GREEN BAY, WI (WTAQ-WLUK) – Marcelia Fonseca, 16, will remain in adult court to face a homicide charge for allegedly intentionally setting the fire which killed her 11-month-old nephew.
In Wisconsin, those ages 10 and older charged with homicide are prosecuted in adult court. The law allows the defense to ask for cases to be moved to juvenile court – where she could various consequences if convicted, but not prison – which it did in this case.
The ruling had to be made before Sunday, when Fonseca turns 17, because those 17 and older are automatically in adult court, and cases then cannot be transferred to juvenile court.
In his 19-page decision, Judge John Zakowski said Fonseca’s attorneys only met one of the three required prongs to move the case to juvenile court.
One prong is deterrence, and for that one, the defense indeed met its burden, he ruled.
“The court believes that the defense has met its burden by the preponderance of the evidence that retaining adult jurisdiction is not necessary to deter this juvenile or other juveniles from committing the violation of which she has been accused. The court is satisfied that there is no evidence demonstrating that keeping this particular case in adult court would have a deterrent effect on other juveniles,” Zakowski wrote.
Another prong is if the juvenile could not receive adequate treatment in the adult criminal system. On this prong, the defense failed.
“The court is of a belief that Marcelia is in need of significant mental health treatment and programming, and that such programming will take considerable time. The court has doubts that she will be able to successfully make the necessary positive changes within the juvenile correctional system. The court believes she will benefit more from the kind of treatment and holistic approach as described in the adult system. In applying (case law), the court finds the better system for her immediate needs is in the adult system. The court believes she will do better in the criminal system,” Zakowski wrote.
The third prong is that transferring the case to juvenile court would not unduly depreciate the seriousness of the offense. Here, too, the judge ruled the defense did not meet its burden.
Zakowski’s ruling notes that, if convicted and sentenced to prison, she would serve time at a juvenile facility until she turns 18, at which point she would be transferred to the prison at Taycheedah.
According to the complaint, fire crews were called to 2519 Wisconsin Avenue on June 7, 2019, for a fire. The residents were able to escape, except for an 11-month-old. He later died. He is only identified by his initials.
According to the autopsy, he “had sustained total body surface burns across 100% of the body, ranging from first degree through third degree in severity.”
One of the residents told investigators they believed faulty wiring the cause, but investigators “concluded that the fire originated in the southeast corner of the second-floor east bedroom, where the metal wire laundry/grocery cart with combustible contents was located. The cause of the fire was classified as “incendiary” through the elimination of all competent ignition sources in the area of fire origin. It was determined that the fire resulted from the application of an open flame to available combustible materials, to include papers and/or plastics, contained within the metal wire laundry/grocery cart,” the complaint says.
The laundry/grocery cart was just a few feet from the playpen the child was in.
In an interview with police, Fonseca gave several different versions of what happened in the time leading up to the fire. She couldn’t answer why she opened a door to let a cat out during the fire, but did not check on her nephew. She denied starting the fire, although she was the last person in the room with him, the complaint states.
