How to deal with negative triggers (Part 3): Get away from them

There are certain situations that confront us in life that make us wish we’d developed better skills in dealing with them. They act as triggers, allowing our emotions to get the best of us and our negative thoughts and reactions to create grief for others and ourselves. We say things we regret, or we explode and hurt others we love and adore. There are things in life – situations or people or jobs – that are seemingly unbearable to the sanctity of humanness. But they are just situations, and they can be dealt with in a different way.

By rationally handling any life situation from a conscious perspective, rather than from spinning out of control with negative thoughts and emotions, we can improve the reality that awaits us each and every day. We don’t have to continue the painful lessons life so readily offers, if we don’t want to. This is what Brandon McInerney and his family were never able to discover in life. Brandon was not raised with the skills that would have allowed him to deal with the pressure he felt coming at him from his school situation with Larry King. Brandon’s ego wouldn’t allow it. The more Larry teased him, the more hostile Brandon became. His rage grew as did his father’s. Yet, as we spoke about last week, Brandon and his family had made efforts to change the situation. However due to their pervasive unconsciousness, and the fact that school officials lacked a solid plan in handling the escalating problems between these kids, everyone’s attempts to thwart Larry’s provocative behavior failed. Larry may very well have had every right to do everything he did, but the reality is that these were both very immature children from an emotional level. They were both extremely unconscious in their lack of grace in dealing with life and each other, and, unfortunately, so were the adult figures in their lives.

GET AWAY FROM THE NEGATIVITY

And this is where others failed Brandon and Larry by not coming up with a solution to their problems. Once it became apparent that school officials would or could not alter Larry’s behavior, Brandon needed to make greater change in the way he responded to both Larry and the situation. He needed to learn how to calm down. He needed to turn his cheek, walk away, or go see a school counselor. He needed to somehow find the support base that would help him deal with his out-of-control rage. But once it was realized that this was not going to happen, then someone, anyone, had to get Brandon out of there. Remove him from what in Brandon’s immature mind had become an unbearable situation. Which is the second positive step Brandon, or any of us, can take in any given troubling situation.

If we can’t change it, then we need to get away from it. Remove ourselves from the negativity of relationship or the situation. Pick up our foundation and move it to smoother waters. But, of course, not all of us find ourselves in situations that we can just get up and move away from. Many of us live in untenable situations, like in prison, or in a prison-like situation where change and getting away are not options. For these types of situations, the only answer is surrender, which may be the greatest tool life has to offer …

To be continued….

Trying Brandon McInerney as an adult does not serve justice

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…

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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.

CARI BARICHELLO: Afterthoughts on Tyler Evans

This is a follow-up piece by one of our newest, prized contributors, Cari Barichello, a mother, activist, supporter of Tyler and other troubled youth, and administrator for Justiceforjuveniles.org, who has her own thoughts and suggestions following Tyler Edmonds’ ordeal.

Please read her wonderful commentary below, and tell us your thoughts on the issues raised:

Tyler Edmonds enjoys his freedom at last.

THE AIRING OF TYLER’S TRIAL

The airing of Tyler’s trial last week (on TruTV) has me once again, emotionally exhausted. You’d think after advocating for children in the adult system for over ten years now, I’d be somewhat immune to the heartache. I’m convinced now that will never happen, and that’s okay, because with that pain comes anger and that anger ignites my determination to change our corrupt system even more.

I learned so many new things this week to add to the same old judicial woes not just from Tyler’s trial per se, but from those who watched with their own eyes, as I did. Some are realizations and some are personal insights that have been eating away at me for years.

Tyler’s mom, Sharon, told the police she did not want Tyler questioned alone, yet the deputy was ordered to remove her. I have to wonder if the jury was flabbergasted when they seen that poor woman pounding on the door to get into the same room with her son? “Wait,” they must of thought…”don’t we teach our children to not speak with authorities without a parent or attorney present? Have we got it all wrong?”

The one good thing that came out of that taped confession is that very issue. Had an attorney been present, he would never have allowed Tyler to speak one word. It proved that law enforcement can do at times what they want, when they want, even if it’s outside the lines of our laws.

