Sentence of life without parole for teen upheld
Defendant was 14 when 13-year-old victim was killed
By Bruce Vielmetti - Journal Sentinel
May 20, 2011
Omer Ninham was just 14 when he was part of a gang that threw a
13-year-old Hmong boy to his death from the top of a Green Bay parking
garage in 1998.
On Friday, the Wisconsin Supreme Court upheld his
life-without-parole sentence over arguments that recent U.S. Supreme
Court decisions, evolving standards of decency and new science about
adolescent brain development demand that Ninham get at least a chance
for release later in life.
Justice Annette Ziegler wrote the majority opinion; Chief Justice
Shirley Abrahamson dissented, joined by Justice Ann Walsh Bradley.
"Under the circumstances of this case, Ninham's punishment is
severe, but it is not disproportionately so," Ziegler wrote.
The court refused to find that such a sentence for a 14-year-old is
categorically unconstitutional, or that it was unduly harsh and
excessive in Ninham's case, or that he proved that research on
adolescent brain development amounts to a new factor that would
mandate a resentencing.
Ninham was sentenced in 2000, but in the intervening years, the
U.S. Supreme Court has found that the death sentence is cruel and
unusual punishment for juveniles, and so is life without parole for
juveniles convicted of any crime short of homicide.
Ninham's attorneys at the Equal Justice Initiative in Alabama tried
to extend the latter reasoning to his case because he was only 14 when
he killed Zong Vang.
The group has two appeals to the U.S. Supreme Court, but each
involves juveniles who received mandatory life without parole terms
for lesser roles in less shocking crimes. The judge who sentenced
Ninham had discretion to allow the possibility of parole.
Attorney General J.B. Van Hollen, whose office argued in support of
the Ninham sentence, said in a news release, "The Supreme Court made a
difficult, but correct decision," and that prosecutors hope the
decision will bring some relief to Vang's family.
Michael O'Hear, a Marquette law professor and expert in sentencing
rules and policy, quickly posted an analysis of the decision on his
Life Sentences Blog.
In an email interview, O'Hear said the U.S. Supreme Court decision
on life without parole for youth, Graham vs. Florida, left a lot of
"Ninham clearly could have come out the other way, but it's hard to
say that the Wisconsin court acted contrary to Graham when Graham was
so ambiguous. Ninham would be a very good case for the U.S. Supreme
Court to take up in order to clarify what it was trying to do in
Bryan Stevenson, director of the Equal Justice Initiative who
argued Ninham's case, said he will appeal to the U.S. Supreme Court.
"To say there is no chance for hope, redemption and rehabilitation
for a 14-year-old is incompatible with what we know," he said, noting
that in many other areas, Wisconsin law contains special protections
for young teens.
"There is no reason not to in the criminal justice context," he
Stevenson tried to argue that a "national consensus" has emerged
against life without parole for 14-year-olds, in part because only 18
states have imposed such sentences for only 73 such teens, according
to court records.
The court noted, however, that the sentence is rarely imposed
because 14-year-olds so rarely commit the kind of "horrific and
senseless" homicide for which Ninham was convicted.
The law that allowed Ninham to be tried and convicted as an adult,
and sentenced to Wisconsin's harshest penalty, came as a result of
outrage over the fate of an earlier 14-year-old killer. In 1983, Peter
Zimmer killed his adoptive parents and brother in Mineral Point but
could only be found delinquent and held until he turned 19, when he
was released with a new name and a plane ticket to Florida.
The Journal Sentinel chronicled what became of Zimmer last year in
"A teen killer's dark secret."
After years of getting tough on juvenile criminals, the justice
system has felt increasing pressure from advocates to swing the
pendulum back a bit toward more leniency and second chances. But
courts have a hard time in the worst cases, such as Ninham's.
"We describe the facts of this case with an understanding that this
horrific and senseless crime cannot adequately be reduced into words,"
Bullying turned fatal
Ninham and four other juveniles spotted Vang, whom they didn't
know, riding his bike in Green Bay. Richard Crapeau, 13, threw Vang
off his bike, and Ninham punched him in the face. Then the group
chased Vang up a five-story parking garage near St. Vincent Hospital
and cornered him on the roof. Ninham and Crapeau grabbed Vang and
swung him over the edge. At the urging of the three others, they let
him go and Vang fell to his death.
While Ninham was awaiting trial, he threatened to kill a judge and
to rape and kill friends who had talked to police about the crime, and
even through his sentencing date denied any involvement in the crime.
A jury convicted Ninham of first-degree intentional homicide.
