Lawyers representing a Baton Rouge man who is charged with first-degree murder in the 2012 beating death of his 8-year-old son are claiming the East Baton Rouge Parish District Attorney's Office prosecutes men more harshly than women in child homicide cases.
Michael Robertson's attorneys, who maintain his innocence in the death of Xzayvion Riley, accuse the office of "prosecution by stereotype, not be evidence."
District Attorney Hillar Moore III disputes that characterization.
State District Judge Don Johnson, who is presiding over the murder case, on Thursday denied a defense motion that asked him to order the District Attorney's Office to turn over information on the office's charging and plea negotiation history and practices in child homicide cases.
"The motion filed by the defense is meritless and was promptly and properly denied by the court as meritless," Moore said Friday.
Robertson, 51, and Xzayvion's mother, Lavaughn Riley, 37, both are charged with first-degree murder in the boy's death. Moore's office announced in July it would not seek the death penalty in the case.
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Prosecutors have alleged that Xzayvion's June 2012 death was the result of an "escalating pattern" of physical abuse at the hands of Robertson, who was Lavaughn Riley's boyfriend at the time of the boy's death.
Lavaughn Riley's attorney, Margaret Lagattuta, has said her client does not have a deal with prosecutors but intends to testify against Robertson in hopes of receiving a prison term of "something less than life." Riley has admitted in court testimony that she beat her son on a previous occasion.
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A Baton Rouge woman charged with first-degree murder in the 2012 beating death of her 8-year-old son does not have a plea deal with prosecutor…
Robertson's attorneys looked at local media coverage of 14 child homicide cases in the 19th Judicial District Court from 2010 to 2016 and concluded that four times as many men as women have been charged with first-degree murder, a crime that carries a possible death sentence.
The lawyers also said four times as many women as men have been charged with negligent homicide, which carries a maximum sentence of five years in prison.
In the defense motion that Johnson denied, Robertson's attorneys alleged he is being prosecuted "particularly severely in this case at least in part because of his gender" and added that Robertson "is being denied a reasonable plea offer due to his gender."
Robertson's lead attorney, Jim Craig, who is the New Orleans director of the Roderick and Solange MacArthur Justice Center, said in a statement that the East Baton Rouge Parish District Attorney's Office — since 2010 — has made "wildly different decisions" in how to charge men and women accused in child homicide cases.
"Prosecutors in this district consistently assume that a deceased child's father (or the mother's husband or boyfriend), not the mother, was responsible for the death," Craig wrote in his statement. "That is prosecution by stereotype, not by evidence."
Even in similar cases, he added, women are routinely charged with less serious crimes than men.
Moore explained that prosecution of all criminal cases involves an "individualized assessment of the unique facts and circumstances of each particular case, including child death cases."
"The facts and the law dictate the prosecutorial decisions of my office," he said.
Robertson's attorneys pointed in their motion to the case of Jacqueline Cheatham and her partner, Tiara Dunmars, who were booked in 2013 on first-degree murder charges in the death of Cheatham's 23-month-old son, Justyce.
Cheatham and Dunmars were indicted on second-degree murder charges and pleaded guilty in January to manslaughter. Both received 15-year prison terms.
"While both women originally told investigators that the child choked on cereal, the autopsy revealed that the child died from blunt force trauma to his head and had skull fractures and brain swelling, in addition to old fractures to the ribs and multiple impact points, bruises, and fractures to the ankle," Robertson's attorneys stated in their motion.
"Despite this evidence, the District Attorney charged neither woman with comparable severity to the charges against Mr. Robertson," they argued.
Will Morris, the lead prosecutor in the Xzayvion Riley case, stated in court documents that Robertson's attorneys have failed to show "prosecutorial vindictiveness."
"The standard to prevail on a selective prosecution claim is not an analysis of other cases that had the same result, i.e. the death of a child," he wrote. "In all of the cases the defense highlights, everyone was prosecuted. In order to prevail, the defendant must demonstrate that others similarly situated have not been prosecuted."
The bottom line, Morris argued, is that Robertson has not shown he has been "singled out" for prosecution.
"His allegations suggest that cases involving the death of a child have had various outcomes based on various facts and circumstances," he said.
Coroner's officials found Xzayvion died of overwhelming infection caused by a ruptured bowel from blunt force trauma to his abdomen. An autopsy revealed dozens of external signs of recent and past trauma, including a human bite mark on his stomach.
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Xzayvion's oldest sister reported seeing Robertson bite her brother on a regular basis as a form of discipline, sheriff's officials have said.
Robertson's attorneys have called the bite mark evidence "junk science" and are fighting to keep it out of the hands of a jury.