Things have begun to pick up dramatically this week as we move closer to commemorating the first anniversary of Larry King’s death, this Thursday, February 12. In the meantime, Brandon McInerney, who just turned fifteen, sits uncomfortably in a Ventura jail awaiting his fate for murdering his fifteen-year-old classmate. We will soon review the local media’s coverage of the event as well as the writ that was filed by the defense in an effort to reverse Judge Riley’s denial last month of the defense motion for discovery in an effort to prove that the prosecutors abused Brandon’s due process rights.
Below, please find the editorial I wrote and the Ventura County Star published this past Sunday regarding Brandon’s plight. The whole reason for the editorial was an effort to help enlighten our community as to the laws, that we the voters of California helped to pass, that allow the prosecutors to file juvenile cases in adult court. Please, let us know what you think…
Trying 14-year-old as an adult does not serve justice
By Michael Mehas
Sunday, February 8, 2009
Fourteen-year-old murder suspect Brandon McInerney deserves a juvenile-court fitness hearing to help determine his fate. He needs to be given an opportunity by an unbiased judge to determine whether or not he is amenable to rehabilitation before he is destroyed by what will amount to a life sentence in an adult criminal prison — and here’s why.
There are nearly 3,000 children in the U.S. who have been convicted of serious criminal offenses as juveniles now serving life sentences in adult prisons, with no possibility for parole. Nearly 300 of these children are serving life sentences in California prisons, some of them having been convicted in Ventura County.
The life without parole sentence condemns a child to die in prison. Next to the death penalty, it is the harshest sentence that may be imposed on an adult. Inflicting such a punishment on a child opposes not only the modern understanding that children have tremendous potential for growth and maturity as they move toward adulthood, but also the widely held belief in rehabilitation and redemption for youths. It has been noted that this growth potential counters the desire to sentence youthful offenders to long terms of incarceration in order to ensure public safety.
Experts have long asserted that children cannot be expected to achieve the same level of psychological and neurological development as adults. Even as teenagers, they lack the same capacity as an adult to use reasoned judgment, to prevent harmful action generated as a result of intense emotion and fear, and to understand the long-term consequences of rash decisions and actions. Many of the children sentenced to life in prison without the possibility of parole compare it to a death sentence carried out by the government over an excruciating and extended period of time.
Children endure hopelessness, emotional hardship and neglect while serving time in the adult prison system. They may also be subjugated to threats of physical violence and murder.
Last February, within 48 hours of 14-year-old Brandon McInerney walking into English class at E.O. Green Junior High School in Oxnard and shooting 15-year-old Larry King to death, Ventura County Senior Deputy District Attorney Maeve Fox made the decision to charge Brandon as an adult. At the time, Fox had the legal discretion to charge Brandon as a juvenile, allowing him a fitness hearing to determine if he would be amenable to rehabilitation. Instead, the senior deputy district attorney chose to charge Brandon with one count of murder and two enhancements, use of a gun and hate crime.
If Brandon is found guilty in this slam-dunk case (30 classmates witnessed what he did), he will be required to serve the next 51 years of his life in an adult men’s prison. That’s because count 1 carries with it a mandatory minimum of 25 years to life with no possibility of parole. The gun enhancement carries a mandatory minimum of 25 years with no possibility of parole. And the hate crime enhancement carries a one- to three-year consecutive term. That adds up to 51 mandatory minimum years Brandon will serve. He will not be eligible for parole until he’s 65. For all intents and purposes, this amounts to life without parole.
Novel defense motion
In a desperate effort to counter this reality, last month, Brandon’s attorneys filed a motion in an effort to discover any notes, communications, internal memos, guidelines or other items that might constitute material evidence for his defense that the District Attorney’s Office “abused their discretion by filing an accusatory pleading in criminal court, and that in so doing the prosecution denies him of his liberty without due process of law.”
The defense alleges that Fox filed the case in adult court based strictly on the severity of the offense. They cite the fact that the prosecutor set forth in her pleadings only the facts of the case as the basis to support her filing decision, and nothing more, and this, in turn, is a violation of their client’s due process rights.
The defense further charges that California’s Welfare and Institutions Code section 707 clearly states that 14 years of age plus the offense as charged creates a situation where the district attorney can “permissively” file the case in adult court. It is not mandatory.