Crapeau was also convicted and sentenced to life, but with the
possibility of parole after serving 50 years.
Ninham suffered physical and mental abuse at home, and was
regularly drinking alcohol by age 10. He never had a toothbrush until
he was put into juvenile detention. His lawyers say he has made great
progress in prison.
When he was 23, a clinical neuropsychologist concluded Ninham "no
longer suffered from the severe behavioral deficits that dominated his
young teenage years and has grown into a thoughtful young man whose
prognosis for successful re-entry into the community, and absence of
recidivism, is very good."
At oral argument on the case in January, Ninham's attorney said
Wisconsin should prohibit life without parole sentences for any
offender 14 or younger, no matter the crime, or at least agree that
Ninham's circumstances warrant a chance at parole.
In a friend of the court brief, the Wisconsin Council on Children
and Families said their brain development makes juveniles less
culpable than adults
"Any fair system of justice must recognize this fact. Children and
adolescents are not adults in miniature; their youth makes them less
able to recognize the consequences of their decisions, yet more
capable of extraordinary, positive growth as they develop into
Wisconsin upholds life sentence for 14-year-old killer as judges
tell him, 'Society thinks you got what you deserve'
May 22, 2011
The Wisconsin Supreme Court has upheld a decision to send a man to
prison for life after he was convicted of throwing a boy off a parking
ramp when he was 14 years old.
Omer Ninham, now 27, had appealed his sentence, calling it 'cruel
Society, the judges declared, does not agree.
The Supreme Court ruled that neither the state nor the U.S. has any
statue prohibiting life sentences without parole for 14-year-olds in
The lack of homicide life sentences for children across the country
doesn't mean society thinks its wrong, judges said - only that
juveniles rarely kill people.
In Ninham's case, the punishment fit a crime that 'cannot
adequately be reduced into words,' the opinion said.
It's a decision closely watched by psychiatrists, family advocates
and defence attorneys.
'We... confirm what objective evidence already informs us:
Contemporary society views the punishment as proportionate to the
offence,' Justice Annette Kingsland Ziegler wrote for the majority.
Ninham was convicted of first-degree intentional homicide for his
role in the death of 13-year-old Zong Vang in Green Bay in 1998.
Ninham was 14 at the time.
Ninham and four others between the ages of 13 and 14 accosted Vang
while the boy was riding his bike home from the grocery store with a
bag of tomatoes for his family.
According to court documents, Ninham and another member of the
group started teasing Vang, then punched him. Vang ran into a nearby
hospital parking ramp, where the group cornered him on the top floor.
Ninham and a friend seized Vang by the wrists and ankles. As Vang
cried and screamed, they threw him over the edge. He fell five stories
to his death.
A bystander on the ground said he heard a sound 'like a wet bag of
cement hitting the pavement'.
The teens fled the scene, but police used statements from some of
them to track Ninham down. While he was awaiting trial, he was charged
with threatening a judge and his friends who spoke to police.
Under Wisconsin law, anyone 10 or older accused of homicide can be
tried in the adult system. A jury convicted Ninham of first-degree
intentional homicide and child abuse in 2000.
The other charges were dismissed, but the judge was allowed to
consider them at Ninham's sentencing.
First-degree intentional homicide carries a mandatory life sentence
in Wisconsin, which does not have the death penalty.
The only issue at sentencing is whether a judge will grant parole
Brown County Judge John D. McKay gave Ninham, who was by then 16,
life in prison and denied him any chance at parole.
The judge noted Ninham had a tough family life and he snorted
cocaine weekly and drank every day, usually until he passed out.
But he said the crime devastated Vang's family and the Green Bay
community and described Ninham as a 'frightening young man'.
Ninham's attorney, Byron Stevenson of the Equal Justice Initiative,
had argued the sentence amounted to cruel and unusual punishment. He
vowed to appeal to the U.S. Supreme Court.
'I absolutely believe it's just a matter of time before states are
going to have to re-evaluate the judgment that you can punish (a
juvenile) the same way you can punish an adult,' he said.
'Children are different than adults. Even when children commit very
serious crimes, like the crime in this case, we have to think about
their crime differently.'
Judges across the country rarely sentence juvenile offenders to
life without parole.
According to statistics compiled by the Equal Justice Initiative,
73 children age 14 or younger across 18 states have received that
The U.S. Supreme Court in 2005 ruled that sentencing juveniles to
death is unconstitutional. Last year that court ruled that life with
no parole for anything less than homicide was unconstitutional as
Groups such as the American Civil Liberties Union have been
fighting for reviews of youth life sentences in major crimes since the
2005 ruling. They argue those constitutional prohibitions should
extend to homicide cases as well.
