing inmates that it is doing so. In this case there are over
18 hours of phone calls. The State offered four phone calls totaling about 90 minutes. Two calls
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 were between J.K. and the twin sister who remains living with her father. Two calls were
between J.K. and his father.
The calls between J.K. and his sister are similar. What is immediately apparent is that J.K.
speaks to his sister in street slang and refers to his sister as “Bitch.” His sister responds in a like
manner. They use profanity towards each other and words that would otherwise be considered
disrespectful, except that neither interprets them that way. They both express their love for each
other. They both say they miss each other. Most of each call is spent listening to music that J.K.
asks his sister to play or that his sister chooses for him to listen to. It is all rap music. The songs
speak about disappointment in love relationships, being betrayed, using drugs, being killed and
killing others. They objectify and disrespect women. They talk about gang violence. One song
talks about the struggles with life on the street, another song has the phrase “to me love is
suicide.”
In each call they have brief discussions. At the end of one conversation in one call, J.K. and his
sister discuss two females and J.K. tells his sister to tell them that he and another person are
going to “pimp them out.” Both J.K. and his sister are laughing about this. During the second call
J.K. asks his sister to try to contact the youth who was in detention with him. He says, “I think
this bitch is cheating on me.” His sister tells J.K. that the girl does not matter and that he should
not worry about her, when he gets out he won’t remember her. He says that he writes the youth
every day, but he can’t send her the letters. His sister suggest he write a letter he can send. J.K.
responds “if she is fucking me over, when I get out I’ll fuck her over.” He laughs. His sister
laughs. J.K. asks his sister to ask his grandmother to put money on his books. They say
goodbye.
In the two taped phone calls between J.K. and his father they speak to each other using similar
language and their communication with each other does not readily reveal that they are
father/son. Both engage in profanities with each other. In the first call, J.K.’s father asks how
J.K. is doing and there is noise in the background and its clear that J.K. and his father are having
trouble hearing. J.K.’s father sounds irritated that he can’t hear and on the heels of that irritation
J.K. has an aggressive verbal outburst yelling at someone named “Baker,” apparently another
inmate, to “shut the fuck up.” J.K.’s dad then attempts to provide calm and tells J.K. not to get in
trouble. The phone communication is not clear and there is noise in the background. J.K.’s father
complains in a frustrated tone, that “every time” they talk he can’t hear J.K. and that J.K. is not
paying attention. J.K. gets upset and tries to explain that the phone is cutting out and he can’t
hear and that J.K. is not causing it. At this point the phone is either hung up or disconnects.
In the next call, J.K.’s father tells J.K. that he is “feeling shaky” and J.K. suggests he “smoke
some weed.” J.K.’s father indicates that he already did and J.K. then suggests that he eat a Kit
Kat. J.K.’s father then says to J.K., in a friendly but annoyed manner, “You hung up on me
fucker” apparently referring to the prior call. As J.K. tries to explain that something was wrong
with the phone, someone in the jail approaches and J.K. politely says “thank you” and says to the
person, presumably a corrections officer “I have four minutes, right?” J.K.’s father again pushes
the issue about J.K. hanging up on him. J.K. says he is sorry. Then J.K. asks his father if, when
his father was in jail, he heard of “fishing.” J.K.’s father tells J.K. that he is not allowed to “fish”
in jail and J.K. says “I found that out today.” J.K.’s father cautions J.K. to be careful about what
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 he says on the phone suggesting that he could get in trouble. J.K. says the only thing he needs to
worry about is committing a crime and then tells his father that he “already did” get caught for
“fishing”. He laughs and explains that he and an inmate named Baker were “fishing” and that the
officer was “cool” and told him that he was fishing without a license. Father and son laugh and
J.K.’s father says, “yeah dude, that is funny.” J.K. then tells his father that his time is up, they
say good bye and the call ends.
F. Psychological evaluations of J.K.
Two psychologists certified as forensic evaluators testified. One was hired by the State and one
was hired by J.K.’s attorney. Both interviewed J.K. Both reviewed the investigative report done
by the investigator hired by J.K.’s attorney along with supporting documents including medical,
school and CPS records from California. Both reviewed all the law enforcement evidence. The
State’s psychologist also interviewed J.K.’s mother and father. They both administered
standardized tests to J.K. By the time they testified they had each read the other’s report and
reviewed detention and jail records that were not available when they wrote their reports. Both
agreed that J.K.’s testing raised no concern that he was trying to trick the tests, manipulate the
interview or was trying to “fake bad” or malingering. There was no reason to believe that his
test scores were invalid.
1. Report and Testimony of Fernandez-Tyson Ph.D.
The State presented the testimony and written report of Terri Fernandez-Tyson, Ph.D.
She interviewed J.K. for 5 hours on October 9 and 17, 2019 while he was lodged in juvenile
detention. She also met with him for 4 hours on December 6, 2019, about a month after he was
lodged in the Lane County jail. J.K. was given several psychometric tests, including the
Stanford Binet Intelligence Scales, Behavioral Rating Inventory for Executive FunctioningSecond Edition (BRIEF 2) and the Risk-Sophistication-Treatment Inventory (RSTI).
Of the two psychologists testifying, Fernandez-Tyson is less optimistic about J.K.’s ability to
rehabilitate. In her view the totality of J.K.’s history growing up does not bode well. In her
testimony and her report, Fernandez-Tyson acknowledged the damage done to J.K. during his
formative years. She also emphasized that prior “interventions” (involvement with the Truancy
Board, the alleged offer of diversion in middle-school and the offer of reunification counseling
with the homeless youth shelter) had no appreciable positive impact on J.K. According to
Fernandez-Tyson, the records “highlighted a number of risk factors that decrease the likelihood
of successful intervention including mental health problems, unstable developmental context,
absentee parenting, polysubstance abuse, sleep problems, concerns about weight, and an
unwillingness to openly discuss his problems.” In her testimony and in her report, FernandezTyson repeatedly referred to J.K.’s rule violations while in juvenile detention and jail, and
conversations captured on jail tapes as evidence that J.K. has a “more ingrained criminality.”
This view is supported, Fernandez-Tyson opined, by her diagnosis that J.K. has a Conduct
Disorder, childhood-onset, and her provisional diagnosis that he has an “antisocial personality
disorder” which is supported by his endorsement of items on the PAI (Personality Assessment
Inventory) and his history of conduct.” The diagnosis is provisional because of J.K.’s young age.
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 The PAI contains 344 questions and, as indicated, was used by Fernandez-Tyson to help her in
diagnosing J.K. In her discussion of the PAI results, Fernandez-Tyson found that J.K. endorsed
items relating to anxiety and depression which was consistent with other information she had.
He has significant issues with alcohol and drug use which he sees as a problem. He could be
distrustful of others. She also observed that “[d]uring periods of relationship stability, he likely
feels self-confident. However, when their relationships are strained, he likely feels incomplete,
unfulfilled, and inadequate.” As a result, his self-esteem is quite fragile, and he is likely to
respond poorly to slights or oversights by other people. “Associated with these drops in selfesteem are corresponding shifts in identify and attitudes about major life issues. Interpersonally,
his response suggests that he is suspicious and hostile in his relationships with others. He is
likely to be a hypervigilant individual who often questions and doubts the motives of those
around him…As a result, he is likely to have strained relationships and may require an unusual
degree of support and assistance in order to succeed.”
In her report, Fernandez-Tyson recounted that J.K. expressed to her that he was receptive to
treatment. He reported participating in Alcoholics Anonymous while in detention and
“attributed all of his criminal behavior to drug and alcohol use.” He thought he would “do
good” in treatment and would try to benefit from it and that he would “change mentally,
physically and emotionally” after completing treatment. In her report, Fernandez-Tyson also
noted that J.K. “appears motivated for treatment and through his responses acknowledged
important problems and needing help to deal with these problems. His responses also suggest
that he has a positive attitude toward the possibility of change. However, his treatment is likely
be complicated by his difficulty in placing trust in a treatment professional and establishing a
therapeutic rapport. This could result in a prolonged treatment period or could result in
treatment failure.” In all, Fernandez-Tyson opined that the personality inventory suggests an
“underlying personality pathology.”
To get a deeper understanding of J.K.’s executive function, Fernandez-Tyson asked juvenile
workers to complete the BRIEF 2 which is a 61-item questionnaire designed to asses executive
functioning. Only one worker, who worked swing shift, responded. The version of the BRIEF 2
given to this worker was designed for school teachers rather than the version for parents or
guardians and so there is some question if the version used by Fernandez-Tyson is reliable. In
any event, Fernandez-Tyson indicated that all indices and scales in the BRIEF fell in the normal
range except for “mild elevation” on the Inhibit, Shift, Emotional Control, and the Emotional
Regulation Index” According to Fernandez-Tyson, children with similar scores “have difficulty
resisting impulses and difficulty considering consequences before acting…They are often
perceived as (1) being less in control of themselves than their peers, (2) having difficulty staying
in place in line or in a classroom,(3) interrupting others or calling out in class frequently, and (4)
requiring higher levels of adult supervision.”
Fernandez -Tyson further opined that “it is likely that [J.K.’s] ability to inhibit his responses has
increased since he has come into custody given the high salience of consequences in a
correctional setting. His continued sobriety also likely has had a positive effect given the
decreased inhibitions experienced when intoxicated by alcohol.” She also noted that the BRIEF
results indicate that J.K. “has some difficulties adjusting to changes in the environment, plans
and place or demands.” He prefers consistency in his environment, which she wrote “is not
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 surprising given the tumultuous home environment of his early childhood with frequent moves,
school changes, and varying adult figures moving in and out of his life.”
