Archive for the ‘Brandon McInerney’ Category

There were so many people with so many beautiful things to say last week at Larry King’s vigil. There were calls for peace and compassion and love. Many people expressed a desire to see tolerance for full civil rights for gays. These, and other cries for social responsibility fell upon many sympathetic ears, and rightfully so.

For me, the key to seeing any kind of true social change begins within each individual. If each one of us concentrates on who we are, and learns what is necessary to expand the divinity within us, we will become the change we wish to see around us. This was the essence of the message I shared with the audience at the end of the vigil. Below, please find a copy of the speech that I gave to those in attendance.

 


 

THE SPEECH

I want to thank all of you for coming here tonight. What an incredible night. What an incredible display of affection for Larry King, and deservedly so. And what an incredible opportunity this provides for all of us, right here and right now.

img_5599

Ventura County Rainbow Alliance Executive Director Jay Smith addresses the media.

I came here tonight wearing a heavy heart flooded with hope and compassion. Why? Because I looked all around, and I saw all of you. And I resigned myself to imagining all the possibilities that stand before us.

I lead a workshop at Bank of Books called Transformational Third Thursdays, and we’ve talked about this case and what an incredible opportunity it provides for all of us. We have an opportunity to change the world, did you realize that? We have the opportunity to change our community. We have an opportunity to change who we are, and where we’re headed. And we can do that right now. And how do we do that? How do we change the world, right now?

 img_5601

Oxnard School District Board President Denis O’Leary and the reverand Brian Elster before the march.

By becoming the change that we want to see around us. And we do this by putting all our energies into the one thing we do have control over, the present. By honoring our presence, we begin to tap into life’s divine energies of love, peace, and joy that surround us.

So how is it that we become joy? How do we become love? Again, I ask you to just look around. Begin to recognize all the beauty that surrounds us at all times. Breathe in the joy. Taste the love. Appreciate all that we have right here and right now.

img_5621

Friends share their love for the fallen King.

Now is our most powerful moment. This is when we have our greatest energies, our greatest strength. Our truest power does not lie in anger and hatred and resentment from the past. Our true strength does not lie with desires for revenge or retribution for past pain inflicted upon us.

Nor does our true power lie in the stresses and anxieties from a future that we have no control over. Our true power does lie, however, in what we do and think and believe right now.

img_5624

A sad tribute.

One of the world’s greatest spiritual teachers once said that our present consciousness creates our ultimate reality. What did he mean by that? He meant that the energies we generate now, through our thoughts and emotions, our beliefs and desires, create what we will feel and experience in the future. This is individually and collectively.

If you don’t believe me, again, I ask you to look around. We know what hatred can do to our children. We know what intolerance can bring to our community. But have we thought about what love can do to change all of this? Have we considered what a constant diet of joy and peace can bring to our children’s futures?

img_5626

Friends sharing in word and tear.

And do we want to sit by while another child of fifteen dies in an adult men’s prison for what he did to bring us all together tonight?

I encourage us all to tap into the transformation of consciousness that has filled our planet, right now. Let us together display to the world a community that strives for higher love and higher peace. Let each of us help make our world a better place by filling our every second of every day with love, compassion, joy, and peace.

 

img_5628

Honoring Larry King, a fallen friend.

There’s no question about the fact that Larry King moved on way before his time. The child was fifteen years old before lightening struck in the form of two bullets, leaving this terribly deep void in the hearts of his friends and community alike. What an inspiration his life and death have been to so many of us. He was a child on a path towards discovering who he was, and all he wanted so desperately was to be able to share that knowledge with someone who really cared. This was just beginning to happen before he met his tragic end.

I went to the Vigil last Thursday night in Ventura in Larry’s honor to try to get a better understanding of who and what he might have been about. I missed last year’s, not being hip enough or knowledgeable enough at the time to recognize the many underlying layers of issues, to be present. But this year was different. There was no shortage of rainbow in presence or energy. Colors swirled across the board of humanity, from white to brown to black to yellow to red, with everything and everyone in between. There were the young and the old, the pierced and the tattooed, men and women, little boys and little girls. There were straights and there were gays and there was probably everything mixed in between. And there were agendas. Boy, were there ever agendas to be filled. Agendas for peace. Agendas for tolerance. Agendas for civil rights. Agendas for agendas, and then the tears and the laughs and all the questions began to flow.

Why were we really all together on this cold and breathless night? Was it to honor a fallen comrade or to make us feel a little bit better about who we were? Or could it be because we had our own sweet dose of inspiration to share with others? For me, I would say it was a little bit of everything. And there is so much more to learn.

