Recent Cases in Law and Neuroscience, Curated by the Center for Law, Brain & Behavior and the Shen Neurolaw Lab with support from the Dana Foundation

Center for Law, Brain & Behavior
4 min readJan 17, 2022
(Source: Boston Globe)

On July 1, 2021, the Supreme Judicial Court of Massachusetts ruled that Joshua Fernandes, who had been sentenced to life without parole for an offense committed when he was 16 years old, should be resentenced so that he could become eligible for parole.

In May 2010, a police officer witnessed an altercation during which Fernandes shot and killed a fourteen year old boy. The victim had been riding laps around the neighborhood on a scooter, at one point nearly colliding with Fernandes’ co-defendant Crisostomo Lopes.

Lopes and Fernandes hid until the victim returned, at which point Lopes pulled him off the scooter and beckoned Fernandes over. Fernandes shot the boy multiple times at point blank range. He was arrested within minutes and subsequently convicted of first degree murder and sentenced to life without the possibility of parole.

In 2021, Fernandes appealed his conviction and sentence, arguing among other things that 1) the prosecution should not have been allowed to exclude all young people from the jury; 2) the statute that had required him to be tried as an adult was unconstitutional; 3) statements he made to police were not voluntary; 4) he should have been allowed to introduce expert testimony on juvenile brain development; and 5) resentencing was required by the Supreme Court’s 2012 decision Miller v. Alabama.

The court rejected the first four arguments and affirmed Fernandes’ conviction. But the court ordered resentencing so that Fernandes would become eligible for parole based on Diatchenko, a 2015 Massachusetts state court case precluding life without parole sentencing for juvenile offenders.

In affirming the conviction, the court reviewed each of Fernandes’ arguments. At trial, the prosecution had used 26 out of 32 peremptory challenges to exclude young people from the jury: only one juror under the age of 30 remained. Fernandes argued that this unconstitutionally deprived him of a jury of his peers. The court disagreed, concluding that young people are not a discrete protected group for the purposes of jury selection.

The court similarly found no issue with the Massachusetts statute requiring Fernandes to be tried as an adult, reasoning that the legislature had sufficient interest in protecting the public from juvenile offenders charged with particularly egregious crimes and that any potential harm to young offenders due to the statute was minimal given the due process protections provided by both juvenile and adult courts.

In response to Fernandes’ contention that his statements to police officers had not been voluntary, the court found “no indication whatsoever that [the] defendant’s will was overborne,” nor any indication that he had not been offered a “meaningful opportunity” to confer with an informed adult as required by law.

He had spoken with his parents before interrogation, but they spoke only Cape Verde Creole. An officer who spoke the language had explained Miranda advisements to them, but did so incompletely, for example translating “Even if you decide to answer any question now without a lawyer present, you will still have the right to stop answering at any time” as “If any question before a lawyer being here, you can stop at any time, if he wants.”

Fernandes refused to sign a form saying he had declined an attorney but did not directly express a desire to remain silent. The trial court therefore declined to strike his subsequent statements. The appellate court agreed, concluding that “Although the warnings were not the clearest possible formulation of Miranda’s right-to-counsel advisement, they were sufficiently comprehensive.”

The court also ruled that the trial court’s exclusion of expert testimony on juvenile brain development had not been an abuse of discretion. At trial, Fernandes had moved to present evidence of his “diminished capacity to form the intent necessary to commit first-degree murder” based on his youth. Counsel had described this evidence as “not specific to [the defendant], but in general about the whole concept of adolescent brain development and the underdeveloped frontal cortex,” and “whether or not there’s even a capacity to deliberately premeditate with respect to first-degree murder” based on characteristics of the normal adolescent brain.

The trial court refused to allow this evidence. The appellate court agreed, noting that “The ability of an expert to testify with respect to the individual defendant specifically is critical.” Allowing an expert to testify that someone in the defendant’s age group could not possibly formulate the necessary intent would stray too close to contradicting the legislature’s indication that young people in general “are capable of committing murder” despite their immaturity. General evidence about brain development should only be admitted to contextualize information specific to a particular defendant.

Citation: Commonwealth v. Fernandes, 487 Mass. 770, (2021).

Keywords: Massachusetts, juvenile justice, brain development, LWOP

This post is the 105th post as part of an ongoing Center for Law, Brain & Behavior (CLBB) series tracking the latest developments in law and neuroscience cases. To see previous posts about recent cases, see the full case archive on the CLBB website. To see updates on legal scholarship, see the Neurolaw News, hosted by the MacArthur Foundation Research Network on Law and Neuroscience. This project is made possible through support of the Dana Foundation.