MANDATORY SENTENCING

Mandatory sentencing is not a “One Size Fits All” solution. There has to be a middle ground or meeting of the minds of sortS when it comes between the fine line of juvenile and adult punishment. For the harshest of crimes, a Juvenile ends at age 18-21, Adult is “Life Without Parole,” even for first time offenders. Both the Adult and Juvenile systems need an overhaul to either extend the time period of incarceration or impose adult status and punishment after age of majority, if the child has not reached rehabilitation.

HR 4300

HR 4300 needs to pass this 2009 session to end Juvenile LWOP and to allow judges discretion when sentencing. The Grand Jury system has to become balanced by presenting the defense side, not just the State’s. This (the present) form of ease to Adult Waiver makes it effortless for the ELECTED State’s Attorney’s to warehouse our children with adult criminals. Lastly, not all children are in need of rehabilitation! Why do we decide punishment around that one main fact? Like Tyler, there was nothing mentally wrong with him, he just trusted a manipulative adult. Bad choices should not automatically deem a child in need of psychiatric help.

This chapter has ended now for Tyler who is now a legal adult, by all sense of the word. As Ms. (Robyn) Bramson so eloquently pointed out in regards to her client Brandon McInereny, “In the juvenile system he would have been referred to as Brandon. In the adult system he is referred to as Mr.McInerney.”

My last word to the state of Mississippi: “Mister” is a surname for an adult. Please call Tyler Mr. Edmonds from now on and show him the respect today he deserves that he did not get when he was a child.

(Continued) Part two of two: Trying to save Brandon McInerney’s life

This is the last in a series of four interviews, dating back to last week, with Brandon McInerney’s new attorneys, Scott Wippert, Robyn Bramson, and Josh Solberg. Here, Stolen Boy narrows the issues in trying to explore who this fourteen-year-old child, that the Ventura County District Attorney has deemed worthless to society, is. Tell us what you think.

Brandon McInerney’s attorneys: Josh Solberg, Scott Wippert, and Robyn Bramson.

Q: What do we need to understand about Brandon that we currently don’t understand?

BRAMSON: …Brandon is a fourteen-year-old kid. He’s not Mr. McInerney. And it’s funny to me in court how suddenly he’s Mr. McInerney. I don’t know any fourteen year olds who go by Mr. anything. It’s completely age inappropriate and completely ridiculous. It’s a fiction that we’ve created, that this child ceases to be a child because he’s in this courthouse, and the case is called, People versus Brandon McInerney… In juvenile court, he wouldn’t be called Mr. McInerney. He’d be called Brandon…

Q: There’s an organization called Justice for Juveniles that states, “Children are never adults.” Could Brandon’s case be considered a metaphor for such a statement?

WIPPERT: …I’m familiar with that organization… It’s fourteen and fifteen-year-old children, and that’s what we need to remember. It’s children. And as I look back to the things I did as a child, and my thought processes – it’s just amazing to think that just because the DA said so, now Brandon’s being treated as an adult. Or, just because he just turned fourteen-years-old, now he’s an adult. He’s not an adult. He’s a child. His brain has not fully developed, and he does not understand the consequences, as no child does. Children have to learn those types of things.

Q: What do you say to those who imagine Brandon having committed an evil act?

SOLBERG: …At least in the imagination of the DA, who is supposed to represent the public, he is irredeemable, maybe. Irremediable… That’s what their decision to charge him as an adult implies.

WIPPERT: Their filing decision implies that he has no value anymore. He is not able to be rehabilitated and be a productive citizen of society.

BRAMSON: Or they don’t care.

WIPPERT: Yeah, and if you knew Brandon you would absolutely not have that opinion. He is a child. You would see a child that you would want to take home.

Q: So you’re saying the overall facts and circumstances require Brandon’s case to be seriously considered for juvenile court?

WIPPERT: Absolutely. The difference in the juvenile system and the adult system is that the juvenile system is rehabilitative in nature. And the adult system is punishment. You do not get training, you do not get counseling, you do not get schooling in prison. You are housed with other animals, and that is what you’re treated like. In juvenile facilities they still see some redeeming qualities. They give you schooling.

Q: If Brandon were tried as a juvenile, would Larry King’s family receive justice?

WIPPERT: We’re not asking that Brandon be just allowed to walk free. I think that the punishment of fifty-three (years) to…spending the rest of his life in prison is too steep… We’re not asking that he go home with us today – although we want to take him home, because we know Brandon. But, yes, there has to be some consequence. It was a horrific act, yes. But he’s a child.