The ACLU filed a federal lawsuit in Michigan last month alleging
that nine people imprisoned when they were minors deserve a chance at
parole because their sentences amount to cruel and unusual punishment.
State of Wisconsin, Plaintiff-Respondent,
Omer Ninham, Defendant-Apellant-Petitioner
I. FACTUAL BACKGROUND
¶8 We describe the facts
of this case with an understanding that this horrific and senseless
crime cannot adequately be reduced into words. The terror experienced
by the victim and the hurt suffered by his family and friends is, in a
¶9 On September 24, 1998,
around dusk, 13-year-old Vang was bicycling home along Webster Avenue
in Green Bay, Wisconsin. Vang's older brother had sent Vang to the
grocery store for tomatoes. Vang was returning home on his bicycle,
carrying a plastic grocery bag filled with tomatoes, when he was
approached by five juveniles: 14-year-old Ninham, 13-year-old Richard
Crapeau (Crapeau), 13-year-old Jeffrey P., 14-year-old Amanda G., and
14-year-old Christin J.
¶10 Ninham and the other
four juveniles did not know or recognize Vang. Moreover, by all
accounts, Vang never said or did anything to provoke the five
juveniles. Rather, at the time, Crapeau was upset with his mother and
"wanted to fight or see a fight." Consequently, Crapeau said to
Ninham, "Let's mess with this kid," and Ninham responded, "'I got your
back,' meaning he would back [Crapeau] up in a fight."
¶11 Ninham and Crapeau
began by verbally taunting Vang, while the other three juveniles
"egg[ed]" them on. Ninham and Crapeau's assaults escalated into
physical attacks. Crapeau bumped into Vang's shoulder and yanked his
bicycle away from him. Crapeau also grabbed Vang's grocery bag out of
his hands and threw it in the direction of St. Vincent's Hospital,
located along the same street. When Vang asked for his bicycle back,
Ninham punched Vang, knocking him down.
¶12 Vang got up and started
running towards the nearby St. Vincent's Hospital parking ramp. All
five juveniles chased after Vang, eventually catching up to him on the
top, or fifth floor, of the parking ramp. When they caught up to him,
Crapeau punched Vang in the face. Vang repeatedly asked why they were
trying to hurt him and pleaded with them to leave him alone. Instead,
Ninham and Crapeau began pushing Vang back and forth between them, in
a game Jeffrey P. referred to as "chicken." Ninham punched Vang in
the chest as he pushed him back and forth.
¶13 Ninham then pinned Vang
by his wrists against the parking ramp's concrete wall. While Vang
squirmed to get out of Ninham's grasp, Crapeau again punched Vang in
the face. According to Crapeau, Vang was crying and screaming, "'Let
¶14 With Ninham still
holding Vang by his wrists, Crapeau grabbed Vang's ankles. Ninham and
Crapeau then began swinging Vang back and forth out over the parking
ramp's concrete wall——a drop that measured nearly 45 feet to the
ground. Vang was crying and screaming, begging Ninham and Crapeau not
to drop him. While swinging Vang out over the wall, Crapeau let go of
Vang's feet and told Ninham to "[d]rop him." Ninham let go of Vang's
wrists, and in Crapeau's words, Vang "just sailed out over the wall."
¶15 At the same time,
approximately 8:00 p.m., bystander Steven Heraly was in his vehicle
exiting the St. Vincent's Hospital parking ramp when he heard what
sounded like a "bag of wet cement hitting the pavement."
¶16 Vang landed on his back
on the parking ramp's paved exit lane, 12 feet from the base of the
¶17 Rescue personnel,
dispatched at 8:03 p.m., detected a faint pulse from Vang. Vang was
transported to St. Vincent's Hospital where physicians were unable to
¶18 An autopsy revealed
that Vang suffered a blunt impact to his head and trunk and died from
craniocerebral trauma due to a fall from height.
¶19 Ninham and the other
four juveniles never checked on Vang's condition and instead ran from
the scene. Still, the Green Bay Police Department was able to focus
its investigation on the five juveniles after some of them, in
particular, Jeffrey P. and Amanda G., indicated to relatives and
police that they knew who was responsible for Vang's death.
¶20 In his statement to
police, Jeffrey P. described how Ninham stood for several seconds
looking over the edge of the wall at Vang below. Ninham then looked
at Jeffrey P. and said, "Don't say nothing. Better not say shit."