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This week's episode is the horrifying story of ten year old Jenny, who kills a little boy by repeatedly hitting him on the head with a rock. Her thirteen year old friend Tara is with her at the time of the murder. Tara pulls the boy's pants down at Jenny's instruction and together they hide his body in a pipe at a construction site. The episode focuses on whether Jenny understood the consequences of her act. The Family Court must determine whether she is a threat to society to be committed to an institution for treatment, or returned to the custody of a weak and abusive mother who may not be able to control her.

The police investigation of the murder begins with a trace of a 911 call, a relatively new and valuable capacity for the New York City Police Department. Detectives Green and Briscoe, like all good investigators, visit the medical examiner who did the autopsy on the victim. They learn the little boy had salt on his hands -- perhaps from a snack -- and that a triple A battery found in his mouth was inserted after death. When the investigation leads to the two girls, they cleverly finger an auto mechanic who dates a woman in the victim's building, as the killer. They claim to have seen him putting the body into the pipe. Briscoe is ready to charge the mechanic, but Green is suspicious of the girls' credibility. With a little additional police work, they learn Jenny lured the victim out of his building, bought him a pretzel, then beat him over the head with a rock. Tara, according to her own statement, did not know Jenny was planning to kill the child and did not hit him herself.

Several improbabilities in the investigation, for one, the detectives show the victim's mother a photograph of her son's body in breaking the news of his murder. No detective worth his salt would ever do such an insensitive thing. Bodies are typically identified by a relative at the city morgue, and very often the family member is simply shown a sanitized picture of the deceased's face. Another improbability is the detectives showing a picture of the mechanic to one of the girls and another witness -- a small boy -- in their effort to confirm that he is the killer. Any experienced detective would know to show a photo array to the witnesses with the suspect's picture included. To show the single photo is to risk exclusion of the identification at trial on the grounds that it was unduly suggestive.

The part of the police investigation most worthy of discussion is the statement taken by Detective Green from Tara, the 13 year old suspect. With the blessing of police lieutenant Anita Van Buren, he questions Tara, with her mother watching through a one way mirror (thus technically outside the presence of her mother). An absolute no-no. In New York, juvenile defendants, (persons under 16 years of age) must be questioned in the presence of a parent unless both waive that right. In fact, juvenile defendants are treated so carefully by law, they can only be questioned in what is known as a "Youth Room" -- a clean well-maintained room appropriate for this purpose. In addition, both parent and child must be given Miranda warnings. Green and Lt. Van Buren would doubtless have known they were bending the rules in a big way when Green questioned Tara alone. Tara's statement, describing how Jenny killed the victim and depicting her own, more limited role after the death, is thus properly excluded from evidence by the court at a pre-trial suppression hearing.

On the show, however, the statement is excluded for the wrong reason. Jack McCoy, the Assistant District Attorney, is very critical of Green's method in questioning of Tara. In a discussion with Lt. Van Buren, McCoy calls Green an overzealous cop and predicts the statement will be suppressed. He quotes critically from passages in the statement where Green asked Tara to "share your pain with me" and compares her to a famous soccer player. At the suppression hearing, the judge grants the motion to suppress the statement on the ground that it is a manufactured admission from an immature 13 year old. But McCoy and the judge are both incorrect in their belief that Green's questioning of Tara was in and of itself coercive. The technical problem of the presence of Tara's mother aside, nothing in Green's questioning was improper. Convincing the suspect to confide in him by relating to her interests, her age, and to her personally was a creative and lawful approach. While Green's promise to Tara that he wouldn't let anyone hurt her if she told the truth might be problematic, it must be judged by the standard of how a reasonable 13-year-old would interpret that statement. A good D.A. would argue that a 13-year-old would interpret Green's promise as one to keep her from physical harm, as opposed to a promise not to prosecute.

Once the confession is suppressed, McCoy takes over the investigation. He visits Jenny's father in prison. After some coaxing, the father gives McCoy a picture Jenny drew and sent him before her arrest. The drawing shows the victim lying on the ground with batteries around his head. Jenny drew herself with a rock in her hand while Tara stands by her. McCoy shows the picture to the attorneys for the two girls, claiming it is a pictorial confession implicating both girls as murderers. At this point, Jenny's lawyer wisely concedes her client committed the murder, but gives notice to McCoy that she is pleading her client not responsible because she was unable to appreciate the consequences of her action.

