Déjà Vu — Another Similar Case, Another Different Result

Here is another startling example of how the harshness of the prosecution in The Elkhart 4 case is not reflective of other similar cases nation wide.  Thanks to Steve Drizin for letting us know about this case.  If anyone knows of other examples of similar cases please let us know by using the contact form at the bottom of this article.

On September 21, 2010 in the mid morning four teens decided to ditch school in Davenport Florida.  Getting up to mischief two fifteen year olds, a sixteen year old and a 17 year old decided to break into a house.  At 11:45 am the four boys approached the house of Jose Oyola-Aponte who was sleeping at the time.  The sixteen-year-old juvenile used a hammer to break the window.  The smashing glass woke Mr. Oyola-Aponte and his wife up.  Mr. Oyola-Aponte grabbed his gun and shot twice at the window.  One-shot hit 15-year-old Otilio Rubio in the head.  The other shot hit the 16-year-old boy in the abdomen.  The other boys ran away.  Otilio Rubio died two days later in hospital.  The surviving boys aged 15, 16 and 17 were arrested and charged with burglary and felony murder.

The surviving 15 year old and the 17 year old were charged in juvenile court and accepted a plea deal.  They were sentenced to a minimum of 9 months in juvenile detention but depending on the progress of their rehabilitation they could stay in detention until their 21st birthday.  The 16 year old was treated differently because he was the one who used the hammer to break the window.  The 16 year old was charged with 2nd degree felony murder as an adult and faced a possible sentence of 50 years in the Florida Department of Corrections.

Florida is a state known for a very tough justice system.  Sentencing is harsh and there are no options for parole.  Unlike Indiana, where the case of The Elkhart 4 occurred, Florida has much clearer felony murder legislation.  The Florida Code (782-04) reveals that Florida has two degrees of felony murder.  Felony murder in the first degree is “The unlawful killing of a human being (2) when committed by a person engaged in the perpetration of, or in the attempt to perpetrate, any . . .(list of the possible felonies including burglary).  Second degree felony murder in Florida is “When a human being is killed during the perpetration of, or during the attempt to perpetrate, any: (list of possible felonies including burglary) by a person other than the person engaged in the perpetration of . . . .”

So Florida actually differentiates the degree of culpability in felony murder based on who does the actual killing.   When the person who does the killing is an accomplice it is first degree felony murder.  When the person who does the killing is a victim or bystander then those committing the crime are charged with 2nd degree felony murder .  We still have significant concerns with the entire concept of felony murder, but at least the Florida statute is clear unlike the statute in Indiana.  In Indiana the felony murder statute  [35-42-1-1(2)] defines the crime as:

A person who kills another human being while committing or attempting to commit arson, burglary, child molesting, consumer product tampering, criminal deviate conduct, kidnapping, rape, robbery, human trafficking, promotion of human trafficking, sexual trafficking of a minor or carjacking . . . commits murder, a felony.

In a recent interview on The Elkhart 4 Indiana State Representative Ryan Dvorak stated,  “If you actually read the statute, the language of the statute probably would not apply to the kids in this case [Elkhart 4].  So interpreting the law’s intent comes down to the courts and as we have documented in our article “Is Curtis Hill Using the Case of the Elkhart 4 To Expand the Felony Murder Rule  in Indiana?” we do not believe the court record is clear.

In October of 2010 the Daily Beast published an article detailing the case of the 16 year old charged with felony murder in the death of Otilio Rubio.  Author Constantino Diaz Duran interviews Paul H. Robinson a law professor at the University of Pennsylvania Law School.  Professor Robinson believes that Florida has one of the broadest felony murder rules in the USA.  In the article Professor Robinson is quoted as saying “Most people haven’t the slightest idea whether their state has a felony murder rule or not, or if their state has a felony murder rule, if it’s a broad one, or a narrow one.  How can the rule produce some kind of deterrent effect when people don’t know what the rule is?”  This quote is especially relevant in the case of the Elkhart 4 given the wording of the statute and the seemingly contradictory way the law has been applied in this case.

Also interviewed in the Daily Beast article was Princeton psychology professor John Darley who reflected on what the felony murder conviction would do to the 16-year-old juvenile.  Professor Darley stated “It’s going to inflict a great deal of harm in his life,” he says, “and its going to do that by seriously hampering or even eliminated his chances of getting jobs, continuing in school, and so on.”  Darley continues, “The way we treat him will in fact create a more dangerous criminal.”

But Professors Darley’s worst fears were not realized.  The prosecutor and the judge were able to see the unique situation and facts in the case.  Instead of proceeding with the adult felony murder charge the 16-year-old teen pled guilty to second-degree felony murder, burglary and possession of burglary tools as a juvenile.  The teen was sentenced to 6 years of probation.  At sentencing the judge decided that if the teen has a successful probation his criminal record will be removed.

Three members of The Elkhart 4, Blake Layman, Anthony Sharp and Levi Sparks, were sentenced on September 12 to decades in prison.  Jose Quiroz the other member received 45 years in December 2012.  All for their participation in a case with very similar facts.  After the sentencing in September Elkhart County Prosecutor Curtis Hill said, “whatever the jury decides is what we live with.”  Is this an attempt to shift responsibility for this injustice away from Mr. Hill and onto the jury?  As Steve Drizin, law professor at Northwestern University of law wrote in a discussion forum on his recent article The Elkhart Four and the Unjust Application of the Felony Murder Rule on Teens, “Felony murder is a strict liability crime.  If you are guilty of committing the underlying felony and someone is killed, you can be convicted of murder”.  What Drizin is saying is that once the Elkhart Prosecutor decided to charge the boys a conviction was inevitable because of the way the felony murder law is written.

