IN THE COURT OF APPEALS OF THE STATE OF MISSISSIPPI

JERRARD T. COOK APPELLANT

V. NO. 2016-KA-00687-COA

STATE OF MISSISSIPPI APPELLEE

___________________________________

BRIEF OF THE APPELLANT___________________________________

On Appeal from the Circuit Court of Lincoln County, Mississippi

Erin E. Briggs, MS Bar No. 102352

INDIGENT APPEALS DIVISION

OFFICE OF STATE PUBLIC DEFENDER

Post Office Box 3510

Jackson, Mississippi 39207-3510

Telephone: 601-576-4290

Fax: 601-576-4205

Email: eprid@ospd.ms.gov

Counsel for Jerrard T. Cook

E-Filed Document Oct 5 2016 22:35:24 2016-CA-00687-COA Pages: 31

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IN THE COURT OF APPEALS OF THE STATE OF MISSISSIPPI

JERRARD T. COOK APPELLANT

V. NO. 2016-KA-00687-COA

STATE OF MISSISSIPPI APPELLEE

CERTIFICATE OF INTERESTED PERSONS

The undersigned counsel of record certifies that the following listed persons have an interest

in the outcome of this case. These representations are made in order that the justices of this court

may evaluate possible disqualifications or recusal.

1. State of Mississippi

2. Jerrard T. Cook, Appellant

3. Honorable Dewitt (Dee) T. Bates, Jr., District Attorney

4. Honorable David H. Strong, Circuit Court Judge

This the 5th day of October 2016.

Respectfully Submitted,

INDIGENT APPEALS DIVISION

OFFICE OF STATE PUBLIC DEFENDER

BY: /s/ Erin E. Briggs

Erin E. Briggs

Counsel for Appellant

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TABLE OF CONTENTS

CERTIFICATE OF INTERESTED PERSONS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . i

TABLE OF CONTENTS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . ii

TABLE OF AUTHORITIES . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . iv

STATEMENT OF THE ISSUES . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1

STATEMENT OF ASSIGNMENT . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1

STATEMENT OF THE CASE . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2

STATEMENT OF THE FACTS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2

SUMMARY OF THE ARGUMENTS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4

ARGUMENTS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5

Standard of Review . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5

The United States Supreme Court’s Trilogy . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5

I. The Trial Court Erred in Sentencing Cook to Life -Without-parole, as Cook Is Not One

of the “Uncommon” and “Rare” Juvenile Homicide Offenders

Who May Be Sentenced to Die in Prison. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10

Miller Factors . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10

1. The Child’s Chronological Age and Its Hallmark Features . . . . . . . . . 12

2. The Family and Environment that Surrounds Him . . . . . . . . . . . . . . . 14

3. Mitigating Circumstance of the Homicide Offense . . . . . . . . . . . . . . . . 15

4. Whether He Might Have Been Charged and

Convicted of a Lesser Offense . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15

5. The Possibility of Rehabilitation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16

II. Cook’s Sentence Was Imposed in Violation of His

Constitutional Right to Have His Sentence Determined by a Jury. . . . . . . . . . . . . . 19

III. Cook’s Sentence Must Be Vacated and He Must Be Re-sentenced to Life With Parole,

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Because the Practice of Sentencing Children to Life-Without-Parole Violates the

Federal and State Constitutional

Prohibitions Against Cruel and Unusual Punishment . . . . . . . . . . . . . . . . . . . . . . . . 21

CONCLUSION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 24

CERTIFICATE OF SERVICE . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 25

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TABLE OF AUTHORITIES

FEDERAL CASES

Atkins v. Virginia, 536 U.S. 304, 122 S.Ct. 2242 (2002) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6

Eddings v. Oklahoma, 455 U.S. 104, 102 S.Ct. 869 (1982) . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12

Graham v. Florida, 130 S.Ct. 2011, 560 U.S. 48 (2010) . . . . . . . . . . . . . . . . . . . . . 1, 6, 7, 9, 10,

16, 17, 18, 23, 24

Johnson v. Texas, 509 U.S. 350, 113 S.Ct. 2658 (1993) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12

Miller v. Alabama, 132 Southern Ct. 2455 (2012) . . . . . . . . . . . . . . . . . . . . . . . . . . . 1, 2, 4, 5, 6,

9, 10, 11, 12, 14,

15, 16, 17, 19, 20,

21, 22, 23

Montgomery v. Louisiana, 136 S.Ct. 718 (2016) . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11, 17, 20, 24

Ring v. Arizona, 536 U.S. 584 (2002) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20

Roper v. Simmons, 543 U.S. 551, 125 S.Ct. 1183 (2005) . . . . . . . . . . . . . . . . . . . . . 6, 7, 8, 9, 10,

12, 13, 20, 21, 22,

23

STATE CASES

Bennett v. State, 990 So. 2d 155 (Miss. 2008) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5

Brown v. State, 995 So. 2d 698 (Miss. 2008) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21

Diachenko v. District Att’y, 466 Mass. 655 (2013) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 24

Kambule v. State, 19 So. 3d 120 (Miss. Ct. App. 2009) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5

Parker v. State, 119 So. 3d 987 (Miss. 2013). . . . . . . . . . . . . . . . . . . . . . . . . . . 11, 12, 14, 15, 16,

17, 19, 20, 21

State v. Riley, 110 A.3d 1205 (Conn. 2015) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5, 6, 9

State v. Seats, 865 N.W.2d 545 (Iowa 2015) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10

v

Veal v. State, 298 Ga. 691 (2016) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17

Walker v. State, 913 So.2d 198 (Miss. 2005) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5

Workman v. Commonwealth, 429 Southern W.2d 374 (Ky. 1968) . . . . . . . . . . . . . . . . . . . . . 8, 17

STATUTES

Miss. Code Ann. § 99-19-101 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21

Miss. Const. Art. 3 §§14,15 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19

OTHER AUTHORITIES

Amicus Br. For American Med. Associate., et al., 2012 WL 121237 (Jan. 13, 2012) . . . . . . . . 12

Amicus Br. For American Psych. Associate et al., 2012 WL 174239 (Jan. 17, 2012) . . . . . . . . 24

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IN THE COURT OF APPEALS OF THE STATE OF MISSISSIPPI

JERRARD T. COOK APPELLANT

V. NO. 2016-KA-00687-COA

STATE OF MISSISSIPPI APPELLEE

BRIEF OF THE APPELLANT

I. The Trial Court Erred in Sentencing Cook to Life -Without-Parole, as Cook is Not One

of the “Uncommon” and “Rare” Juvenile Homicide Offenders Who May be Sentenced

to Die in Prison.

