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IN THE COURT OF APPEALS OF THE STATE OF MISSISSIPPI
JERRARD T. COOK APPELLANT
V. NO. 2016-KA-00687-COA
STATE OF MISSISSIPPI APPELLEE
___________________________________
BRIEF OF THE APPELLANT___________________________________
On Appeal from the Circuit Court of Lincoln County, Mississippi
Erin E. Briggs, MS Bar No. 102352
INDIGENT APPEALS DIVISION
OFFICE OF STATE PUBLIC DEFENDER
Post Office Box 3510
Jackson, Mississippi 39207-3510
Telephone: 601-576-4290
Fax: 601-576-4205
Email: [email protected]
Counsel for Jerrard T. Cook
E-Filed Document Oct 5 2016 22:35:24 2016-CA-00687-COA Pages: 31
i
IN THE COURT OF APPEALS OF THE STATE OF MISSISSIPPI
JERRARD T. COOK APPELLANT
V. NO. 2016-KA-00687-COA
STATE OF MISSISSIPPI APPELLEE
CERTIFICATE OF INTERESTED PERSONS
The undersigned counsel of record certifies that the following listed persons have an interest
in the outcome of this case. These representations are made in order that the justices of this court
may evaluate possible disqualifications or recusal.
1. State of Mississippi
2. Jerrard T. Cook, Appellant
3. Honorable Dewitt (Dee) T. Bates, Jr., District Attorney
4. Honorable David H. Strong, Circuit Court Judge
This the 5th day of October 2016.
Respectfully Submitted,
INDIGENT APPEALS DIVISION
OFFICE OF STATE PUBLIC DEFENDER
BY: /s/ Erin E. Briggs
Erin E. Briggs
Counsel for Appellant
ii
TABLE OF CONTENTS
CERTIFICATE OF INTERESTED PERSONS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . i
TABLE OF CONTENTS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . ii
TABLE OF AUTHORITIES . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . iv
STATEMENT OF THE ISSUES . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
STATEMENT OF ASSIGNMENT . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
STATEMENT OF THE CASE . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
STATEMENT OF THE FACTS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
SUMMARY OF THE ARGUMENTS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
ARGUMENTS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
Standard of Review . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
The United States Supreme Court’s Trilogy . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
I. The Trial Court Erred in Sentencing Cook to Life -Without-parole, as Cook Is Not One
of the “Uncommon” and “Rare” Juvenile Homicide Offenders
Who May Be Sentenced to Die in Prison. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10
Miller Factors . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10
1. The Child’s Chronological Age and Its Hallmark Features . . . . . . . . . 12
2. The Family and Environment that Surrounds Him . . . . . . . . . . . . . . . 14
3. Mitigating Circumstance of the Homicide Offense . . . . . . . . . . . . . . . . 15
4. Whether He Might Have Been Charged and
Convicted of a Lesser Offense . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15
5. The Possibility of Rehabilitation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16
II. Cook’s Sentence Was Imposed in Violation of His
Constitutional Right to Have His Sentence Determined by a Jury. . . . . . . . . . . . . . 19
III. Cook’s Sentence Must Be Vacated and He Must Be Re-sentenced to Life With Parole,
iii
Because the Practice of Sentencing Children to Life-Without-Parole Violates the
Federal and State Constitutional
Prohibitions Against Cruel and Unusual Punishment . . . . . . . . . . . . . . . . . . . . . . . . 21
CONCLUSION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 24
CERTIFICATE OF SERVICE . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 25
iv
TABLE OF AUTHORITIES
FEDERAL CASES
Atkins v. Virginia, 536 U.S. 304, 122 S.Ct. 2242 (2002) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6
Eddings v. Oklahoma, 455 U.S. 104, 102 S.Ct. 869 (1982) . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12
Graham v. Florida, 130 S.Ct. 2011, 560 U.S. 48 (2010) . . . . . . . . . . . . . . . . . . . . . 1, 6, 7, 9, 10,
16, 17, 18, 23, 24
Johnson v. Texas, 509 U.S. 350, 113 S.Ct. 2658 (1993) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12
Miller v. Alabama, 132 Southern Ct. 2455 (2012) . . . . . . . . . . . . . . . . . . . . . . . . . . . 1, 2, 4, 5, 6,
9, 10, 11, 12, 14,
15, 16, 17, 19, 20,
21, 22, 23
Montgomery v. Louisiana, 136 S.Ct. 718 (2016) . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11, 17, 20, 24
Ring v. Arizona, 536 U.S. 584 (2002) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20
Roper v. Simmons, 543 U.S. 551, 125 S.Ct. 1183 (2005) . . . . . . . . . . . . . . . . . . . . . 6, 7, 8, 9, 10,
12, 13, 20, 21, 22,
23
STATE CASES
Bennett v. State, 990 So. 2d 155 (Miss. 2008) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
Brown v. State, 995 So. 2d 698 (Miss. 2008) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21
Diachenko v. District Att’y, 466 Mass. 655 (2013) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 24
Kambule v. State, 19 So. 3d 120 (Miss. Ct. App. 2009) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
Parker v. State, 119 So. 3d 987 (Miss. 2013). . . . . . . . . . . . . . . . . . . . . . . . . . . 11, 12, 14, 15, 16,
17, 19, 20, 21
State v. Riley, 110 A.3d 1205 (Conn. 2015) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5, 6, 9
State v. Seats, 865 N.W.2d 545 (Iowa 2015) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10
v
Veal v. State, 298 Ga. 691 (2016) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17
Walker v. State, 913 So.2d 198 (Miss. 2005) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
Workman v. Commonwealth, 429 Southern W.2d 374 (Ky. 1968) . . . . . . . . . . . . . . . . . . . . . 8, 17
STATUTES
Miss. Code Ann. § 99-19-101 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21
Miss. Const. Art. 3 §§14,15 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19
OTHER AUTHORITIES
Amicus Br. For American Med. Associate., et al., 2012 WL 121237 (Jan. 13, 2012) . . . . . . . . 12
Amicus Br. For American Psych. Associate et al., 2012 WL 174239 (Jan. 17, 2012) . . . . . . . . 24
1
IN THE COURT OF APPEALS OF THE STATE OF MISSISSIPPI
JERRARD T. COOK APPELLANT
V. NO. 2016-KA-00687-COA
STATE OF MISSISSIPPI APPELLEE
BRIEF OF THE APPELLANT
I. The Trial Court Erred in Sentencing Cook to Life -Without-Parole, as Cook is Not One
of the “Uncommon” and “Rare” Juvenile Homicide Offenders Who May be Sentenced
to Die in Prison.
