Riley County District Judge David Stutzman declined to rule Friday on whether Cole Drake, 15, will be tried as an adult or a juvenile for the April 2011 murder of Tyler Dowling, 14, a Manhattan High School freshman.
If Drake is tried as an adult and convicted of first-degree murder, he could face life imprisonment with the possibility of parole after 25 years. If he is convicted as a juvenile, he could face release from juvenile jurisdiction at 22 or 23 years of age. Following two days of testimony, Stutzman said he will issue a written ruling at a later date.
In court Friday, Stutzman heard the testimony of two mental health professionals with differing opinions on the possibility of Drake’s rehabilitation.
Steven Peterson, a psychiatrist who evaluated Drake in 2011, said the boy could be rehabilitated in the juvenile justice system and should be tried as a juvenile.
He said Drake showed remorse and felt sick to his stomach for the alleged murder of Dowling. He said Drake’s brain is still developing and behavior is not determined by early experiences, noting the boy’s unstructured home life and an emotionally unavailable mother.
He said Drake has shown improvement already in his juvenile detention facility, and added that he would be under strict limits in the residential treatment program.
Phillip Tongier, health services administrator for Larned Juvenile Correctional Facility, said juveniles in their facility have a structured day that includes schooling, programming, and set rise and bed-times.
He said the juveniles are given tests to determine their program needs, the goal of the facility being to ensure public safety.
Tongier said the juveniles undergo psychotherapy and programming so that when they are released, their issues will be managed.
But John Fajen, a psychologist who evaluated Drake three months prior to Peterson, testified that the boy showed no conscience and should be tried as an adult.
Fajen called Drake a seriously disturbed child and said that his psychological problems began before kindergarten.
He said that when Drake discussed killing Dowling, by shooting him once to the back of his head and once to the right of his back, he might as well have been discussing the weather.
Fajen said Drake did not get what he needed in his formative years and the only thing that will keep him in line now is structure and threat of punishment.
Brenda Jordan, Drake’s attorney, argued that Fajen approached the evaluation with a bias, having said before meeting Drake that the boy had “ripped a hole” through the community. Fajen said his statement only meant that Drake’s act was profound in his community.
Likewise, Fajen said Peterson’s evaluation of Drake might have been influenced by the fact that he had administered the same test to the boy only three months earlier. Fajen said people tend to learn how to respond to such tests.
Jordan argued that Drake has not had consistent psychological treatment and should be given the chance to see whether treatment can help him. She said he would not get that chance in an adult prison system.
County Atty. Barry Wilkerson argued that Drake has taken part in enough adult activities, including fathering a child, drinking and smoking marijuana, to be treated as one.
He contended that Drake more than meets the requirements as stipulated by Kansas law, which takes into account, among other points, the seriousness of the crime, the history and attitude of the accused and the interests of the community, to be tried as an adult.
Friday’s all-day session concluded a two-day hearing during which 20 witnesses testified.