II. Cook’s Sentence Was Imposed in Violation of His Constitutional Right to Have His

Sentence Determined by a Jury.

III. Cook’ Sentence Must Be Vacated and He Must Be Re-sentenced to Life With Parole,

Because the Practice of Sentencing Children to Life-Without-Parole Violates the

Federal and State Constitutional Prohibitions Against Cruel and Unusual Punishment.

STATEMENT OF ASSIGNMENT

This case should be transferred to the Mississippi Supreme Court for review because this case

involves the sentencing of a juvenile to a term of life imprisonment without parole. A life-without-

parole sentence is the ultimately penalty available for a juvenile offender. Miller v. Alabama, 132

S. Ct. 2455, 2466 (2012). For this reason, it is treated akin to the death penalty. Id. (citing Graham

v. Florida, 130 S.Ct. 2011, 2027, 560 U.S. 48, 69-70 (2010).

Pursuant to MRAP 16(b)(1), the Mississippi Supreme Court shall retain jurisdiction over

cases involving the imposition of the death penalty. Because of the necessary heightened scrutiny

required in this case, the case should be re-assigned to the Mississippi Supreme Court.

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STATEMENT OF THE CASE

Jerrard T. Cook, having been charged with capital murder for the death of Marvin Durr,

entered into a guilty plea. (R.E. 3, C.P. 6). Previously facing the death penalty, the court accepted

Cook’s plea and sentenced him to serve “the rest of his natural life” in prison. (R.E.4, C.P. 18).

Cook was seventeen years old (17) at the time of the offense. (Tr. 73).

Nine years after his sentencing, the United States Supreme Court decide Miller v. Alabama,

132 S.Ct. 2455, 183 L.Ed. 2d 407 (2012), which held that mandatory life imprisonment without

parole for juveniles, who were under the age of eighteen years old (18) at the time of the crime,

violated the Eighth Amendment’s prohibition against cruel and unusual punishment.

The trial court vacated Cook’s sentence and held a re-sentencing hearing on March 30, 2015.

(C.P. 28). The Honorable David H. Strong, Jr., Circuit Court Judge, presided over the hearing. The

court denied Cook’s requires for re-sentencing pursuant to Miller v. Alabama and Parker v. State,

and ordered Cook to serve a life sentence, without the possibility of parole. (R.E. 21, C.P. 35).

Aggrieved, Cook timely noticed this appeal. (R.E. 56, C.P. 413).

STATEMENT OF THE FACTS

Jerrard T. Cook was born to a single, drug-addicted mother, who gave him all of the material

things he wanted but none of the structure, guidance or her presence that he desperately needed. (Tr.

183). Cook lived with his mother and maternal grandmother. (Tr. 182). His father was never in his

life. (Tr. 183).

Cook’s mother provided for him financially, but it was his grandmother who nurtured him

and looked after him. (Tr. 159,183). The two shared a very close relationship until the grandmother’s

death when Cook was twelve years old. (Tr. 157). Around this time is when Cook’s behavior started

declining. (Tr. 158-59). After his grandmother’s death, he was left at home a significant amount of

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the time, unsupervised. (Tr. 158).

Cook did not have many role models in his life. Chief Bobby Bell of the Brookhaven Police

Department served as a mentor for Cook when he was younger. (Tr. 101-02). According to Cook’s

mom, Cook responded well to the structure. (Tr. 161). Chief Bell expressed how Cook was a good

child and how they became close during their relationship. (Tr. 102-03). Chief Bell treated Cook like

his own son. (Tr. 104). At Cook’s re-sentencing hearing, Chief Bell regretted that he did not stay

in Cook’s life. (Tr. 105). He was unsure of what caused the break in their relationship.

Around the time Cook turned fifteen years old, he began hanging around Cearic Barnes and

other young men in the neighborhood. (R.E. 34). One of Cook’s cousins, Angela Daniels, warned

Cook about hanging around Barnes. (Tr. 117, 121). She also confronted him about her suspicions

that he had started using drugs. (Tr. 121). Cook never admitted to her that he used drugs, but his

mother had the same suspicions. (Tr. 122, 160). His mother never sought any type of treatment for

him or issued any punishments based on this suspicion. (Tr. 160).

A few months after turning seventeen years old, Cook and Barnes decided that they would

rob a store. Cook had stolen a gun from his uncle a few days before. (Exhibit, §20, Pg. 28-29). He

let Barnes borrow it for twenty dollars. The plan was for Barnes to rob the Stop-and-Shop, but it was

closed. (Exhibit, §20, Pg. 31).They then decided that they would rob the Eighty-Four Mart, but Cook

knew the employee, Charlie, and he did not feel comfortable robbing him. (Exhibit, §20, Pg. 31).

They had talked about robbing the next driver that came through the area. (Exhibit, §19, Pg.

13). They wanted a car to drive to McComb, Mississippi, so they could be out of town when they

committed a robbery. . (Exhibit, §20, Pg. 51). Unfortunately for them, that next car was a police

officer. Cook talked his way out of raising suspicion with the officer. Barnes and Cook were about

to head home when they saw Barnes’ cousin, Marvin Durr. (Exhibit, §20, Pg. 32)

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Durr agreed to take Barnes and Cook to Cook’s aunt’s house. (Exhibit, §20, Pg. 33) They

made Durr miss the correct turn by giving him faulty directions. (Exhibit, §20, Pg. 47) Durr ended

up just dropping them of on the side of the street. (Exhibit, §20, Pg. 48) He drove down the street

and turned around. . (Exhibit, §20, Pg. 49) Cook flagged him down and pointed the gun at Durr that

he had recently got back from Barnes. (Exhibit, §20) Cook knew Durr and did not want to shoot

him. Id. According to Cook, he only wanted the car to get to McComb. Before he realized it, he shot

Durr through the window. Id.

Barnes and Cook got in the car and tried to pull Durr out, but they were unsuccessful. Id.

They tried to find some money in Durr’s pockets, but there was none. Id. Cook climbed on top of

Durr’s body, that was still in the driver’s seat, and drove the car around. Id. They eventually ended

on in the middle of a road. Barnes burned the car and later burned their clothes. Id.