II. Cook’s Sentence Was Imposed in Violation of His Constitutional Right to Have His
Sentence Determined by a Jury.
III. Cook’ Sentence Must Be Vacated and He Must Be Re-sentenced to Life With Parole,
Because the Practice of Sentencing Children to Life-Without-Parole Violates the
Federal and State Constitutional Prohibitions Against Cruel and Unusual Punishment.
STATEMENT OF ASSIGNMENT
This case should be transferred to the Mississippi Supreme Court for review because this case
involves the sentencing of a juvenile to a term of life imprisonment without parole. A life-without-
parole sentence is the ultimately penalty available for a juvenile offender. Miller v. Alabama, 132
S. Ct. 2455, 2466 (2012). For this reason, it is treated akin to the death penalty. Id. (citing Graham
v. Florida, 130 S.Ct. 2011, 2027, 560 U.S. 48, 69-70 (2010).
Pursuant to MRAP 16(b)(1), the Mississippi Supreme Court shall retain jurisdiction over
cases involving the imposition of the death penalty. Because of the necessary heightened scrutiny
required in this case, the case should be re-assigned to the Mississippi Supreme Court.
2
STATEMENT OF THE CASE
Jerrard T. Cook, having been charged with capital murder for the death of Marvin Durr,
entered into a guilty plea. (R.E. 3, C.P. 6). Previously facing the death penalty, the court accepted
Cook’s plea and sentenced him to serve “the rest of his natural life” in prison. (R.E.4, C.P. 18).
Cook was seventeen years old (17) at the time of the offense. (Tr. 73).
Nine years after his sentencing, the United States Supreme Court decide Miller v. Alabama,
132 S.Ct. 2455, 183 L.Ed. 2d 407 (2012), which held that mandatory life imprisonment without
parole for juveniles, who were under the age of eighteen years old (18) at the time of the crime,
violated the Eighth Amendment’s prohibition against cruel and unusual punishment.
The trial court vacated Cook’s sentence and held a re-sentencing hearing on March 30, 2015.
(C.P. 28). The Honorable David H. Strong, Jr., Circuit Court Judge, presided over the hearing. The
court denied Cook’s requires for re-sentencing pursuant to Miller v. Alabama and Parker v. State,
and ordered Cook to serve a life sentence, without the possibility of parole. (R.E. 21, C.P. 35).
Aggrieved, Cook timely noticed this appeal. (R.E. 56, C.P. 413).
STATEMENT OF THE FACTS
Jerrard T. Cook was born to a single, drug-addicted mother, who gave him all of the material
things he wanted but none of the structure, guidance or her presence that he desperately needed. (Tr.
183). Cook lived with his mother and maternal grandmother. (Tr. 182). His father was never in his
life. (Tr. 183).
Cook’s mother provided for him financially, but it was his grandmother who nurtured him
and looked after him. (Tr. 159,183). The two shared a very close relationship until the grandmother’s
death when Cook was twelve years old. (Tr. 157). Around this time is when Cook’s behavior started
declining. (Tr. 158-59). After his grandmother’s death, he was left at home a significant amount of
3
the time, unsupervised. (Tr. 158).
Cook did not have many role models in his life. Chief Bobby Bell of the Brookhaven Police
Department served as a mentor for Cook when he was younger. (Tr. 101-02). According to Cook’s
mom, Cook responded well to the structure. (Tr. 161). Chief Bell expressed how Cook was a good
child and how they became close during their relationship. (Tr. 102-03). Chief Bell treated Cook like
his own son. (Tr. 104). At Cook’s re-sentencing hearing, Chief Bell regretted that he did not stay
in Cook’s life. (Tr. 105). He was unsure of what caused the break in their relationship.
Around the time Cook turned fifteen years old, he began hanging around Cearic Barnes and
other young men in the neighborhood. (R.E. 34). One of Cook’s cousins, Angela Daniels, warned
Cook about hanging around Barnes. (Tr. 117, 121). She also confronted him about her suspicions
that he had started using drugs. (Tr. 121). Cook never admitted to her that he used drugs, but his
mother had the same suspicions. (Tr. 122, 160). His mother never sought any type of treatment for
him or issued any punishments based on this suspicion. (Tr. 160).
A few months after turning seventeen years old, Cook and Barnes decided that they would
rob a store. Cook had stolen a gun from his uncle a few days before. (Exhibit, §20, Pg. 28-29). He
let Barnes borrow it for twenty dollars. The plan was for Barnes to rob the Stop-and-Shop, but it was
closed. (Exhibit, §20, Pg. 31).They then decided that they would rob the Eighty-Four Mart, but Cook
knew the employee, Charlie, and he did not feel comfortable robbing him. (Exhibit, §20, Pg. 31).
They had talked about robbing the next driver that came through the area. (Exhibit, §19, Pg.
13). They wanted a car to drive to McComb, Mississippi, so they could be out of town when they
committed a robbery. . (Exhibit, §20, Pg. 51). Unfortunately for them, that next car was a police
officer. Cook talked his way out of raising suspicion with the officer. Barnes and Cook were about
to head home when they saw Barnes’ cousin, Marvin Durr. (Exhibit, §20, Pg. 32)
4
Durr agreed to take Barnes and Cook to Cook’s aunt’s house. (Exhibit, §20, Pg. 33) They
made Durr miss the correct turn by giving him faulty directions. (Exhibit, §20, Pg. 47) Durr ended
up just dropping them of on the side of the street. (Exhibit, §20, Pg. 48) He drove down the street
and turned around. . (Exhibit, §20, Pg. 49) Cook flagged him down and pointed the gun at Durr that
he had recently got back from Barnes. (Exhibit, §20) Cook knew Durr and did not want to shoot
him. Id. According to Cook, he only wanted the car to get to McComb. Before he realized it, he shot
Durr through the window. Id.
Barnes and Cook got in the car and tried to pull Durr out, but they were unsuccessful. Id.
They tried to find some money in Durr’s pockets, but there was none. Id. Cook climbed on top of
Durr’s body, that was still in the driver’s seat, and drove the car around. Id. They eventually ended
on in the middle of a road. Barnes burned the car and later burned their clothes. Id.