Larry was a member of Rainbow Alliance’s youth group. Apparently he received much needed support from this group as he tried to discover who he was and what he wanted out of life. Many members of the Rainbow Alliance, boys and girls alike, spoke to and about Larry at the vigil. They talked about how much he meant to them, about the feelings they still had for him and the fact his young life was snuffed out at such an early age. But I think the most important lesson to be learned on this very special night was that there remains so much fear in the hearts of young people everywhere as a result of what happened to Larry. Men and women and boys and girls alike worry that the hatred and anger that caused Larry’s demise could shift its itchy finger towards them.

THE FEAR OF TRANSFORMATION

Kids in our own communities and elsewhere grow up scared because of who they are. As young as thirteen and fourteen years old, they believe they have finally discovered their own identities. They are accepted with affirmation from members and counselors at organizations like the Rainbow Alliance, who can totally identify with what they are going through. These kids then learn how to gain the strength to speak freely without any fear of judgment or recrimination about who they are…when it can all suddenly come crashing down upon them.

That’s why Larry ended up living at Casa Pacifica, basically a home for runaways. Because he was experiencing little to zero acceptance of who he was in his own home. At Casa Pacifica, Larry was at least allowed to be who he believed he was. He sometimes dressed in feminine clothing and wore makeup which he enjoyed doing. This made him happier than he’d probably ever been, free to experiment in dress and attitude. He was similarly accepted with this identification by those with the Rainbow Alliance and elsewhere.

Of course Larry’s newfound freedom was quickly stamped out by the ego, intolerance, and male youth at school. Teenage hostility and anger greeted Larry’s newfound expressions of freedom, and made him pay for it, dearly. As a result, others just like Larry are more afraid than ever. They don’t know where they can turn or walk, or who they can speak to, before someone hates them for who they are trying to be. Kids do these kinds of things to kids. They always have. Kids can be so ignorant and unforgiving, sometimes, and so intolerable. They learn this kind of behavior from their parents, their environment, TV, video games, and society.

Then, society takes over by striking the life of the fourteen-year-old who does this kind of thing to Larry. And then everybody becomes a victim all over again because that’s the way we do business these days. We kill one child who’s killed another child to deter some third child from doing the same thing to a fourth child, creating the same vicious cycle over and over, and it never stops.

For those who haven’t recognized this yet, there is no deterrence for kids – or adults – who act through uncontrollable outrage and negative reactive patterns. There is no rational thought processes going on when someone cannot control his or her angry impulses. And there are millions upon millions of these kinds of kids and adults out there everywhere just waiting to explode. This is why sending Brandon McInerney – or any other juvenile offender – to an adult prison for the rest his life will have absolutely no effect on the futures of disturbed children who take the lives of others into their own childish hands. Not all kids have the maturity to be able to make rational decisions when they’ve acted irrationally their whole lives, and this is the problem that has to eventually be nipped in the bud.

THE KEY IS TRANFORMATION

The key to healing our community (and the world) does not rest with causing more pain for society to process. The key to healing ourselves, and those who surround us, is to generate more compassion and love. And we do this by exercising more compassion and love, by brining more compassion and love into our lives.

We will begin to change the amount of violence that affects us as soon as we learn to change who we are. This was the message that I tried to deliver when I spoke at the end of Larry’s vigil. Oxnard School District Board President Denis O’Leary spoke of similar positive healing values, as did the reverend Brian Elster, Jay Smith, executive director of the Ventura County Rainbow Alliance, and one of Oxnard PD’s finest.

The key to transforming the world around us lies in what each one of us is willing to bring to the table of life in our efforts to heal ourselves, which in turn will change the collective pattern of energies on the planet on which we live. Tomorrow, I will post more pictures of the vigil as well as the speech that I gave that I believe creates a thumbnail of how we can accomplish this. I will then in turn begin to discuss the things we can do to protect ourselves, regardless of what our beliefs and thoughts are. There is so much we can learn on how to live free from fear of who we are – a truly inalienable, god-given right, that Larry King was never really given the chance to exercise.

I received this incredible letter from this incredible woman filled with compassion and tolerance in response to my editorial this past Sunday in the Ventura County Star regarding the Brandon McInerney case. It touched me tremendously, and provided me with a great need to share it with you. If you too are moved by what you read, please share your feelings…


Dear Mr. Mehas:

I have been saddened since first reading the article regarding the death of Larry King. As a parent and a grandparent my heart ached for the parents and loved ones of Larry and Brandon McInerney. What a tragedy . Now our self righteous district attorney Totten and Fox wishes to compound this tragedy further by having Brandon charged as an adult. This is not only cruel but borders on insanity.

There is an abundance of scientific evidence to prove that a child of 13 years and 19 days does not have the capability of adult thinking and reasoning. I suspect the district attorney has no children or not ones that have hit 13 years of age. Any parent (especially mothers) of a teenage child can tell you what they are like in middle school. First, they are scared to death of being different, they want to be accepted by their peers. I always laughed and thought they are little clones of each other. They dress the same, wear their clothes, hair and make-up the same, listen to the same music, and speak the same (strange to adults) teen language. If you are different in any way from the norm (too skinny, too fat, too nerdy, an egg head or gay, etc) you are tormented. All though this is not condoned by most parents or teachers this happens, it is part of the beast or right of passage.