Cook pled guilty to the capital murder and agreed to testify for the prosecution against

Barnes. Barnes later pled guilty as well. Cook was later sentenced to life imprisonment.

SUMMARY OF THE ARGUMENTS

Jerrard T. Cook, along with co-defendant, was indicted for the capital murder for the death

of Marvin Durr. They were facing a possible penalty of the death. Cook later pled to capital murder

and the court sentenced him to serve the rest of his natural life in prison.

In 2012, the Supreme Court announced that mandatory life-without-parole sentencing

schemes for juvenile homicide offenders, who were under 18 years old at the time of the crime,

violated the Eighth Amendment. Miller v. Alabama, 132 S.Ct.2455 (2012). Cook was granted a re-

sentencing hearing due to the Miller decision. However, the trial court improperly considered the

Miller factors and did not proper weigh to the mitigating evidence in this case.

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Although the Supreme did not categorically ban life-without-parole sentences for juvenile

homicide defenders, this practice is cruel and unusual punishment under the federal and state

constitutions. In addition to these errors, Cook had a constitutional right to a re-sentencing hearing

by jury. The trial court should not have been the finder of fact in this re-sentencing hearing.

ARGUMENTS

Standard of Review

Life-without-parole sentences is the ultimate penalty for juveniles and should be treated

similarly to that of the death penalty for adult offenders. Miller v. Alabama, 132 S.Ct. 2455, 2466

(2012). For this reason, the Court should review this case under heightened scrutiny as is applied

in death penalty cases. Bennett v. State, 990 So. 2d 155, 158 (¶6) (Miss. 2008) (“The standard for

this Court’s review of convictions for capital murder and sentences of death is ‘heightened

scrutiny’.”)

The heightened scrutiny standard requires that all doubts be resolved in the accused’s favor

because “what may be harmless error in one case with less at stake becomes reversible error when

the penalty is death.” Walker v. State, 913 So.2d 198, 216 (Miss. 2005).

Additionally, the Court applies a de novo standard of review for mixed questions of law and

facts. Kambule v. State, 19 So. 3d 120, 122 (Miss. Ct. App. 2009).

The United States Supreme Court’s Trilogy

Through a trilogy of cases, the United States Supreme Court changed the direction of juvenile

sentencing to conform to the Eighth Amendment’s ban on cruel and unusual punishment. State v.

Riley, 110 A.3d 1205, 1205 (Conn. 2015). The Eighth Amendment, made applicable to the states

through the Fourteenth Amendment, guarantees that individuals have the right to be free from “cruel

1 Roper v. Simmons, 125 S.Ct. 1183, 543 U.S. 551 (2005).

2Graham v. Florida, 130 S.Ct. 2011, 560 U.S. 48 (2010).

3Miller v. Alabama, 132 S.Ct. 2455, 183 L.Ed.2d 407 (2012).

6

and unusual punishment.” Roper v. Simmons, 543 U.S. 551, 560, 125 S.Ct. 1183, 1190 (2005).

Implicit in this prohibition is the guarantee that individuals have the right to be free from excessive

sanctions. Atkins v. Virginia, 536 U.S. 304, 308, 122 S.Ct. 2242, 2246 (2002). “This right flows

from the basic precept of justice that punishment for crime should be graduated and proportioned

to the offense.” Roper, 543 U.S. at 560.

Although the Supreme Court had long recognized the distinct aspects of youth, it was not

until Roper v. Simmons1, Graham v. Florida2, and Miller v. Alabama3, that the Court acknowledged

that “youth and its attendant characteristics have constitutional significance for purposes of assessing

proportionate punishment under the eighth amendment.” Riley, 110 A.3d at 1208. Simply put, for

the purposes of sentencing, juveniles are constitutionally different than adults. Miller, 132 S.Ct. at

2469.

In the first of this trilogy, Roper, the Supreme Court held that the Eighth and Fourteenth

Amendments prohibited juveniles, who committed crimes before the age of eighteen years old, from

receiving the death penalty. Roper, 543 U.S. at 568. The Court reasoned that the death penalty,

being the most severe punishment allowed, had to be limited to those offenders who committed the

most serious crimes and “whose extreme culpability makes them ‘the most deserving of

executions’.” Id. However, the Court recognized that there were three general differences between

children (under eighteen years old) and adults that would prevent children from being classified as

the worst offenders. Id. at 569.

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First, juveniles lack maturity and do not possess a fully -developed sense of responsibility.

Id. “These qualities often result in impetuous and ill-considered actions and decisions.” Id. Second,

juveniles are more receptive to peer -pressure and negative influences. Id. Third, a child’s personality

trait is still forming. Id. at 570. As opposed to adults, a child’s character is not fixed and is, in fact,

more transitory. Id. The Court in Roper concluded that these general differences “render suspect any

conclusion that a juvenile falls among the worst offenders.” Id.

Following Roper, the Supreme Court was tasked with deciding if a life- without -parole

sentence was a disproportionate sentence for juveniles, under eighteen years old, who committed

non-homicide offenses. Graham, 560 U.S. at 52-53, 59. In expanding on the groundwork laid by

Roper, the Court acknowledged that there had been continued advancements in psychology and brain

cience that proved the minds of children and adults are fundamentally different. Id. at 68.

Children’s brains, in particular the parts concerning behavior control, continue to mature

through late adolescence. Id. at 68. For this reason, children have a better capability to change than

adults, “and their actions are less likely to be evidence of ‘irretrievably depraved character’ than are

the actions of adults.” Id. at 69.

In considering the life-without-parole sentence, the Court acknowledged that this sentence

was the second most severe penalty allowed by law. Id. at. 69. For the juvenile, however, it is even

more detrimental. Id. at 70. On average, the young offender would serve a greater length of sentence

than an adult offender and the punishment would be the same as an adult in name only. Id.

The Court likened the life-without-parole sentence for juveniles to that of the death penalty.

Id. at 69-70. While the juvenile’s life does not end by execution, ‘the sentence alters the offender’s

life by a forfeiture that is irrevocable.” Id. For a young offender, this sentence leaves the juvenile

with no hope because whether his or her behavior and character improves over time, it is immaterial

8

since he or she will remain in prison for the rest of their lives. Id.