Cook pled guilty to the capital murder and agreed to testify for the prosecution against
Barnes. Barnes later pled guilty as well. Cook was later sentenced to life imprisonment.
SUMMARY OF THE ARGUMENTS
Jerrard T. Cook, along with co-defendant, was indicted for the capital murder for the death
of Marvin Durr. They were facing a possible penalty of the death. Cook later pled to capital murder
and the court sentenced him to serve the rest of his natural life in prison.
In 2012, the Supreme Court announced that mandatory life-without-parole sentencing
schemes for juvenile homicide offenders, who were under 18 years old at the time of the crime,
violated the Eighth Amendment. Miller v. Alabama, 132 S.Ct.2455 (2012). Cook was granted a re-
sentencing hearing due to the Miller decision. However, the trial court improperly considered the
Miller factors and did not proper weigh to the mitigating evidence in this case.
5
Although the Supreme did not categorically ban life-without-parole sentences for juvenile
homicide defenders, this practice is cruel and unusual punishment under the federal and state
constitutions. In addition to these errors, Cook had a constitutional right to a re-sentencing hearing
by jury. The trial court should not have been the finder of fact in this re-sentencing hearing.
ARGUMENTS
Standard of Review
Life-without-parole sentences is the ultimate penalty for juveniles and should be treated
similarly to that of the death penalty for adult offenders. Miller v. Alabama, 132 S.Ct. 2455, 2466
(2012). For this reason, the Court should review this case under heightened scrutiny as is applied
in death penalty cases. Bennett v. State, 990 So. 2d 155, 158 (¶6) (Miss. 2008) (“The standard for
this Court’s review of convictions for capital murder and sentences of death is ‘heightened
scrutiny’.”)
The heightened scrutiny standard requires that all doubts be resolved in the accused’s favor
because “what may be harmless error in one case with less at stake becomes reversible error when
the penalty is death.” Walker v. State, 913 So.2d 198, 216 (Miss. 2005).
Additionally, the Court applies a de novo standard of review for mixed questions of law and
facts. Kambule v. State, 19 So. 3d 120, 122 (Miss. Ct. App. 2009).
The United States Supreme Court’s Trilogy
Through a trilogy of cases, the United States Supreme Court changed the direction of juvenile
sentencing to conform to the Eighth Amendment’s ban on cruel and unusual punishment. State v.
Riley, 110 A.3d 1205, 1205 (Conn. 2015). The Eighth Amendment, made applicable to the states
through the Fourteenth Amendment, guarantees that individuals have the right to be free from “cruel
1 Roper v. Simmons, 125 S.Ct. 1183, 543 U.S. 551 (2005).
2Graham v. Florida, 130 S.Ct. 2011, 560 U.S. 48 (2010).
3Miller v. Alabama, 132 S.Ct. 2455, 183 L.Ed.2d 407 (2012).
6
and unusual punishment.” Roper v. Simmons, 543 U.S. 551, 560, 125 S.Ct. 1183, 1190 (2005).
Implicit in this prohibition is the guarantee that individuals have the right to be free from excessive
sanctions. Atkins v. Virginia, 536 U.S. 304, 308, 122 S.Ct. 2242, 2246 (2002). “This right flows
from the basic precept of justice that punishment for crime should be graduated and proportioned
to the offense.” Roper, 543 U.S. at 560.
Although the Supreme Court had long recognized the distinct aspects of youth, it was not
until Roper v. Simmons1, Graham v. Florida2, and Miller v. Alabama3, that the Court acknowledged
that “youth and its attendant characteristics have constitutional significance for purposes of assessing
proportionate punishment under the eighth amendment.” Riley, 110 A.3d at 1208. Simply put, for
the purposes of sentencing, juveniles are constitutionally different than adults. Miller, 132 S.Ct. at
2469.
In the first of this trilogy, Roper, the Supreme Court held that the Eighth and Fourteenth
Amendments prohibited juveniles, who committed crimes before the age of eighteen years old, from
receiving the death penalty. Roper, 543 U.S. at 568. The Court reasoned that the death penalty,
being the most severe punishment allowed, had to be limited to those offenders who committed the
most serious crimes and “whose extreme culpability makes them ‘the most deserving of
executions’.” Id. However, the Court recognized that there were three general differences between
children (under eighteen years old) and adults that would prevent children from being classified as
the worst offenders. Id. at 569.
7
First, juveniles lack maturity and do not possess a fully -developed sense of responsibility.
Id. “These qualities often result in impetuous and ill-considered actions and decisions.” Id. Second,
juveniles are more receptive to peer -pressure and negative influences. Id. Third, a child’s personality
trait is still forming. Id. at 570. As opposed to adults, a child’s character is not fixed and is, in fact,
more transitory. Id. The Court in Roper concluded that these general differences “render suspect any
conclusion that a juvenile falls among the worst offenders.” Id.
Following Roper, the Supreme Court was tasked with deciding if a life- without -parole
sentence was a disproportionate sentence for juveniles, under eighteen years old, who committed
non-homicide offenses. Graham, 560 U.S. at 52-53, 59. In expanding on the groundwork laid by
Roper, the Court acknowledged that there had been continued advancements in psychology and brain
cience that proved the minds of children and adults are fundamentally different. Id. at 68.
Children’s brains, in particular the parts concerning behavior control, continue to mature
through late adolescence. Id. at 68. For this reason, children have a better capability to change than
adults, “and their actions are less likely to be evidence of ‘irretrievably depraved character’ than are
the actions of adults.” Id. at 69.
In considering the life-without-parole sentence, the Court acknowledged that this sentence
was the second most severe penalty allowed by law. Id. at. 69. For the juvenile, however, it is even
more detrimental. Id. at 70. On average, the young offender would serve a greater length of sentence
than an adult offender and the punishment would be the same as an adult in name only. Id.
The Court likened the life-without-parole sentence for juveniles to that of the death penalty.
Id. at 69-70. While the juvenile’s life does not end by execution, ‘the sentence alters the offender’s
life by a forfeiture that is irrevocable.” Id. For a young offender, this sentence leaves the juvenile
with no hope because whether his or her behavior and character improves over time, it is immaterial
8
since he or she will remain in prison for the rest of their lives. Id.
