Archive for January, 2009

Just a reminder that I have a short but very cool little book tour coming up next week in the San Joaquin Valley, from February 5th through 7th. This will be the last of the series of Stolen Boy talks, and we’ll be covering a plethora of subjects as they relate to Stolen Boy, Alpha Dog, Jesse James Hollywood, Tyler Edmonds, Brandon McInerney, juveniles, the law, crime, mysteries, books, movies, writing, transformation, and much much more. The talks promise to be unforgettable.

If you have the time and energy next Saturday, February the 7th, the last of our talks will be with at the Sisters-in-Crime monthly luncheon to be held at Yosemite Falls restaurant, located at 4278 W. Ashland Avenue, from 10:30 am til noon. For more information, check out the blurb in the Fresno Bee, or call 559.228-9867. Namaste.

It was a surreal day today at the Ventura County Courthouse as I made my way into Department 14 for what was scheduled to be Brandon McInerney’s preliminary hearing. But it didn’t go off, as I figured it might not, because Brandon’s attorneys were experiencing delays in getting their appeal filed, and they needed more time to pursue their discovery issue as it pertains to the Ventura County District Attorney and how they direct file discretionary juvenile cases in adult criminal court.

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Brandon’s attorneys Scott Wippert and Robyn Bramson.

Robyn Bramson and Scott Wippert made the necessary appearances on their teenage client’s behalf, and Maeve Fox dressed for success on the side of the People. But there were no smiles or half jokes emanating from either side of the courtroom on this case on this day. Faces were stern, and the mood in and around the courtroom was somber and brittle. One prelim was already in action when Stolen Boy arrived, one migrant farm worker being accused of slashing another across the face for dirtying up his folding knife at a local labor camp. Then, at about 9:15 a.m. Brandon was brought into the cage and the attorneys continued the case until March 17, with a 30-day time waiver beyond that date. And that was it. After court, Stolen Boy hustled out into the hallway to catch up with Brandon’s two attorneys to test their feelings on the prelim, their client, the appeal, and the law as it pertains to juveniles being tried in adult court.

 


Q: What is the basis for the appeal you continued the prelim for?

ROBYN BRAMSON: …Judge Riley’s summary denial of the discovery motion.

Q: On what grounds was it denied?

BRAMSON: The grounds weren’t really clear because her record wasn’t all that clear. But, basically the issue on the writ is whether there is such a defense as abuse of prosecutorial discretion for a district attorney’s filing of a discretionary direct file case in adult court without sufficient consideration of factors other than age and alleged offense.

Q: What is the status of the writ?

BRAMSON: The writ is almost done. The court reporter took a little bit longer to get us the transcript than we had anticipated, so it delayed the process. But it’s almost done, and we anticipate filing it this week, or next week at the latest.

Q: Could you elaborate on the basis of your filing?

BRAMSON: The writ is asking the appellate court to reverse Judge (Rebecca) Riley’s denial of the discovery motion. And the issue on the writ basically turns on whether or not there is a defense for abuse of prosecutorial discretion… Properly evaluating a case prior to discretionarily direct filing it in criminal court.

Q: Why is it so important to take this step with the writ?

SCOTT WIPPERT: I think we disagree strongly with Judge Riley’s decision. So that is the appropriate process…to take it to another court…somebody who will consider it more. And we’ll actually brief it, and put more information and give that appellate court more information so they can look as to whether or not Judge Riley made the right or wrong decision.

Q: So what happened in court today?

WIPPERT: Today we just merely continued the preliminary hearing until March 17th so that we can continue to handle these legal issues before we deal with any of the factual issues, that being the prelim.

Q: Do you think the prelim will go on that date in spite of this writ?

BRAMSON: I couldn’t tell you at this point. We have to continue to file the appropriate legal papers and then see how long the appellate court is going to take to respond.

Q: Why is there a question as to whether you have the defense as to abuse of discretion?

BRAMSON: It’s never been raised before, as far as we know.

Q: You mean as far as your research here in California?

BRAMSON: Right. Exactly… And I think that was something Judge Riley was presented with – the absence of a previous court saying that this is a defense. She wasn’t willing to extend prior cases to this area and say that such a defense exists. So, at this point we need to get either the appellate court or the California Supreme Court to recognize this is an issue, and hopefully acknowledge that this is a valid defense.

Q: What else should they consider in your opinion?

