A teen who was barely 17 at the time he joined in the gang rape of a 10th-grade girl should be tried as a juvenile, a divided appeals panel ruled on Monday.
In a 2-1 decision, the Minnesota Court of Appeals ruled that Jim Her, now 18, was improperly certified as an adult and should be tried in juvenile court, where the potential penalties are far less severe.
Prosecutors said Monday they were weighing their next step, including a possible appeal.
“We are reviewing the court’s opinion on the Her certification and will make a decision within the required 30-day period,” said Dennis Gerhardstein, a spokesman for the Ramsey County Attorney’s Office.
Her is one of two St. Paul brothers among nine men and youths who have been charged or convicted in the brutal assault of a 15-year-old in a vacant house on St. Paul’s East Side in 2011. He had sought to be tried as a juvenile, as was his younger brother, Johnny Her, who was 15 at the time of the attack. Johnny Her later became a star prosecution witness in a case that has left the victim, her family and the Hmong community fearful.
Jim Her was charged in March 2012 with first-degree criminal sexual conduct, conspiracy to commit first-degree criminal sexual conduct, kidnapping and committing a crime for the benefit of a gang. If he had been convicted as an adult, state sentencing guidelines would have called for him to get about 22 years in prison. In the juvenile system, he faces six to 18 months in a secure or nonsecure facility, but still could go to prison and serve the adult sentence if he violates the provisions of extended-juvenile jurisdiction, prosecutors said.
Suspects all gang members
Jim Her had turned 17 three days before the attack. Witnesses testified in a co-defendant’s trial that the tenth-grade victim was given beer and brandy, then dragged kicking and screaming as she clutched at door frames, into a trash-filled bedroom, where she was slammed onto a mattress and sexually assaulted.
At least one defendant had raped her when someone shouted that the police were coming and the attackers scattered.
The nine suspects were all alleged members or associates of the True Blood (TB22) street gang, which is known for fatal shootings, auto theft, rape and other crimes.
A certification hearing for Jim Her lasted three days in the spring of 2012. Reports from a juvenile probation officer and psychologist recommended that Jim Her be placed in extended juvenile jurisdiction. He was described as an outstanding student.
But in July 2012 Ramsey County District Judge Robert Awsumb ruled that the penalties and programming offered within the juvenile justice system were an inadequate remedy for the crimes.
In his order, Awsumb had written that it had been suggested that Jim Her be deemed less culpable because he did not actually rape the girl.
“His actions, however, were part of a horrific concerted effort to rape this young girl and he is, therefore, equally culpable,” Awsumb wrote.
In reversing Awsumb’s decision, presiding Judge Edward Cleary and Judge Lawrence Collins found that Awsumb should have given greater weight to the seriousness of the alleged offense and Her’s lack of a prior record of delinquency.
Judge Carol Hooten dissented, saying she agreed with the lower court judge’s decision to certify Her as an adult.
Six other defendants have been convicted, and sentences have so far ranged up to 21 years. One 25-year-old, Mang Yang, an accused ringleader who was convicted last year, could face 24 years.
A trial began Monday in St. Paul for the oldest defendant, Kong Meng Vang, 39.
Co-defendant Vanchai Xiong, 19, faces trial in April.