Prosecutors won't use confession of young murder defendant

ST. JOHNS, Ariz. -- Prosecutors in Apache County have agreed not to use statements made by a 9-year-old St. Johns boy as they pursue murder charges again him.

The boy's defense lawyers had asked a judge to throw out the reported confession, arguing that he was illegally questioned without an attorney or family member present.

In court documents released on Tuesday, prosecutors agreed not to use the statements unless the boy takes the stand in his own defense and contradicts them. Prosecutors said their decision doesn't mean they agree the statements were illegally obtained.

The boy, whose name has not been released, turned nine last month. He is accused of shooting his father, Vincent Romero, 29, and a family friend, Timothy Romans, 39, with a rifle on Nov. 5. The shooting happened at the family's St. Johns home.

The boy sat in shackles, occasionally smiling and speaking quietly to his attorney, during a court appearance Tuesday.

Defense attorney Benjamin Brewer pressed the judge to allow the boy to have a photo of his mother in his cell. He said the boy is having a difficult time adjusting. The boy's mother had been visiting him regularly, but lives in another state and has returned home.

Brewer also continued to push for a therapist for the boy.

"All we're trying to do is to get him someone to talk to and presumably have that person not come and testify about what was said," Brewer told the court. "That's my goal. I want to try to make this person as helpful as possible."

Judge Michael Roca, who twice has rejected defense requests for a therapist, expressed concerns about the amended request. Brewer suggested that Roca make whatever changes he felt necessary in the request.

Brewer said he would pay for the therapist, if necessary.

Before the hearing, Brewer had said his expert determined the boy is incompetent to stand trial. An expert chosen by prosecutors conducted a separate psychiatric evaluation of the boy on Dec. 22. Conclusions of that exam are not known.

Age and intelligence are among the reasons that would prevent the boy from understanding two counts of premeditated murder against him, psychiatrist Eric Hollander told ABC's "Good Morning America."

Hollander said it's difficult to determine what type of child is capable of turning into a killer because children's brains are not fully developed.

While police have not discussed a motive for the shootings. Hollander said there could be several.

"One is access to firearms which he had. Another is a history of physical or emotional or sexual abuse, for example, or witnessing domestic violence."

Marcia Levik of the University of Pennsylvania Juvenile Law Center told GMA the question is not whether the boy should be tried as an adult, but whether he should be in the juvenile court system.

"There are other ways to get services, to get interventions for him, through the child welfare system," Levik said. "That would be an entirely appropriate way to deal with this kind of conduct."

ABC legal analyst Royal Oakes said the case basically boils down to a battle of the experts.

"You're probably going to have experts -- mental health authorities on both sides -- saying essentially opposite things. One saying, 'No, he's not competent.' The prosecution may have people to say, 'Yes, he is.'"

Oakes added, "It's very difficult for the prosecution to convince the court system that someone that young is truly competent to stand trial... The question of just how difficult it is to establish competency -- it always is difficult, but it's really tough when you're dealing with a child of eight or nine."

If a judge finds the boy is incompetent, with no chance of being restored to competency within 240 days, the case could be dropped with prejudice, meaning it could not be refiled. Prosecutors have expressed concerns that, if that happens, the boy never will get treatment he needs.

Oakes said the fact that a judge released the boy from custody to spend Christmas with his mother could be a positive sign for the boy.

"It suggests that the powers that be don't think that he's terribly violent, not a threat to society," Oakes said. "That certainly could be a good fact for him in terms of the ultimate outcome of the case."

The boy's mother, who was divorced from his father, is not expected to be in the courtroom today.

Prosecutors released a report Monday that said gunshot residue was found on the boy's pants and shirt after the shootings. The report, however, did not identify the boy as the shooter and said he might have come into contact with a discharged firearm or been in close proximity to a firearm. Beginning immediately, we must post the following statement beneath articles, when we use reporters' original on-air content, in addition to AP content within the same story: (Copyright 2008 Bonneville International Corporation. All rights reserved. This material may not be published, broadcast, rewritten or redistributed. AP contributed to this report.)