The Court realized that none of the penological justifications for punishment (retribution,

deterrence, incapacitation, and rehabilitation) would be met in sentencing a non-homicide juvenile

offender to life-without-parole. Id. at 71. “A sentence lacking any legitimate penological

justifications is by its nature disproportionate to the offense.” Id.

In rejecting incapacitation as a legitimate justification, the Court noted that this justification

would require the sentencer to make an assumption that the child would forever be a danger to

society and that the child was incorrigible. Id. at 72. However, “incorrigibility is inconsistent with

youth.” Id. at 73 (quoting Workman v. Commonwealth, 429 S. W.2d 374, 378 (Ky. 1968)). “It is

difficult even for expert psychologists to differentiate between the juvenile offender whose crime

reflects unfortunate yet transient immaturity, and the rare juvenile offender whose crime reflects

irreparable corruption.” Id. (quoting Roper, 543 U.S. at 572).

Even if the sentencer’s judgment of incorrigibility were later corroborated by a prison record

that showed the offender never matured and remained in consistent trouble, the sentence would still

be disproportionate because the determination of incorrigibility was made at the beginning. Id. The

Court also reasoned that, for a non-homicide offender, rehabilitation cannot be the goal of a life-

without-parole sentence because of the child’s capacity for change and limited moral

blameworthiness. Id. at 74.

Based on the inadequate penological justifications, limited culpability of the offender, and

the severity of a life-without-parole sentence, the Court held that a juvenile offender who committed

a non-homicide offense could not receive a life-without-parole sentence. Id. The Court added that

a State is not required to ensure that a juvenile defender will have eventual freedom in non-homicide

cases. Id. at 75. What the State is required to do, however, is give the juvenile a “meaningful

9

opportunity to obtain release based on demonstrated maturity and rehabilitation.” Id.

Both in Roper and Graham, the Court applied the Eighth Amendment’s proportionality

jurisprudence to categorically ban certain sentencing practices for particular groups of offenders.

Riley, 315 Conn. at 649. This was based on one strand of the proportionality jurisprudence that

considers the “ . . . mismatches between the culpability of [that] class of offenders and the severity

of a penalty.” Id. (quoting Miller v. Alabama, 132 S.Ct. at 2463).

In Miller, the Court had to answer the question of whether the Eighth Amendment allowed

mandatory life-without-parole sentencing schemes for juveniles of homicide offenses. Miller, 132

S.Ct. at 2461-63. In Miller, the Court drew on the “mismatched” proportionality strand, as well as

a second strand, applied in death penalty cases. Id. This second strand requires individualized

sentencing practices that consider the defendant’s mitigating factors and the details of the offense.

Id. This was necessary because of Graham’s announcement that life-without-parole for juvenile

offenders is likened to the death penalty. Id. at 2466.

The Court recognized that, while Graham only applied to non-homicide offenses, “ . . . none

of what is said about children - about their distinctive (and transitory) mental traits and

environmental vulnerabilities - is crime-specific.” Id. at 2465.

In considering the culpability of juvenile homicide offenders and the severity of a mandatory

life-without-parole sentence, it concerned the Court that the mandatory schemes would prevent the

sentencer from taking into account an offender’s youth and all of the considerations that are central

to the juvenile’s status. Id. at 2465-66. Likewise, mandatory sentencing schemes prohibit the

sentencer from considering mitigating circumstances “before imposing the harshest possible penalty

for juveniles.” Id. at 2475.

To this end, the Miller Court found mandatory sentencing schemes, that sentence homicide

10

juveniles offenders to life-without-parole, violate the Eighth Amendment. Id. The Court fell short

of applying a categorical ban because its holding sufficiently addressed the petitioner’s chief

arguments. Id. at 2469. However, the Court made the following declaration:

. . . [G]iven all we have said in Roper, Graham, and this decision about children’s

diminished culpability and heightened capacity for change, we think appropriate occasions

for sentencing juveniles to this harshest penalty will be uncommon. That is especially

because of the great difficulty we noted in Roper and Graham of distinguishing at this early

age between ‘the juvenile offender whose crime reflects unfortunate yet transient immaturity,

and the rare juvenile offender whose crime reflects irreparable corruption’. Roper, 543 U.S.

at 573, Graham, 130 S.Ct. at 2026-2027.

Although we do not foreclose a sentencer’s ability to make that judgment in homicide cases,

we require it to take into account how children are different, and how those differences

counsel against irrevocably sentencing them to a lifetime in prison.

Miller, 132 S. Ct. at 2469.

I. The Trial Court Erred in Sentencing Cook to Life -Without-parole, as Cook Is Not One

of the “Uncommon” and “Rare” Juvenile Homicide Offenders Who May Be Sentenced

to Die in Prison.

In Cook’s re-sentencing hearing, the trial court failed to “start with the Supreme Court’s

pronouncement that sentencing a juvenile to life in prison without the possibility of parole should

be a rare and uncommon” occurrence. State v. Seats, 865 N.W.2d 545, 555 (Iowa 2015) (citing,

Miller, 132 S. Ct. at 2469). The court was armed with an expert psychologist’s review of Cook’s

case in light of the Miller factors. The court chose to wholly disregard these findings, while placing

considerable weight only on the nature of the crime. This is in direct conflict with the Court’s

instructions on how to analyzing juvenile homicide offender’s sentences.

Miller Factors

While the Supreme Court fell short of applying a categorical ban against life-without-parole

sentences for juvenile homicide offenders, the Court warned that this type of sentence will be

11

disproportionate “for all but the rarest of children, those whose crimes reflect ‘irreparable

corruption’.” Montgomery v. Louisiana, 136 S. Ct. 718, 726 (2016) (internal citations omitted). The

Court identified several factors that must be considered by the sentencing authority in juvenile life-

without-parole cases. Parker v. State, 119 So. 3d 987, 995 (¶19) (Miss. 2013). In taking into

account how children are different, the sentencer must consider the following factors identified in

Miller.

[1] [The child’s] chronological age and its hallmark features - among them, immaturity,

impetuosity, and failure to appreciate risks and consequences . . .

[2] [T]he family and home environment that surrounds him - and form which he cannot

usually extricate himself - no matter how brutal or dysfunctional . . .

[3] The circumstances of the homicide offense, including the extent of his participation

in the conduct and the way familial and peer pressures may have affected him . . .