The Court realized that none of the penological justifications for punishment (retribution,
deterrence, incapacitation, and rehabilitation) would be met in sentencing a non-homicide juvenile
offender to life-without-parole. Id. at 71. “A sentence lacking any legitimate penological
justifications is by its nature disproportionate to the offense.” Id.
In rejecting incapacitation as a legitimate justification, the Court noted that this justification
would require the sentencer to make an assumption that the child would forever be a danger to
society and that the child was incorrigible. Id. at 72. However, “incorrigibility is inconsistent with
youth.” Id. at 73 (quoting Workman v. Commonwealth, 429 S. W.2d 374, 378 (Ky. 1968)). “It is
difficult even for expert psychologists to differentiate between the juvenile offender whose crime
reflects unfortunate yet transient immaturity, and the rare juvenile offender whose crime reflects
irreparable corruption.” Id. (quoting Roper, 543 U.S. at 572).
Even if the sentencer’s judgment of incorrigibility were later corroborated by a prison record
that showed the offender never matured and remained in consistent trouble, the sentence would still
be disproportionate because the determination of incorrigibility was made at the beginning. Id. The
Court also reasoned that, for a non-homicide offender, rehabilitation cannot be the goal of a life-
without-parole sentence because of the child’s capacity for change and limited moral
blameworthiness. Id. at 74.
Based on the inadequate penological justifications, limited culpability of the offender, and
the severity of a life-without-parole sentence, the Court held that a juvenile offender who committed
a non-homicide offense could not receive a life-without-parole sentence. Id. The Court added that
a State is not required to ensure that a juvenile defender will have eventual freedom in non-homicide
cases. Id. at 75. What the State is required to do, however, is give the juvenile a “meaningful
9
opportunity to obtain release based on demonstrated maturity and rehabilitation.” Id.
Both in Roper and Graham, the Court applied the Eighth Amendment’s proportionality
jurisprudence to categorically ban certain sentencing practices for particular groups of offenders.
Riley, 315 Conn. at 649. This was based on one strand of the proportionality jurisprudence that
considers the “ . . . mismatches between the culpability of [that] class of offenders and the severity
of a penalty.” Id. (quoting Miller v. Alabama, 132 S.Ct. at 2463).
In Miller, the Court had to answer the question of whether the Eighth Amendment allowed
mandatory life-without-parole sentencing schemes for juveniles of homicide offenses. Miller, 132
S.Ct. at 2461-63. In Miller, the Court drew on the “mismatched” proportionality strand, as well as
a second strand, applied in death penalty cases. Id. This second strand requires individualized
sentencing practices that consider the defendant’s mitigating factors and the details of the offense.
Id. This was necessary because of Graham’s announcement that life-without-parole for juvenile
offenders is likened to the death penalty. Id. at 2466.
The Court recognized that, while Graham only applied to non-homicide offenses, “ . . . none
of what is said about children - about their distinctive (and transitory) mental traits and
environmental vulnerabilities - is crime-specific.” Id. at 2465.
In considering the culpability of juvenile homicide offenders and the severity of a mandatory
life-without-parole sentence, it concerned the Court that the mandatory schemes would prevent the
sentencer from taking into account an offender’s youth and all of the considerations that are central
to the juvenile’s status. Id. at 2465-66. Likewise, mandatory sentencing schemes prohibit the
sentencer from considering mitigating circumstances “before imposing the harshest possible penalty
for juveniles.” Id. at 2475.
To this end, the Miller Court found mandatory sentencing schemes, that sentence homicide
10
juveniles offenders to life-without-parole, violate the Eighth Amendment. Id. The Court fell short
of applying a categorical ban because its holding sufficiently addressed the petitioner’s chief
arguments. Id. at 2469. However, the Court made the following declaration:
. . . [G]iven all we have said in Roper, Graham, and this decision about children’s
diminished culpability and heightened capacity for change, we think appropriate occasions
for sentencing juveniles to this harshest penalty will be uncommon. That is especially
because of the great difficulty we noted in Roper and Graham of distinguishing at this early
age between ‘the juvenile offender whose crime reflects unfortunate yet transient immaturity,
and the rare juvenile offender whose crime reflects irreparable corruption’. Roper, 543 U.S.
at 573, Graham, 130 S.Ct. at 2026-2027.
Although we do not foreclose a sentencer’s ability to make that judgment in homicide cases,
we require it to take into account how children are different, and how those differences
counsel against irrevocably sentencing them to a lifetime in prison.
Miller, 132 S. Ct. at 2469.
I. The Trial Court Erred in Sentencing Cook to Life -Without-parole, as Cook Is Not One
of the “Uncommon” and “Rare” Juvenile Homicide Offenders Who May Be Sentenced
to Die in Prison.
In Cook’s re-sentencing hearing, the trial court failed to “start with the Supreme Court’s
pronouncement that sentencing a juvenile to life in prison without the possibility of parole should
be a rare and uncommon” occurrence. State v. Seats, 865 N.W.2d 545, 555 (Iowa 2015) (citing,
Miller, 132 S. Ct. at 2469). The court was armed with an expert psychologist’s review of Cook’s
case in light of the Miller factors. The court chose to wholly disregard these findings, while placing
considerable weight only on the nature of the crime. This is in direct conflict with the Court’s
instructions on how to analyzing juvenile homicide offender’s sentences.
Miller Factors
While the Supreme Court fell short of applying a categorical ban against life-without-parole
sentences for juvenile homicide offenders, the Court warned that this type of sentence will be
11
disproportionate “for all but the rarest of children, those whose crimes reflect ‘irreparable
corruption’.” Montgomery v. Louisiana, 136 S. Ct. 718, 726 (2016) (internal citations omitted). The
Court identified several factors that must be considered by the sentencing authority in juvenile life-
without-parole cases. Parker v. State, 119 So. 3d 987, 995 (¶19) (Miss. 2013). In taking into
account how children are different, the sentencer must consider the following factors identified in
Miller.
[1] [The child’s] chronological age and its hallmark features - among them, immaturity,
impetuosity, and failure to appreciate risks and consequences . . .
[2] [T]he family and home environment that surrounds him - and form which he cannot
usually extricate himself - no matter how brutal or dysfunctional . . .
[3] The circumstances of the homicide offense, including the extent of his participation
in the conduct and the way familial and peer pressures may have affected him . . .