Fernandez-Tyson also observed that the BRIEF 2 results suggest that J.K. has some difficulty
regulating his emotions as compared to peers. Children with the mildly elevated index attributed
to J.K. “may demonstrate sudden outburst, sudden and/or frequent mood changes, and excessive
periods of emotional upset.” Poor emotional control is often expressed as emotional lability...or
emotional explosiveness. Children with difficulties in this domain often have overblown
emotional reactions to seemingly minor events.” Even though J.K. has trouble with emotional
regulation, Fernandez-Tyson pointed out that the staff worker who filled out the BRIEF also
observed that J.K. is “able to inhibit impulses, monitor the impact of his behavior on others,
sustain working memory over time, and initiate, plan, organize, and monitor problem solving.”
Although Fernandez-Tyson found the results of the PAI concerning and acknowledged that
J.K.’s early childhood had undoubtedly damaged him, she was more positive about J.K.’s
cognitive and intellectual abilities. Among the tests Fernandez-Tyson gave J.K. was the Stanford
Binet Intelligence Scales. According to Fernandez-Tyson this test provides an assessment of
intelligence and cognitive abilities which is then used to calculate a person’s full IQ. The test
includes ten subsets. Fernandez-Tyson found that, as compared to other 18-year-olds, J.K.
scored a low average in non-verbal IQ, low average in quantitative reasoning, average in visual
spatial, working memory, knowledge, verbal IQ and Full-scale IQ. He reads slower than his
peers. He scored superior in Fluid reasoning-which Fernandez-Tyson explained indicates that
J.K. has a superior ability to reason and problem solve as compared to his peers.
A significant part of Fernandez-Tyson’s report and testimony focused on J.K.’s RSTI results.
Fernandez-Tyson appears to have administered this Inventory to get at the criteria for waiver set
out in SB1008. The RSTI is a “semi-structured interview and rating scale that is used by
clinicians to assess the functioning of juvenile offenders age 9 to 18, in three important areas: (a)
risk for dangerousness, (b) sophistication-maturity, and (c) treatment amenability.” The
Inventory is based on the clinician’s review of a wide array of information such as school
records, family history, law enforcement records, prior psychological records, and similar data as
well as interviews with the youth. The clinician scores each area of the Inventory. The total
scores are calculated and then compared to the scores of similar aged youth also in the juvenile
justice system which in turns results in a Low, Medium, or High Offender ranking.
Fernandez-Tyson appeared to significantly rely on J.K.s ranking on each of the RSTI categories
in her testimony and report. J.K. ranked “High” on the risk of dangerousness. In her report
Fernandez-Tyson asserted that “High Offenders in this category are egocentric, manipulative,
and deceptive. They tend to lack remorse for their actions and typically do not feel guilty for
their reckless and antisocial acts.” In her report and her testimony Fernandez-Tyson opined that
although J.K. expressed regret for his behavior, that regret was “focused on the consequences it
has had for him personally and for his family.” While Fernandez-Tyson acknowledged that J.K.
had indicated that he “has a feeling of ‘remorse’ and ‘a lot of guilt inside and I can’t talk about
that stuff,’” she was not persuaded by his words. “It may be,” wrote Fernandez-Tyson, “that he
experiences some legitimate remorse or guilty, [sic]however, his actions as described by others
do not present the picture of sincere regret as evidenced by his remarks that he ‘caught a body.’
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 Additionally, he made no attempt to immediately take responsibility for his actions nor did he
alert police that a person was injured and in need of medical care. He took steps to hide his
involvement in an effort to escape responsibility. It was only when caught and confronted with
evidence that he admitted to the crime, but then he tried to place responsibility upon the alleged
victim stating he had previously attempted to sexually assault [J.K.].”
Fernandez-Tyson also wrote in her report and stated in her testimony that J.K. was rated in the
High Offender range for Sophistication-Maturity. Even so, her observations relating to J.K.’s
sophistication and maturity, do not, in the Court’s view, reflect a particularly sophisticated or
mature teenager. For instance, Fernandez-Tyson acknowledged that J.K. “has some ability to
engage in self-reflection,” but noted that “this appears to have been developed after his arrest and
incarceration.” She also observed that J.K. “demonstrates an ability to make decisions using
sound judgment in some settings but his use of drugs and alcohol while in the community likely
led to more impulsive decision making rather than a cost-benefit analysis.” She further noted
that J.K. “appears to have the ability to regulate his emotions, although this also appears to be a
skill that is under-developed.” Finally, Fernandez-Tyson, observed that in her interaction with
him, J.K. demonstrated “good interpersonal skills” and was able to “modulate his social response
to the demands of the environment as evidenced by his presentation during a high-stakes
evaluation.” He was “consistently pleasant and friendly and appropriately modulated his
language” including “quickly correcting himself when he slipped.”
Fernandez-Tyson also placed great emphasis in J.K.’s Low Offender ranking in the amenability
to treatment category and appeared to endorse this ranking. She did this even though in both her
report and testimony she noted several indicia that were positive for J.K.’s amenability to
treatment. She acknowledged that when he was in juvenile detention, J.K. engaged in treatment
and generally did well. She agreed that J.K. recognized that drugs and alcohol played a very
negative role in his life. She admitted that he expressed desire to improve himself and that while
he was in detention he reached out for help. However, Fernandez-Tyson discounted these
achievements because, as she wrote in her report, “historically he has not meaningfully engaged
at treatment efforts to reduce his consumption of alcohol or drugs, to improve his academic
performance, or to avoid involvement in further activity. It would appear that his engagement in
treatment has only resulted from his arrest and incarceration and placement within a system that
requires engagement in order to receive privileges. That is, he required significant external
incentive to engage in rehabilitative/treatment services and does not appear to be internally
motivated to change.”
On cross-examination Fernandez-Tyson conceded that she had made what the Court views as
very significant errors in both her report and in direct testimony. First, she was unable to support
the diagnosis of Conduct Disorder, childhood onset (occurring before age 10) and acknowledged
that the disorder developed when J.K. was a teenager, thus requiring her to revise her diagnosis
as Conduct Disorder, adolescent onset. Fernandez-Tyson also appeared to agree that the
significance of this revision is that individuals who develop Conduct Disorders as teens are more
responsive to treatment than individuals whose Conduct Disorder developed as children.
The other problems with Fernandez-Tyson’s report and testimony had to do with her conclusions
relating to the RSTI categories of sophistication and maturity and amenability to treatment. She
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 was wrong. Her scores, in fact, result in J.K. being ranked Medium, not High, in the category for
sophistication and maturity. She was also wrong in ranking J.K. as falling in the Low
amenability to treatment category. According to the RSTI, the scores Fernandez-Tyson gave J.K.
indicate that he falls in the Medium range for amenability to treatment. Thus, according to the
RSTI, J.K. was less sophisticated and mature than Fernandez-Tyson wrote in her report and
stated in her testimony. He was also more amenable to treatment than she reported and stated in
her testimony. On redirect-examination, Fernandez-Tyson appeared to suggest that she had
scored J.K. “conservatively” in a number of areas, meaning if he was on the “bubble” between
two scores, she gave him the benefit of the doubt. Had she scored him the other way, his rating
may have come out differently. In her testimony on direct and cross-examination, FernandezTyson indicated that she viewed the RSTI as an objective test. Her testimony regarding scoring
J.K. conservatively, or the possible difference in his ranking if she had not scored him as she
had, proves, conclusively to the Court, that the RSTI is a subjective tool.
The errors in Fernandez-Tyson’s evaluation of J.K. undermine the Court’s reliance on her
opinion. It is not possible for the Court to know how or if Fernandez-Tyson’s overall impression
of J.K.’s prognosis for rehabilitation would be different had she realized that his amenability to
treatment was better than she supposed or if she understood that he was less sophisticated and
mature as compared to other delinquent youth his age. Additionally, the diagnosis of early onset
Conduct Disorder appears to carry weight in Fernandez-Tyson’s opinion regarding J.K.’s
prognosis for rehabilitation and her determination that he is trending toward having an antisocial
personality disorder. The Court does not know if correction of her Conduct Disorder diagnosis
would in any way modulate her conclusions about J.K.’s capability to rehabilitate or change her
“provisional” diagnosis that he has an anti-social personality disorder.
2. Report and Testimony of Holly Crossen, Psy.D.
Holly Crossen, Psy.D was called by J.K.’s attorney. Unsurprisingly, Crossen had a more
favorable view of J.K. and his prognosis than does Fernandez-Tyson. Crossen interviewed J.K.
twice, both times when he was in juvenile detention. Like Fernandez-Tyson, Crossen used a
variety of psychological measurements in her evaluation of J.K. None of them were the tools
chosen by Fernandez-Tyson.