Larry was different, he was openly gay. Many adults do not understand the gay lifestyle yet we expect a young teenager to understand and show tolerance? Not going to happen. By accounts Larry teased Brandon that he liked him a lot and would let be known to him and his friends. In Brandon’s mind he panicked. He was mortified that Larry or any of his friends would think he was gay. Of course his action of bringing a gun to school was absolutely the wrong decision. Maybe if he had been raised differently or if the school officials would have intervened much earlier he might have chosen a different course of action. Why didn’t the school (who knew there were problems between these two boys) made a counselor or teacher available for these boys to talk to? Maybe his intention was just to show Larry the gun to scare him. To let him know he would not tolerate him to speak that way about him. (again very inappropriate) We will never know. Teenagers say all the time to friends or parents “I hate him/her, I wish they were dead” of course they do not literally want that person dead. They are a rollercoaster of emotions and hormones.

I am not saying that Brandon’s should not be charged, of course he should be made accountable for his actions. BUT AS A JUVENILE. He should not be charged as an adult. HE IS NOT AN ADULT. It is horrible to think of this child being shoved into an adult prison with men who will surely abuse him. This is his death sentence. How can we justify this action? I understand Larry’s parents wanting justice for their son’s murder, but if it had been Larry who killed Brandon wouldn’t they want Larry charged as a juvenile?

I have spoken in length with many adults in my community who feel the same as I do. They are appalled at the district attorney’s office and the judge who made this terrible decision to charge this child as an adult. What can we the average citizens (but one’s who vote) do if anything about this injustice?

Sincerely,

Mrs. Thomas J. Bright

Ventura

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.

Brandon McInerney

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.

Prosecution’s reaction

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

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.

Waiver process

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

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.

Prosecutorial waiver

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.”

Public safety

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.”

Conclusion

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.

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.

img_5560

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.

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.

img_5193

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….

img_5189-copy

Scott Wippert, Robyn Bramson, and Josh Solberg arrive in court. 

Ventura County Senior Deputy District Attorney Maeve Fox is bent on punishing fourteen-year-old murder suspect Brandon McInerney - to death. She’s already bypassed any legal scenario where Larry King’s alleged teenage killer might get a fitness hearing to determine whether or not he is amenable to rehabilitation through juvenile court, by deciding to directly file the case in adult court. With thirty witnesses saying that Brandon shot Larry, and at least 51 mandatory years facing Brandon, he’s as good as dead.

Or is he?

HELP COULD BE ON ITS WAY

Not if his lawyers can help it. As reported here first, Brandon’s father fired his previous attorney and has brought on a team of young and aggressive lawyers who drive up from LA, while paying their costs out of their own pockets, just to try to save a kid’s life. And then when they get here, they get to listen to the DA, Maeve Fox, oppose the motion by telling the court, and all the world, that their motion is “Bush League.”

Scott Wippert, Robyn Bramson, Josh Solberg, and Summer McKiever head a defense that has filed a motion to discover documents in possession of the district attorney to show how Ventura County prosecutors decide when juvenile offenders will be tried in adult court. If granted, this motion would inform them, and the world, as to what factors the Ventura DA uses in charging juveniles as adults, and, in particular, what they considered when filing Brandon’s case in adult court earlier this year. But, of course, Maeve Fox has other ideas.

BUSH LEAGUE

“Guess what?” the senior Deputy District Attorney says about Brandon’s attorneys request. “They aren’t entitled to know what is mulling around in the DA’s mind.”

Say what? Who exactly does Ms. Fox think she is? She’s not the district attorney, that’s for sure. That job belongs to Gregory Totten. Secondly, Mr. Totten was elected by the People of the county of Ventura. We voted him into office, and he represents us: the People. And yes, I do vehemently disagree with Ms. Fox and her severe punish-to-the-max-with-no-compassion mentality. I believe that we the People of the county of Ventura do have a right to know what our duly elected district attorney is doing to our children who are accused of serious crimes.

A NOVEL APPROACH

Wippert, Bramson, Solberg, and McKiever are attempting to do something that no one else may ever have attempted. It’s a novel legal approach to breathe life into the darkness of not only a very ugly case that may ultimately take the life of two of our teenage citizens, but also of what goes on in the Ventura County District Attorney’s office. And it may be the only chance Brandon McInerney has to survive.

Because of the way Fox has chosen to charge the case, Brandon is as good as a dead boy walking. But with four attorneys who possess a determination the size of the Pacific, and with a little help from a courageous appellate court, Brandon just may, ultimately, win the right to a fitness hearing to determine if he might actually be amenable to rehabilitation, be tried in juvenile court, and earn the right to turn his life around.