[4] [Whether] he might have been charged and convicted of a lesser offense if not for

[incompetency] associated with youth - for example, his inability to deal with police

officers or prosecutors (including on a plea agreement) or his inability to assist his

own attorneys,

And finally,

[5] . . . the possibility of rehabilitation”

Parker, 119 So. 3d at 995-96 (¶19) (quoting Miller, 132 S.Ct. at 2468).

In light of these factors, there is still a presumption against granting life-without-parole

sentences for juvenile offenders “that must be overcome by evidence of unusual circumstances.”

States v. Riley, 110 A.3d 1205, 1214 (Conn. 2015). However, the trial court did not acknowledge

this presumption in sentencing Cook to life-without-parole.

In this case, the court had the benefit of reviewing the report of Criss W. Lott, PhD, the

accepted expert in the field of clinical and forensic psychology for children, adolescents and adults.

12

Dr. Lott performed an evaluation on Cook’s case and was ordered to pay special attention to the

Miller factors. Yet, the court chose to ignore all of the expert’s findings in rendering its decision.

1. The Child’s Chronological Age and Its Hallmark Features

First, Miller and Parker require the sentencer to consider the youth’s “chronological age and

its hallmark features.” Parker, 119 So. 3d at 995 (¶19) (quoting Miller, 132 S.Ct. at 2468)

“[Y]outh is more than a chronological fact. It is a time and condition of life when a person

may be most susceptible to influence and psychological damage.” Eddings v. Oklahoma, 455 U.S.

104, 115, 102 S.Ct. 869, 877 (1982). “Our history is replete with laws and judicial recognition that

minors . . . are generally less mature and responsible than adults.” Id. at 115-116.

A juvenile’s age as a mitigating factor is an important consideration for the court because,

“the signature qualities of youth are transient; as individuals mature, the impetuousness and

recklessness that may dominate in younger years can subside. Roper, 543 U.S. at 570 (quoting

Johnson v. Texas, 509 U.S. 350, 368, 113 S.Ct. 2658, 2658 (1993).

The difference between juvenile and adult behavior is not caused by the juvenile’s lack of

intelligence or the inability to understand right from wrong. Amicus Br. For Am. Med. Assoc., et

al., 2012 WL 121237 *6 (Jan. 13, 2012). Instead, the difference can be attributed to the

“psychosocial limitations in their ability to consistently and reliably control their behavior.” Id. As

articulated in Roper, “[t]he susceptibility of juveniles to immature and irresponsible behavior means

‘their irresponsible conduct is not as morally reprehensible as that of an adult’.” Roper, 543 U.S. at

570.

In this case, the court’s finding did not consider the qualities associate with Cook’s youth.

Cook was seventeen years old at the time of the offense. The trial court found that this was

“sufficiently close to his eighteenth birthday such that this factor should not weigh against imposition

13

of a sentence of life without parole.” (R.E. , C.P. 391). However, as Dr. Lott explained, the Court

has an arbitrary cutoff of eighteen years old. (Tr. 173). The research shows that adolescents, into

adulthood, experience impaired judgment in behavior. Id.

Dr. Lott explained that risk-taking, impulsiveness and lack of self control are things that

contribute to poor decision making in adolescents. (Tr. 179). He noted that a lot of the science

surrounding brain development and adolescent behavior is well more documented now with

research and MRI’s. Children may have a cognitive IQ for an adult by the time the are sixteen or

eighteen years old, but they lack the psychosocial maturity of an adult. (Tr. 180-81).

The court found that there was little, if any evidence, that Cook failed to appreciate risks and

concerns because “the defendant knew after he shot the victim that he should take actions to cover

his tracks.” (R.E., C.P. 392). However, as Dr. Lott explained, it would have been common for

someone to try to get away with murder. (Tr. 197). Cook was probably fully aware of what he had

done. However, Dr. Lott noted that Cook’s entire robbery plan signified the impulsive and rash

decision making prevalent in adolescents. (197-99).

Dr. Lott went further by noting that there were signs of peer pressure in Cook’s life. (178).

Cook gravitated toward the streets when he was no longer under the influence of his grandmother.

Id. Cook began affiliating with Barnes and a lot of Cook’s behavior, Dr. Lott opined, was motivated

by his desire to appear tough and cool. (Tr. 178).

There was nothing that indicated to Dr. Lott that Cook was outside the norm realm of

adolescence. (Tr. 181). Dr. Lott pointed out that Cook was neither an emancipated youth nor was he

married. (Tr. 181). Dr. Lott also did not see evidence where Cook was especially reckless or

immature as a child. Instead, Dr. Lott believed Cook fell in the normal spectrum of a typical

adolescent. (Tr. 182).

14

2. The Family and Environment that Surrounds Him

Second, Miller and Parker require the sentencer to consider “the family and home

environment that surrounds [a child] - and from which he cannot usually extricate himself - no

matter how brutal or dysfunctional.” Parker, 119 So. 3d at 995 (¶19) (quoting Miller, 132 S.Ct. at

995).

The court made the following findings:

The defendant grew up in a broken single parent home. His father was institutionalize for

most of his life and he had little, if any, contact with him. However, his mother took care of

him in spite of her battles with drug addiction. He always had decent clothing as well as

computer games, a go cart and later an automobile. Brookhaven Police Chief Bobby Bell

testified that he counseled the defendant during his early years and he was a normal, well-

behaved child. In fact, the defendant was one of only two children that Chief Bell ever

allowed to come and visit in his home with members of his family. He testified that Jerrard

Cook, as a young man, was a high character child. While the defendant did not enjoy an ideal

childhood, the court does not find his family and home environment was so lacking that he

should not be sentenced to life without the possibility of parole.

(R.E., C.P. 392-93).

Dr. Lott’s review of the situation is markedly different than the court’s. Dr. Lott noted that,

for the majority of his life, Cook did not have significant role models. (R.E., ). Chief Bell met Cook

when Cook was around thirteen years old, but at some point, that relationship ended. (103-05).

Dr. Lott opined that, with Cook’s mother’s consistent drug use, Cook may have experienced

fetal drug exposure. She smoked drugs daily while pregnant and through his childhood. Dr. Lott

described that this situation, where the parent and/or child has abused drugs, likely are create a home

environment of one or more of the following interactions: negativism, parental inconsistency,

parental denial, miscarried expressions of anger, self-medication, and unrealistic parental

expectations. (R.E. )

Cook’s mother frequently left Cook with others or unattended and he basically lived on his

15

own after the death of his grandmother. (R.E. ). He began hanging out with an older youth. (Id.)

