For the last three months, while awaiting trial on second-degree murder and other charges, 17-year-old Malik Gray has sat in high school classes for at least five hours each weekday. He's slept in his own room — one with cold, cinder block walls — but it's still a place he can earn privileges to stay up past typical bedtime or read a book from the library. He's also been able to visit with his mom and dad, sometimes multiple times a week.

Before returning to the Baton Rouge Juvenile Detention Center on a state judge's order in February, Gray had been detained at an adult jail three hours north of Baton Rouge, at a jail the East Baton Rouge Sheriff's Office has contracted with to house all youthful offenders in their custody.

There, Gray had no schooling and access to only limited programming, and recent court testimony revealed he was often in the sight and sound of adult offenders, a violation of federal laws designed to protect those incarcerated younger than 18. His parents and his attorneys could not visit him without spending at least six hours in the car. 

This Thursday, after months of testimony and debate over where Gray should be held pending trial for the 2018 slaying of Ricardo Alberto Agular, as well as attempted second-degree murder and armed robbery, state District Judge Don Johnson will reach a decision that could set a precedent for how youth charged with serious crimes are held while awaiting trial.

Gray’s attorneys, lawyers with the East Baton Rouge Office of the Public Defender, have argued Gray and other youth should be detained at the Juvenile Detention Center, where there is space, adequate services and a staff trained to deal with children.

"There should be a presumption that all juveniles charged with juvenile delinquent acts and adult criminal acts … must be held in a juvenile detention facility," Gray’s attorneys wrote in their latest court filing.

But prosecutors argue that due to the severity of the crime and Gray’s behavior in juvenile detention, which was described as "ups and downs," he should move back to the adult jail hours away. East Baton Rouge Assistant District Attorney Frank Breaux Jr. said that Gray has a "negative effect" on the juveniles around him, calling him a “fox back in the hen house."

Until recently, when Baton Rouge-area children were charged in adult court, the child was transferred to the custody of the East Baton Rouge Sheriff’s Office, which runs Parish Prison. Last year, however, Parish Prison administrators closed their juvenile wing and sent youth to the Riverbend Detention Center in East Carroll Parish.

The arrangement prompted Gray’s attorneys to cite a rarely used provision in the Children’s Code that gives judges full authority to decide whether juveniles should be physically transferred to adult jails after their cases are transferred to adult court. 

Since their challenge was filed, the process for transferring juveniles in the capital region has quickly changed: there are now at least four youth, in addition to Gray, who are charged as adults but still detained at the local juvenile detention center, one permanently and three while waiting for a judge to consider their cases. One juvenile, after a judge considered the case, was ordered to remain at Riverbend. 

Johnson this week will also hear arguments for transferring 15-year-old Percy Heard — charged with second-degree murder in the February killing of Marshall Larks — to the adult jail.

A decision in Gray's case, which could influence the outcome for Heard, will cap off three days of testimony since February, when juvenile justice experts and Gray’s attorneys argued that the juvenile detention center in Baton Rouge is the safest and best facility for all juveniles.

“The key issue here is the detention status of the defendant, not the legal status," said Bart Lebow, who has worked to develop national standards for juvenile detention facilities. “Kids behave differently than adults.”

At a March hearing, Lebow testified how juveniles are more likely to be victims of assault and violence in adult jails, are more likely to harm themselves and less likely to have access to services.

Gray’s attorneys pointed to federal standards, which prioritize keeping youth under the age of 18 in a juvenile-centered facility before any conviction, despite the severity of the crime. Congress recently reauthorized the Juvenile Justice Delinquency Act, which will mandate, come 2021, that no juveniles awaiting trial be held in adult jails. And though new to Baton Rouge, since 2015, New Orleans has kept pre-trial youth at their Youth Study Center, after passing an ordinance designating it the appropriate facility for all youth.

The teen's lawyers also argued that testimony from the Riverbend Detention Center's warden and an adult inmate previously incarcerated there showed the facility lacks appropriate services and protocols to house youth.

"Riverbend has been an inadequate facility to house any juveniles," said Harry Landry, one of Gray's attorneys. "The juvenile facility is capable to house Mr. Gray."

While Riverbend Warden Johnny Hedgemon testified that all juveniles are housed in a juvenile-specific dorm, he said their staff have no juvenile-specific training. An inmate who served time in the jail as a 21-year-old testified that he could often see juvenile defendants like Gray passing them in the dormitories, able to speak to them in housing units and elsewhere — a violation of the federal Prison Rape Elimination Act designed to protect incarcerated youth.

Hedgemon also testified that the jail provides high school-equivalent classes to juveniles, a money management class, church and Bible study — though he said none except church and Bible study were offered before January. The high school classes are just two hours a day, four days a week, he said.

But Breaux, the prosecutor, said Riverbend is better equipped to handle long-serving inmates. While Baton Rouge Juvenile Detention Center Director Deron Patin testified his staff has youth-specific training and they provide more hours and days of schooling, he said they are not set up for long-term detention, with their average length of stay 14 days. Gray has already tripled that.

Patin also testified that Gray has had five infractions since he came to the facility, which included threatening staff and having cigarette smoke in his room. He also said the teen had to go to the hospital after punching a wall. Breaux also referenced a 20-page rap sheet from Gray's time at Riverbend, including an allegation of striking an officer. That information, however, was filed under seal. 

"The infractions have continued," Breaux said. "Mr. Malik Gray in the (juvenile) facility causes a danger and is showing a bad example."

But despite the some issues, Patin said Gray, as of early May, had regained his position on the facility’s "A" status, the best possible behavior category.

With so much testimony, it's unclear exactly what factors Johnson will review to determine the appropriate place to jail Gray.

Breaux recommended the judge consider the severity and strength of the criminal case, the permanency of the facility and Gray’s prior history and behavior.

Defense attorneys referred the judge to the federal juvenile law, which says a court should only house a minor in an adult facility if it is "in the interest of justice.” That law outlines age, physical and mental maturity, mental state, circumstances of the charges, the youth’s history of delinquency and the availability of adult and juvenile jails. They also asked the judge to consider the location of the jail and the burden placed on attorneys and families to visit.

"These kids are kids," said Kristen Richardson, an attorney also representing Gray. "If we had a stronger policy in place where we’re not having to litigate (each one) … these kids could be in a safer environment with better access to services.”


Follow Grace Toohey on Twitter, @grace_2e.