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138

Court's decision on the Motion to Transfer

According to the Senate Report on Section 5032, the juvenile should be proceeded against as a juvenile, unless, after motion of the Attorney General, and upon the juvenile being accorded all due process rights, the juvenile is found by the court to have no reasonable prospects for rehabilitation before his or her twenty-first birthday. 1974 U.S.S.C.A.N. at 5320. The finding of rehabilitative potential is a test which is within the sound discretion of the trial court and that court may want more than a "glimmer of hope" that rehabilitation will be efficacious. Doe, 871 F. 2d at 1253. While rehabilitation is a priority, the courts are not required to apply the juvenile justice system to a juvenile's diagnosed intellectual or behavioral problems when it would likely prove to be nothing more than a futile gesture. See In re T.W., 652 F. Supp. 1440, 1445 (E.D. Wis. 1987); E.K., 471 F. Supp. at 932.

The decision to transfer a juvenile to adult status is within the sound discretion of the district judge, so long as the judge considers and makes specific findings as to the specified factors. Gerald N., 900 F. 2d at 191; Doe, 871 F. 2d at 1255. The failure of the court to make findings as to each of the statutorily mandated factors will require a remand to the court for additional findings and reconsideration of its transfer decision. United States v. Romulus, 949 F. 2d 713, 716 (4th Cir. 1991), cert. denied, 503 U.S. 992, 112 S. Ct. 1690, 118 L. Ed. 2d 403 (1992).Although all six factors are to be considered, case law provides that the court is not required to weigh all factors equally. Juvenile Male #1, 47 F. 3d at 71; One Juvenile Male, 40 F. 3d at 845; Doe, 871 F. 2d at 1254-55. For example, the seriousness of the crime can be given more weight than other factors in determining whether there is a "realistic chance" of rehabilitation, and hence, whether a transfer is appropriate. Id.; United States v. Alexander, 695 F. 2d 398, 401 (9th Cir. 1982), cert. denied, 462 U.S. 1108, 103 S. Ct. 2458, 77 L. Ed. 2d 1337 (1983); United States v. Means, 575 F. Supp. 1068, 1072 (D.S.D. 1983). Therefore, it is appropriate if the district court places an emphasis on the gravity of the crime in granting a transfer. See Parker, 956 F. 2d at 172.

If the court has considered all of these factors, the decision to transfer a juvenile defendant to adult status is reviewable only for abuse of discretion. Doe, 49 F. 3d at 867. It is not an abuse of discretion for the district court to find one factor more compelling than the others. Gerald N., 900 F. 2d at 191. In other words, the court is free to determine how much weight to give each factor. One Juvenile Male, 40 F. 3d at 845-46.

The court is the finder of fact and its findings may be made on the basis of credibility choices. See Doe, 871 F. 2d at 1255. Such credibility choices cannot be overturned unless clearly erroneous. United States v. Alvarado Garcia, 781 F. 2d 422 (5th Cir. 1986). An appellate court will not upset a district court's determination simply because it would have reached a different conclusion had it considered the matter in the first instance. Juvenile Male #1, 47 F.3d at 71. Therefore, the judgment of the district judge is far reaching on this issue.

When the district court determines the motion to transfer should be granted, the juvenile is thereafter treated as an adult for purposes of criminal prosecution of the case.