Sailing Into the Wind

Every professor, mentor, and supervisor that I’ve ever had has given me the same warning: representing a person is about advocating for an individual, and not using that person or his case as a tool to make some larger point about society. This may surprise many of my readers, since many lawyers have spent the past few decades using individual lawsuits as vehicles for sweeping social changes. All of us are the products of economic and social forces far larger than ourselves; many of these forces are global in their scope, and my clients often cling to the bottom rungs of the social ladder while these forces blow them from place to place like a gale. Despite this, individualized justice does come for my clients every so often.

 

This is one such story.

 

At the age of 15, Ernesto’s parents hugged and kissed him goodbye just before he clambered onto the roof of a train that had stopped in his hometown in Central America. He joined a dozen others on the roof and rode the train away before the drug gangs in his town either recruited him, killed him on purpose, or killed him in accidental crossfire. He crossed Guatemala, Mexico, and finally the border into the United States; once here, he rejoined his older brother, who had made the same journey years before and had settled here in Santa Asphalt where I practice.

 

Rather than enroll my client in school, Brother brought my client with him to Home Depot every day to wait by the lumber loading area to wait for one of Santa Asphalt’s better-heeled residents to swing by in their Land Rovers and Escalades and recruit them for some sort of temporary outdoor labor. Yet Ernesto found himself in the United States, where high technology is rendered unfashionable by higher technology every year, and Ernesto found himself an affordable smartphone.

 

After he had turned 16, a friend introduced Ernesto to Nicki; Nicki went to school with Ernesto’s friend, and the friend assured Ernesto that Nicki was “easy.” Nicki and Ernesto traded text messages at first, and later on dirty pictures through a phone app designed to let people trade temporary, self-deleting pictures with each other (seemingly designed for teenagers to use the high-powered cameras in their pockets to send dirty pictures). Dirty pictures lead to an in-person meeting. This meeting turned into many, many sex acts in Ernesto’s brother’s car. Sex acts in the car lead to sex acts in a hotel room with my client and his brother. The next morning, Nicki’s parents called the police as soon as she returned home. Nicki, who was only 13 years old, told police that she felt as though she had to acquiesce to my client’s requests and that she didn’t really want to do any of the things that they did together.

 

Two weeks later, I walked into court to appear with Ernesto for the first time; the District Attorney had decided to prosecute Ernesto as an adult. I approached the Sheriff’s deputy in the courtroom who was in charge of inmate movement and asked about me client; he warned me that bringing a minor over from juvenile hall always took a long time, and that I should make myself comfortable in the courtroom while I waited. Instead of being comfortable, I decided to take a seat in the courtroom gallery next to the DA  and the lawyer who represented Ernesto’s brother. I sat and listened to the brother’s lawyer finish his pitch to the DA; unlike my little client, the lawyer argued, the older brother had not traded dirty pictures with the girl (each of which was child pornography, even if possessed by my underage client), and had engaged in about half as many sex acts with her. The DA scowled, but reluctantly agreed that my teenage client was far more morally culpable than his older brother, and then said that she would be willing to offer my client 9 years in state prison, but offer 5 years prison to his brother.

 

“Horseshit,” I blurted from my seat in the row behind them (I am still mildly embarrassed at having lost my cool so audibly). I knew that California had crafted a number of frightening ways to penalize teenagers for having sex with each other, and that even an offer of 9 years was below my client’s expected post-trial sentence. But the unfairness of the situation burned in my gut. Struggling mighty to keep my tone and pace even, I retorted that to my client, his victim was a social peer, and not someone whom he had hunted as vulnerable prey. I conceded that 13-year-olds could not give legal consent, but insisted that my teenage client’s interest in a 13-year old peer did not merit him being added to the Meghan’s Law sex offender registry along with serial predators and bona fide kid-touchers (many of whom I had represented). The DA shrugged with a nonchalance unbecoming of someone who wields so much power and reminded me that trial (and inevitable conviction) was the only other option.

 

Earlier in my career, I would have gone back to the holding cell and affirmed that our situation was, in fact, hopeless. But thankfully for me, I’ve had many clients who were 1) keenly in tune with their instincts and knew when they were being treated unfairly and 2) willing to resist in the face of what looked like certain defeat. More often than not, the chaos inherent to fighting a case delivers pleasant surprises, and sometimes, these clients wind up better than they would have had they accepted their first offer. This experience let me go back into the cell to face Ernesto, watch his face sink as I relayed the 9 year offer, but then watch it lift again when I vowed to stand by his decision not to accept the plea bargain.