BRAMSON: The more I research this issue the more I feel like it’s not appropriate for defense attorneys or for the Court to dictate to the district attorney what factors they should or should not be considering, because Proposition 21 changed that. It took away those previously specified criteria of what was required for a fitness determination. Our position is that a fitness determination is still required and (Welfare and Institutions Code section) 707(d)2 imposes upon the district attorney a duty to assess fitness, but what factors they need to look at – that is up to their discretion. But to not consider anything other than offense in our view constitutes an abuse of their discretion.

WIPPERT: And for us to even explore whether or not they did abuse their discretion, and, again, based on their own filings and comments to the media we believe they did abuse their discretion. But for us to…investigate whether or not that in fact is true, as it appears, we need to get the discovery. And that’s the whole purpose of filing the writ. It’s having another judge, or actually several take a look at Judge Riley’s decision and hopefully agree with us that we have a right to know what factors they did in fact use in deciding whether or not to prosecute him as an adult. And if they have nothing to hide, then certainly we should get those. But the focus of the writ is whether or not the judge erred in denying our motion. And that’s the only focus of the writ.

Q: Can you tell us more re the basis of the motion you’re appealing?

WIPPERT: It was a discovery motion where we were asking for specific internal guidelines that they might have that they use in determining whether or not they specifically, not only in this case, but what their policies are as to when they file cases that are permissive direct files – what they use to determine whether or not they should in fact charge this person as an adult or juvenile. And what we’re seeking are their internal guidelines that they use in all cases as well as statistics of how many cases they did in fact direct file (in adult court) when they had the opportunity to. And more specifically in this particular case we asked what they did in determining…to in fact prosecute Brandon as an adult.

Q: And what did the judge do?

WIPPERT: The judge denied our request. And it’s somewhat unclear from her ruling as to what legal basis she used to deny it. But it appears from her last statement that there’s no authority so therefore she wasn’t about to start making any.

Q: What legal remedy do you seek as a result of the writ you intend to file?

BRAMSON: Ultimately, what we would like to see is either the Second District Court of Appeal or the California Supreme Court, by way of petition for review in the supreme court, issue a ruling that says there is such a defense for a prosecutor’s abuse of discretion in a direct filing case. And then our next step would be a pretrial motion to dismiss for abuse of discretion. And then a dismissal, which would result in a refilling of the case in juvenile court, which is where we feel it should be.

Q: And then what would happen?

WIPPERT: The writ is focusing on the discovery. Just because we win, and we expect to win the writ…we need to get the discovery motion denial overturned – and granted – and see what in fact is turned over pursuant to that discovery motion. But, again, it is our position just from what we know already and seen already that in fact the case should be ultimately dismissed as abuse of discretion. But this is a tool for us to get to that position legally. Where we can convince a judge to in fact dismiss it because they abused their discretion and right now it seems that they’re (Ventura County District Attorney) hiding behind that discretion.

Q: And if it were dismissed you would expect the district attorney to refile in juvenile court and request a fitness hearing at that point to see if Brandon were amenable to rehab through juvenile court?

BRAMSON: That’s exactly right. Our position is that that’s the way this case should have proceeded a year ago.

Q: That Brandon should have been entitled to a fitness hearing to determine if he is amenable to treatment?

BRAMSON: Right…

WIPPERT: Or certainly the district attorney should have gone through some analysis. Because, again, if you look at our briefing, and I think we’ve been consistent all along, is that it is our position that just because they have the option – they may file in adult court on a case like Brandon’s – that they should not in every case. And that although Prop 21 gave them the discretion to file in certain cases, certainly it did not take out those factors in determining whether or not to file. So, again, we’re not in a position to tell them what discretionary factors they should’ve used, but I think 707 and the fitness hearing criteria is certainly a place to start. Because, again it is a determination on whether or not the child should be prosecuted as an adult. Whether or not he can be rehabilitated. It’s just an issue of whether or not that decision and that determination should be made by a judge or a district attorney before they file the charges…

