10-Year-Old Charged With First-Degree Murder After Shooting Abusive Father While Protecting His Siblings

| by Sarah Fruchtnicht
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A 10-year-old New Mexico boy charged with first-degree murder will face trial this month in the shooting death of his father, who allegedly abused boy and his younger siblings for years.

Benjamin Hillburn allegedly shot his 250-pound father in the back of the head in their filthy home in Belen, N.M., in 2009. Children, Youth and Families Department visited the Hillburn home at least seven times in the years leading up to the shooting.

The boy’s attorney said he repeatedly tried to get help to stop the beating he and his siblings received from his father, 42-year-old Byron Hillburn.

"I've been practicing law for 20 years and this is the saddest case I've ever seen," said the boy's attorney, William J. Cooley. "I don't know why this is even going to court."

Now, 14 years old and living in Oklahoma, the boy will face a jury on Aug. 26. Law experts tell the Associated Press that he is one of just a handful of American children to face such a serious charge.

“We are going to court because we believe we have enough evidence to meet the burden of proof," said prosecutor Lemuel L. Martinez, 13th Judicial District Attorney.

The boy’s attorneys are trying to get the trial moved out of Valencia County because the father had strong ties to law enforcement in that area, which could influence the jury pool. They are requesting a move to Sandoval County, north of Albuquerque.

He will not be tried as an adult. If found guilty, he will be in state custody until age 21 and take part in a rehabilitation plan.

There is no law against prosecuting a child at any age in New Mexico. The National Juvenile Defender Center reports there are only 13 states that have set a minimum age for prosecuting children in juvenile court. The age is just 10 years old in eight of those states.

There have only been a few cases in which children faced murder charges, said Robert Schwartz, executive director of the Juvenile Law Center in Philadelphia. "It's actually a good sign since no matter what charges he faces, he still will only be punished until he's 21," if Hillburn is found guilty.

Sources: KRQE, NY Post