To assist in evaluating J.K.’s Executive Function, Crossen used the Delis-Kaplan Executive
Function System (D-KEFS). Crossen also administered the Jesness Inventory-Revised. This
Inventory was “developed to help differentiate characteristics among delinquent youth.” It was
intended to “help caseworkers, teachers, youth counselors, and parole and probation staff to
better understand the nature and extent of …individual differences so that treatment and
interventions could be adjusted appropriately.” In her report, Crossen noted that J.K.’s scores
were elevated for Withdrawal/Depression and Social Anxiety. His scores were not elevated for
Oppositional Defiant Disorder, or Conduct Disorder, but was for Asocial Index. “He has the Ilevel classification of AP, Undersocialized, Passive/Unsocialized.” Crossen wrote that “the
Asocial Index refers to a generalized predisposition to resolve problems of social and personal
adjustment in ways ordinarily regarded as showing disregard for social customs and rules.” The
Asocial Index and the Social Maladjustment scales “are the best measures of delinquency and
adult criminal proneness.” Crossen opined that “[o]verall [J.K.] has attitudes that could
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 potentially precipitate antisocial behavior.” Of the specific classification J.K. falls into, Crossen
stated:
Those who are at this level tend to perceive the world in a rather concrete
egocentric manner. At times their view of reality may appear quite distorted, and
their response may be inappropriate. Persons at this level of development show
somewhat limited understanding of interpersonal differences and they have
difficulty understanding and explaining the behavior of others. Their limited
understanding of the world may make them feel as if they are passive “receivers
of life’s impact’—unfortunate things just happen to them. They likewise show
little awareness of the impact of their own behavior on others. As a result, they
may behave somewhat ineptly and usually suffer from poor peer relations. They
may also tend to blame others for denying them, for they are prone to define
people as good or bad on the basis that persons do or do not take care of them and
whether or not others give or withhold things from them. Better adjusted
nondelinquent youth of this subtype are typically characterized as friendly,
responsive to praise, affectionate, and uncritical.”
In her report, Crossen listed a variety of the characteristics found within this subtype.
Among them is that post release they are of average risk.
Based on her forensic evaluation Crossen diagnosed J.K. with Neurodevelopmental
Disorders: ADHD, combined presentation indicating that J.K. has attention, hyperactivity
and impulsivity problems. He also meets the diagnostic criteria for Major Depressive
Disorder, moderate, with anxious distress for which he is on medication. Also, he has
Substance Use and Addictive Disorders relating to Xanax, cocaine, marijuana and
alcohol-- all in sustained remission. Crossen noted that “while he was living in the
community” J.K. would have qualified for a diagnosis of Conduct Disorder. However, to
qualify for the diagnosis, J.K. would have to have symptoms within the past 6 months
and since he had been in custody none of the symptoms were present.
Crossen also diagnosed J.K. with a Neurodevelopmental Disorder associated with prenatal
exposure to methamphetamine. Crossen has significant expertise relating to Fetal Alcohol
Spectrum Disorders (FASD). In her report, Crossen explained that individuals with FASD “are
often misunderstood. It is coined an invisible disability, because they are lacking the physical
features that so easily remind others of the neurological damage they have endured. The
difficulty for many working with them is that they tend to have average IQ scores, but poor
executive functioning, which is the case with [J.K.]. Executive Functioning is the primary focus
in the research and changes in legislation related to juveniles who commit crimes. Therefore, it is
important for the court to note that not only did J.K. have a developing adolescent brain at the
time he committed the crime, but he has lower executive functioning skills compared to same
aged peers when tested…”
Crossen testified that risk assessment tools have very low reliability. The best one, called the
SAVRY, has a 60% accuracy rating. In Crossen’s view, looking at J.K.’s risk for dangerousness
to the community, right now without treatment if he were released, he would be in the middle
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 danger scale. The most important factor in reducing his risk of dangerousness is appropriate drug
and alcohol treatment. His risk for dangerousness would also be reduced through appropriate
mental health treatment and medication to control his depression, anxiety, and ADHD. She also
explained that risk assessments of juveniles look at shorter time periods because their levels of
risk change more frequently. In part this is because of the rapid changes to juvenile brains.
Crossen further commented on the lack of opportunity in J.K.’s life to remediate the harm caused
by his experiences growing up. She explained that typically “for children with conduct disorder,
parental consistency, appropriate discipline, modeling appropriate behavior in society and help
with issues where they are struggling will improve behavior.” J.K. had none of that. The Court
takes Crossen’s testimony to mean that when J.K. moved to Oregon his father was unable to
provide him with what he needed to repair the harm already done.
In her report, Crossen offered the Court an assessment of J.K.’s “capacity to have an adult-like
appreciation of the crime at the time.” She wrote:
[J.K’s] age at the time of his offense places him in the ‘still developing ‘executive
functioning range of adolescence. Research has indicated that this causes
adolescents to struggle to have an adult-like appreciation of the crime, which has
resulted in many legislative changes. In addition to lags in executive function that
is standard to general development, [J.K.’s] executive functioning after the
alleged offense was behind that of his peers. His delayed skills ranged from 0.1 16th percentile. This indicates that 84-99.9% of other youth his age have better
executive functioning skills in initiation, controlling impulses in complex
situations, flexibility of problem-solving, incorporating feedback from problem
solving, sorting specific experiences into general rules or classes, rule learning,
inhibiting impulsive and perseverative responding, and establishing and
maintaining an instructional set.”
Crossen also opined on J.K.’s ability to rehabilitate which she defined as a “substantial reduction
in the likelihood of recidivism or of serious harm in the future.” She noted that J.K. had a
“strong negative reaction to the outcome of his behavior and sees a need for change.” She also
pointed to J.K.’s responses in detention, his interest in meeting with his mental health specialist
while in detention and in learning and utilizing coping skills as support for her opinion that J.K.
has a good prognosis for rehabilitation. However, this prognosis is qualified. To succeed, J.K.
must be “provided with the appropriate interventions. As is true for most juveniles in his
situation, the prognosis for rehabilitation/lack of recidivism will hinge greatly on the quality of
alcohol and drug treatment he receives as well as mental health treatment.”
Focusing, on the positive changes J.K. began to make while in detention and on his specific
needs, Crossen concluded that the services provided in OYA would best serve the goal of
rehabilitation and that J.K.’s transfer to the adult system would have a detrimental effect:
“Part of the initiative of HB[sic]1008 is that the State’s analysis found that any
positive changes inmates experience in juvenile detention can be quickly undone
in an adult prison. Youths who transfer to adult prisons are twice as likely to
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 reoffend when they get out compared with youths who remain in juvenile
facilities. A 2007 study by the U.S. Centers for Disease Control found that youths
are 34 percent more likely to reoffend when prosecuted in adult system versus a
juvenile one. Overall, his ability to be rehabilitated will be greatly increased by
his ability to stay solely within the juvenile system, rather than transferring to an
adult prison as he nears 25. “
On cross-examination, Crossen acknowledged that typically juveniles sent to adult prison are
older and have committed more serious crimes than those retained in the juvenile justice system.
Therefore, the statistic regarding the percentage increase in reoffending by youth in adult
facilities may be a function of the incorrigibility of older youth who commit more serious crimes
rather than a function of those youth being placed in an adult prison. Also, in response to crossexamination, Crossen drew on research and opined that in a closed custody juvenile setting, J.K.
is less likely to be violent than he would be if he were incarcerated in an adult setting. She
further testified, again in response to cross-examination, that it is extremely rare for any person
who is released from incarceration for murder to commit a second murder. Finally, also on cross
examination, Crossen acknowledged that she had administered the SAVRY to J.K. but did not
include it in her report because the test has low predictive accuracy. When pushed, Crossen
recalled that J.K.’s SAVRY scores placed him in the moderate level of risk. With respect to
social maturity, Crossen observed that the Jesness placed J.K. in the categories of “more
immature youth compared to his age.” Youth in that category “are ego centered and their views
of reality are distorted so that they tend to feel more like things happen to them and their
interpersonal relationships are worse, socially J.K. is at the worst end of that.”
G. The rehabilitation efforts J.K. will receive if he is committed to OYA and if he is
sentenced to the Department of Corrections.
Since 2015 Oregon Youth Authority (OYA) has been employing a “Positive Human
Development” model that is based “not on what we do but how we do it.” As a veteran
counselor and OYA parole and probation officer put it, the model meets “kids where they are at.”
Youth come into the system with different trauma and emotional needs and difficulties and OYA
works to create a safe enforcement. OYA uses a treatment model that guides the decisions
regarding length of treatment. First, they work to get a youth’s basic needs met. That is, they
address a youth’s emotional well-being, cognitive and mental health. They also provide activities
to develop skills to be successful in the community in the long run and to help them gain
employment. The OYA model has moved away from a punitive model because the research
shows that punitive models are not effective with youth. Rather, positive development models
are the best hope to rehabilitate youth back into the community.
OYA provides youth with both educational and vocational support. The focus on education and
school is a high priority. They work with youth to help them finish their education and obtain a
high school diploma and they work with youth who are hopelessly behind in credit hours to
obtain an equivalency. With respect to vocational training, youth can learn computer and CAD
skills. They can also learn trade skills.
When a male youth enters OYA, he is assessed and then assigned to the facility that best meets
his treatment needs. As the veteran OYA parole and probation counselor put it “OYA chases
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 excellence. We define excellence as positive outcomes” where youth’s needs are met, where they
are in a safe environment, and become successful.
Adjudicated youth who are committed to OYA do not have a determinate sentence. Rather OYA
has parole authority. A youth who is committed to OYA for assaultive behavior would not be
paroled before age 25 if the youth did not appear ready. If the youth continued assaultive
behavior, the youth could be charged with a new crime of assault. If a youth is paroled and
violates parole conditions, parole can be revoked, and that youth would be placed back into a
correctional setting.
OYA collects statistically relevant information and data to help it develop the most effective
responses to youth engaged in criminal behavior. Recidivism rates, which OYA defines as a
felony within 36 months of parole or probation, is roughly 30% for OYA adjudicated youth who
go to a youth correction facility. Measure 11 youth, who stay their entire time in OYA and finish
their sentence before age 25, an admittedly smaller population, have a recidivism rate of 24.1%.
As indicated, prior to the passage of SB 1008, all youth who were at least 15 years of age and
were sentenced under Measure 11 were committed to the custody of DOC. Until they were age
25 they served their sentences in OYA closed custody where they received the same treatment
that other closed custody youth received. According to a 24-year OYA parole and probation
supervisor, many of those youth did well in treatment and would have been paroled had OYA
had the authority to do so. That is because research shows that keeping youth in correctional
facilities longer than necessary leads to worse outcomes.