The defense argues the district attorney should have taken more into consideration than just the nature of the offense when he decided to direct file the case in adult criminal court.
By not considering such factors as Brandon having no prior criminal history, his barely being 14 years old (by 19 days) when the offense was committed, his terribly volatile domestic life, and the extreme circumstances surrounding the case at school and with school officials, the district attorney violated Brandon’s due process rights, and the case should have been dismissed.
This would have allowed the district attorney to then request a fitness hearing in juvenile court, and these above enumerated factors, and others, would be considered by the judge as he decided whether Brandon was amenable to treatment.
In response, the district attorney appears not to have taken the defense’s motion seriously. The defense contends that in her opposition to Brandon’s formal motion for discovery, Fox spent nearly six pages addressing the legal standard by which a defendant may seek and obtain discovery, but failed to address the legal theory upon which Brandon sought discovery.
Then, in court, while waiting for the judge to take the bench to hear the argument for the motion, Fox could be heard joking and laughing loudly in the back of the courtroom with one of her investigators and another deputy district attorney. This upset Brandon’s mother so much that she had to be escorted out of the courtroom in tears. When the judge took the bench, Fox then stepped up to the podium and told the court the defense motion was “bush league,” and must be denied. The court did deny Brandon’s motion, and now the defense promises to seek appellate relief.
The problem with the case stems from the fact that Fox and the District Attorney’s Office seem to hold all the cards, and they possess a total unwillingness to reveal them to anyone. Dec. 30, Fox was quoted in The Star as saying: “Guess what? They aren’t entitled to know what is mulling around in the DA’s mind. They have zero, no legal basis for getting this material.”
Technically speaking, Fox might be right. She could make this decision as she chooses, with no checks and balances over her decision-making process.
Even judges have the appellate court to oversee their questionable calls, but not the prosecutor. Is this justice? Maybe. Maybe not. To better comprehend the Ventura County district attorney’s position, however, one needs to understand some of the background behind juvenile-court waivers.
Juvenile waiver laws
Based on the public belief that juvenile crime was rapidly rising, combined with the notion that the consequences minors faced in the juvenile-justice system were too lenient, “get tough” laws were enacted across our nation. One of these new policies included the revisions to what are called juvenile “waiver” laws, where a “waiver” of juvenile court jurisdiction was used under certain circumstances to transfer a child’s case from juvenile court to the adult criminal court system. In the state of California, guidelines for the waiver process can be found in California’s Welfare and Institutions Code section 707.
In an effort to battle youthful offenders committing serious crimes, in March of 2000, California voters passed Proposition 21, the Gang Violence and Juvenile Crime Prevention Act. This made it easier for juveniles to be transferred into the adult criminal court system by lowering the age limits at which the adult criminal court can take jurisdiction, adding other transfer mechanisms, and enumerating more crimes requiring mandatory transfer. Even more importantly, Proposition 21 shifted the focus of juvenile justice to one of punishment, instead of rehabilitation.
The resulting statutory changes made by Proposition 21 have raised serious questions as to the political agendas behind this kind of legislation. Besides focusing on punishment instead of rehabilitation, Proposition 21 shifts discretionary power from judges to prosecutors and from the courts to legislators who have political agendas and the power to manipulate voters.
From its inception, the juvenile-court system has been based on the premise that the court would act in the best interest of the child. The juvenile court emphasized treatment, supervision and control, with the long-range goals of resolving the wayward child’s family, social and personal problems, and preparing the youth for a law-abiding, healthy and productive adulthood.
Additionally, the juvenile courts provided immunities and special rights for children such as detaining them only among other juveniles and shielding them from the media.
Up until the mid-1960s, the juvenile court held jurisdiction over all offenders under the age of 18, with the exception of cases waived to adult criminal court after a full investigation was made to decide whether or not a youth offender was fit for the juvenile-court process. In 1966, the juvenile-court system underwent its first major change. Guidelines were created for due process in the juvenile-court requiring fitness hearings, right to counsel and a statement of reasons by the court for any waiver decision.
