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Supreme Court of Wisconsin

Sentence of life without parole for teen upheld

Defendant was 14 when 13-year-old victim was killed

By Bruce Vielmetti - Journal Sentinel

May 20, 2011

Omer Ninham was just 14 when he was part of a gang that threw a 13-year-old Hmong boy to his death from the top of a Green Bay parking garage in 1998.

On Friday, the Wisconsin Supreme Court upheld his life-without-parole sentence over arguments that recent U.S. Supreme Court decisions, evolving standards of decency and new science about adolescent brain development demand that Ninham get at least a chance for release later in life.

Justice Annette Ziegler wrote the majority opinion; Chief Justice Shirley Abrahamson dissented, joined by Justice Ann Walsh Bradley.

"Under the circumstances of this case, Ninham's punishment is severe, but it is not disproportionately so," Ziegler wrote.

The court refused to find that such a sentence for a 14-year-old is categorically unconstitutional, or that it was unduly harsh and excessive in Ninham's case, or that he proved that research on adolescent brain development amounts to a new factor that would mandate a resentencing.

Ninham was sentenced in 2000, but in the intervening years, the U.S. Supreme Court has found that the death sentence is cruel and unusual punishment for juveniles, and so is life without parole for juveniles convicted of any crime short of homicide.

Ninham's attorneys at the Equal Justice Initiative in Alabama tried to extend the latter reasoning to his case because he was only 14 when he killed Zong Vang.

The group has two appeals to the U.S. Supreme Court, but each involves juveniles who received mandatory life without parole terms for lesser roles in less shocking crimes. The judge who sentenced Ninham had discretion to allow the possibility of parole.

Attorney General J.B. Van Hollen, whose office argued in support of the Ninham sentence, said in a news release, "The Supreme Court made a difficult, but correct decision," and that prosecutors hope the decision will bring some relief to Vang's family.

Michael O'Hear, a Marquette law professor and expert in sentencing rules and policy, quickly posted an analysis of the decision on his Life Sentences Blog.

In an email interview, O'Hear said the U.S. Supreme Court decision on life without parole for youth, Graham vs. Florida, left a lot of questions unanswered.

"Ninham clearly could have come out the other way, but it's hard to say that the Wisconsin court acted contrary to Graham when Graham was so ambiguous. Ninham would be a very good case for the U.S. Supreme Court to take up in order to clarify what it was trying to do in Graham."

Bryan Stevenson, director of the Equal Justice Initiative who argued Ninham's case, said he will appeal to the U.S. Supreme Court.

"To say there is no chance for hope, redemption and rehabilitation for a 14-year-old is incompatible with what we know," he said, noting that in many other areas, Wisconsin law contains special protections for young teens.

"There is no reason not to in the criminal justice context," he said.

Stevenson tried to argue that a "national consensus" has emerged against life without parole for 14-year-olds, in part because only 18 states have imposed such sentences for only 73 such teens, according to court records.

The court noted, however, that the sentence is rarely imposed because 14-year-olds so rarely commit the kind of "horrific and senseless" homicide for which Ninham was convicted.

The law that allowed Ninham to be tried and convicted as an adult, and sentenced to Wisconsin's harshest penalty, came as a result of outrage over the fate of an earlier 14-year-old killer. In 1983, Peter Zimmer killed his adoptive parents and brother in Mineral Point but could only be found delinquent and held until he turned 19, when he was released with a new name and a plane ticket to Florida.

The Journal Sentinel chronicled what became of Zimmer last year in "A teen killer's dark secret."

After years of getting tough on juvenile criminals, the justice system has felt increasing pressure from advocates to swing the pendulum back a bit toward more leniency and second chances. But courts have a hard time in the worst cases, such as Ninham's.

"We describe the facts of this case with an understanding that this horrific and senseless crime cannot adequately be reduced into words," Zeigler wrote.

Bullying turned fatal

Ninham and four other juveniles spotted Vang, whom they didn't know, riding his bike in Green Bay. Richard Crapeau, 13, threw Vang off his bike, and Ninham punched him in the face. Then the group chased Vang up a five-story parking garage near St. Vincent Hospital and cornered him on the roof. Ninham and Crapeau grabbed Vang and swung him over the edge. At the urging of the three others, they let him go and Vang fell to his death.

While Ninham was awaiting trial, he threatened to kill a judge and to rape and kill friends who had talked to police about the crime, and even through his sentencing date denied any involvement in the crime.

A jury convicted Ninham of first-degree intentional homicide.