 

Besides, I knew something that our DA did not seem to know; in a matter of months, Californians would get the chance to vote on what was known as Proposition 57, a criminal justice reform measure that stripped the District Attorneys’ offices of their unlimited power to decide whether to charge minors as adults. Proposition 57 would require that all criminal cases with minor defendants begin in juvenile court until and unless a juvenile court judge decides that the minor’s crime is too serious and that the juvenile justice system lacked the resources to rehabilitate the minor before he reaches age 21. Juvenile defendants currently in adult court would have their cases automatically returned to juvenile court for the juvenile court judge to render their findings.

 

In the past, Californians had sorely disappointed me with their votes on criminal justice measures by voting for every aggravation of criminal sentences while nixing every tax increase that might allow them to be housed in a safe, humane manner. But early polls had suggested that Proposition 57 would pass, and so I gave my young client advise that I had never, ever given before; “We can fight your case, but let’s try to drag it out until after the election.”

 

However, Ernesto’s preliminary hearing came before Election Day; the DA would have to present his young victim and have her testify in open, public court; her testimony would have been private had the case been in juvenile court, but who am I to question a prosecutor on what is in the victim’s best interest? Nicki testified as the first witness. In order to maximise the number of charges, the DA lead Nicki through an exhaustive list of all the things that she and my client did. Nicki then testified that she did not really want to do anything with my client, but nevertheless did everything he asked her to do.

 

Then came my cross-examination. In order to prevent the DA from alleging that my client had used “force, fear or duress” to commit his crimes, I had to walk Nicki through each and every time my client asked (yes, asked) her to do something with him (or to him). When my client asked Nicki if she would touch his groin, she said nothing but her hand in his lap. When Ernesto asked Nicki whether she wanted to be touched, she said “whatever.” When Ernesto asked her whether she wanted to have a “threesome” with his brother, Nicki said “whatever.” When Ernesto double-checked with her to see if she was “cool with it,” she responded by saying “I don’t really care.”

 

At this point, I had to pause. “I don’t really care.” Of all the possible answers a person might give to the question, “would you like to have a threesome,” I never imagined a situation where a person’s response would be “I don’t really care,” and I never fathomed that a 13-year-old would give such an answer.

 

“Do you believe that you have the right to tell someone ‘no’ when they ask for something sexual?” The DA got halfway through leaping out of her chair before catching herself and realized that I had not (yet) crossed the line. Normally, a victim’s sexual history is deemed irrelevant in most cases, and judges strictly observe this rule. But I had not solicited her history, only her beliefs. The DA returned her butt to the chair and waited for Nicki’s answer.

“I’ve never said no,” Nicki said. As badly as I had felt for my client up until that point, I knew in my heart that he had never been through….whatever personal tragedy had left 13-year-old Nicki unable and unwilling to refuse sex.

 

I tiptoed to my next question. DAs loved to use age differences between defendants and victims as a basis for arguing “implied duress,” a theory of duress that plays much more strongly between a child victim and an older authority figure. “Were you intimidated by my client being older than you?”

 

Nicki looks to her victim’s advocate, seated behind her on the witness stand, and turns back. “Ernesto’s the youngest guy I’ve had sex with.”

 

I paused and looked through my papers as though I were looking for more questions to ask. And then I looked up, and continued to pause.

 

“No further questions.”

The magistrate judge who heard the hearing found that there was enough evidence for Ernesto to stand trial, but then invited us into chambers. This judge was one of my favorites: an elloquent man with a bushy moustache who often gathered 5-8 interns in his chambers to hear his many nuggets of legal and historical trivia. He leaned back in his chair, leveled his gaze at the DA over his glasses, and asked: “what exactly are you doing with this case?”

 

“What do you mean, Judge,” the DA replied with a feigned lack of understanding.

 

“Why is this kid charged as an adult?” This judge was a veteran of our county’s juvenile court system, and had seen many cases more heinous than Ernestos, and had seen minors far more troubled than Ernesto be rehabilitated and successful after completing juvenile probation. The DA nodded as though she were actually listening, and then said that it would be my responsibility to prepare a presentation for her, her immediate supervisor, and two supervisors above her at the DA’s office to convince them to reverse their decision to charge Ernesto as an adult, and then helpfully reminded me that her 9 year prison offer would stand until the trial date.