In 2019, OYA’s director, Joe O’Leary, testified before the Oregon Legislature in support of SB
1008. The testimony provided by the OYA probation officer in this hearing and O’Leary’s
testimony before the legislature is consistent. O’Leary testified that the current research on
adolescent brain development shows that “we need to treat youth differently than we do adults.
That’s why OYA has been implementing a developmental approach to juvenile justice. To be
effective at changing youth behavior and protecting the public, we seek to provide youth with
opportunity to learn and practice new skills-not just what’s on the curriculum, like math or
reading, but the soft skills that we adults take for granted: how to manage conflict, how to
navigate our emotions, how to make good decisions. The quality of supports we give them will
have a lasting effect on their capacity to develop into healthy adults and responsible community
members.”
O’Leary further told the legislature that, OYA research and data shows that “therapeutic
approaches significantly outperform punitive approaches when it comes to reducing recidivism.”
Moreover, “a recent OYA analysis found that overall, with 11 other things held equal, youth
charged with Measure 11 crimes sent to the Department of Corrections instead of OYA are twice
as likely to recidivate as Measure 11 youth sent to OYA. That’s an amazing statistic that
confirms the commonsense conclusion that we need to send fewer youth to DOC so we create
fewer victims.”
OYA is acutely aware of the increased responsibility that SB 1008 places on it. It has developed
a new parole process and any youth that is committed to OYA because of changes brought about
by SB 1008 have another layer of evaluation before any parole decision is made and the decision
is not up to an individual parole officer/counselor. OYA has also changed some of its processes
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 in anticipation of receiving youth who had previously been automatically mandated to adult
court because of Measure 11. A document entitled “OYA Close Custody Youth Services
Framework” was developed to provide information regarding OYA’s approach to “1008 youth.”
OYA’s mission is “to protect the public and reduce crime by holding youth accountable and
providing opportunities for reformation in safe environments.” The Framework explains that
“adolescence is a critical time for brain development, with opportunities to develop important
abilities that significantly impact desistence from delinquency, including: emotional
management; problem-solving; decision-making; empathy and perspective taking; and
anticipating future consequences. Healthy adolescent brain development happens most
effectively in an environment that fosters growth. OYA intentionally develops environments that
foster growth within its closed custody facilities by: “Providing opportunities for youth to attach
and belong through: a. caring and supportive relationships with staff, family and other supports;
b. becoming an active member of pro-social groups; c. developing and enjoying a sense of group
belonging; d. placing a high value on service to others; e. being part of a larger community.”
Within that environment, OYA provides youth the opportunity to learn and practice skills, use
those skills in new situations, take on new roles and responsibilities and develop self-efficacy
and personal confidence.
To achieve its mission, OYA’s services to youth are assessment driven, individualized, trauma
informed, culturally responsive and are based on practices that have demonstrated effectiveness
and are provided on a treatment continuum that includes correctional facilities, transition camps,
community residential programs and outpatient providers. Transition decisions are made
“considering community safety and the youth’s individual treatment needs and the entirety of a
treatment ‘program’ may be provided over multiple placements as a youth moves through the
continuum.”
The OYA Closed Custody Framework also includes application of the Positive Human
Development Model which is founded on the principle of safety and security and then builds on
that foundation with programs designed “to provide youth with the opportunity for caring and
supportive relationships while also establishing clear behavior expectations and high
expectations of accountability, building up to the opportunity to meaningfully participate in
groups and community activities and finally assisting them in developing community
connections.”
The OYA Closed Custody Framework addresses specific treatment needs such as addressing a
youth’s criminogenic needs including antisocial attitudes, values, beliefs and peers, gang affected
youth, and those who are affected by substance abuse and have problems with aggression and
anger. OYA provides offense specific treatment including treatment focused on victim empathy.
OYA also provides “treatment for intensive developmental needs” which includes treatment for
mental health/trauma, emotionally reactivity/emotion management, problem-solving, conflict
resolution, impulse control and cultural/spiritual connection.
Despite, all of OYA’s efforts, some youth remain incorrigible. While in OYA custody, a small
percentage of youth engage in violent behavior, a small percentage of youth smuggle drugs into a
correctional facility.
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 With the passage of SB 1008, youth who are sentenced to DOC will continue to be held in OYA
closed custody until age 25, when they will then be transferred to adult prison. While in OYA
care those youth will receive the same treatment as OYA youth in closed custody. A DOC youth
may be removed from OYA and placed in DOC custody after the age 18 and before the age 25
because of the youth’s behavior—including if the youth engages in violent behavior toward staff
or other youth. There have been about 25 youth transferred to DOC before age 25 in the last five
years. Any youth 18 years of age or older, whether committed to OYA or DOC, who is charged
with a new crime is charged as an adult and faces adult punishment for that crime.
In this case, there is no evidence regarding what, if anything, is done to help youth committed to
DOC maintain the progress and positive change they achieved in OYA custody after they are
transferred to adult prison. There is no evidence about what sort of treatment, if any, such a
youth would receive while in adult prison. There is no evidence about the prison environment a
youth transferred from OYA to prison is likely to be in. Indeed, there is no evidence about what
happens to youth when they are transferred to a DOC facility other than the evidence mentioned
above that the progress youth have made in OYA is undermined by the adult prison environment.
H. Evidence regarding the gravity of the loss or injury caused during the offense.
Ovid Neal lived, unhoused, in Eugene. He chose to live in Eugene after a period of roving
because he felt an affinity to the natural environment and the people. He took long walks in
nature which he considered his church. He was a learned man with a master’s degree from
Harvard Divinity School. He was a thoughtful man with a proclivity for philosophy who
believed in social justice and caring for others. He grew up in a family that valued family
relationships, hard work, education, creativity. He was musically gifted, curious and intelligent.
He made good friendships. Ovid Neal was also interested in the meaning of life, the human
condition, and the human spirit. When he was in divinity school he had all the makings of a
promising career. Then, Ovid Neal was diagnosed with a serious mental illness and the
promising career gave way. He attempted to normalize his life even as he experienced his
disease. His family supported his efforts and it appears that he was generally able to keep the
most difficult aspects of his disease in check. In 2014, Ovid Neal chose to stop taking his
medication and to venture out beyond the home he lived in with his mother and brother. Even as
he traveled, he kept in touch with his family. He was well loved by them and he loved them in
return. He kept in frequent contact with them through phone calls and letters and not long before
he was killed, he and his sister were making plans to meet up.
Ovid Neal lived unmedicated and unhoused and had struggles but he was not a cast-off who was
not cared for and with nothing to offer others. He was important to the community of other
unhoused people, helping them when he could. He offered kindness to people who lived in an
unkind world. Despite the hardships of living on the street, Ovid Neal was living the life he
chose to live, walking in nature and living simply. His life had value and his life was taken from
him through absolutely no fault of his own. There is no greater loss. No greater harm.
The Court infers from the evidence that Ovid Neal’s death shook the community of unhoused
people in Eugene as well as their advocates. The violent death of Ovid Neal, especially in the
context of a pattern of attacks and robberies committed by youth against other unhoused people
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 experiencing mental illness in Eugene, spread sadness, fear and unease throughout the
community.
Finally, there is the stunningly painful and devastating harm the killing of Ovid Neal has done to
his family. His brother, his mother and his sister will never see life in the same way again. The
harm done to them is permanent and incalculable. There will forever be an emptiness in their
lives where their beloved brother and son used to be. They will forever be haunted by the brutal
and senseless way he was killed. Even now, 15 months later, they are overcome by acute grief.
Mr. Neal’s mother’s health has deteriorated. His sister has difficulty functioning when
uncontrollable and unpredictable waves of sorrow overwhelm her. His brother struggles, trapped
in the incomprehensible nightmare of what has occurred.
I. The science about adolescent brain development and functioning.
Three people qualified to testify about adolescent brain development and functioning did so.
They were Fernandez-Tyson, Crossen and Kristen Lauren Mackiewicz Seghete. Seghete is an
Assistant Professor in the Department of Psychiatry at Oregon Health & Science University
(OHSU). She is also a Principle Investigator at the Stress, Cognition, Affect, & Neuroimaging
(SCAN) Lab, in the OHSU Department of Psychiatry and works as a psychologist in the
Department of Psychiatry, Division of Child and Adolescent Psychiatry at OHSU She holds a
Ph.D in clinical psychology and has been a licensed psychologist in Oregon since 2013. Seghete
testified at length about adolescent brain development. Fernandez-Tyson and Crossen echoed the
essentials of what Seghete had to say, with each commenting on specific adolescent brain
development research as it applies to J.K.
All the experts in this case agree that adolescents’ brains do not function like adults’ brains.
Researchers define adolescence as occurring from puberty (generally about age 10) to age 21.
Researchers further categorize adolescence into early (age 10 to 13), middle (14-17) and late (1821). This is true even though the research also shows that the human brain does not fully develop
until about age 25. Studies show that the common belief that, as they grow, teenagers become
more and more adult-like is untrue. In fact, it is not the case that the closer a teenager gets to
adulthood the more like an adult a teenager becomes. Indeed, while some aspects of an older
teenager’s brain are very similar to an adult’s brain, other parts of the older teenager’s brain as
compared to the adult brain, are wildly different. Brain development is not a linear progression.
The research shows that as compared to adults, teenagers have a less mature capacity to process
information, solve problems and make decisions. They are significantly less able to regulate their
emotions and responses to emotionally charged situations as compared to adults. And, they have
a heightened responsivity to peer influences and immediate rewards relative to adults.