After his grandmother’s death, he was left to do whatever he wanted. (Id.)

In Miller, the Court recognized that the sentencer must examine the juvenile’s pathological

background before concluding that life-without-parole is an appropriate sentence. Miller, 132 S.Ct.

at 2469. In light of the record in this case, this factor also weighs against sentencing Cook to life

without parole.

3. Mitigating Circumstance of the Homicide Offense

Third, Miller and Parker require the sentencing authority to consider the mitigating

“circumstances of the homicide offense, including the extent of [the child’s] participation in the

conduct and the way familial and peer pressures may have affected him.” Parker, 119 So. 3d at 995-

96 (¶19) (quoting Miller, 132 S.Ct. at 2468).

The trial court noted that Cook was the trigger man and there was no pressure from his family

to commit this crime. The court discounted any peer pressure that may have existed since, “it was

not direct pressure on the defendant . . . but rather three (3) young men who seemed to encourage

each other to commit an offense.” (R.E., C.P. 393).

While Dr. Lott deferred to the court as the trier of fact, Dr. Lott opined that the actions

seemed impulsive and not well-developed. (Tr. 184). The boys were planning to commit a robbery

but they changed plans at least three times before they arrived at Durr’s car. Cook and Barnes did

not set out to rob Durr. Instead, Durr “was just at the wrong place at the wrong time . . We really

didn’t want it to be Marvin. . . he just gave us a lift. (Exhibit, §20, Pg. 51-52).

In light of the mitigating circumstances surrounding the crime, this factor weighs against

sentencing Cook to life in prison.

4. Whether He Might Have Been Charged and Convicted of a Lesser Offense

16

Fourth, Miller and Parker require the sentencing authority to consider “that [a] child might

have been charged and convicted of a lesser offense if not for [incompetency] associated with youth -

for example, his inability to deal with police officers or prosecutors (including on a plea agreement)

or his incapacity to assist his own attorneys.” Parker, 119 So. 3d at 996 (¶19) (quoting Miller, 132

S.Ct. at 2468).

The characteristics that differentiate youth from adults are the features that also significantly

disadvantage youth in criminal proceedings. Graham, 560 U.S. at 78. Juveniles have a mistrust for

adults and do not fully understand how the criminal justice system works. Id. This leads to juveniles

being less likely to assist their attorneys in their defense. Id.

“Difficulty in weighing long-term consequences; a corresponding impulsiveness; and a

reluctance to trust defense counsel, seen as part of the adult world a rebellious youth rejects, all can

lead to poor decisions by one charged with a juvenile offense.” Id.

The trial court wholly ignored this factor. However, Dr. Lott pointed out that while it was

hard to evaluate events so long ago, the fact that Cook was seventeen years old, had been isolated

for hours before being interview and that the interview happened in the twilight hours of the

morning, could all have increased Cook’s fear factor during the proceedings. (Tr. 185-86). Cook was

also told that he would not be able to see his mother again if he did not speak to police. (Tr. 185).

Dr. Lott did not get a sense that Cook felt coercion or pressure, however, he noted that mental health

professional are generally concerned about an adolescent’s ability to provide a knowing and

voluntary waiver of his or her rights. Id.

5. The Possibility of Rehabilitation

Finally, Miller and Parker require the sentencing authority to consider the “possibility of

17

rehabilitation.” Parker, 119 So.3d at 996 (¶19) (quoting Miller, 132 S.Ct. at 2465) “ A life without

parole sentence is permitted only in ‘exceptional circumstances,’ for ‘the rare juvenile offender who

exhibits such irretrievable depravity that rehabilitation is impossible’; for those ‘rarest of juvenile

offenders...whose crimes reflect permanent incorrigibility’; for ‘those rare children whose crime

reflect irreparable corruption’ - and not . . .for ‘the vast majority of juvenile offenders.” Veal v.

State, 298 Ga. 691, 702 (2016) (quoting Montgomery v. Louisiana, 136 S.Ct.718, 733-36 (2016))

(emphasis added).

This final factor requires the sentencing authority to determine whether the juvenile is

irreparably corrupt. See Miller, 132 S.Ct. at 2469. Just as the Supreme Court has reserved the death

penalty for only the worst of the adult offenders, life-without-parole sentences can only be enforced

on the worst-of-the-worst juvenile offenders. Veal, 298 Ga. at 702-03 (2016).

However, “incorrigibility is inconsistent with youth.” Graham, 560 U.S. 48 at 73 (quoting

Workman v. Commonwealth, 429 S.W.2d 374, 378 (Ky. 1968). Any determination that a juvenile

is incorrigible is questionable at best, based on the characteristics of children. Graham, 560 U.S. 48

at 73. Even expert psychologist express difficulty in determining which crime is based on

immaturity and which crime reflects an irreparably corrupt youth. Id.

The trial court pointed out that Cook had twenty-nine rule violation reports while

incarcerated in the Department of Corrections. (R.E., C.P. 393). The court took this, alone, as an

indication that Cook had an unwillingness to follow directions in a structure environment. Id. “The

Court does not find any significant possibility of rehabilitation in Jerrard Cook. Id.

While Cook’s record in the Mississippi Department of Corrections includes a list of

infractions, the court failed to consider that, by sentencing Cook to life, Cook had no incentive to

achieve a stellar prison record. As Graham recognized, “ A young person who knows that he or she

18

has no chance to leave prison before life’s end has little incentive to become a responsible

individual.” Graham, 560 U.S. at 79.

According to Steven Pickett, Chairman of the Mississippi Parole Board, inmates perform

better when there is a possibility of parole. (Tr. 147). There is less incentive when an inmate knows

there is no possibility of parole, and Pickett points out that a lot of rehabilitative programs are

unavailable for life inmates. (Tr. 148).

Fortunately, Dr. Lott provided a more in-depth analysis of Cook’s ability to be rehabilitated.

Dr. Lott explained that most of Cook’s RVR’s occurred before he was twenty-one years old. (Tr.

189). Cook received mental health treatment while in prison and his improved behavior appeared

to correlate with his treatment. (Tr. 190) Although he experienced homicidal and suicidal thoughts

at one point, he reached out for health and received it. (Tr. 190). Lott noted that none of the RVR’s

were for violent behavior, noting that possession of a shank did not indicate that Cook ever used that

shank to harm anyone. (Tr. 191).