 

My advice to Ernesto remained the same: let’s see what happens after the election.

 

Proposition 57 passed in November, and Ernesto’s case was immediately returned to juvenile court. The juvenile court judge who heard Ernesto’s case decided that since Ernesto was only 16 years old, the juvenile justice system had ample time and resources to 1) ensure that Ernesto completed some form of formal education and job training and 2) receive a severe enough punishment for him to learn the importance of seeking affirmative consent from sexual partners, all of whom must be his own age. Ernesto is now serving a sentence that entails 6-8 months in a confined facility (the most restrictive sanction available to juveniles who are not sent to prison), but will in the process continue on an accelerated path toward a high school diploma; at the end, he will likely live with a local cousin who has stable employment, a nuclear family, and far better judgement than Ernesto’s brother.

 

I remember the day I gave this news to Ernesto; he and I sat in a private room in his juvenile hall dorm and spoke through a Spanish interpreter. As I laid out how his next 6-8 months would look, I thought about the (literally) global forces that had pulled on Ernesto’s life to bring him here. Transnational gang violence pushed him out of his homeland. The state of California activated its vast prosecution/prison apparatus to try to claim nearly a decade of his life, but not before the same voters who had built this apparatus had a change of heart and decided to scale back prosecutorial power just in time to save my client. These forces churned, fought, and finally settled in a way that gave justice to one of my youngest and most vulnerable clients.

 

How about that?

 

Many people might look at a story like Ernesto’s and universalize his experience so that it can be inflicted on others. Some might look at Ernesto, label him a sexual predator, bemoan the tolerant state that allowed him to be treated like the juvenile that he is, and use him as a reason to make juvenile sentencing harsher on everyone. Others might question why Ernesto was brought into the system at all, given that he had no clear reason to suppose his partner was not really consenting and that teenagers having sex with each other should not be illegal under any circumstances; but these well-meaning bleeding hearts would effectively leave my client to continue making 5’s and 10’s in the Home Depot day labor market with no education and no reality check that his bad decisions can have dire consequences for him.

 

As his lawyer, my only concern is that things turned out well for him, as an individual. I think they did. In fact, Ernesto’s case was one of the only juvenile cases that I have had where the most restrictive option was the best option.

 

Respectfully Submitted,

Norm DeGuerre  

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Criminology 201: Selected Topics in Disorganized Crime

Criminology 201: Selected Topics in Disorganized Crime

In my last post, I discussed a client whose life experience failed to square with the accepted narratives that are taught to police, probation, and corrections officers during the course of their training. I now have a vision of what it would look like if my client were given the chance to communicate his life experience in a classroom setting. If any criminal justice class actually would let this client teach the lessons that he had learned just by living his life, the final result would probably be a wonderfully educational public relations disaster for the school in question. It might climax in a conciliatory letter of some sort to the aggrieved student body, with a short explanation of how little their textbooks had prepared them to comprehend life on society’s margins.

Like this one:

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From the Office of the Academic Dean, William H. Taft Institute of Criminal Justice and Weight Loss:

A number of students who were enrolled in last semester’s Advanced Criminology seminar have petitioned for review of their grades and disclosure of the grading criteria used by last semester’s guest lecturer. Our guest lecturer has provided a complementary set of explanations for the final exam that was given at the end of the term. He hopes that you will then use the lessons contained within his explanation to  figure out what went wrong with the remainder of your assignments, and assures you that “life is hard, but it isn’t complicated.”

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Question 1: Multiple choice, choose the correct answer.

You are a probation officer supervising a juvenile ward. He is often truant from school, and his urine has never tested negative for THC, suggesting daily marijuana use. To aid in this minor’s rehabilitation, you should:

a)    Violate the minor’s probation and advocate for his detention in juvenile hall – the

       minor must cease his violations of state and federal drug laws

b)    Order the minor to enter residential drug treatment for what is clearly a crippling

       addiction to a Schedule 1 controlled substance

c)    Get the minor drug counseling and something, anything, worthwhile to do with his day

d)    Wait until he gets arrested for something more serious, and then figure it out

Half of the class chose answer choice (a), the other half chose answer choice (b). Clearly, neither half had experimented with marijuana in high school. If you had, you would know that marijuana is not a reason to skip school; the decision to skip school is made completely independently of the decision to smoke pot. School holds nothing for a huge number of these children. They often have learning disabilities, or anger problems, and largely-inherited substance abuse patterns. They need far more help to succeed in school than they receive, and many predict their own failure early and throw in the proverbial towel. And with all this free time these kids now have, why not smoke pot?

