By Gretchen Schuldt
An appeals court judge on Tuesday ordered a new hearing on whether a juvenile accused of shooting eight people at Mayfair mall in November should be waived into adult court.
The ruling by District I Court of Appeals Judge Timothy G. Dugan reversed Milwaukee County Circuit Judge Brittany Grayson's finding that the case should remain in juvenile court.
The court record Grayson established "does not reflect that the court set forth a reasonable basis for its conclusions," Dugan wrote.
The juvenile, identified as Xander in Dugan's decision, was charged in a November delinquency petition with eight counts of first-degree reckless injury with use of a dangerous weapon and one count of possession of a dangerous weapon by a person under 18.
The state Division of Division of Youth and Family Services recommended the boy, then 15, remain in juvenile court and Xander's psychologist also testified on his behalf.
Grayson found that the state did not show that services available through the juvenile system would not adequately protect Xander and the public, according to the Milwaukee Journal Sentinel.
The Mayfair shooting occurred while Xander was serving a sentence from an earlier incident, where he ran from a car pulled over by police. Officers later found cannabis in a backpack the boy threw away while fleeing. Xander had several violations of his community supervision, Dugan said.
Xander allegedly shot the Mayfair victims after he and a friend, Eric Garcia, got in an argument there with some people they knew. Xander allegedly shot three people from the group, four bystanders, and Garcia.
He was arrested a few days later with the gun in his possession, Dugan wrote.
During a later investigation, "police discovered text messages between Xander, his parents, and his sister, in which they devised a plan to help Xander flee to Florida via airplane and stay with his adult sister," he wrote.
Grayson, during the waiver hearing, "admitted and then relied on hearsay statements from Xander contained in the psychologist’s testimony and, in effect, allowed Xander to present an alternative version of events that contradicted the facts set forth in the delinquency petition," he said.
The psychologist testified that Xander “came across as anxious” based on the information that Xander gave to the psychologist. The psychologist also said that Xander was suffering from post-traumatic stress disorder on the day of the shooting, a diagnosis based on Xander's statement that the people in the group had shot at him and a friend a month earlier.
"The psychologist testified that Xander told him that he 'felt threatened' that day at the mall and that Xander said that 'when he shot – his eyes – he closed his eyes and shot,'" Dugan wrote. "He then testified that 'what it tells me is that he – he was simply reacting…. [H]e wasn’t trying to – trying to hit someone…. [H]e was just reacting.'”
That testimony directly contradicted eyewitness accounts submitted by the state. Those witnesses said Xander appeared to target the group and fired at one person in particular as she tried to flee.
Xander did not challenge the description of the alleged crimes as outlined in the delinquency petition, Dugan said.
"Allowing a contradictory version of events through the testimony of the psychologist would be absurd," he said.
Grayson also erred, Dugan said, when she "described the unique and dangerous nature of this shooting of eight people, including innocent bystanders, in a crowded mall but then merely stated that the juvenile court handles serious cases like this 'all the time' and stated that the public interest is best served by allowing this case to proceed in juvenile court without further explanation."
"As the juvenile court recognized, it is a miracle that no one died and that there were not more people injured when Xander opened fire (or, as the State described, 'empt[ied] the entire clip') in a crowded public place..." he wrote.
Grayson did not adequately explain why keeping the case in juvenile court was not contrary to the public's best interest, Dugan said. She also failed to state on the record how the juvenile code would protect the public, given the seriousness of the crime and Xander's record of failing to comply with the rules of his previous supervision.
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