BRAMSON: …This all resulted in shifting the duty of this determination from the judge to the district attorney in these cases. So, they have a legal duty to make a reasoned determination in these cases. And the California Supreme Court, in a case called Mandaley, which was several years ago, talked about the changes made to Welfare and Institutions Code 707(d) via Proposition 21. And what it says is this proposition gives the district attorney the authority to adopt their own criteria for determining which of these cases are properly filed in adult court. We’re just asking for what, in the wake of the Mandaley case, this office is doing to comply with that mandate. What criteria have you adopted? What standards do you use? What is the decision making process that you are going through re each of these kids in determining which kid could still benefit from the juvenile justice system, and which kids cannot? In this case it appears that there was no analysis. And this is not based on bits of information that we’re grasping on. But this is coming from the admission of the district attorney… When we were in court last time, Ms. Fox acknowledged that they have no criteria, which is troubling. Because, again, California Supreme Court is telling them that they’re supposed to adopt such criteria and here we are like nine years later and apparently it just comes down to a willy-nilly decision. And that’s frightening. And that’s why this issue is so important. Because not only is this decision making process going on in this county, it’s going on in counties all over the state… Imagine the impact this is having on so many children’s lives. If this decision is just coming down to the whim of the district attorney on any particular day at any particular moment, as opposed to…analysis that really takes into consideration what is appropriate for this particular kid.

Brandon McInerney’s youthful life takes another wild twist this coming Monday where his preliminary hearing is scheduled to take place regarding his alleged murder of fifteen-year-old Larry King. As I understand it, the prelim will not proceed due to the fact that the defense team is filing a writ to appeal the judge’s recent denial of their motion to dismiss the case due to the Ventura County District Attorney’s violation of their teenage client’s due process rights.

It’s a novel approach to a very difficult issue. The DA wants to punish Brandon to death. They’ve made their decision to pin 51 years in an adult prison on this child for the horrible act he committed. They don’t want Brandon to have an opportunity to rehabilitate, which, in itself is a crime since the juvenile courts were created for that very purpose: the rehabilitation and redemption of child offenders.

Below please find the defense discovery motion, which includes their novel arguments of why they believe Ventura County Senior Deputy District Attorney Maeve Fox violated Brandon’s due process rights, the DA’s boilerplate response, which the defense claims doesn’t even address the defense theory on the matter, and the defense reply thereto. And let us know your thoughts on the matter when you’re done…

Motion for Discovery Order

Opposition to Motion for Discovery Order

Defendant’s Reply to Opposition

Catherine Saillant of the Los Angeles Times wrote this wonderful piece centering on the need to give Brandon McInerey a chance to turn his life around. The Ventura County District Attorney claims that because of the nature of the crime, Brandon must be punished to death – ie he must go to an adult men’s prison for the rest of his life. Is this justice? Is this really what we want as a community? As a race of people? Read the article and you decide.

On Thursday, we will post the defense discovery motion which includes arguments about the proclaimed due process violations inflicted against their client by the DA’s office. We will also post the DAs response that the defense claims doesn’t even address the theory of the defense argument, and the defense reply thereto. Please, let us know what you think…

 

Defense in Oxnard school shooting case seeks refiling in Juvenile Court

 


By Catherine Saillant
January 19, 2009

Ventura County prosecutors last year charged eighth-grader Brandon McInerney as an adult, two days after he allegedly walked into English class, took his seat and shot King, 15, twice in the back of the head.

Brandon McInerneyProsecutors called the Feb. 12 slaying a hate crime amid reports that the two boys had sparred over King’s romantic attraction to McInerney. The charges brought against McInerney could put him in prison for at least 51 years.

Scott Wippert, one of McInerney’s attorneys, said the Ventura County district attorney’s office abused its power by failing to consider such circumstances as McInerney’s youth, his hard family life and the failure of school officials to deal with rising tensions between the two boys.

Wippert requested documents outlining prosecutors’ reasoning for bringing adult charges, but the district attorney refused to provide them.

“Someone like Brandon, who was barely 14 and had no juvenile record, should have gone before a juvenile judge, who would look at certain factors to determine whether he is suitable for rehabilitation,” Wippert said. “But the D.A. is saying, ‘I don’t have to explain myself to anyone.’ That’s too much power. We as a community should be able to make sure what they are doing is right.”

A Ventura County Superior Court judge this month rejected Wippert’s argument. But Wippert said he will appeal Judge Rebecca Riley’s decision.

His argument challenges Proposition 21, overwhelmingly passed in 2000 by California’s voters. The Gang Violence and Juvenile Crime Prevention Act lowered the age at which adult charges can be filed from 18 to 14, and gave prosecutors authority to decide which cases should be filed in adult court.