Crapeau was also convicted and sentenced to life, but with the possibility of parole after serving 50 years.

Ninham suffered physical and mental abuse at home, and was regularly drinking alcohol by age 10. He never had a toothbrush until he was put into juvenile detention. His lawyers say he has made great progress in prison.

When he was 23, a clinical neuropsychologist concluded Ninham "no longer suffered from the severe behavioral deficits that dominated his young teenage years and has grown into a thoughtful young man whose prognosis for successful re-entry into the community, and absence of recidivism, is very good."

At oral argument on the case in January, Ninham's attorney said Wisconsin should prohibit life without parole sentences for any offender 14 or younger, no matter the crime, or at least agree that Ninham's circumstances warrant a chance at parole.

In a friend of the court brief, the Wisconsin Council on Children and Families said their brain development makes juveniles less culpable than adults

"Any fair system of justice must recognize this fact. Children and adolescents are not adults in miniature; their youth makes them less able to recognize the consequences of their decisions, yet more capable of extraordinary, positive growth as they develop into adults."

Wisconsin upholds life sentence for 14-year-old killer as judges tell him, 'Society thinks you got what you deserve'

DailyMail.co.uk

May 22, 2011

The Wisconsin Supreme Court has upheld a decision to send a man to prison for life after he was convicted of throwing a boy off a parking ramp when he was 14 years old.

Omer Ninham, now 27, had appealed his sentence, calling it 'cruel and unusual'.

Society, the judges declared, does not agree.

The Supreme Court ruled that neither the state nor the U.S. has any statue prohibiting life sentences without parole for 14-year-olds in homicide cases.

The lack of homicide life sentences for children across the country doesn't mean society thinks its wrong, judges said - only that juveniles rarely kill people.

In Ninham's case, the punishment fit a crime that 'cannot adequately be reduced into words,' the opinion said.

It's a decision closely watched by psychiatrists, family advocates and defence attorneys.

'We... confirm what objective evidence already informs us: Contemporary society views the punishment as proportionate to the offence,' Justice Annette Kingsland Ziegler wrote for the majority.

Ninham was convicted of first-degree intentional homicide for his role in the death of 13-year-old Zong Vang in Green Bay in 1998. Ninham was 14 at the time.

Ninham and four others between the ages of 13 and 14 accosted Vang while the boy was riding his bike home from the grocery store with a bag of tomatoes for his family.

According to court documents, Ninham and another member of the group started teasing Vang, then punched him. Vang ran into a nearby hospital parking ramp, where the group cornered him on the top floor.

Ninham and a friend seized Vang by the wrists and ankles. As Vang cried and screamed, they threw him over the edge. He fell five stories to his death.

A bystander on the ground said he heard a sound 'like a wet bag of cement hitting the pavement'.

The teens fled the scene, but police used statements from some of them to track Ninham down. While he was awaiting trial, he was charged with threatening a judge and his friends who spoke to police.

Under Wisconsin law, anyone 10 or older accused of homicide can be tried in the adult system. A jury convicted Ninham of first-degree intentional homicide and child abuse in 2000.

The other charges were dismissed, but the judge was allowed to consider them at Ninham's sentencing.

First-degree intentional homicide carries a mandatory life sentence in Wisconsin, which does not have the death penalty.

The only issue at sentencing is whether a judge will grant parole eligibility.

Brown County Judge John D. McKay gave Ninham, who was by then 16, life in prison and denied him any chance at parole.

The judge noted Ninham had a tough family life and he snorted cocaine weekly and drank every day, usually until he passed out.

But he said the crime devastated Vang's family and the Green Bay community and described Ninham as a 'frightening young man'.

Ninham's attorney, Byron Stevenson of the Equal Justice Initiative, had argued the sentence amounted to cruel and unusual punishment. He vowed to appeal to the U.S. Supreme Court.

'I absolutely believe it's just a matter of time before states are going to have to re-evaluate the judgment that you can punish (a juvenile) the same way you can punish an adult,' he said.
 

'Children are different than adults. Even when children commit very serious crimes, like the crime in this case, we have to think about their crime differently.'

Judges across the country rarely sentence juvenile offenders to life without parole.

According to statistics compiled by the Equal Justice Initiative, 73 children age 14 or younger across 18 states have received that sentence.

The U.S. Supreme Court in 2005 ruled that sentencing juveniles to death is unconstitutional. Last year that court ruled that life with no parole for anything less than homicide was unconstitutional as well.

