Stolen Boy’s Weblog

After listening to lawyers argue Brandon McInerney’s discovery motion last week in Department 46, Stolen Boy caught up with three of Brandon’s attorneys outside the Ventura County Courthouse. Lead attorney Scott Wippert, his colleague from the United Defense Group, Josh Solberg, and co-counsel and sole practitioner Robyn Bramson, took some precious time from their busy schedules to explain what they’re trying to do to save their fourteen-year-old client’s life, and why. I think you’ll find their answers fascinating, with some interesting surprises.

Brandon McInerney’s attorneys contemplate their next move.

Q: How did you get involved in this case?

BRAMSON: We read about it in the paper, in the Daily News over lunch one day. There was a little article about the ruling on the demurrer which was a motion brought by his former attorneys. And, anyway, it was denied…and we had some concerns about the quality of representation that Brandon was getting. We’re concerned that he was probably going to end up spending the rest of his life in prison, and we wanted to help him.

SOLBERG: And not just about the quality of the representation that he was getting, but about the direction that his representatives were taking with his defense.

Q: What was that direction?

WIPPERT: Well, the first we learned of the case…again, we read an article where Willy Quest was quoted as saying he wanted to push this case to trial as soon as possible because of Brandon’s youthful appearance. And that he doesn’t think that he wants somebody other than the district attorney to make a decision on whether or not this child is going to spend the rest of his life in prison… The judge does not have any options in sentencing, so it is not an issue of getting in front of a jury, and a jury having pity on Brandon because he’s a kid. And if it goes to a jury, the issue is guilt or innocence, and not punishment. And the comments he was making implied that the jury would have the power to determine whether or not, and how long, Brandon would be in prison, which, in fact is not the case…

Q: Actually, what I understood from speaking with Mr. Quest was that he hoping to be able to claim a manslaughter defense and get a jury instruction to the jury on a manslaughter defense. A manslaughter verdict would enable some sentencing discretion.

WIPPERT: …Obviously if this case goes to trial there will be an issue of provocation and whether or not first degree will get down to second degree or possibly voluntary manslaughter. But that’s an issue we do not have to accelerate now.

BRAMSON: Our position was that they’re missing a lot of other really important…legal issues that need to be litigated before you even get to that issue… A trial is going to happen if it needs to happen…

Q: What legal issues are you speaking of?

SOLBERG: There’s an important step that is unique to juveniles… In some cases the DA, according to the law, is told (in regards to) these juveniles, you have to file the case in adult court, which means the person is potentially looking at prison time in adult prison. Other cases, the law tells the district attorney you have the discretion to file this in adult court or to file it in juvenile court. This is one of those cases. The district attorney in this case filed it in adult court, meaning that Brandon is facing time in adult prison, potentially, if a jury ever decided that he had done what’s been alleged against him. What we’re saying today is the DA didn’t take seriously their obligation to weigh various factors in deciding whether to file in adult court or to file in juvenile court. It appears to us from what the representatives of the people have said to news outlets and other context, that as soon as they saw the facts of the alleged offense they decided the only thing we can do is file in adult court. Which means they didn’t take into account other factors that they should have taken into account.

Q: How do you see the difference of adult court versus juvi for Brandon?

WIPPERT: It’s a night and day difference. Not only the consequence(s), obviously. The maximum time he’d be looking at in juvenile prison would be until he’s twenty-five. And, obviously, he’s looking at the rest of his life in prison, in adult court. In addition, being housed in an adult prison is much different than being a child, going through with other youths in a youth prison… There’s rehabilitation. They give you schooling. They give you counseling. They give you therapy. They give you the things that you need to rehabilitate yourself. And we have to really remember that this is a child, and that these were children. And we are looking at these issues and this case as grownups, as adults. And when this event happened these were fourteen and fifteen-year-old kids. And their body mechanics and their way of thinking and their emotions, and everything else, are a lot different than what we have today. And it’s hard for adults to really recognize that. And I think it’s unfair for adults – they’re not his peers – there will be adults that will be on a jury that will decide his fate. They don’t let fourteen and fifteen year olds be on the jury. So it is up to us to explain to these adult jurors the issues that these children were dealing with, and it’s a scary premise. And in juvenile court you have a judge. And usually that judge primarily handles juvenile cases, so tends to have more empathy, has more understanding of the issues that children deal with.

Q: How is it that a child can be tried as an adult to begin with?

BRAMSON: That’s because of Prop 21, which was the proposition that the voters of the state of California voted into law back in 1999. It went into affect in March 2000… Which basically allows for them (Ventura County District Attorney) to do what they’re doing in this case. It says under certain circumstances the district attorney can file…a case involving a minor, fourteen years or older, in criminal court. And they can do so in the case of murder, and that’s what Brandon’s charged with. So that law actually lowered the age from sixteen years of age to fourteen years of age, in certain circumstances. So that’s where Brandon is affected by this, because he was just a couple weeks into his fourteenth year.

Q: And so what moves can you make to get him away from that destiny?

WIPPERT: …There is still a system in place (in juvenile court) that if a judge determines that he cannot be rehabilitated, cannot go back into society and not be a threat, the judge will make a determination. And then it will be shipped to adult court. But that judge will use many factors. Not only the age and the crime, but the severity of the crime, the environment of the occurrence the crime. Whether or not the person has a record. And there’s many other factors that that judge who deals primarily with juvenile cases will be able to take into account before that decision is made to file in adult court. And it’s really important for people to remember that the district attorney always refers to themselves as the People. The People. I’m one of those persons. And I’m one of those persons that voted for or against it, as we all are. The point is when that law was passed it was under the guise of gang enforcement. And these were the worst of the worse. And these are kids that obviously are not amenable to rehabilitation, then, why waste the court’s time? This is not a gang case… And I don’t think the voters contemplated this type of case being in this situation when we first voted for it. And, as the People, again, I think it’s a scary premise for us to allow that much power into the district attorney’s hands, and not a least have a judge have the ability to go say, What did you do? What did you consider in making this determination, which is what we’re asking.

SOLBERG: That’s what we were asking for today.

WIPPERT: If it was a factual determination. If it was a decision that was made based on certain factors, then what are those? Why hide that from us? There’s no reason to do that. The people who voted on this should have the comfort in knowing that we trust this district attorney to exercise it’s power and its authority. And why can’t we question whether or not you actually did?

BRAMSON: And, it’s not just us as his defense attorneys, in my opinion. This inquiry, this wanting to know, why did you make this decision in this case, it’s not just coming from us as his defense attorney’s but us as voters of the state of California. I think everybody is entitled to know what you’re doing with the power that we gave to you. They only have the ability to do this because we gave them this ability. And it’s like what’s going on right now with the federal government with all these bailouts. It’s, okay, if we give you this money, if we give you this power, what are you doing with it. You know, the government needs to be accountable for what it’s doing. This is our government, you know. And Brandon’s government.

SOLBERG: As far as the district attorney is concerned, there’s no oversight over how we make our decision. That’s what they said.

WIPPERT: And that’s scary… We will writ this. We will go the appellate court and say that this judge was wrong. What the DA is saying is that there is no further step beyond the district attorney. We said so, so therefore we win. We do what we want, and nobody is ever going to say that we did it improperly, because we will never give you the tools to determine whether or not we exercised discretion. Even judges have other judges review their findings. And the district attorney essentially said today that we are immune from any oversight whatsoever in this regard. And we disagree.

End of part one of two….