Of course teenagers shouldn’t be smoking pot. It interferes with their brain development, screws with executive functioning (very relevant for someone debating the merits of stealing a car), and creates a lifestyle that makes it very hard for them to interact with professional adults (teachers, employers, customers, etc). But pot isn’t dangerous; in fact, it has no known fatal overdose. Depriving them of freedom for smoking it is counter-productive at best, and completely self-defeating at worst. Of course, some sort of intervention is necessary, and without it, this minor will likely end up in serious legal trouble: not because of marijuana, but because of the people in his life who also happen to smoke it. Those who reside in the real world will answer with choice (c). Those who are already employed in the system might answer with choice (d), but that’s not the right answer either.

Question 2: Multiple choice, choose the correct answer

Which of the following can be considered as proof that a juvenile has joined a gang?

a)    Wearing baggy jeans

b)    Living in a neighborhood that is controlled by a gang

c)    Spraying gang graffiti on a highway overpass

d)    None of the above

To those who chose an answer other than choice (d), consider for a second that the word “gang”suggests a semi-disciplined criminal conspiracy. Wearing certain styles of clothing, even if that clothing bears the colors or logos that gangs use to identify themselves, says nothing about whether a person is a member of any such organization. Anyone can wear a certain color of clothing, and clothing can be shed at will when the social group dynamics cease to reward the teenager for wearing them.

Like conformist fashion tendencies, mindless vandalism is also common to at-risk youth. Anyone can spray anything on any surface; the vandal does not need to have been given orders to do so in micro-writing that was smuggled out of a maximum security cell block in the anus of a corrupt corrections officer.

Finally, while many gang members have the misfortune of growing up in neighborhoods that are already divided into gang rivalries, no sane person chooses to live there. People are born there, stay there, have no hope of ever leaving there, and will probably die there. These kids have roughly the same life expectancy as someone living in the Middle Ages. Gang membership is assumed by rivals just by virtue of that child’s neighborhood. Before the child knows it, he is choosing his bus routes to school so as to avoid “rival” territory. He is already suffering the drawbacks of gang membership; wanting to accept the benefits is an easy sell, especially if they have no other alternative for safety. Again, the correct answer is choice (d).

Question 3: Short answer

What does it mean to “hold someone accountable” for his actions?

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Holy shit. As often as I heard you say this during our class discussions, very few of you seem to know what this phrase actually means. Holding someone accountable doesn’t mean showing them that their actions have consequences: anyone who has witnessed a car accident understands this. It doesn’t matter how many years of prison a person receives; the Convicted does not need you to remind him, repeatedly, in varying tones and volumes, that his own actions resulted in tremendous loss to himself and others. I suspect that many of you relied – to your detriment – on the thesaurus, which lists the following as synonyms for this phrase: attack, brand, blame, denounce.

Holding someone accountable for their actions entails building empathy for those affected by their actions; these parts of the brain may have atrophied from years of mistreatment in childhood, so we need to be patient. Holding someone accountable includes teaching them about alternative choices that could have been made. Extensive work needs to be done with those who – with or without reason – felt that they had no choice in their actions. Too many of your answers would have fit on bumper stickers, let alone three lines. Put more thought into phrases that are used so frequently. And for God’s sake, stop thinking in slogans.

Question 4:

Describe a situation where a person might plea “no contest” to a crime that they did not commit.

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Again, a disappointing number of blank answers for this question. The students who confronted me about this question after class insisted that no one in their right minds would do such a thing. During the course of these conversions, I inferred that none had ever been given poor legal advice by an attorney that either did not have the time to care, the ability to care, or the retainer to care about that person’s case. A depressing number of Accused plea because, quite simply, they do not have confidence that their attorney has heard, understood, or investigated their defense. And without a defense, why wouldn’t they plea?

Do not underestimate the frightening penalties that follow trial, especially in jurisdictions where the criminal sentencing laws (and the judges tasked with imposing them) are left to popular vote. Many, many innocent people (or people who have a colorable argument for their innocence) surrender their rights simply to minimize risk.

