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.
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?
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.