1. Teenage cognitive functioning and ability to make considered decisions.
In about mid-adolescence an imbalance between the limbic regions of the brain and the
prefrontal area of the brain occurs. The limbic region, including the amygdala, involves
automatic responses to danger, emotional reactivity, and reward processing. The prefrontal area
of the brain controls functioning that is the hallmarks of adulthood: the ability to reason through
a problem, regulate emotions, think ahead, weight risks and alternatives and resist peer
influences. Between the ages 16 and 17, the limbic region of the brain develops rapidly while the
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 prefrontal area of the brain develops more slowly. This creates and imbalance between the two
functions of the brain. As Seghete described it, this imbalance results in the frontal region of the
brain getting sort of “highjacked” because the lower functions of the brain get very strongly
activated and the frontal regions are not developed sufficiently to dampen down the lower level
activation. As a result, it is harder for the higher functions of the brain to influence decisionmaking when a teen is highly aroused.
This brain imbalance is responsible for the common observation many parents make about their
teenagers: sometimes they are able to rationally reason through a situation and make reasonable
and safe decisions and other times they inexplicably seem incapable of taking reasoned and
responsible action and in fact do something that they “know” is wrong or risky. Scientists refer
to these different abilities as “cold cognition” and “hot cognition.” The differences are
biologically based.
Around ages 16 and 17 a teenager’s cognitive capacity approximates what it will be as an adult.
However, the ability to use this capacity is not fully developed. This is because the adolescent
brain relies on less effective strategies and resources to access its cognitive functioning while the
adult brain uses more direct and efficient methods. As Seghete explained it, when an adolescent
is in a “cool” situation, that is when the adolescent is calm, has resources and support such as
other people and is not in an emotionally charged situation, the brain is able to access its
cognitive functioning even though it is doing so less efficiently than an adult brain. This allows
the adolescent to make what researchers refer to as “cool decisions” about as well as an adult.
That ability is drastically different when that same adolescent is feeling emotionally aroused
(meaning is feeling excited, anxious, upset, angry etc.). In this situation the brain’s ability to
access its cognitive functioning is severely impaired. The frontal area of the brain cannot fend off
the impulses from its lower region. This means that older teenagers and young adults can’t make
well-reasoned and rational decisions but instead act “unthinking” on the baser emotional
impulses. Consequently, as Crossen explained, these “hot situations increase the chance of
engaging in risk-taking and sensation-seeking behaviors, with little self-control or consideration
of the possible consequences of their actions.” Psychologists refer to the ability to tap into
cognitive capacity during “hot cognition” as “psycho-social maturity.” Generally, people do not
reach psycho-social maturity until late adolescence or early adulthood.
The upshot of adolescent brain biology is that adolescents experience early reward and emotional
development before they develop the ability to regulate those emotions, use judgment and
reasoning. This gap leads to vulnerability because it puts an adolescent in the position where he
or she can have strong emotional impulses and a hard time controlling them or controlling their
actions in the face of those emotions.
2. The increase in sensitivity to emotions, immediate rewards and social
information.
Adolescence is a unique period in which the processing of emotions and social information is
greater than it would be for either a child or an adult. It is not just a linear increase; “there is
something about the adolescent period that causes a person to feel stronger emotions than that
same person would feel in the same experience if he were an adult.” Thus, adolescents have a
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 much stronger emotional response to smaller matters. There emotional threshold is more easily
triggered and once it is they lack the capacity to regulate that emotional response and to place
what is happening in an appropriate context. Understanding and contextualizing and choosing
the right reaction is harder for adolescents than adults.
Additionally, adolescents are biologically “primed to respond to peers.” Peers are much more
highly emotionally arousing to teens than adults. Studies have shown that even the mere
perception that a peer is nearby increases risk-taking and sensation-seeking behavior. Thus, it is
not necessary for a peer to “egg on” a risky behavior. This result is amplified in emotionally
charged situations. As Crossen stated in her report, studies show that “adolescents and young
adults demonstrate exaggerated susceptibility to peer influences on risk-relevant decision
making. Research has long indicated that adolescents are more likely than adults to take risks in
the context of peer groups (rather than alone), and one of the best documented predictors of
adolescent’s/emerging adult’s risk behavior is the behavior of their peers.”
3. The influence of adverse early life experience on brain development.
Research reveals that the brain’s biological processes are universal. However, the rate of
development for each individual varies. Currently it is not possible to scan an individual’s brain
and identify what level of development the person is at. Moreover, research also shows that
normal brain development can also be affected by environment.
Adverse childhood experiences can negatively interfere with brain development. One notable
consequence of childhood trauma is the impact those experiences have on the person’s ability to
process a “perceived threat.” In this context a perceived threat is information that causes the
person to perceive that he or she is in danger of experiencing emotional or physical harm or
discomfort. The perceived threat does not necessarily have to be a direct threat “I am going to
harm you” and it does not even need to be objectively real. For someone who has experienced
early childhood trauma, a perceived threat could be something as benign as an ambiguous face
because the person cannot determine if the person with the ambiguous expression is angry. The
response to a perceived threat is called a “threat response.” A threat response includes the classic
fight or flight responses as well as other responses such as irritability, loss of temper,
defensiveness and other reactive behavior. When a threat response is triggered the limbic region
of the brain takes command and the prefrontal cortex shuts down. Thus, the person’s response is
“automatic” rather than a product of a considered decision. Moreover, a person who has chronic
exposure to maltreatment or other adversities can experience a chronic stress response that
causes physical damage to the brain and results in a dampening of cognitive responsivity. Thus, a
person who is chronically exposed to an environment where the person has been hurt or feels
emotionally or physically threatened may perceive even small matters as threats and respond in
an amplified way: their limbic region is in control, their prefrontal cortex shuts down.
In addition to producing a chronic stress response, early childhood adversity can affect brain
development in other ways. For example, in the face of something like neglect there could be
delay in brain development. In other situations, there can be a trajectory change in the
developmental pattern. Adverse childhood experiences can also cause a child to be maladaptive
by engaging in adult activity for which the child is not developmentally ready.
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 Whether a person whose brain development has been negatively impacted by adverse childhood
experiences recovers from that impact depends on what kinds of services, support and
intervention and therapy the person receives. For instance, according to Seghete, with the “right
type of intervention and evidence supported therapy” there are observable changes in chronic
stress response. Additionally, Seghete opined that the prospect for improvement with the right
sort of intervention is heightened when the intervention takes place during adolescence because
during adolescence and into the early adulthood the brain has the most neuroplasticity that it will
ever have. Thus, during adolescence the brain is at once in one of its most vulnerable periods
while, at the same time, in a heightened period of responsivity to intervention. This means that
adolescence offers a significant opportunity to repair damage done by adverse childhood
experiences.
On this score, Seghete testified that the settled research shows that an adolescent’s ability to
positively respond to intervention depends on the adolescent feeling safe. Studies show that
returning adolescents who have experienced early trauma back into the environment they came
from will trigger their chronic stress response making them unable to learn and develop needed
skills. Moreover, the biggest difficulty for adolescents is having to “deal “with ambiguity.
Seghete opined that, to tap into an adolescent brain’s heightened responsivity to intervention, an
adolescent needs to be in a safe environment that is structured, predictable and where her or she
experiences some level of choice.
4. The effect of drug and alcohol use on brain development.
Without question, drug and alcohol abuse affects brain development. Depending on the degree
of toxicity, alcohol and drugs can negatively affect the areas of the brain that process reward and
sensation-seeking. What is more, significant use of drugs and alcohol can negatively impact the
development of the prefrontal cortex.
IV.

ANALYSIS
A. Did J.K. have sufficient sophistication and maturity to appreciate the nature and
quality of the conduct involved?

J.C.N.-V instructs that J.K.’s sophistication and maturity is measured against a normal, welladjusted adult. J.C.N.-V teaches that the “typical adult” the Court is to measure J.K. against is not
determined as a matter of law but instead as a matter of fact. The focus of the inquiry is not on
general capabilities of typical adults but on the narrower capability “to appreciate the nature and
quality” of conduct. That is, the Court is to discern the adult capacity to “appreciate or
comprehend, with heightened understanding and judgment, an act’s consequences and
wrongfulness.” 359 Or at 598. Using that understanding, the Court is to determine whether J.K.’s
intellectual and emotional capabilities in that regard were sufficiently comparable to an adult to
justify his exposure to criminal prosecution and punishment. Id.
As the State pointed out, correctly, there is a wide difference between the normal, well-adjusted
18-year-old, an adult according to the law but not according to neuroscientists, and a normal,
well-adjusted 80-year-old. Certainly, 18-year-olds have some of the same brain functioning
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 deficits compared to an adult that 16 and 17-year-olds have. The State, although not explicitly
arguing it, suggested that this situation should inform the Court with respect to the modifier
“sufficient” in the “sophistication and maturity” analysis. That is, the State seemed to take the
position that the Court should look to see if J.K.’s capabilities were close enough to the
capabilities of the average 18-year-old, whom is closer to J.K.’s age at the time he committed the
alleged crime, than the capabilities of the “typical adult” of an undefined age.
To the extent that the State extended the invitation to employ this analysis, the Court declines it.
First, as the evidence establishes, a “typical adult” is not the same as a “typical 18-year-old.”
Had the legislature, or the Supreme Court, wanted to limit the “sophistication and maturity”
analysis to a comparison of youths to the typical 18-year-old, they could have done so.