Finally, don’t underestimate how often the district attorney uses a “devil’s bargain” to coax a plea from a defendant who has a strong defense. In fact, the deals become more irresistible as the prosecution’s case weakens. For example, a defendant who is in custody on the day of trial will find a “credit for time served” offer irresistible. An 18-year-old will plea to terrible things in exchange for minimal time. A good lawyer will sometimes advise him or her not to take the deal, but the defendant will always respond by asking, “But I get to go home today?” In California, an 18-year-old becomes a walking life sentence if the charges to which he pled happened to be “strike” offenses; his next felony case might result in a life sentence. The DA gladly cuts time up front with the expectation that they will get him later; and if his record is made serious enough early on, that “later” can last the rest of his life.

I know that the premise of this question hurt some students’ tender sensibilities, but taking my lectures seriously would have given you plenty of material for to answer this question.

Question 5: Essay

Part I: Consider the the following hypothetical. The minor described below is a ward of the juvenile delinquency court and you are his probation officer:

    Jaime is a 15-year-old high school freshman. His mother probably should not have had children until she had a stable relationship and/or living arrangement. Jaime’s mom probably should have tried to have all of her children with one person, rather than several people. Jaime’s father should have attended his domestic violence classes like his probation officer wanted to. He also shouldn’t have died when Jaime was 9 years old. Jaime’s mother should have finished her drug rehabilitation program and should not have relied as heavily upon her own mother for child care. Jaime’s mom should not have dropped out of high school, because Jaime’s mom should not have had to settle for working a graveyard shift at the front desk of a shady motel by the freeway. Even though she insists upon working this job, Jaime’s mom really should be getting home in time to make sure that Jaime and his little brother are getting to school on time.

    Jaime should never have failed his first semester of high school. Jaime should have studied harder and placed a greater emphasis on his education. Jaime should not have gotten himself suspended for fighting; Jaime should learn to control his seemingly irrational bouts of anger. Jaime should not take his anger out on his family by punching holes in the wall. Most importantly, Jaime should not be cutting class to smoke marijuana.

Part II: Please comment on the following, and show how it would influence the way you would approach Jaime’s supervision:

When you use the word “should,” you are arguing with reality.

Unfortunately, I have no sample answers to discuss because none of you attempted an answer. This was disappointing given the preoccupation that most of the class expressed concerning criminal street gangs. Several students expressed interest in stopping violent gangs, mainly because of some awful episode of Lockdown: Life on the Inside that they insisted upon mentioning in class.  However, none of you realized that little Jaime is a prime candidate for gang membership. Kids love group identity, and young men love a sense of feeling power and control.

Imagine the many, many niches in Jaime’s life that would be filled by a gang. He would have family, safety, financial opportunity, and a steady drug source within one social circle. Eventually, Jaime will get caught. He will be arrested. He will be sentenced according to the astoundingly severe sentencing laws that Californians put on the ballot. As a result, Jaime will possibly serve 10, 15, or 20 years in prison on his first case. And with nothing to do for 10-20 years, and with no social capital other than gang membership, what do you think will happen once he gets to prison? Prison gangs are the Frankenstein of California’s criminal justice scheme, and fixating on what someone should do, taking decades from their lives for things that they should not have done won’t actually fix anything.

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Well, readers? What is your answer to Question 5? How would our approach to criminal justice issues change if we addressed the real world as it is, and not how it “should” be? Anyone? Anyone?

Please share your thoughts in the comments section. I would love to hear some new ideas.

Respectfully Submitted,

Norm DeGuerre

And what did you do on your summer vacation?

I wish I had known what I know now about juvenile gang members back when I was in high school. The Norteno/Sureno rivalry had already divided my middle and high schools in the Central Valley, and that was in the mid-1990’s. But I cannot say that my high school experience was “shaped” by gang violence in any way; by the end of high school, I had not interacted personally with any of the “gang bangers” for about five years. The academic tracking and income disparities in my high school meant that the “gang problem” at my high school really only touched the 30% or so of the school who were 1) Latino, 2) poor, and 3) not on the “AP” track.

I hesitate to throw the phrase “academic apartheid” around, but I’m at a loss for another description.

To make it even more unlikely that I would ever actually interact with one of Small Central Valley Town High’s “gang bangers,” they would often disappear for months at a time. Now I think I know where all of their time went.