Filing decisions on serious youth crimes previously had been left to judges sitting on the Juvenile Court bench. Under the old charging system, if a judge found that a youth could be rehabilitated, even murder cases remained in Juvenile Court. But a judge could also recommend that a youth be charged as an adult.

Maeve Fox, the prosecutor on the case, dismissed Wippert’s defense as a last-ditch attempt to derail the murder case. A pretrial hearing to determine whether the case should move forward is set for Jan. 26.

“We make charging decisions on a case-by-case basis,” Fox said. “And probably the most important criterion in every instance are the facts of the case.”

Ventura attorney Michael Mehas, a juvenile justice advocate, said he welcomes the challenge to Proposition 21. He said the law is flawed because it provides no check and balance on a district attorney’s filing decisions.

“This isn’t a hate crime,” he said. “This is about a kid who was being humiliated in front of his peers and who didn’t have the maturity to respond in a proper manner.”

Witnessed by a classroom of students and a teacher, the events of Feb. 12 are in little dispute.

McInerney arrived for school that morning and sat behind King as their English class got started, witnesses have said.

McInerney withdrew a hidden handgun, pointed it at King’s head and fired twice, witnesses and police said. He then fled the school, dropping the weapon as he left. Police apprehended the youth a few blocks from the school.

Mehas said prosecutors should have taken into account reports of conflict between the two boys. King, who had declared himself gay and sometimes wore makeup and girls’ accessories to school, was reportedly brazen in his efforts to gain McInerney’s romantic interest.

School officials were aware of trouble between the boys but allegedly did little to quell the problem, according to student witnesses and media reports. McInerney’s parents were divorced, and he frequently shuttled between their homes.

McInerney’s father had previously faced charges of domestic abuse and his mother had struggled with drug addiction, court records show. Despite that, McInerney made good grades in school and had no trouble with the law until he walked into E.O. Green Junior High that morning, his lawyer said.

While incarcerated at Juvenile Hall awaiting trial, he has been a “model kid,” Wippert said.

“The staff loves him,” he said. “He’s not a monster like the D.A. is portraying him.”

Fox, the prosecutor, said many other youths with troubled upbringings have managed to resolve conflicts without resorting to violence. The severity of McInerney’s crime calls for punishment, not rehabilitation, Fox said.

“Shooting someone in the back of the head to me is an execution-style murder,” she said. “He thought about it. He planned it. And then he did it.”

catherine.saillant @latimes.com

I found this very interesting piece in the Santa Barbara-Goleta Nooshawk.com that I thought you might be interested in. I wonder if this means that the attorneys don’t want me to publish the medical records that they’re talking about, that Santa Barbara County Senior Deputy District Attorney Ron Zonen gave to me way back when Alpha Dog was just a gleam in everyone’s eye.

I thought it was also interesting that the media is still playing up the false motivation and characterization that Mr. Zonen and fellow law enforcement officials dreamed up with the media in their efforts to demonize Hollywood and his fellow co-defendants. That’s why I had to write Stolen Boy, to set the recored straight. What do you think?


Co-defendant Jesse James Hollywood is accused of ordering the 2000 shooting of the 15-year-old

Judge Brian Hill on Thursday refused to seal the medical papers of Ryan Hoyt, Jesse James Hollywood’s co-defendant and the confessed triggerman who shot 15-year-old Nicholas Markowitz in 2000.

Markowitz was shot in a feud over drug money, and his body was found in the hills outside of Santa Barbara. Hoyt is on death row.

According to Hoyt’s attorney, the papers should be sealed because his confession could have been made under duress, and because Senior Deputy District Attorney Ron Zonen, who was on the case at the time, “gave the material to the world” by giving the information to screenwriter Michael Mehas, who co-authored Alpha Dog, the 2006 film that is based on the Markowitz murder.

Hill, however, granted a protective order on the records, meaning in this case that the attorneys for the prosecution and the defense – including Hollywood attorney James Blatt, who may have gotten access to the records – could use them but not divulge any information to third parties or the media. Hill also allowed that experts hired for Hollywood’s upcoming trial could view the records.

Hollywood is the alleged mastermind behind a drug ring that started in the San Fernando Valley. When Markowitz’s older half brother, one of Hollywood’s associates, didn’t pay money he owed Hollywood, a group including Hoyt, Jesse Rugge, William Skidmore and Graham Pressley came to Santa Barbara and kidnapped and shot Markowitz. Hollywood was not present at the crime scene but was said to have ordered the murder.