Moreover, given the Supreme Court’s discussion regarding the considerations a court is to
account for in determining whether a youth possesses enough adult-like sophistication and
maturity, it is unlikely that it intended the analysis to turn on a measurement of the youth against
an adult of a certain age.
In this Court’s view, when the Supreme Court refers to the “typical adult” the “normal adult” and
the “well-adjusted adult,” it is referring to the quality of adulthood. That is, adults have the
capacity to make decisions allowing them to live responsibly, to successfully attend to adult
matters, to make long-term personal decisions and to care for others placed in their charge.
Adults have the intellectual, emotional and social maturity to recognize social and moral norms,
appreciate their value, measure their conduct against those norms, and to choose to act within
those boundaries. This understanding is consistent with the Supreme Court’s explanation in
J.C.N.-V that the legislature’s use of the word “maturity in ORS 419C.439(2)(a) is associated
with normal well-adjusted adults,” meaning people “having and expressing the mental and
emotional qualities that are considered normal to adult socially adjusted human beings.” 359 Or
at 576.
The evidence in this case establishes, without dispute, the typical adult’s brain functioning is
significantly different from the brain of an adolescent. Adults are less influenced by peers, the
prospect of immediate rewards, sensation-seeking and risk-taking behaviors than adolescents.
Adults have reached psycho-social maturity which means that they can better function when they
are emotionally aroused because they have access to their executive functioning which
emotionally aroused teens do not have. In “hot” situations, adults have the capacity to think
things through. Meaning, they can access a situation, consider and recognize what is happening,
weigh the risks of action and consider the immediate and long-term consequence of a decision
against alternatives, all of which allows them to make more rational and reasoned decisions.
Adults also have a much better capacity to self-regulate and resist impulsive behavior when they
are emotionally charged and, as a general matter, they are not as easily or highly emotionally
aroused as teenagers. These abilities allow the typical adult to “comprehend, with heightened
understanding and judgment, an act’s consequences and wrongfulness.”
For the purposes of the analysis as it relates to this case, the act under consideration is assaulting
a homeless person while he lay on the sidewalk, using a rock, feet and fists to do so, all to rob
him of whatever valuables he possessed. It is not hard to see that the typical adult would
immediately appreciate that such an act is horrific, morally wrong, dangerous, pointless, and
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 would have grievous consequences. A typical adult in J.K.’s situation would have the capacity to
consider the situation and see all its various dimensions and to understand at a deep emotional
and intellectual level, a core level if you will, what it means to kill or grievously injure someoneespecially someone so vulnerable. A typical adult would have some sort of moral cognition
about the gravity of the act. A typical adult would be able to feel empathy with the potential
victim, would be able to engage in self-reflection, and would have the capacity to consider
alternative actions. A typical adult would be capable of weighing the costs and benefits of
robbing a vulnerable homeless man and would discern that the benefits of taking the action J.K.
is alleged to have taken were far out-weighed by the risks. A typical adult would be able to
regulate and resist his emotional, reward, risk and sensation seeking impulses. In sum, a typical
adult would be able to consider all of the ramifications of his or her action, to foresee its
consequences in both the short and long term and would also have the capacity to interrupt and
reconsider what he or she was doing.
The scientific evidence in this case shows that, simply because of his age, J.K. was not able to
access his brain’s executive functioning to both comprehend the situation and control his actions
as well as the typical adult. Of course, the same thing can be said of most 16 and 17-year-olds
who are charged with serious crimes. Therefore, the argument could be made that all such teens
were unable to appreciate the nature and quality of their conduct in the same way as a welladjusted adult and therefore do not meet the standard for waiver into adult court. Such a
sweeping application of brain science can hardly be what the legislature had in mind. Rather, the
analysis focuses on the individual youth. That focus is informed by science but is not determined
by it. The analysis requires “an inquiry into the extent to which a juvenile’s mental, social and
emotional developmental capabilities indicate adult-like capabilities” 359 Or at 584.
This Court has little difficulty finding that at the time he allegedly committed the crime, J.K.’s
general brain functioning was no better, and probably less developed, than the brain functioning
and development of the collective of 16 and 17-year-olds on which brain studies are based.
Additionally, the forensic psychological evidence indicates that “84-99.9% of other youth [J.K’s]
age have better executive functioning skills in initiation, controlling impulses in complex
situations, flexibility of problem-solving, incorporating feedback from problem solving, sorting
specific experiences into general rules or classes, rule learning, inhibiting impulsive and
perseverative responding, and establishing and maintain an instructional set.” These are
capacities particular to J.K. and what the Court draws from this evidence is that, not only did J.K.
lack the ability to access his cognitive functioning in “hot” settings in the same way that most
teenagers his age lack that ability, but also that his executive functioning capacities in specific
important and relevant areas were far inferior to most teens his age.
On top of this deficit, the evidence also shows that J.K.’s childhood experiences likely interfered
with his brain development and functioning. Certainly, it had a detrimental impact on his social
and emotional functioning. The Court has extensively recounted some of the evidence regarding
J.K.’s upbringing. As Fernandez-Tyson summarized this evidence, J.K.’s “formative years were
tumultuous and negatively impacted by parental drug/alcohol use, parental neglect, harsh and /or
inconsistent discipline, disrupted education due to frequent moves, poor parental supervision,
exposure to parental criminal behavior, and parental separation.” The evidence tells a story of a
boy who was subjected to maltreatment and neglect and early on left to fend for himself. He was
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 all but abandoned by his father whom he loved, and by the few other adults he was attached to
and depended on, including his grandmother whose abandonment for that critical year was
caused by her incarceration, and his mother’s girlfriend, who provided J.K. with the only
semblance of a normal parental figure he ever had.
Under the circumstances of J.K.’s early life, it would be false to say that J.K.’s social and
emotional development was anything close to normal. He undoubtedly felt unsafe in such an
unpredictable and volatile environment. He had no role models. No-one was there to provide
appropriate boundaries and to show him how to navigate within structure and limits or to
comprehend social and moral norms in a way that he could see their value and reasons to abide
by them. Indeed, the adults in his life were generally living outside the law and on the margins of
social norms. Among the wreckage of his early life, it is hard to imagine that J.K. felt he could
count on being cared for, or that he felt loved and secure enough to positively grow into himself,
to develop a positive relationship with himself and his outer world. The whole of his experience
calls to mind Seghete’s testimony regarding people who are chronically exposed to maltreatment
and how they develop a quickly triggered “threat response” which causes them to be reactive to
small matters that well-adjusted people might not even register. By the time J.K. was sent to live
with his father, this “chronic stress” response was apparently well imbedded into who he was.
Certainly, when he got to his father’s home his reactivity was apparent.
And what of the few years leading up to Ovid Neal’s death? The State understandably focuses on
J.K.’s out of control behavior, the fights with his father and his resorting to violence against his
father as indicators of both J.K.’s dangerousness, but also as proof of his culpability. The latter
assertion is less well founded. It seems to the Court that to understand J.K.’s behavior when he
moved in with his father, one must appreciate what came first. The evidence shows that J.K. had
been essentially fending for himself since Holcomb left his home when he was 10. Things got
progressively worse in terms of his living situation, his mother’s attentions and behaviors,
finances, all of it. He was using marijuana and drinking. He was out on the streets of Porterville
in a criminal milieu and engaged in some criminal activity. His school records show a marked
change in his behavior when he entered high school.
When he got to his father’s house he was entering the home of a man who had left him when he
was 6. Not only that, his father had, when he was living with J.K., during J.K.’s first six years,
failed to provide J.K. with the care, stability and structure a child needs to feel safe and be
healthy. Instead, his father’s focus was on drinking and drugs. J.K. could not depend on his
father. After his father left, when J.K. was experiencing all the chaos and turmoil and hardships,
his father did not intervene. The Court does not point this out to condemn J.K.’s father, but only
to appreciate that when J.K. arrived at his father’s door he was not well-adjusted normal 14-yearold. What is more, the relationship between J.K. and his father was a parental relationship in
name only. It had none of the qualities of a parent/child relationship. J.K.’s father had not been
his caretaker, had not taught him right from wrong, had not protected him, had not nurtured and
educated him and had not financially supported him. There was no positive history between them
with respect to those things.
And, when J.K. and his sisters unexpectedly arrived, their father was not prepared to do those
things although he tried. It is not hard to see how the situation would fall apart given J.K.’s
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 experiences and his father’s lack of parental credibility. By that the Court means that there was
no reason to predict that once J.K. (and his sisters for that matter) arrived at their father’s house
they would become a normal, well-adjusted, family where the teenagers listen to their father and
do the things normal teenagers do. Firstly, J.K. was habituated to doing what he wanted. He had
no experience following rules and he likely had little understanding of how to be socially
appropriate and live within those boundaries. Secondly, J.K.’s father had no strategies for taking
control of the situation and no relationship reserves to rely on. That is, J.K.’s father had not
earned J.K.’s respect, there was no established bond or history between them that could be called
on, there was no relationship where J.K. looked for and received guidance or emotional and
moral support from his father. Indeed, except perhaps for those few years with Holcomb, it does
not appear that J.K. received those things from anyone. In the Court’s experience, for parents to
have an authoritative influence over their teenager, the ground must have been ploughed well
before the child becomes a teen. J.K.’s father had not ploughed that ground and it appears he had
little understanding of how to play the role of parent. Indeed, when the Court listened to the jail
taped conversations between J.K. and his father, it was struck by how much the conversation
sounded like one between peers and how little it sounded like a conversation between a father
and his teenage son. Thirdly, it is obvious from his behavior and his story that J.K. was suffering
from the trauma of his childhood. It appears that J.K.’s father recognized some of the behaviors
that are likely symptomatic of J.K.’s trauma (e.g. his reactivity and self-harm) but it does not
appear that his father understood their source. In any event, J.K.’s father was unable to obtain or
provide the ancillary support J.K. needed to process and deal with the fall-out of his experiences.