BRAMSON: …We get caught up in this justice idea, but I think a lot of times we’re confusing retribution with justice. And I think that’s what’s going on here. And I think when we start coming from a place of wanting to see retribution as a society instead of wanting to see people get better…and function and contribute to society, we got a problem. And I think we got a problem…

Q: What kind of child is Brandon?

WIPPERT: He’s a child… He’s not a monster. And what the district attorney and what a lot of the media is portraying him as is someone who committed the most heinous crime for the most wrong reasons. That being a hate crime, and there being some “gay issue,” or something of this nature. And if you really get to know Brandon, he is not a monster. He’s a good kid who obviously made a horrific decision, and a horrific act he committed. But that does not make him a monster. And he is the product, in large part, to his environment. And, unfortunately, now we’re in a place where we have to deal with him in adult court. And our whole goal is to have him treated like the child that he is. And have people stop saying that he’s a monster and that he’s an adult.

Q: Brandon’s previous attorney stated that he wanted to expedite the trial to be able to preserve the youth in Brandon for the jury, to present that child to a jury. Is the fact that Brandon is growing into a big kid going to affect him in front of a jury in this case?

WIPPERT: I think there’s no doubt it will. But it’s our job to make sure that we explain to the jury and paint the portrait that is Brandon at the time of this offense. And should we hasten this trial and push it just to keep his youthful appearance, and not do what is necessary and ethical? Absolutely not. I think we have really valid arguments on why this case should go back to juvenile court. He should be prosecuted as a juvenile. Are we giving up something in his youthful appearance? Potentially. But, I think it would be unethical, and, just morally wrong to push it just for that reason. To make sure that his youthful appearance is apparent. We will always have to paint him as the child that he was, but at the same time there are legal issues. And there are checks and balances that have to be made for the district attorney and the court…

Q: What else can you tell us about Brandon?

WIPPERT: …We’re trying to give you what information we can, but, at the same time, we don’t want to compromise our defense… There’s so much we want to tell you about Brandon, and his environment, and the situation at the school, and between him and Larry, and I just don’t think it’s the appropriate time for us to do that right now. But there will be a time, at some point…

BRAMSON: I agree. But I will just say generally, when you’re a kid, you’re a kid… You haven’t reached that point in your life where you are an independent thinker. And you have reached that point of maturity where you can sift through various ideas, and you can say, okay, I believe in this, or I don’t believe in that. You’re just exposed to everything, and you’re absorbing everything, without recognizing what resonates and what makes sense to you. I think that’s the case with every kid. Developmentally, I don’t think you can get there until adulthood. Which is why we (and the law) recognize differences between minors and adults. Because there are differences. It’s not that a fourteen year old is just a miniature version of a thirty seven year old. It doesn’t work that way.

Q: What scares you about this case?

BRAMSON: …The district attorney is concerned with public safety. But from a public safety perspective, does it make much sense to want to send this kid to an adult prison with these horribly violent, dangerous offenders…?

WIPPERT: Men.

SOLBERG: This kid with no prior record, no prior history… He’s going to go into prison with, like you said, all these hardened, imprisoned, criminal men. And he’s going to potentially spend a great deal of time there, and the greatest likelihood is that when he comes out he’s going to be a hardened criminal.

WIPPERT: Because that’s what they do in prison. You have to adapt. And people in prison have to be imprisoned. 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 has the ability to learn, and to change. And 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, yes, 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.

BRAMSON: …And it goes back to the whole thing that we were talking about with just him being there. As a child, you absorb whatever it is. Stick a kid in music camp, they’re going to pick up some musical ability. You send a kid to cheerleading camp they’ll learn some cheers. Send a kid to prison, what do you think they’re going to learn? There is a culture in prison, and he’s going to live there for a very long time.

Q: Have you ever met a bad kid?

BRAMSON: I’ve never met a bad kid.

Q: This is a kid who’s done something bad.

BRAMSON: Correct

Q: Isn’t that what we’re talking about here?

BRAMSON: Absolutely.

Q: In these cases?

BRAMSON: Absolutely.

Q: Beatings. Rape. Suicide. Isn’t this what a child who is sentenced to an adult prison can come to expect?

WIPPERT: Unfortunately, yes. That’s what he’s looking at. Unless, somebody stops it.

THE END.

Brandon McInerney’s lawyers speak up about Brandon, their efforts to save his life

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….