[4] [Whether] he might have been charged and convicted of a lesser offense if not for
[incompetency] associated with youth - for example, his inability to deal with police
officers or prosecutors (including on a plea agreement) or his inability to assist his
own attorneys,
And finally,
[5] . . . the possibility of rehabilitation”
Parker, 119 So. 3d at 995-96 (¶19) (quoting Miller, 132 S.Ct. at 2468).
In light of these factors, there is still a presumption against granting life-without-parole
sentences for juvenile offenders “that must be overcome by evidence of unusual circumstances.”
States v. Riley, 110 A.3d 1205, 1214 (Conn. 2015). However, the trial court did not acknowledge
this presumption in sentencing Cook to life-without-parole.
In this case, the court had the benefit of reviewing the report of Criss W. Lott, PhD, the
accepted expert in the field of clinical and forensic psychology for children, adolescents and adults.
12
Dr. Lott performed an evaluation on Cook’s case and was ordered to pay special attention to the
Miller factors. Yet, the court chose to ignore all of the expert’s findings in rendering its decision.
1. The Child’s Chronological Age and Its Hallmark Features
First, Miller and Parker require the sentencer to consider the youth’s “chronological age and
its hallmark features.” Parker, 119 So. 3d at 995 (¶19) (quoting Miller, 132 S.Ct. at 2468)
“[Y]outh is more than a chronological fact. It is a time and condition of life when a person
may be most susceptible to influence and psychological damage.” Eddings v. Oklahoma, 455 U.S.
104, 115, 102 S.Ct. 869, 877 (1982). “Our history is replete with laws and judicial recognition that
minors . . . are generally less mature and responsible than adults.” Id. at 115-116.
A juvenile’s age as a mitigating factor is an important consideration for the court because,
“the signature qualities of youth are transient; as individuals mature, the impetuousness and
recklessness that may dominate in younger years can subside. Roper, 543 U.S. at 570 (quoting
Johnson v. Texas, 509 U.S. 350, 368, 113 S.Ct. 2658, 2658 (1993).
The difference between juvenile and adult behavior is not caused by the juvenile’s lack of
intelligence or the inability to understand right from wrong. Amicus Br. For Am. Med. Assoc., et
al., 2012 WL 121237 *6 (Jan. 13, 2012). Instead, the difference can be attributed to the
“psychosocial limitations in their ability to consistently and reliably control their behavior.” Id. As
articulated in Roper, “[t]he susceptibility of juveniles to immature and irresponsible behavior means
‘their irresponsible conduct is not as morally reprehensible as that of an adult’.” Roper, 543 U.S. at
570.
In this case, the court’s finding did not consider the qualities associate with Cook’s youth.
Cook was seventeen years old at the time of the offense. The trial court found that this was
“sufficiently close to his eighteenth birthday such that this factor should not weigh against imposition
13
of a sentence of life without parole.” (R.E. , C.P. 391). However, as Dr. Lott explained, the Court
has an arbitrary cutoff of eighteen years old. (Tr. 173). The research shows that adolescents, into
adulthood, experience impaired judgment in behavior. Id.
Dr. Lott explained that risk-taking, impulsiveness and lack of self control are things that
contribute to poor decision making in adolescents. (Tr. 179). He noted that a lot of the science
surrounding brain development and adolescent behavior is well more documented now with
research and MRI’s. Children may have a cognitive IQ for an adult by the time the are sixteen or
eighteen years old, but they lack the psychosocial maturity of an adult. (Tr. 180-81).
The court found that there was little, if any evidence, that Cook failed to appreciate risks and
concerns because “the defendant knew after he shot the victim that he should take actions to cover
his tracks.” (R.E., C.P. 392). However, as Dr. Lott explained, it would have been common for
someone to try to get away with murder. (Tr. 197). Cook was probably fully aware of what he had
done. However, Dr. Lott noted that Cook’s entire robbery plan signified the impulsive and rash
decision making prevalent in adolescents. (197-99).
Dr. Lott went further by noting that there were signs of peer pressure in Cook’s life. (178).
Cook gravitated toward the streets when he was no longer under the influence of his grandmother.
Id. Cook began affiliating with Barnes and a lot of Cook’s behavior, Dr. Lott opined, was motivated
by his desire to appear tough and cool. (Tr. 178).
There was nothing that indicated to Dr. Lott that Cook was outside the norm realm of
adolescence. (Tr. 181). Dr. Lott pointed out that Cook was neither an emancipated youth nor was he
married. (Tr. 181). Dr. Lott also did not see evidence where Cook was especially reckless or
immature as a child. Instead, Dr. Lott believed Cook fell in the normal spectrum of a typical
adolescent. (Tr. 182).
14
2. The Family and Environment that Surrounds Him
Second, Miller and Parker require the sentencer to consider “the family and home
environment that surrounds [a child] - and from which he cannot usually extricate himself - no
matter how brutal or dysfunctional.” Parker, 119 So. 3d at 995 (¶19) (quoting Miller, 132 S.Ct. at
995).
The court made the following findings:
The defendant grew up in a broken single parent home. His father was institutionalize for
most of his life and he had little, if any, contact with him. However, his mother took care of
him in spite of her battles with drug addiction. He always had decent clothing as well as
computer games, a go cart and later an automobile. Brookhaven Police Chief Bobby Bell
testified that he counseled the defendant during his early years and he was a normal, well-
behaved child. In fact, the defendant was one of only two children that Chief Bell ever
allowed to come and visit in his home with members of his family. He testified that Jerrard
Cook, as a young man, was a high character child. While the defendant did not enjoy an ideal
childhood, the court does not find his family and home environment was so lacking that he
should not be sentenced to life without the possibility of parole.
(R.E., C.P. 392-93).
Dr. Lott’s review of the situation is markedly different than the court’s. Dr. Lott noted that,
for the majority of his life, Cook did not have significant role models. (R.E., ). Chief Bell met Cook
when Cook was around thirteen years old, but at some point, that relationship ended. (103-05).
Dr. Lott opined that, with Cook’s mother’s consistent drug use, Cook may have experienced
fetal drug exposure. She smoked drugs daily while pregnant and through his childhood. Dr. Lott
described that this situation, where the parent and/or child has abused drugs, likely are create a home
environment of one or more of the following interactions: negativism, parental inconsistency,
parental denial, miscarried expressions of anger, self-medication, and unrealistic parental
expectations. (R.E. )
Cook’s mother frequently left Cook with others or unattended and he basically lived on his
15
own after the death of his grandmother. (R.E. ). He began hanging out with an older youth. (Id.)