QUESTIONS AND ANSWERS WITH THE ATTORNEYS

After court, Wippert, Bramson, and Solberg took a few moments to explain what they’re trying to do, and why it could be so important to all the voters in the state of California.

Please enjoy part one of two with three of Brandon McInerney’s fascinating new attorneys:

img_5192-copy

 The crowd gathers for discovery motion.
Q: You filed a motion to basically dismiss the case in its entirety based on the abuse of the discretion of the prosecutor in direct filing this case into adult court?
SCOTT WIPPERT: Yes, exactly.
Q: And that was denied by the judge?

WIPPERT: Yes, that was denied, and I don’t even think it was considered by this judge, quite frankly. I think that this is an issue that they don’t understand. And I think that was clear from the district attorney’s comments, as well as the judge. At first the judge talks about whether or not this mysterious threshold was met. And Ms. Bramson I believe clearly asked her, “Is there a threshold that we could make?” And then the judge backtracked and said, “No, there’s no authority for this…” And, you know, that’s how law gets changed. If there’s no authority for something, then it goes up to the appellate court. And that’s how authority happens. That’s how law happens… There are issues everyday that go up to the appellate court… The best-case scenario is having a trial judge, a judge ruling on the motion, who has the courage to actually follow the law, and the spirit of the law. And a lot of times that doesn’t happen. And we have to take it to the appellate court, where we have people who consider it more. And, hopefully, again follow the spirit of the law. And, with reason, look at our arguments, and not just respond like this judge did.

Q: How do you make the legal distinction between the mandatory provision versus the permissive provision in the charging laws for prosecutors?

WIPPERT: Well, there are certain cases that are mandatory direct filing…

Q: Like what?

WIPPERT: If there was a murder case where there was a lying in wait allegation, or something to that degree. There are certain categories that would make it so that the DA would have to file it that way. And this is not. It’s permissive. And even in their motion they say it would be an abuse of discretion to not file it that way. And again, in our mind and our argument by even saying that they did not exercise any discretion. And they abused their discretion by not doing that. So, the case should have been dismissed today, just based on their own arguments within their brief.

Q: What specific factors can you point to as to why they didn’t exercise any discretion?

WIPPERT: Ms. Bramson?

Q: Ms. Bramson… Can you site an specific factors that make you believe the prosecution didn’t use any discretion in direct filing this case into adult court?

Attorney Robyn Bramson then took over to answer.

BRAMSON: They “say” that they filed it based on the severity of the offense. They say – Maeve had said – that she filed it the way she thought the law required her to… And then they set forth only the facts of the case as a basis to support their filing decision. But that’s not enough. I mean it’s clear as day in (Welfare and Institutions code section) 707 that fourteen years of age plus the offense creates a situation where they can permissively file it in adult court. And our position is that more needs to be taken into consideration in order to make that final determination. It’s very clear, because they’re expressly saying so: they didn’t consider anything else. They considered the crime itself – and that’s it.

Q: What are the things you wanted them to look at? The background of this case?

BRAMSON: …It doesn’t matter to me. But it matters to the voters of the state of California who gave them this power, via Prop 21… Obviously, we assumed that they were going to be adopting some guidelines, some criteria, to help them make these decisions. Otherwise, we would have made it all mandatory, right? We would have said, Oh, well these crimes are very serious, and once you reach a certain age – all these cases get filed (in adult court). But, we didn’t do that. We separated it out for ‘em. Here, these cases are so serious that you must file these in adult court. These cases are on the fence. And so you’ve got to take that extra step, district attorney, and consider something else – or many something elses – in helping you make the decision. And they didn’t do it. And they’re admitting that they didn’t do it.

Q: Is there anything in the language in Welfare and Institutions Code section 707 that specifically requires them to consider these “something elses” like Brandon’s dysfunctional home life or the Larry King situation with the school, and school officials?

Ms. Bramson then asked if Mr. Wippert wanted to answer that question?

WIPPERT: …707(d)…what they’re using to file this in adult court, as opposed to the rest of 707 which allows them to have a fitness hearing in juvenile (court). Whereas, usually they would file it in juvenile court and have a judge determine, and use certain factors, like his lack of a record, the sophistication of the crime…his home life. All of these other environmental things. Everything that is about that child that judge will use to determine whether or not he is fit for the juvenile court. Can he be rehabilitated? As opposed to the adult court where they just punish. …That system was created so that a judge would make that determination. Not (where) a politically appointed district attorney, behind closed doors, can go and make a decision, and nobody can ever check how they went about making that decision. It’s a scary world we live in when we give the district attorney the power to make these decisions. And then nobody can ever understand or ask what you did, what you considered in…exercising that power. That’s scary.

End of part one of two…