Tara's lawyer expresses anger that Jenny will be tried in Family Court, while Tara, because of her age, faces a life sentence in New York State Supreme Court. Indeed, under New York law, Jenny would have to be tried in Family Court because of her age. Tara, the thirteen-year-old, could be charged as an adult in Supreme Court with murder, however she could also have been charged in Family Court, where the potential sentence is of course much less harsh. McCoy's decision to prosecute Tara as an adult for murder as an accessory is, in my view, legally correct but far too aggressive. According to the only evidence available, Tara did not know in advance that Jenny was going to kill the victim, nor did she strike the victim herself. Tara is charged with murder for helping her friend put a body in a pipe and pull the victim's pants down, but it is clear from her statement she never understood why she was doing these things. The decision to prosecute Tara in Supreme Court when she could have been tried in Family Court is particularly egregious because she is far less culpable than Jenny.

The remainder of the episode is devoted to Jenny's trial in Family Court, as handled by McCoy. At this point, the show departs from anything resembling reality in a major way. In Manhattan, the District Attorney's Office does not handle prosecutions in Family Court, as they are handled by the New York City Corporation Counsel. So in reality, McCoy would never prosecute a case in Family Court.

McCoy believes Jenny knew what she was doing when she committed the murder because she was able to "rope in an accomplice" and coolly lie to the police. To support his case, McCoy has her examined by his expert psychologist. In a chilling interview, the psychologist learns Jenny's mother had sex with a man in front of her, and that she committed the murder because she wanted to hurt the man. She says he is too big, so she began to fantasize about killing little boys and leaving them with no clothes on "so they look stupid." She also confesses to having previously killed a neighbor's cat. She claims she placed the battery in the victim's mouth after he was dead to "wake him up." McCoy's expert concludes that Jenny is an incipient serial killer.

Horrified by what he has heard, McCoy asks Jenny's lawyer for her consent to place Jenny in restrictive placement until she is twenty one, at which time she could be reassessed as an adult. Restrictive placement is the category of confinement available for the most serious felonies in Family Court. Jenny's lawyer refuses and advises McCoy that the best he can get in Family Court is five years. Jenny's lawyer is incorrect. In fact, the law provides for an initial placement of five years, which is renewable, however, in twelve month increments until the child's twenty-first birthday.

Had he known the law, McCoy should have been content to proceed with the prosecution in Family Court. Instead he seeks to circumvent the five year sentence limit (which we now know to be inaccurate) by asking each of Jenny's parents to consent to her civil commitment until she is no longer a threat. Only her father agrees. Jenny's lawyer makes a motion to stop the civil commitment. Compounding the previous break with reality, we now find McCoy appearing at a civil hearing in Family Court, again something no assistant district attorney would ever do.

At the civil commitment hearing, experts for both sides testify and the hearing is inexplicably transformed into a proceeding to determine whether Jenny will be released to her mother or placed in some form of highly restrictive custody. McCoy's expert testifies Jenny is a sociopath who should be treated "behind bars." Jenny's expert testifies that she suffered frontal lobe damage in a car accident and warns against locking a child in an asylum for the criminally insane. In a rare realistic moment, McCoy's expert sits next to him as he questions Jenny's psychologist and feeds him questions. Jenny's mother testifies she doesn't know if she can control Jenny in the future and pleads with the judge not to take away her "best friend." McCoy emphasizes the girl's daydreams about killing little boys and her murder of the cat as proof that she appreciated what she was doing. Jenny's lawyer tries to show she was unaware of the consequences of her act by pointing out her belief that she could revive the victim with a battery.

The judge rules that Jenny be returned to the custody of her mother with monthly follow-up visits to the court. The episode concludes with Jenny eyeing a little boy, perhaps her next victim, outside the courtroom.

My own view -- that the judge's ruling in this case was preposterous and unrealistic -- was confirmed in a conversation I had with a forensic psychiatrist who specializes in children. He said that returning a child like Jenny who is obviously disturbed to a disturbed environment with an inappropriate mother would be absurd. He also noted that a child like Jenny could be placed in a state psychiatric institution in New York for children, such as Bronx Children's Psychiatric, and, contrary to what was implied in this episode, she would not have to be placed in an adult asylum for the criminally insane.

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