The evidence demonstrates that over the nearly three years he was in Oregon, J.K.’s troubling
relationship to himself, to others and to the world at large grew worse. By 2018, J.K., was
seriously unwell. He was emotionally unstable and was highly reactive, especially in situations
involving his relationship with J.S. He was regularly abusing marijuana, alcohol, and perhaps
cocaine. He was undernourished. He was increasingly engaged in self-harm. Given the totality
of the evidence, the Court has little difficulty finding that when J.K. came to Oregon and right up
to the time he allegedly caused the death of Ovid Neal, he was emotionally, socially, and morally
immature as compared to most 17-year-olds, let alone a normal adult. His ability to self-reflect,
his capacity for empathy, his capacities to appropriately respond to conflict, to positively interact
with society and persons he cared about, to regulate his behavior when he was emotionally
aroused and to access his less developed executive functions governing judgment and rational
decision-making were all severely impaired.
In argument the State, perhaps in a moment of frustration, pointed out that “every day” people
come through the courthouse who have suffered “worse” childhoods than J.K. and they have not
killed anybody. It is unfortunately true that many children have suffered more than J.K. did when
he was growing up. It is also true that many people who have experienced severe trauma as
children are more resilient than J.K and do not commit violent crimes. But these truths are
beside the point. The focus here is on J.K.
On the night of October 3, 2018, J.K. brought with him all his reactivity, his under-developed
social and emotional capacities, and his impaired cognitive functioning. He was undeniably in a
highly aroused emotional state. For several hours leading up to the alleged assault, J.K.
experienced severe emotional lability described as an “emotional breakdown” and as essentially
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 being “out of his mind” with upset and fear that J.S had “left him.” He was so emotionally
distraught that he rammed his head into a glass storefront causing himself visible injuries. Less
than an hour before J.K. and J.S. discovered Ovid Neal, they were at a nearby market where J.K.
was so distraught that market employees tried to give him assistance to calm him down. When
J.K. allegedly prepared to and committed the assault and robbery of Ovid Neal, J.K. was
accompanied by J.S., who willingly and actively participated with him in committing the alleged
crime. He also undoubtedly knew that other youths in his circle of peers had been assaulting and
robbing unhoused people. These peer influences likely heightened J.K.’s emotional arousal and
amplified his reward processes and risk-taking and sensation-seeking behavior. Given the
scientific testimony in this case, the Court concludes that J.K. was in an extremely “hot setting”
and therefore, at the time of the alleged acts, J.K.’s executive functions were off-line.
The State asserts that J.K. showed his adult like sophistication and maturity by engaging in adult
behavior such as “running” the household, living with a sexual partner, doing “what he wanted”
and answering to no-one. It is true that J.K. did all those things. But, as the evidence indicates,
acting like an adult is not the same as being an adult. In fact, when children adopt adult behaviors
before they are developmentally ready to do so, those behaviors are maladaptive and harmful to
them. It appears that was true for J.K.
Fernandez-Tyson placed significance on the sophistication and maturity ranking of the RSTI as
evidence of J.K.’s maturity. As already discussed, she placed J.K. in the High Offender category
but did so in error. His scores actually place him in the Medium Offender category. Moreover,
the comparison is unhelpful for two reasons. First, the RSTI compared J.K. to other delinquent
youth not the typical adult. Second the focus here is not on J.K.’s sophistication and maturity
generally but on his capacity to appreciate the nature and quality of his conduct with the same
heightened comprehension and judgment a normal adult would have.
The State referred the Court to ORS 161.295 regarding the guilty except insane defense available
to adults. The State pointed out that the language in ORS 419C.349(2)(a) is somewhat analogous
and argued that J.K. met the criminal culpability standard for adults experiencing a mental
disease or defect. That is, he knew what he was doing, and he knew that what he was doing was
wrong. As the State also apparently conceded, J.C.N.-V forecloses this Court from concluding
that ORS 419C.349(2)(a) imposes that same standard of culpability on J.K.
The weight of the evidence indicates that when J.K. allegedly assaulted, robbed and caused the
death of Ovid Neal, he did not have a sufficient adult-like capacity to comprehend, with
heightened understanding and judgment in the same way the average adult would, the act’s
consequences and wrongfulness on an intellectual and emotional level. He knew he was
physically engaging in the act and he knew that what he was doing was unlawful and wrong at
the most basic level. However, the evidence indicates that at the time of his actions, J.K. lacked
an adult-like cognitive ability to consider and weigh his actions in a rationale and reasoned
manner. He also lacked an adult-like capacity to appreciate that his acts were morally
reprehensible and to comprehend that his actions were likely to result in Ovid Neal’s death and
what that would mean to Mr. Neal, his family and J.K. himself. Indeed, at the time of his alleged
actions, it appears that J.K. lacked the adult-like ability to empathize with others or to perceive
the long-term consequences of his behavior. Additionally, it is likely that J.S.’s presence,
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 especially given her importance to him, resulted in J.K.’s reward processes being highly
activated in a way that increased his limbic system’s automatic impulses to engage in risky and
sensation seeking behavior.
Applying the statutory standard as interpreted by the Oregon Supreme Court in J.C.N.-V, the
totality of the evidence establishes that J.K. did not possesses sufficient intellectual, social and
emotional capabilities to have an adult-like understanding of the significance of his conduct,
including its wrongfulness and its consequences for himself, Mr. Neal and others.
This finding does not and is not intended to excuse J.K. from being held responsible for his
alleged conduct. Rather, it means that an adjudication of the alleged crimes will remain with the
juvenile court. This is in accordance with the legislature’s judgment that in cases where
juveniles do not have an adult-like sophistication and maturity to fully comprehend the quality
and nature of their conduct, they should not be treated as adults. Instead, the legislature has
determined that the well-being of society and of youth will be better served through the juvenile
justice system where adjudicated youth will receive targeted treatment to address their needs,
behavior and thinking all to effectuate their rehabilitation while not being subject to the adult
penal environment and the attendant risks that the positive treatment fueled changes youth
achieve will be undone.
B. Has the preponderance of the evidence shown that retaining juvenile court
jurisdiction will not serve the best interests of J.K. and of society and is therefore
not justified?
1. Application of the criteria.
As explained previously, ORS 419C.349(2)(b) requires the Court to consider 8 criteria in
deciding whether a youth should be waived to adult court because retaining juvenile court
jurisdiction is not in the best interests of the youth and of society. The relevant criteria are:
a. The amenability of the youth to treatment and rehabilitation given the
techniques, facilities and personnel for rehabilitation available to the juvenile
court and to the criminal court which would have jurisdiction after transfer.
The preponderance of the evidence indicates that J.K. is amenable to treatment. When he was in
juvenile detention he was receptive to treatment and participated in the treatment that was
offered. He expressed a desire for treatment and in forensic interviews consistently indicated that
he needed help, wanted help and wanted to change. What is more, while in detention, he used the
strategies and information provided to him by a mental health specialist and sought out that
specialist as well as other staff when he was having struggles. While in detention he also showed
a developing ability for self-reflection, remorse for his behavior and empathy for those he
harmed.
The Court has extensively summarized the evidence regarding the treatment that OYA provides
to all youth placed in closed custody. The treatment J.K. would receive in OYA will be highly
tailored to his individual needs and there are good indications that, given his age, his receptivity
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 to treatment, and the ability for OYA to provide him with a safe and structured setting, he can
succeed and rehabilitate. If he is committed to OYA, J.K. will be subject to an indeterminate
sentence and may be held in custody until he is age 25. OYA could also release him from closed
custody earlier than age 25 and place him in a camp or other setting designed to provide support,
structure, and supervision as he transitions into the community.
Fernandez-Tyson made a case that J.K.’s prognosis for rehabilitation is not good. She based her
opinion on his childhood trauma, her diagnosis of early childhood conduct disorder, the PSI
indication of a developing personality disorder, his negative behaviors in detention and jail, his
failure to take up “opportunities offered him” by the California Truancy Board, a juvenile
diversion program, and the teen homeless shelter, and on her view that his expressions of
remorse were not genuine or sufficient. The Court does not interpret this evidence in the same
way. Based on the forensic evidence in this case, one would expect that J.K. would have some
difficulties in detention and jail. His troubling behaviors are consistent with what the evidence
says about J.K. Even as the Court recognizes that J.K. violated rules and engaged in concerning
behavior while in detention, in all those instances, he was able to respond appropriately to
corrective action, owned his behavior and showed a willingness to work at understanding his
behavior, why it was wrong, and its consequences so that he could improve his future decisionmaking. While his jail infractions are concerning, they too are consistent with what the evidence
says about the problems J.K. has thinking things through and regulating his emotional impulses.
As for the 90 minutes of jail tapes, the Court is not distressed that J.K. would continue to listen to
the music he grew up with, even though it is unhelpful to him. The statements about “fishing”
did not appear to be a glorification of rule violation. The statements about what he would do if
his girlfriend was cheating on him and the statements about “pimping out” other females are
concerning and consistent with what one would expect from J.K. given what the forensic
evidence says about him. They reflect a type of thinking that can be remediated with the proper
treatment. In sum, the evidence cited by Fernandez-Tyson, balanced against the other evidence in
the case, does not demonstrate that J.K. is a hardened criminal beyond the reach of treatment or
that he does not want treatment or does not desire to change.