Hollywood’s trial is tentatively set for February 19th.

In The Power of Now, Eckhart Tolle gives a new spin to my understanding of what compassion is all about, and I wanted to share it with you. According to Eckhart, compassion is the awareness we have of the deep bond between all living things and ourselves. But there are two sides to this bond. On the one hand, through our physical bodies, we share vulnerability and mortality with every other living physical form. We are both born into this world, and we will both end up as rotting corpses, before turning to dust, and then nothing.

Then, the time will come when all mind-forms or thoughts will die. Yet, we are still there as a divine presence, radiant and fully awake. “Nothing that was real ever died,” Eckhart says, “Only names, forms, and illusions.” Our realization of this deathless dimension, our true natures, is the other side of this divine coin. On a deep level, we recognize not only our own immortality, but that of all other living things.

On the level of physical form, we share mortality and the precariousness of existence. On the level of Being, we share eternal, radiant life. These are the two aspects of compassion. As these seemingly opposite feelings of sadness and joy merge into one “they become transmuted into a deep inner peace.” This is the peace of God.

IN CELEBRATION OF COMPASSION

In celebration of compassion, a friend of mine named John DeYoung wrote a wonderful song for his ex-wife, Dana, for her non-profit organization http://www.africainc.us, which aids schools in South Africa. The song is called “A little compassion goes a long way to making this world a better place,” and it can be found by pressing this link here: A Little Compassion

For more information on John DeYoung and his wonderful music, please visit: http://www.johndeyoung.net/.

Please find below a wonderful piece written by Lisa Osborne at Lisa.fm, and posted by the Ventura County Star, during our last session for Transformational Third Thursdays. We very much look forward to seeing you tonight at Bank of Books in Ventura, from 7 to 8:30 p.m., for a New Year of transformation into love, joy, and peace:

Creating Your Ideal Life Starts with Living in the NOW


Big change is in the air as 2008 winds down. The US Presidential election is behind us and the American (and world) economy and financial markets remain wobbly. But with uncertainty and change come opportunity. And, with the right attitude, each of us can use this time of transition to create transformation in our lives, lasting change for the better.

 You are Creating Your Life with Your Thoughts

This concept might sound funny at first, but as you start to pay attention to the commentary that’s running through your head, you will start to notice that you get what you expect out of life. If you intentionally adjust your inner voice to sound more like a helpful coach than harsh critic, you will notice that your life will start to change for the better.

Living in the moment can help you create the life you want. Eckhart Tolle, spiritual teacher and best-selling author of A New Earth and The Power of Now, suggests most of our problems can be eliminated (or at least minimized) when we live in the NOW, since a lot of time and energy is wasted fretting about the past or worrying about the future.

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 Michael Mehas leads a discussion on The Power of Now, as part of the free “Transformational Third Thursdays” series at Bank of Books in Downtown Ventura.

Try putting your focus on the NOW, whether it’s giving your full attention to the person you are talking with, or noticing the detailed beauty of the trees and flowers on your evening walk. Being in the NOW can help you detach from the voice in your head (your ego).

“When we dis-identify with the mind, and get into the… appreciation of all that we’ve got, it expands our consciousness,” said Michael Mehas, a Ventura-based author and attorney. Mehas leads “Transformational Third Thursdays,” a monthly discussion group on The Power of Now at Bank of Books in Downtown Ventura.

Mehas says the Armageddon theory that most major religions refer to isn’t an end to the physical world. “What it really represents…. is a death. But it’s not a death to mankind, it’s a death to the ego. A transition out of the thought state, into a state of inner being, a higher consciousness.”

Join the “Now” Conversation in Ventura

“Transformational Third Thursdays” meets through the end of the year at Bank of Books on Main Street in Ventura. There’s no charge and first-timers are welcome, whether or not you’ve read the book. The next meeting will be held on November 20th, 7PM-8:30PM, at Bank of Books, 748 E. Main Street, in downtown Ventura. For more information, contact Michael at http://www.michaelmehas.com.

To learn more about the Power of Now, tune-in to the Lisa.fm 7 Minute Book Review, featuring Michael Mehas, at http://www.lisa.fm and http://lisafmbookclub.podomatic.com/