Jury finds Tyler Edmonds not such a bad kid after all

It’s amazing what some kids have to go through just to prove their value to society. Take Tyler Edmonds, for instance. When he was young, Tyler admittedly did some bad things. For one, apparently, he used to lie, a lot.

The nineteen year old who recently walked out of a Oktibbeha County courtroom this past Saturday in Starkville, Mississippi a free man – as opposed to the 13-year-old who had been convicted of murder and sentenced to life in prison – had lied when he told investigators that he helped Joey Fulgham’s 26-year-old wife, Kristi, fire an old .22-caliber rifle bullet into the back of Fulgman’s head as he slept in his Longview community home in the early morning of Saturday, May 10, 2003. Tyler also used to lie to his mother about secretly visiting his father, to Joey, his ex brother-in-law, about Kristi’s whereabouts when she was with other men, to law enforcement officials and others. But lying is not the same as murder. And we don’t sentence kids to life in prison for being liars.

We now know for sure that not only is Tyler Edmonds not a murderer, he’s not even a bad kid. A jury of his peers has proven this. Tyler’s just a kid who did some bad things in his life. There are kids just like Tyler all over the country. And nearly three thousand of them have been convicted for doing bad things as juveniles and they are now paying for it with life sentences in adult prisons with no chance at parole.

This is an absolute travesty of justice that must be changed, but now has one less victim to deal with. Big kudos to the team of lawyers, supporters, and believers who fought hard to win Tyler’s deserved freedom, and to Tyler as well for doing what was necessary to turn his life around, and become the living embodiment of inspiration to so many others.

JUSTICE FOR JUVENILES

Upon hearing of the verdict, Cari Barichello, Co-Administrator of the nationwide online children’s advocate group justiceforjuveniles.org said, “To say we are extremely pleased over the not guilty verdict today is an understatement to say the least. Tyler has remained one of our largest priorities since his nightmare began at age 13, because we believed that Tyler was a victim of Kristi Fulgham just as Joey was.” Barichello says that Tyler has stayed positive because of his Christian faith and love from his many friends, family and supporters throughout his tragic 6-year ordeal.

Donna Gallegos, also of justiceforjuveniles.org, agrees. “This is a joyous day for Tyler and those who love and support him.” Gallegos says Justice for Juveniles is extremely grateful to Barry Snyder, a North Miami Beach criminal defense attorney who assisted Jim Waide and Victor Fleitas of Waide and Associates in Tupelo, by providing his expertise to the defense team who never gave up and fought a long hard battle to prove Tyler’s innocence. Without the assistance of The Innocence Project of Mississippi, Amy Singer, CEO and founder of Trial Consultants Inc. a Fort Lauderdale Florida Jury Consulting firm, Radley Balko senior editor of Reason magazine and Reason.com and many others, Edmonds would be spending his entire life in prison for a crime he did not commit.

The Mississippi State Attorney insisted on wasting Mississippi’s taxpayer dollars and most of Edmonds youth by trying 13-year old Edmonds twice after the Mississippi Appeals court overturned Edmonds first conviction. “As a child advocate for several years, I must say Tyler’s prosecution is another sad example of America’s justice system losing sight of what justice is suppose to be when children are suspected or accused of crimes,” said John Osborn from New Jersey. “Children are not adults and need not be destroyed in the name of vengeance, the way this boy’s life almost was.”

SHORT HISTORY

In January 2007 the Mississippi Supreme Court overturned the conviction of Tyler Edmonds who was 13 years old when charged with 1st degree murder of his half sister’s husband, Joey Fulgham.

Tyler was convicted in July of 2004, with no forensic evidence other than a false confession he made after his half sister begged him to lie for her. Tyler recanted the confession a couple of days later. Tyler’s half sister, Kristi Fulgham was convicted in December 2006 for Joey Fulgham’s murder and sentenced to death.

The Mississippi Supreme court agreed that Dr. Stephen Hayne, who performed the autopsy on Joey Fulgham, over-reached beyond his area of expertise when he stated that two fingers pulled the trigger of the 22-caliber rifle used to kill Joey Fulgham. The Supreme Court found that Dr. Haynes testimony was scientifically unfounded but carried heavy weight with jurors. The rifle was never recovered.

Tyler’s adult half sister, Kristi, was convicted of the murder and sits on death row.