Groups such as the American Civil Liberties Union have been fighting for reviews of youth life sentences in major crimes since the 2005 ruling. They argue those constitutional prohibitions should extend to homicide cases as well.

The ACLU filed a federal lawsuit in Michigan last month alleging that nine people imprisoned when they were minors deserve a chance at parole because their sentences amount to cruel and unusual punishment.

State of Wisconsin, Plaintiff-Respondent,
v.
Omer Ninham, Defendant-Apellant-Petitioner

I. FACTUAL BACKGROUND

¶8   We describe the facts of this case with an understanding that this horrific and senseless crime cannot adequately be reduced into words.  The terror experienced by the victim and the hurt suffered by his family and friends is, in a word, unimaginable.

¶9   On September 24, 1998, around dusk, 13-year-old Vang was bicycling home along Webster Avenue in Green Bay, Wisconsin.  Vang's older brother had sent Vang to the grocery store for tomatoes.  Vang was returning home on his bicycle, carrying a plastic grocery bag filled with tomatoes, when he was approached by five juveniles: 14-year-old Ninham, 13-year-old Richard Crapeau (Crapeau), 13-year-old Jeffrey P., 14-year-old Amanda G., and 14-year-old Christin J.

¶10  Ninham and the other four juveniles did not know or recognize Vang.  Moreover, by all accounts, Vang never said or did anything to provoke the five juveniles.  Rather, at the time, Crapeau was upset with his mother and "wanted to fight or see a fight."  Consequently, Crapeau said to Ninham, "Let's mess with this kid," and Ninham responded, "'I got your back,' meaning he would back [Crapeau] up in a fight."

¶11  Ninham and Crapeau began by verbally taunting Vang, while the other three juveniles "egg[ed]" them on.  Ninham and Crapeau's assaults escalated into physical attacks.  Crapeau bumped into Vang's shoulder and yanked his bicycle away from him.  Crapeau also grabbed Vang's grocery bag out of his hands and threw it in the direction of St. Vincent's Hospital, located along the same street.  When Vang asked for his bicycle back, Ninham punched Vang, knocking him down.

¶12  Vang got up and started running towards the nearby St. Vincent's Hospital parking ramp.  All five juveniles chased after Vang, eventually catching up to him on the top, or fifth floor, of the parking ramp.  When they caught up to him, Crapeau punched Vang in the face.  Vang repeatedly asked why they were trying to hurt him and pleaded with them to leave him alone.  Instead, Ninham and Crapeau began pushing Vang back and forth between them, in a game Jeffrey P. referred to as "chicken."  Ninham punched Vang in the chest as he pushed him back and forth.

¶13  Ninham then pinned Vang by his wrists against the parking ramp's concrete wall.  While Vang squirmed to get out of Ninham's grasp, Crapeau again punched Vang in the face.  According to Crapeau, Vang was crying and screaming, "'Let me go.'" 

¶14  With Ninham still holding Vang by his wrists, Crapeau grabbed Vang's ankles.  Ninham and Crapeau then began swinging Vang back and forth out over the parking ramp's concrete wall——a drop that measured nearly 45 feet to the ground.  Vang was crying and screaming, begging Ninham and Crapeau not to drop him.  While swinging Vang out over the wall, Crapeau let go of Vang's feet and told Ninham to "[d]rop him."  Ninham let go of Vang's wrists, and in Crapeau's words, Vang "just sailed out over the wall."

¶15  At the same time, approximately 8:00 p.m., bystander Steven Heraly was in his vehicle exiting the St. Vincent's Hospital parking ramp when he heard what sounded like a "bag of wet cement hitting the pavement."

¶16  Vang landed on his back on the parking ramp's paved exit lane, 12 feet from the base of the ramp. 

¶17  Rescue personnel, dispatched at 8:03 p.m., detected a faint pulse from Vang.  Vang was transported to St. Vincent's Hospital where physicians were unable to revive him.

¶18  An autopsy revealed that Vang suffered a blunt impact to his head and trunk and died from craniocerebral trauma due to a fall from height.

¶19  Ninham and the other four juveniles never checked on Vang's condition and instead ran from the scene.  Still, the Green Bay Police Department was able to focus its investigation on the five juveniles after some of them, in particular, Jeffrey P. and Amanda G., indicated to relatives and police that they knew who was responsible for Vang's death. 

¶20  In his statement to police, Jeffrey P. described how Ninham stood for several seconds looking over the edge of the wall at Vang below.  Ninham then looked at Jeffrey P. and said, "Don't say nothing.  Better not say shit."