- Associated Press - Friday, March 7, 2014

CONROE, Texas (AP) - Now that prosecutors have persuaded a judge that a Texas man accused of setting an 8-year-old boy on fire as a teenager can be tried as an adult for murder, securing a conviction in a case where the victim died 13 years after the attack could prove difficult, legal experts say.

Don Willburn Collins was 13 when Robert Middleton was attacked in 1998 on his eighth birthday, near the younger boy’s home in Splendora, about 35 miles northeast of Houston. Middleton was burned across 99 percent of his body and endured years of physical therapy before he died in 2011 from skin cancer blamed on his burns.

Collins was always a suspect but never indicted as prosecutors in Montgomery County said they didn’t have enough evidence. The case was reopened after Middleton gave a videotaped deposition shortly before his death in which he accused Collins for the first time of sexually assaulting him two weeks before the attack. Prosecutors charged the now 28-year-old Collins with murder last year, but they needed to move the case from juvenile to adult court to take him to trial.

After a three-day hearing this week, state District Judge Kathleen Hamilton ruled Thursday that prosecutors could do just that.

But legal experts say securing a conviction will be difficult.

Houston criminal defense attorney Grant Scheiner, who is not involved in the case, noted prosecutors lack direct evidence against Collins. He also said that alleged confessions Collins made to others could come under heavy scrutiny at trial.

But the biggest hurdle for prosecutors will be linking Middleton’s death in 2011 from cancer to the attack in 1998, he said.

“I think (prosecutors) are going to face an uphill battle here,” Scheiner said.

Anthony Sabino, a law professor at St. John’s University in New York City, said he wonders if the judge’s decision to transfer the case to adult court will ultimately hold up on appeal.

Collins‘ attorney, E. Tay Bond, had argued the case should not be transferred to adult court because in 1998, a juvenile had to be at least 14 years old for a capital felony offense case to be transferred to adult court in Texas. The law was changed in 1999 to lower that age to 10.

But prosecutors argued the murder didn’t take place until 2011, well after the law was changed.

Collins can’t appeal Hamilton’s ruling until after he goes through a trial.

Sabino said he thinks there are constitutional concerns about whether trying Collins as an adult is wrong.

“There is a long-standing legal precedent that laws are not applied retroactively,” Sabino said.

“This (case) is fraught with peril for the prosecution,” Sabino said.

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