After his grandmother’s death, he was left to do whatever he wanted. (Id.)
In Miller, the Court recognized that the sentencer must examine the juvenile’s pathological
background before concluding that life-without-parole is an appropriate sentence. Miller, 132 S.Ct.
at 2469. In light of the record in this case, this factor also weighs against sentencing Cook to life
without parole.
3. Mitigating Circumstance of the Homicide Offense
Third, Miller and Parker require the sentencing authority to consider the mitigating
“circumstances of the homicide offense, including the extent of [the child’s] participation in the
conduct and the way familial and peer pressures may have affected him.” Parker, 119 So. 3d at 995-
96 (¶19) (quoting Miller, 132 S.Ct. at 2468).
The trial court noted that Cook was the trigger man and there was no pressure from his family
to commit this crime. The court discounted any peer pressure that may have existed since, “it was
not direct pressure on the defendant . . . but rather three (3) young men who seemed to encourage
each other to commit an offense.” (R.E., C.P. 393).
While Dr. Lott deferred to the court as the trier of fact, Dr. Lott opined that the actions
seemed impulsive and not well-developed. (Tr. 184). The boys were planning to commit a robbery
but they changed plans at least three times before they arrived at Durr’s car. Cook and Barnes did
not set out to rob Durr. Instead, Durr “was just at the wrong place at the wrong time . . We really
didn’t want it to be Marvin. . . he just gave us a lift. (Exhibit, §20, Pg. 51-52).
In light of the mitigating circumstances surrounding the crime, this factor weighs against
sentencing Cook to life in prison.
4. Whether He Might Have Been Charged and Convicted of a Lesser Offense
16
Fourth, Miller and Parker require the sentencing authority to consider “that [a] child might
have been charged and convicted of a lesser offense if not for [incompetency] associated with youth -
for example, his inability to deal with police officers or prosecutors (including on a plea agreement)
or his incapacity to assist his own attorneys.” Parker, 119 So. 3d at 996 (¶19) (quoting Miller, 132
S.Ct. at 2468).
The characteristics that differentiate youth from adults are the features that also significantly
disadvantage youth in criminal proceedings. Graham, 560 U.S. at 78. Juveniles have a mistrust for
adults and do not fully understand how the criminal justice system works. Id. This leads to juveniles
being less likely to assist their attorneys in their defense. Id.
“Difficulty in weighing long-term consequences; a corresponding impulsiveness; and a
reluctance to trust defense counsel, seen as part of the adult world a rebellious youth rejects, all can
lead to poor decisions by one charged with a juvenile offense.” Id.
The trial court wholly ignored this factor. However, Dr. Lott pointed out that while it was
hard to evaluate events so long ago, the fact that Cook was seventeen years old, had been isolated
for hours before being interview and that the interview happened in the twilight hours of the
morning, could all have increased Cook’s fear factor during the proceedings. (Tr. 185-86). Cook was
also told that he would not be able to see his mother again if he did not speak to police. (Tr. 185).
Dr. Lott did not get a sense that Cook felt coercion or pressure, however, he noted that mental health
professional are generally concerned about an adolescent’s ability to provide a knowing and
voluntary waiver of his or her rights. Id.
5. The Possibility of Rehabilitation
Finally, Miller and Parker require the sentencing authority to consider the “possibility of
17
rehabilitation.” Parker, 119 So.3d at 996 (¶19) (quoting Miller, 132 S.Ct. at 2465) “ A life without
parole sentence is permitted only in ‘exceptional circumstances,’ for ‘the rare juvenile offender who
exhibits such irretrievable depravity that rehabilitation is impossible’; for those ‘rarest of juvenile
offenders...whose crimes reflect permanent incorrigibility’; for ‘those rare children whose crime
reflect irreparable corruption’ - and not . . .for ‘the vast majority of juvenile offenders.” Veal v.
State, 298 Ga. 691, 702 (2016) (quoting Montgomery v. Louisiana, 136 S.Ct.718, 733-36 (2016))
(emphasis added).
This final factor requires the sentencing authority to determine whether the juvenile is
irreparably corrupt. See Miller, 132 S.Ct. at 2469. Just as the Supreme Court has reserved the death
penalty for only the worst of the adult offenders, life-without-parole sentences can only be enforced
on the worst-of-the-worst juvenile offenders. Veal, 298 Ga. at 702-03 (2016).
However, “incorrigibility is inconsistent with youth.” Graham, 560 U.S. 48 at 73 (quoting
Workman v. Commonwealth, 429 S.W.2d 374, 378 (Ky. 1968). Any determination that a juvenile
is incorrigible is questionable at best, based on the characteristics of children. Graham, 560 U.S. 48
at 73. Even expert psychologist express difficulty in determining which crime is based on
immaturity and which crime reflects an irreparably corrupt youth. Id.
The trial court pointed out that Cook had twenty-nine rule violation reports while
incarcerated in the Department of Corrections. (R.E., C.P. 393). The court took this, alone, as an
indication that Cook had an unwillingness to follow directions in a structure environment. Id. “The
Court does not find any significant possibility of rehabilitation in Jerrard Cook. Id.
While Cook’s record in the Mississippi Department of Corrections includes a list of
infractions, the court failed to consider that, by sentencing Cook to life, Cook had no incentive to
achieve a stellar prison record. As Graham recognized, “ A young person who knows that he or she
18
has no chance to leave prison before life’s end has little incentive to become a responsible
individual.” Graham, 560 U.S. at 79.
According to Steven Pickett, Chairman of the Mississippi Parole Board, inmates perform
better when there is a possibility of parole. (Tr. 147). There is less incentive when an inmate knows
there is no possibility of parole, and Pickett points out that a lot of rehabilitative programs are
unavailable for life inmates. (Tr. 148).
Fortunately, Dr. Lott provided a more in-depth analysis of Cook’s ability to be rehabilitated.
Dr. Lott explained that most of Cook’s RVR’s occurred before he was twenty-one years old. (Tr.
189). Cook received mental health treatment while in prison and his improved behavior appeared
to correlate with his treatment. (Tr. 190) Although he experienced homicidal and suicidal thoughts
at one point, he reached out for health and received it. (Tr. 190). Lott noted that none of the RVR’s
were for violent behavior, noting that possession of a shank did not indicate that Cook ever used that
shank to harm anyone. (Tr. 191).
