ROANOKE TIMES
Copyright (c) 1997, Roanoke Times
DATE: Thursday, April 24, 1997 TAG: 9704240058
SECTION: VIRGINIA PAGE: A-1 EDITION: METRO
DATELINE: CHATHAM
SOURCE: TODD JACKSON THE ROANOKE TIMES
STAFF WRITER LAURENCE HAMMACK CONTRIBUTED TO THIS STORY.
Prosecutors said the case can be reopened within five years, but many experts called that unlikely. The murder charge against an 8-year-old boy was dismissed Wednesday based on findings that he's not competent to stand trial because of his age.
The child was arrested in January and charged with killing his stepfather, 55-year-old Bernard Rosser, a probation and parole officer in Franklin County.
Two recent psychological evaluations by specialists at the University of Virginia and Johns Hopkins University medical centers found that the child is not able to assist in his defense at such a young age.
As the result of Tuesday's 45-minute closed hearing, Pittsylvania County Juvenile Judge Calvin Fowler dismissed the charge against the boy without prejudice - a ruling that allows prosecutors the option of reinstating the charge within five years.
The boy, who isn't being named because of his age, left the Pittsylvania County Courthouse with a smile and lipstick marks left by loved ones on his face. He shook the hand of his attorney, Glenn Berger of Altavista, and thanked him.
The child's family left the courthouse without comment, but the boy was returned to the custody of his mother, Frances Rosser, after the hearing. He had been staying with his half-brother's family in Maryland because of a temporary placement order.
Frances Rosser and her son are not living in the home where the slaying took place, said her attorney, Ray Ferris of a Roanoke.
"They've moved elsewhere," he said. "Frances felt it was in the boy's best interest."
Berger, a former prosecutor, called the the murder case against the boy the most interesting he's been involved with in his 20-year legal career.
"I've not been able to find any case in the state of Virginia in which an 8-year-old was prosecuted for murder," Berger said.
The attorney said he believes in the boy's innocence regardless of the competency issue.
Assistant Commonwealth's Attorney Will Jarvis said he expects the case to be renewed if the boy is found competent at some point during the five-year period.
There are procedures available to determine the child's competence, but no specific provisions were established Tuesday, Jarvis said.
Jarvis would not say if there are other suspects in the case.
Bernard Rosser was found beaten to death Dec. 19 in his Gretna home. Three weeks later, the boy was charged with murder.
Sources had said the youngster discussed the killing with a school counselor he was seeing for classroom discipline problems. What the child said was so specific that investigators concluded he was at the crime scene.
But Frances Rosser contends someone broke into their home and killed her husband while she and her son were traveling to visit relatives in Mississippi. Frances Rosser hired Ferris because investigators don't believe she's telling the truth, the attorney has said.
The child's innocence is backed by Bernard Rosser's only daughter, Sherry Rosser of Petersburg, who believes Frances Rosser is telling the truth.
Berger said it will be hard for prosecutors to reinstate the charge against the boy.
Juvenile justice experts agreed.
"If the judge found him incompetent based solely on his age, then obviously that's going to be something that will change," said Robert Shepherd, a University of Richmond law professor who served on a state task force that examined Virginia's juvenile justice system.
"As he ages, his ability to understand the proceedings and assist in his defense will improve."
But even if the boy is someday found competent to stand trial, his age at the time of the offense would still make a conviction unlikely, according to Shepherd and Dan Macallair, associate director of the Center on Juvenile and Criminal Justice - a San Francisco organization that promotes options to incarceration.
"Even if they wait five or six years for the boy to mature and have a greater understanding of what's happening, the defense could still assert that he could not be held criminally responsible for what he did on the basis of being so young at the time he committed the offense," Shepherd said.
For someone to be convicted of a crime in Virginia, they must be able to understand the difference between right and wrong.
"Five years from now he might understand and appreciate what it means to kill someone and what the consequences are, but that cannot be projected backward to what his understanding was at the time he was 8 years old," Shepherd said.
Macallair said that it was "absurd" that prosecutors would even consider resurrecting the case.
"It just flies in the face of 100 years of social science and what we know about human development" to assume that an 8-year-old could be held criminally responsible for murder, he said.
If the boy had been convicted, there would be little the system could do with him. State law does not allow someone to be sent to a juvenile correctional center for a crime committed when he was younger than 10.
Ferris said the boy and his mother were happy to be back together Wednesday. But, according to a source, there's still some question about who will have permanent custody of the boy.
The child's father, who lives in Texas, has filed a custody suit, the source said.
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