If J.K. is waived into circuit court and convicted of the alleged crimes, he would be sent to
closed custody in OYA. While at OYA he would receive the same individualized treatment as
OYA youth committed to closed custody. When he turned 25 he would be transferred to a DOC
prison. If J.K. were convicted of murder he would, according to the State, be sentenced to a
mandatory term of 25 years with parole eligibility beginning after 15 years. Also, according to
the State, if J.K. were convicted of murder, he would also be eligible for a “second look” after
150 months (12.5 years). Thus, if J.K. were sentenced for murder in circuit court, he would be
eligible for a second look when he was 29.5 year of age and eligible for parole when he was 32
years of age. If he was not paroled and if his second look hearing failed to reduce his sentence,
J.K. would be released from prison at age 42.
As indicated no party introduced evidence regarding the environment J.K. would be placed in
upon his transfer to DOC. There is no evidence that he would receive any additional treatment or
support or that any action would be taken to help him maintain the positive changes and growth
he achieved during his 7 years in OYA custody. The evidence presented shows that statistical
research from the Center of Disease Control indicates that youth placed in adult prisons have
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 worse outcomes than youth placed in juvenile settings. OYA research demonstrates that,
controlling for 11 factors, youth sent to DOC are twice as likely to recidivate. The State provided
no evidence of its own on this issue, however in closing argument, the state vigorously objected
to the reliability of those statistics and pointed out that the statistics involving the historical
outcomes for youth committed to DOC in Oregon would primarily include youth who were at
least 15 years of age and who committed the most severe crimes. Consequently, it may be the
nature of those youth and not adult prison that drives those statistics. The Court accepts that there
is some statistical basis for concluding that youth committed to DOC have worse outcomes than
those committed to OYA while at the same time recognizing the problems with unquestionably
relying on that statistical information.
Nonetheless, other evidence presented in this case supports the statistical findings. Specifically,
there was expert testimony regarding the specific treatment and environment J.K. needs to
rehabilitate and that the adult prison environment undermines or “undoes” benefits of that
treatment. There was also testimony that research shows that it is detrimental to hold youth in
custody longer than necessary to achieve treatment goals. This testimony makes logical sense
from the Court’s perspective. First, based on the Court’s experience and training, the adult penal
system is far less able than the juvenile system to target the criminogenic and responsivity needs
of the adults in its custody and is more punitive in nature. Moreover, the prison environment
itself is less supporting of the individual personality and individual capabilities of persons in
custody than the juvenile system. And there are more adults in the adult system with
personalities that are more hardened toward criminal thinking and behavior than in the juvenile
system. It seems logical to this Court that a juvenile who transfers to the adult penal setting
would, in many ways, be called upon to reignite the strategies and thinking that the juvenile
justice system had worked so hard to extinguish because those strategies and ways of thinking
would be more beneficial to him in terms of surviving among peers in prison. Finally, it seems
logical that the prosocial tools and skills the juvenile justice system works so hard to inculcate in
a youth would be lost because those skills would be less valued and there would be less
opportunity to put them to use.
b. The protection required by the community, given the seriousness of the offense
alleged and whether the youth can be rehabilitated under the jurisdiction of
the juvenile court.
The charges at issue are serious in the extreme and the need to protect the public, especially
vulnerable members of the public such as Ovid Neal, is high. At the same time, it appears to the
Court that OYA can provide J.K. with the specific treatment he needs to address his
criminogenic factors as well as other barriers he may face to rehabilitation. His treatment will be
individualized and, as the parole counselor testified, OYA will “meet him where he is at.” This
developmental corrections model, according to the evidence, provides the most effective means
of rehabilitating youth. Other than the year he was in detention, J.K. has never had treatment of
any kind. He has no history of treatment failure and there is no evidence that he is so hardened
that he is immune to programs designed to meet his needs. Instead, the evidence shows that J.K.
desires help, is willing to participate in treatment and was successful utilizing the limited
treatment provided in detention. The evidence also demonstrates that even though J.K. has
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 significant and serious problems, with the right kind of treatment, he can be successful in his life.
On this record, the Court finds it is more likely than not that J.K. can rehabilitate.
c. The aggressive, violent, premeditated or willful manner in which the offense
was alleged to have been committed.
The assault against Ovid Neal was horrifically violent and was willful to the extent that J.K. and
J.S. discussed what they were going to do and had to seek out the weapon before committing the
alleged crime. There is also evidence that J.K. and J.S. had engaged in a similar assault and
robbery the night before. This prior assault may have motivated J.K. to attempt the robbery and
assault at issue here.
d. The previous history of the youth, including prior treatment efforts and out-ofhome placements and the physical, emotional and mental health of the youth.
The Court has recounted J.K.’s family, social and criminal history elsewhere, and as also
previously indicated, J.K. has no prior history of treatment. The only out of home placement was
for two days when J.K. was taken out of his mother’s care because she was neglecting and
endangering him. Fernandez-Tyson wrote that J.K. had opportunities for help such as from a
Truancy Board, the alleged offer to participate in a juvenile diversion program in California and
the offer of family counseling made by the homeless shelter in Eugene when J.K. was a runaway.
First, even if J.K. was “offered” the chance to participate in a diversion program, which the
Court is far from convinced of, it is inconceivable to the Court that a middle school child in
J.K.’s circumstances would have the wherewithal to participate in a diversion program on his
own accord, without the support of his family, and that his failure to do so should be counted
against him as a failed treatment opportunity. There is no evidence that any Truancy Board
stepped in to provide J.K. with treatment or even that he declined whatever help they offered.
Finally, the Court agrees it would have been helpful for J.K. and his father to participate in
counseling through the homeless shelter. The reasons that J.K. and his father did not continue
with counseling services are not in evidence. Moreover, reunification counseling is not the same
as treatment for J.K.’s specific maladies.
As the Court has said elsewhere, J.K.’s emotional, physical and mental health were compromised
at the time he committed the alleged crime. Since being taken into custody it appears that his
physical health has much improved. He is on psychotropic medications that have improved his
mental health although the evidence convincingly indicates that he needs additional intervention,
particularly in cognitive behavior. The evidence shows that he has been receptive to treatment
and the limited treatment he has received has had a positive effect.
e. The youth’s prior record of acts which would be crimes if committed by an
adult.
The evidence indicates that when J.K. was a teenager he engaged in criminal activity in
California. When he came to Oregon he continued to do so, including stealing valuables from
cars and alcohol from stores. There is also evidence that he assaulted his father at least twice and
that he assaulted and robbed a mentally ill homeless man the day before he allegedly assaulted
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 Ovid Neal. Prior to his arrest for the assault and murder of Ovid Neal, J.K. had never been
arrested. He had received a citation for minor in possession of alcohol but there was no
consequence for that citation. Along with the evidence that J.K. committed other acts that would
be crimes if committed by an adult, the Court considers the evidence that J.K. was never called
to account for his actions. There was never any intervention that ought to have interrupted
continuation of his conduct. Unlike J.S., J.K. had never been given the benefits of treatment,
never been on probation, never had anyone intercede and help him with the skills he needed to
put his life right. Thus, his “prior criminal history” does not contain the typical association of
probation, intervention, accountability and other responses that the juvenile justice system, when
it is involved, uses to prevent youth from continuing to escalate criminal behavior.
f. The gravity of the loss, damage or injury caused or attempted during the
offense.
There can be no greater loss than the loss of life. As indicated previously, the loss suffered by the
Mr. Neal and his family members to the kind of random violent act alleged here is grave and
incalculable.
g. The prosecutive merit of the case against the youth.
The merit of the State’s case against J.K. is substantial. There exists compelling evidence
supporting the charges.
2. Analysis
The presumption evident in ORS 419C.349(2)(b) is that it is in the best interests of J.K. and of
society for the juvenile court to retain jurisdiction. The Court may not waive J.K. into circuit
court unless it finds by a preponderance of the evidence that retaining juvenile court jurisdiction
will not serve the best interests of J.K. and of society.
Would it work against J.K.’s best interests to keep him in the juvenile system? How would
waiving J.K. into the adult system benefit J.K.? The State made no specific argument on these
points but did assert that J.K. would not have the benefit of post-prison supervision after he turns
25 if he is committed to OYA. That argument seems to assume that OYA would keep J.K. in
closed custody until the 11th hour which is contrary to their commitment to transitioning youth
into society in a way that gives them the support they need to be successful. Moreover, and
importantly, there is no evidence regarding how J.K.’s interests would be served in prison in
terms of helping him maintain or strengthen the benefits he garnered while in OYA custody.
Further, there is no evidence regarding the sort of environment he would be exposed to in prison
and whether that environment would positively or negatively affect his well-being.
With respect to the questions of society’s interests, the State essentially argued that the longer
J.K. is in custody the safer the community is. However, as the defense pointed out, even if J.K. is
convicted of murder and serves the entire 25-year sentence, he would be released back into the
community at a relatively young age. There was no evidence produced showing that the longer
the prison sentence the more rehabilitated a person is and there is evidence that such a
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 proposition is untrue. While he is in OYA, J.K. will be held accountable and will remain in
closed custody for as long as necessary up to age 25. He will be given the support and treatment
he needs to make changes necessary to live a productive, pro-social life. If he persists in violent
conduct, he will be subject to adult charges and sentences that may remove him from OYA care
and custody.
On balance, and in light of the forgoing considerations, the Court finds that it has not been
proven by a preponderance of the evidence that it is not in the best interests of J.K. and of society
for the juvenile court to retain jurisdiction.
V.

CONCLUSION

As a result of the foregoing, the Petition to waive J.K. into adult court is hereby DENIED.
The juvenile court fact finding is to be set within 28 days.

Signed: 2/28/2020 11:55 AM

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