Dr. Lott pointed out that 90-95% of juveniles do not continue to re-offend as adults. (Tr.
187). Dr. Lott stated that he could not say with certainty that Cook would or would not re-offend.
(Tr. 202). However, the behaviors that would concern him, that Cook remained violent and
aggressive, were not present in this case. (191). Based on the lack of serious offenses in the last
couple of years, Dr. Lott inferred that Cook had indeed experienced growth and maturity. (Tr. 192).
It was his opinion, based on the body of evidence, along with the Miller factors, that Cook was not
one of the rare offenders who could not be rehabilitated. (Tr. 203).
In order to be released from prison, Cook would still have to meet the criteria established
by the parole board. Steven Pickett, Chairman of the Mississippi Parole Board, testified about the
difficulties one who incur in meeting that criteria. (Tr. 141-43). Pickett explained that the bar is set
4Miller v. Alabama, 132 S.Ct. 2455, 2466 (2012).
19
extremely high in convincing the parole board to grant release when a life has been taken. (Tr. 143).
If granted parole, a person would have a reporting requirement for the rest of their life. (Tr. 146).
However, the parole board is in much better position than the trial judge to determine that
Cook has or has not demonstrated maturity and rehabilitation over a period of time. The trial court
is simply required to grant him the opportunity to demonstrate these characteristics to the parole
board.
II. Cook’s Sentence Was Imposed in Violation of His Constitutional Right to Have His
Sentence Determined by a Jury.
Neither the US Supreme nor the Mississippi Supreme Court have addressed who should be
the sentencing authority in Miller v. Alabama4 sentencing hearings. See Parker v. State, 119 So. 3d
987 (Miss. 2013). However, based on the Sixth and Fourteenth Amendments, as well as Miss. Const.
Art. 3 §§14,15, Cook was entitled a jury determination, as opposed to a judge’s finding, that he was
one of the “uncommon” and “rare” juvenile homicide offenders that could be sentenced to life
without the possibility of parole.
Due process requires “any fact that “expose[s] the defendant to a greater punishment than that
authorized by the jury’s guilty verdict” is an “element” that must be submitted to a jury. Hurst v.
Florida, 136 S.Ct.616, 621 (2016) (quoting Apprendi v. New Jersey, 530 U.S.466, 494, 120
S.Ct.2348 (2000)). “ If a State makes an increase in a defendant’s authorized punishment contingent
on the finding of a fact, that fact - no matter how the State labels it- must be found by a jury beyond
a reasonable doubt.” Ring v. Arizona, 536 U.S. 584, 602, 122 S.Ct.2428, 2439 (2002).
For juvenile homicide offenders, “life imprisonment with eligibility for parole
5The Parker decision references Miss. Code Section 47-7-3(1)(h), however, the MS
Legislature amended the Probation and Parole Law in 2014 and moved the provisions of Section
47-7-3(1)(h) to Section 47-7-3-(1)(f). See Miss. Code Ann §47-7-3(1) (Rev. 2015).
6Miss. S.Ct., No. 2012-M-02041
20
notwithstanding the present provisions of Mississippi Code Section 47-7-3[(f)]5” is the default
sentence for non-capital murder. Parker, 119 So.3d at 999 (¶¶28-29). “Our courts have not been
empowered by the Legislature to sentence a criminal defendant to life without parole save for the
crime of capital murder and for certain habitual offenders.” Id. at 996 (¶21).
The court can only impose a greater sentence than life after holding an individualized
sentencing hearing and making additional findings of fact that the juvenile is irreparably corrupt. See
generally Miller, 132 S.Ct. at 2455; Parker, 119 So. 3d at 987; Montgomery v. Louisiana, 136
S.Ct.718, 733 (2016).
Cook is entitled to have a jury conduct the fact-finding of whether or not he is one of the
“rare children whose crimes reflect irreparable corruption.” Montgomery, 136 S.Ct. at 734. Because
Miller and Parker require additional findings of fact before a life-without-parole sentence can be
issued, Cook has a constitutional right to have that fact-finding conducted by a jury.
Cook requests that the Court consider its order ruling in Dycus v. State6, attached as Ex. A,
where the Court addressed an issue of jury sentencing in a capital murder case where the mandatory
life sentence had to be vacated pursuant to Miller. Dycus was sentenced to death for a capital murder
he committed when he was seventeen years old. Id. After Roper made his sentence illegal, he was
later re-sentenced to life without the possibility of parole. Id. When Miller came down, he petitioned
the Court to vacate his sentence and remand his case for a new sentencing hearing.
The Mississippi Supreme Court granted Dycus’s request, stating:
21
After due consideration, we find that Dycus’s sentence should be vacated and that the case
should be remanded for a new sentencing hearing before a jury under Section 99-19-101. If
the jury, after considering all of the circumstances set forth in Miller, determines that Dycus
should be eligible for parole or if the circuit court imposes a life sentence because the jury
is unable to reach a decision, the court shall sentence Dycus to “life imprisonment with
eligibility for parole notwithstanding the present provisions of Mississippi Code Section 47-
7-3(1)([f]).” Parker v. State, 119 So.3d 987, 999 (Miss. 2013).
In light of the Court’s ruling in Dycus that the provisions of Miss. Code Ann. § 99-19-101
apply to Miller re-sentencing proceedings in capital cases, and considering that § 99-19-101(1)
requires jury sentencing “upon conviction or adjudication of guilt of a defendant of capital murder”,
Cook is entitled to a jury finding in this case.
The court deprived Cook of his constitutional right to have a jury determine the facts that
exposed him to the enhanced sentence of life without parole. See e.g. Brown v. State, 995 So. 2d 698,
704-05 (¶¶28-30) (Miss. 2008) (vacating defendant’s thirty-year sentence enhancement because the
Sixth Amendment required the issue of the enhancement to be submitted to a jury).
This Court should conclude that Cook must be re-sentenced to life with eligibility for
parole. If the Court finds that a rehearing is constitutionally permissible, Cook submits that the jury
must consider the factors required by Miller and Parker in determining whether or not Cook is the
“rare juvenile offender who exhibits such irretrievable depravity that rehabilitation is impossible and
life without parole is justified.” Montogomery, 136 S.Ct. at 733.