Dr. Lott pointed out that 90-95% of juveniles do not continue to re-offend as adults. (Tr.

187). Dr. Lott stated that he could not say with certainty that Cook would or would not re-offend.

(Tr. 202). However, the behaviors that would concern him, that Cook remained violent and

aggressive, were not present in this case. (191). Based on the lack of serious offenses in the last

couple of years, Dr. Lott inferred that Cook had indeed experienced growth and maturity. (Tr. 192).

It was his opinion, based on the body of evidence, along with the Miller factors, that Cook was not

one of the rare offenders who could not be rehabilitated. (Tr. 203).

In order to be released from prison, Cook would still have to meet the criteria established

by the parole board. Steven Pickett, Chairman of the Mississippi Parole Board, testified about the

difficulties one who incur in meeting that criteria. (Tr. 141-43). Pickett explained that the bar is set

4Miller v. Alabama, 132 S.Ct. 2455, 2466 (2012).

19

extremely high in convincing the parole board to grant release when a life has been taken. (Tr. 143).

If granted parole, a person would have a reporting requirement for the rest of their life. (Tr. 146).

However, the parole board is in much better position than the trial judge to determine that

Cook has or has not demonstrated maturity and rehabilitation over a period of time. The trial court

is simply required to grant him the opportunity to demonstrate these characteristics to the parole

board.

II. Cook’s Sentence Was Imposed in Violation of His Constitutional Right to Have His

Sentence Determined by a Jury.

Neither the US Supreme nor the Mississippi Supreme Court have addressed who should be

the sentencing authority in Miller v. Alabama4 sentencing hearings. See Parker v. State, 119 So. 3d

987 (Miss. 2013). However, based on the Sixth and Fourteenth Amendments, as well as Miss. Const.

Art. 3 §§14,15, Cook was entitled a jury determination, as opposed to a judge’s finding, that he was

one of the “uncommon” and “rare” juvenile homicide offenders that could be sentenced to life

without the possibility of parole.

Due process requires “any fact that “expose[s] the defendant to a greater punishment than that

authorized by the jury’s guilty verdict” is an “element” that must be submitted to a jury. Hurst v.

Florida, 136 S.Ct.616, 621 (2016) (quoting Apprendi v. New Jersey, 530 U.S.466, 494, 120

S.Ct.2348 (2000)). “ If a State makes an increase in a defendant’s authorized punishment contingent

on the finding of a fact, that fact - no matter how the State labels it- must be found by a jury beyond

a reasonable doubt.” Ring v. Arizona, 536 U.S. 584, 602, 122 S.Ct.2428, 2439 (2002).

For juvenile homicide offenders, “life imprisonment with eligibility for parole

5The Parker decision references Miss. Code Section 47-7-3(1)(h), however, the MS

Legislature amended the Probation and Parole Law in 2014 and moved the provisions of Section

47-7-3(1)(h) to Section 47-7-3-(1)(f). See Miss. Code Ann §47-7-3(1) (Rev. 2015).

6Miss. S.Ct., No. 2012-M-02041

20

notwithstanding the present provisions of Mississippi Code Section 47-7-3[(f)]5” is the default

sentence for non-capital murder. Parker, 119 So.3d at 999 (¶¶28-29). “Our courts have not been

empowered by the Legislature to sentence a criminal defendant to life without parole save for the

crime of capital murder and for certain habitual offenders.” Id. at 996 (¶21).

The court can only impose a greater sentence than life after holding an individualized

sentencing hearing and making additional findings of fact that the juvenile is irreparably corrupt. See

generally Miller, 132 S.Ct. at 2455; Parker, 119 So. 3d at 987; Montgomery v. Louisiana, 136

S.Ct.718, 733 (2016).

Cook is entitled to have a jury conduct the fact-finding of whether or not he is one of the

“rare children whose crimes reflect irreparable corruption.” Montgomery, 136 S.Ct. at 734. Because

Miller and Parker require additional findings of fact before a life-without-parole sentence can be

issued, Cook has a constitutional right to have that fact-finding conducted by a jury.

Cook requests that the Court consider its order ruling in Dycus v. State6, attached as Ex. A,

where the Court addressed an issue of jury sentencing in a capital murder case where the mandatory

life sentence had to be vacated pursuant to Miller. Dycus was sentenced to death for a capital murder

he committed when he was seventeen years old. Id. After Roper made his sentence illegal, he was

later re-sentenced to life without the possibility of parole. Id. When Miller came down, he petitioned

the Court to vacate his sentence and remand his case for a new sentencing hearing.

The Mississippi Supreme Court granted Dycus’s request, stating:

21

After due consideration, we find that Dycus’s sentence should be vacated and that the case

should be remanded for a new sentencing hearing before a jury under Section 99-19-101. If

the jury, after considering all of the circumstances set forth in Miller, determines that Dycus

should be eligible for parole or if the circuit court imposes a life sentence because the jury

is unable to reach a decision, the court shall sentence Dycus to “life imprisonment with

eligibility for parole notwithstanding the present provisions of Mississippi Code Section 47-

7-3(1)([f]).” Parker v. State, 119 So.3d 987, 999 (Miss. 2013).

In light of the Court’s ruling in Dycus that the provisions of Miss. Code Ann. § 99-19-101

apply to Miller re-sentencing proceedings in capital cases, and considering that § 99-19-101(1)

requires jury sentencing “upon conviction or adjudication of guilt of a defendant of capital murder”,

Cook is entitled to a jury finding in this case.

The court deprived Cook of his constitutional right to have a jury determine the facts that

exposed him to the enhanced sentence of life without parole. See e.g. Brown v. State, 995 So. 2d 698,

704-05 (¶¶28-30) (Miss. 2008) (vacating defendant’s thirty-year sentence enhancement because the

Sixth Amendment required the issue of the enhancement to be submitted to a jury).

This Court should conclude that Cook must be re-sentenced to life with eligibility for

parole. If the Court finds that a rehearing is constitutionally permissible, Cook submits that the jury

must consider the factors required by Miller and Parker in determining whether or not Cook is the

“rare juvenile offender who exhibits such irretrievable depravity that rehabilitation is impossible and

life without parole is justified.” Montogomery, 136 S.Ct. at 733.