In California, until voters passed Proposition 21, the juvenile court had relied solely on the judicial mechanism via fitness hearing for waiving children to adult criminal court. Proposition 21 then authorized two new means for transfer: legislative and prosecutorial waiver.
Due process is required in the judicial waiver of juvenile-court jurisdiction. When a child is arrested and has committed one of the listed violent offenses in section 707(b) of the Welfare and Institutions Code after reaching the age of 14 or 16, depending on the offense as provided by Proposition 21, the District Attorney’s Office has 48 hours to decide whether or not to request a fitness hearing. After the fitness hearing is requested, the juvenile defendant usually waives his right to a speedy trial. This allows the defense and prosecution time to prepare their arguments for the fitness hearing, and for the probation department to draft its own fitness report on the juvenile.
All three entities involved utilize section 707, which addresses the following criteria to decide fitness for rehabilitation: 1. The degree of criminal sophistication exhibited by the minor. 2. Whether the minor can be rehabilitated prior to the expiration of the juvenile court’s jurisdiction. 3. The minor’s previous delinquent history. 4. Success of previous attempts by the juvenile court to rehabilitate the minor. 5. The circumstances and gravity of the offense alleged in the petition to have been committed by the minor.
The fitness hearing process is quite thorough for all involved. After considering all the statements, witnesses, expert witnesses, as well as the five-point criteria listed above, the judge makes a decision as to whether the minor is amenable to rehabilitation through the juvenile-court system. Other factors are weighed in such as public safety and the best interest of the child. If the child is deemed fit, he or she remains under the jurisdiction of the juvenile system. If the judge decides that a minor is unfit, the child is then tried in the adult criminal court.
Proposition 21 gives prosecutors discretion to file certain cases directly into adult criminal court. This process has limitations on age and offense criteria, as do other transfer methods.
The Proposition 21 provision that allows prosecutors to direct file juvenile cases in adult court is highly controversial. Many legal experts consider the law to be a violation of the separation of powers, transferring a judicial discretionary power to the prosecutor or executive power in the court system. One California Appellate Court agreed, ruling that “giving prosecutors discretion to charge someone younger than 18 as an adult has the unfair effect of also determining how the youth will be sentenced.”
It is the district attorney’s job to ensure the protection of public safety. Yet, the defense attorneys in the Brandon case question the wisdom, for public-safety purposes, of sending a kid to an adult prison for punitive purposes, where he would be subjected to violence, abuse and manipulation from violent, dangerous offenders.
Brandon’s attorney, Scott Wippert, addressed his concerns this way: “In prison you have to adapt And they don’t offer them services and they do not treat them as children, as they would in the juvenile system. And, again, he (Brandon) has the ability to learn and to change. His emotions are different than those of adults. And just the capacity to understand the gravity of your actions and the response, the consequence, isn’t there. If he does in fact go to prison, and if he ever does get out, which is unlikely, but if he does would he be safer to the public at that point than if he actually went through a juvenile system where they in fact try to rehabilitate him? Absolutely not. The best thing for this trial for public safety is to give him services and to help him learn from this horrible mistake in this decision he made.”
It would be in the best interest of public safety, and all the parties concerned, for the Ventura County district attorney to refile this case in juvenile court so that Brandon can have a fitness hearing. At such a hearing, Brandon would be deemed unfit, and the burden would be on his attorneys to prove that he is amenable to rehabilitation through the juvenile-court system. If Brandon were deemed fit for treatment, it would provide the county of Ventura with 11 years to rehabilitate a kid whose attorneys say should be rehabilitated.
Fox prosecutes adults charged with very serious crimes. She has already given up on this child after just 14 years of his life. But there’s still time to turn Brandon around, and there have been no signs exhibited thus far that point to him as being untreatable.
Civilized countries all across the world acknowledge that children possess an enormous capacity to change as they mature from adolescence to middle age. It is time for the Ventura County district attorney to acknowledge this.
— Michael Mehas of Ventura is an attorney, associate producer of the film “Alpha Dog,” and author of the award-winning novel “Stolen Boy,” both based on Jesse James Hollywood, the youngest man ever on the FBI’s Most Wanted List. He also writes about troubled youths at http://www.StolenBoy.com and can be reached at http://www.MichaelMehas.com.