III. Cook’ Sentence Must Be Vacated and He Must Be Re-sentenced to Life With Parole,
Because the Practice of Sentencing Children to Life-Without-Parole Violates the
Federal and State Constitutional Prohibitions Against Cruel and Unusual Punishment
22
Finally, this Court should address the question that was left open in Miller and hold that the
US and State constitutions categorically prohibit imposing life-without-parole sentences on
juveniles. In his dissenting opinion in Miller, Justice Alito predicted that the categorical ban on life
without parole for juvenile homicide offenders may not be too far away. Miller, 132 S.Ct. At 2489.
It is true that, at least for now, the Court apparently permits a trial judge to make an
individualized decision that a particular minor convicted of murder should be sentenced to
life without parole, but do not expect this possibility for long. . .
Having held in Graham that a trial judge with discretionary sentencing authority may not
impose a sentence of life without parole on a minor who has committed a nonhomicide
offense, the Justices in the majority may soon extend that holding to minors who commit
murder. We will see.
Id.
The Court has recognized that juveniles are constitutionally different than adults for
sentencing purposes. Miller, 132 S.Ct. at 2464. “[A]s a class, adolescents are inherently less
blameworthy than adults.” Laurence Steinberg, Adolescent Development and Juvenile Justice, 5 Ann.
Rev. Clinical Psychol. 459, 481 (2009).
As Roper recognized, there are distinct differences between juveniles and adults that “render
suspect any conclusion that a juvenile falls among the worst offenders.” Roper, 543 U.S. at 570.
Juveniles are immature, they are more receptive to negative influence and their character is still
forming. Id. at 569-70. For these reasons, the Court noted “ the distinctive attributes of youth
diminish the penological justifications for imposing the harshest sentences on juvenile offenders,
even when they commit terrible crimes.” Miller, 132 S.Ct. at 2464.
Juveniles lack the ability needed to exercise mature judgment. Steingberg, 5 Ann. Rev.
23
Clinical Psychol. at 471. However, this is not-crime specific. “None of what [the Court in Graham]
said about children - about their distinctive (and transitory) mental traits and environmental
vulnerabilities - is crime -specific.” Miller, 132 S.Ct. at 2465.
This reasoning led the Courts in Graham and Roper to categorically ban life-without-parole
sentences for juveniles convicted of non-homicide offense (Graham) and the juvenile death penalty
(Roper). Among many of the issues, the case-by-case proportionality approach does not provide
sufficient guarantees that the sentencing authority will be able to distinguish the few incorrigible
youth from the many offenders who have a capacity for change. Graham, 560 U.S at 77.
There is also an unacceptable likelihood that the terrible facts of a crime will overpower
mitigation factors that are present with juvenile offenders - even in cases where the juvenile’s
immaturity, vulnerability, and lack of depravity would require a lesser sentence. Id. at 78.
Additionally, life-without-parole sentences do not give juveniles the opportunity to show that he or
she has matured and reformed. Id. at 79.
These concern are also present with juvenile homicide offenders. For this reason, the Eighth
and Fourteenth Amendments and Article 3, Section 28 require a categorical ban on all life-without-
parole sentences for juvenile offenders. Without a categorical ban for juvenile homicide offenders,
there is too great a risk of disproportionate punishment. Miller, 132 S.Ct.at 2469.
As it now stands, Miller requires an impossible fact determination before imposing a life-
without-parole sentence for juveniles. A life-without-parole sentence may only be imposed on “the
rare juvenile offender who exhibits such irretrievable depravity that rehabilitation is impossible[.]”
Montgomery, 136 S.Ct. at 733. However, “ ‘there is no reliable way to determine that a juvenile’s
offenses are the result of an irredeemably corrupt character’ and there is thus no reliable way to
conclude that a juvenile - even one convicted of an extremely serious offense -should be sentenced
24
to life in prison, without any opportunity to demonstrate change or reform.” Amicus Br. For Am.
Psych. Assoc. et al., 2012 WL 174239, *24 (Jan. 17, 2012).
Massachusetts has already categorically prohibited life without parole sentence under its state
constitution. Diachenko v. Dist. Att’y, 466 Mass. 655, 1 N.E.3d 270, 284-85 (2013). The Court
reasoned that the parole board mechanism could better accommodate a youth offender’s capacity for
change than the irrevocable life-without-parole determination. See Id. at 282-85. Also, the Court
recognized that, no matter the offense, juveniles have diminished culpability. Id. Mississippi should
join Massachusetts in this acknowledgment.
CONCLUSION
For the foregoing reasons, this Court should vacate Cook’s life-without-parole sentence and
remand this case with the instructions that he be re-sentenced to a term of life with eligibility for
parole, notwithstanding the present provisions of Mississippi Code Annotated Section 47-7-3 (1)(f).
Cook requests that the Supreme Court hold that Section 47-7-3(1)(f) is inapplicable to those who
committed murder at the time when they were under the age of eighteen. Alternatively, the Court
should reverse and remand to the trial court with instructions that Cook be re-sentenced by a jury.
25
CERTIFICATE OF SERVICE
I, Erin E. Briggs, Counsel for Jerrard T. Cook, do hereby certify that on this day I
electronically filed the forgoing BRIEF OF THE APPELLANT with the Clerk of the Court using
the MEC system which sent notification of such filing to the following:
Honorable Jason L. Davis
Attorney General Office
Post Office Box 220
Jackson, MS 39205-0220
Further, I have this day caused to be mailed via United States Postal Service, First Class
postage prepaid, a true and correct copy of the above to the following non- MEC participants:
Honorable David H. Strong
Circuit Court Judge
Post Office Box 1387
McComb, MS 39649
Honorable Dewitt (Dee) T. Bates, Jr.
District Attorney, District 14
284 East Bay Street
Magnolia, MS 39652
This the 5th day of October 2016.
BY: /s/ Erin E. Briggs
Erin E. Briggs
Counsel for Appellant
Erin E. Briggs, MS Bar No. 102352
INDIGENT APPEALS DIVISION
OFFICE OF STATE PUBLIC DEFENDER
Post Office Box 3510
Jackson, Mississippi 39207-3510
Telephone: 601-576-4290
Fax: 601-576-4205
Email: [email protected]
Jerrard T. Cook, MDOC #L6510
East Mississippi Correctional Facility
10641 Hwy 80 West
Meridian, MS 39307