III. Cook’ Sentence Must Be Vacated and He Must Be Re-sentenced to Life With Parole,

Because the Practice of Sentencing Children to Life-Without-Parole Violates the

Federal and State Constitutional Prohibitions Against Cruel and Unusual Punishment

22

Finally, this Court should address the question that was left open in Miller and hold that the

US and State constitutions categorically prohibit imposing life-without-parole sentences on

juveniles. In his dissenting opinion in Miller, Justice Alito predicted that the categorical ban on life

without parole for juvenile homicide offenders may not be too far away. Miller, 132 S.Ct. At 2489.

It is true that, at least for now, the Court apparently permits a trial judge to make an

individualized decision that a particular minor convicted of murder should be sentenced to

life without parole, but do not expect this possibility for long. . .

Having held in Graham that a trial judge with discretionary sentencing authority may not

impose a sentence of life without parole on a minor who has committed a nonhomicide

offense, the Justices in the majority may soon extend that holding to minors who commit

murder. We will see.

Id.

The Court has recognized that juveniles are constitutionally different than adults for

sentencing purposes. Miller, 132 S.Ct. at 2464. “[A]s a class, adolescents are inherently less

blameworthy than adults.” Laurence Steinberg, Adolescent Development and Juvenile Justice, 5 Ann.

Rev. Clinical Psychol. 459, 481 (2009).

As Roper recognized, there are distinct differences between juveniles and adults that “render

suspect any conclusion that a juvenile falls among the worst offenders.” Roper, 543 U.S. at 570.

Juveniles are immature, they are more receptive to negative influence and their character is still

forming. Id. at 569-70. For these reasons, the Court noted “ the distinctive attributes of youth

diminish the penological justifications for imposing the harshest sentences on juvenile offenders,

even when they commit terrible crimes.” Miller, 132 S.Ct. at 2464.

Juveniles lack the ability needed to exercise mature judgment. Steingberg, 5 Ann. Rev.

23

Clinical Psychol. at 471. However, this is not-crime specific. “None of what [the Court in Graham]

said about children - about their distinctive (and transitory) mental traits and environmental

vulnerabilities - is crime -specific.” Miller, 132 S.Ct. at 2465.

This reasoning led the Courts in Graham and Roper to categorically ban life-without-parole

sentences for juveniles convicted of non-homicide offense (Graham) and the juvenile death penalty

(Roper). Among many of the issues, the case-by-case proportionality approach does not provide

sufficient guarantees that the sentencing authority will be able to distinguish the few incorrigible

youth from the many offenders who have a capacity for change. Graham, 560 U.S at 77.

There is also an unacceptable likelihood that the terrible facts of a crime will overpower

mitigation factors that are present with juvenile offenders - even in cases where the juvenile’s

immaturity, vulnerability, and lack of depravity would require a lesser sentence. Id. at 78.

Additionally, life-without-parole sentences do not give juveniles the opportunity to show that he or

she has matured and reformed. Id. at 79.

These concern are also present with juvenile homicide offenders. For this reason, the Eighth

and Fourteenth Amendments and Article 3, Section 28 require a categorical ban on all life-without-

parole sentences for juvenile offenders. Without a categorical ban for juvenile homicide offenders,

there is too great a risk of disproportionate punishment. Miller, 132 S.Ct.at 2469.

As it now stands, Miller requires an impossible fact determination before imposing a life-

without-parole sentence for juveniles. A life-without-parole sentence may only be imposed on “the

rare juvenile offender who exhibits such irretrievable depravity that rehabilitation is impossible[.]”

Montgomery, 136 S.Ct. at 733. However, “ ‘there is no reliable way to determine that a juvenile’s

offenses are the result of an irredeemably corrupt character’ and there is thus no reliable way to

conclude that a juvenile - even one convicted of an extremely serious offense -should be sentenced

24

to life in prison, without any opportunity to demonstrate change or reform.” Amicus Br. For Am.

Psych. Assoc. et al., 2012 WL 174239, *24 (Jan. 17, 2012).

Massachusetts has already categorically prohibited life without parole sentence under its state

constitution. Diachenko v. Dist. Att’y, 466 Mass. 655, 1 N.E.3d 270, 284-85 (2013). The Court

reasoned that the parole board mechanism could better accommodate a youth offender’s capacity for

change than the irrevocable life-without-parole determination. See Id. at 282-85. Also, the Court

recognized that, no matter the offense, juveniles have diminished culpability. Id. Mississippi should

join Massachusetts in this acknowledgment.

CONCLUSION

For the foregoing reasons, this Court should vacate Cook’s life-without-parole sentence and

remand this case with the instructions that he be re-sentenced to a term of life with eligibility for

parole, notwithstanding the present provisions of Mississippi Code Annotated Section 47-7-3 (1)(f).

Cook requests that the Supreme Court hold that Section 47-7-3(1)(f) is inapplicable to those who

committed murder at the time when they were under the age of eighteen. Alternatively, the Court

should reverse and remand to the trial court with instructions that Cook be re-sentenced by a jury.

25

CERTIFICATE OF SERVICE

I, Erin E. Briggs, Counsel for Jerrard T. Cook, do hereby certify that on this day I

electronically filed the forgoing BRIEF OF THE APPELLANT with the Clerk of the Court using

the MEC system which sent notification of such filing to the following:

Honorable Jason L. Davis

Attorney General Office

Post Office Box 220

Jackson, MS 39205-0220

Further, I have this day caused to be mailed via United States Postal Service, First Class

postage prepaid, a true and correct copy of the above to the following non- MEC participants:

Honorable David H. Strong

Circuit Court Judge

Post Office Box 1387

McComb, MS 39649

Honorable Dewitt (Dee) T. Bates, Jr.

District Attorney, District 14

284 East Bay Street

Magnolia, MS 39652

This the 5th day of October 2016.

BY: /s/ Erin E. Briggs

Erin E. Briggs

Counsel for Appellant

Erin E. Briggs, MS Bar No. 102352

INDIGENT APPEALS DIVISION

OFFICE OF STATE PUBLIC DEFENDER

Post Office Box 3510

Jackson, Mississippi 39207-3510

Telephone: 601-576-4290

Fax: 601-576-4205

Email: eprid@ospd.ms.gov

Jerrard T. Cook, MDOC #L6510

East Mississippi Correctional Facility

10641 Hwy 80 West

Meridian, MS 39307