So why are the outcomes of other cases so different from the outcome in the case of The Elkhart 4?  The judge and prosecutor in Polk County Florida managed find a way to apply the law while taking into account age of the teens and the facts of the crime.  In another similar case from Alabama that we have documented the judge and the prosecutor managed to find a similar compromise.  Why was this not able to happen in Elkhart?  We maintain that the responsibility for this injustice lies with Elkhart County Prosecutor Curtis Hill.  Unlike his colleagues in Alabama and Florida he refused to take into consideration the youth of Quiroz (age 16), Layman (age 16) and Sparks (age 17) when charging the teens.  Unlike his colleagues there was no consideration of the unique facts of the case (the boys did not kill anyone).  This is especially interesting based on the ambiguity of how this case fits the Indiana felony murder rule as it is written.  Unfortunately, unlike his colleagues Mr. Hill did not leave open any room for redemption in this case.

Perhaps the ambiguity the felony murder rule allows for is why it is so unjust.  Prosecutors can use the law in such a wide variety of cases each with unique facts and different motivations.  The complexity and nuance of individual cases can be easily ignored, as the prosecution only needs to prove committing or attempting to commit the underlying felony.  This makes equal justice impossible because the fate of accused lies in the political and personal motivation of the prosecutor.

PLEASE NOTE: http://www.FreeTheElkhart4.com will not name or show the face of any person charged or convicted as a juvenile.  That is why we blurred the faces in our story banner.  The names of the three boys do appear in some of the linked articles.  We do not control the content of those articles, but felt it essential to provide our readers with links to our sources.


The Daily Beast Article


More Information on the Case from Polk County Florida




The Felony Murder Rule in Florida



Huffington Post Article


WSTB Elkhart 4 Interview with Curtis Hill and Ryan Dvorak



  • Hi Mr. Thorn, thanks for reading the article this time. We are still waiting for you to read the article about the Alabama case!

    The homeowner did change his story because he did not want the police to search his house and find the drugs. According to http://www.theledger.com/article/20100922/news/9225060 Sheriff Grady Judd said, “Just because you’re a liar doesn’t mean you can’t protect yourself and your home”. I do not see how this has any relevance to my arguments about felony murder, but it is an interesting side story.

    According to http://www.theledger.com/article/20101007/NEWS/10075070
    the 16 year old who was charged with adult felony murder had a hammer, which he used to break a window. He was found to have a bag full of burglary tools and pled guilty to having burglary tools. ( http://www.wtsp.com/news/local/story.aspx?storyid=244964 ) Weapons can be anything you can hurt someone with and there is absolute proof they had a hammer, which can do significant damage if used as a weapon. This is unlike the Elkhart 4 case where no weapons were found on the boys and the only reference to weapons comes in an affidavit from someone who under oath in court admitted to lying on the affidavit and admitted he was on drugs when being interviewed by police for the affidavit. Certainly not the “definite proof” that finding weapons on someone and them pleading guilty to having them is.

    Finally the prosecutor never said he had no sympathy for the homeowner. In fact according to http://tbo.com/local/communitynews-teens-face-felony-murder-charges-after-accomplice-dies-28777 Sheriff Grady Judd said that the arrest of the homeowner “won’t impact the investigation into the shooting.”

    Your acceptance of the way the case out of Florida was handled based on the fact that the boys never got into the house (because they were shot first) seems at odds with your apparent glee and satisfaction with a 50 year sentence for Levi Sparks who not only did not enter the house in Elkhart, he was not even on the property. All the boys in Florida were on the property.

    I certainly hope you were not suggesting the offensive idea that the character of the victim of a crime should impact how a suspect is charged and convicted. I hope you are not suggesting a two-tier justice system that ignores some people and not others. If you are suggesting this it is very dangerous and irresponsible.

    You have fallen into the trap of pretending to play God, justifying two polar opposite results based on small differences and nuances in cases. This is the problem with the felony murder rule. It allows the state to ignore intent to kill only having to prove the initial felony. By taking away intent to kill the there is limited control on the application of this law. When you charge people for what they actually do and consistently apply the rules of juvenile justice for those defendants its applies to you stand a much better chance of equal justice. Equal justice can’t be realised with a law like felony murder that provides opportunity for one prosecutor to agree to six years probation with a clean record at the end of it and the other to demand 45 – 55 years in prison on two cases with way more similarities than differences.

    • So like the others who have stated the same nonsense about no weapons at the scene, I suppose that the weapon that was found in the neighbors yard walked there of it’s own accord, and was not left there by the fleeing robber. The homeowner was an eye witness, and saw weapons, and testified as such in court. Case closed.

      • Always enjoy when you use “case closed” to end your comments. It sounds so final, yet we are nowhere near the end. I guess from your silence on the gun issue you have nothing to add to the 6 clear points I had to show that there is no proof of a gun (from your comment on The Huffington Post Story) The only testimony I can find detailing a knife was the testimony of a neighbour who found a knife on his property and he took the knife to the police (http://www.elkharttruth.com/article/20130820/NEWS05/708209871). (Again I detail my reply about the issue of weapons in your post on the story about The Huffington Post) Initially the police were not interested in the knife and even told the homeowner to keep it, but finally they took the knife. There was no DNA and no fingerprint testing done on the knife so no physical evidence connected it to the boys. The only connection to the boys was the affidavit which as mentioned in my last reply was from a very unreliable source. Far from “beyond a reasonable doubt” that your constant use of “case close” implies you seem to have! Really shaky evidence on this claim . . . .sorry.

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