Juvenile court makes huge demands on a kid’s time: random urine tests, court-ordered therapy, drug counseling across town, alternative schools. To make these appointments, kids take two, three, or four buses from one amorphous city to another. And if the bus route goes through rival gang territory? If you had to choose between being yelled at by a judge for skipping a pee-test and being stabbed, what choice would you make? These kids aren’t equipped to handle this level of responsibility. Don’t underestimate the amount of social capital necessary to reliably be at a certain place by a certain time when expected to do so. Sometimes the kids give up and decide that it’s easier to run away. Find a girlfriend who’ll open her window at night for a place to sleep. Maybe go steal a car and sleep in that. Believe it or not, this is easier for some kids than making an appointment twice a week in a city fifteen miles away.

And when they fail to “comply” with treatment, and when they get caught, they’re whisked away to a 6-8 month “enhanced ranch program.” Not that this program is THAT onerous, and not that they don’t need to screw up quite a few times on probation before they face this consequence, but just count how many days of one’s youth goes into such a project.

The Ranch is part high school, part kiddie jail, part camp. It’s located on the outskirts of the outskirts of town surrounded by a really tall fence. With the push on keeping kids out of Juvenile Hall, the Ranch is the most severe punishment the system can give to children. Well-behaved clients can even earn weekend privileges to visit their family at home.

And just so you know, the title to today’s post is more for effect than for accuracy; probation doesn’t care where a kid is in the school year to send him to the Ranch. For my clients who were actually doing well in their traditional high school (more than you might expect), the best-case disruption scenario is that it only ruins their summer vacation.

When I finally visited the Ranch last week for the first time, I saw six of my most frequent clients there. This was the surreal alternate universe where “gang bangers” go after getting in trouble too many times. I saw one client learning how to weld. There was another client learning how to use Photoshop. And there was another client being tackled by two big probation counselors.

And every single one of my clients was happy to see me. Clients who cussed me out the last time I saw them came up to me, shook hands with me, and showed me what they were doing or making. I think they were just happy to see someone from the outside, from the “real” world. Maybe it reminded them that the Ranch was just temporary if they played by the rules for long enough?

And as I left, I thought to myself, “This is where the gang kids at my high school disappeared to.”

Respectfully submitted,

Norm DeGuerre

Where Mercy is Not a Virtue

In the mid 1990’s, a repeat-criminal kidnapped, raped and murdered a photogenic twelve-year-old girl. In response, the state legislature and the voters raced to pass their own version of the Three Strikes Law.

And now this law is used against children.

My client today is barely old enough to drive and has never been in trouble with the police. However, through what I assume is a wide array of forces beyond his control, he began hanging out with gang members. He and two others beat up a kid they believed to be from a rival gang. The fight ended when one boy stabbed the victim, collapsing his lung.

As horrifying as this is, understand that you, the law-abiding citizen, are not powerless. The State of California may not have the resources to send a train really fast to Los Angeles, but they have no problem pursuing, arresting, and incarcerating children.

And thanks to the Three Strikes Law, Californians are able to deprive this child of vast numbers of years of what may well be his very, very short life based upon a thoughtless-but-terrible mistake.

The District Attorney accused my client of assault with force likely to produce great bodily injury. This was not an inaccurate charge, but he went further to allege that this crime was done “in association with” a “criminal street gang,” making the offense a strike.

What my client did was wrong and he deserved the trouble he was in, but a strike is as heavy-handed as you can get for a minor’s first offense. Any legal trouble in the future, however petty, could thus mutate into a multi-year prison commitment simply because of one terrible mistake made without one iota of executive functioning or rational thought.

Clearly the right thing to do is to show some degree of mercy to a boy who has just made the biggest mistake of his life. In this case, mercy would have been to remove the gang “enhancement” which would also have removed the strike. This is the right thing to do because the entire State of California is now his opponent. Mercy, by definition, can only be given by the strong. The weak are in no position to exercise “mercy.” If the strong fail to exercise mercy, then mercy will not exist, and this boy deserved mercy.

And so I asked the District Attorney for mercy. He said no. So I withdrew my client’s time waiver, forcing him to prepare his case for trial in under seven days. The Sixth Amendment to the US Constitution guarantees a “right to a speedy trial” but a defendant may choose to waive that right. A common reason to “waive time” is if more time is needed to gather evidence for their defense, but clients can pull their waiver whenever they want. Setting a case for immediate trial is the best way I know to handle an arrogant DA. When threatened with the possibility of real “work,” DAs usually make my clients a more reasonable offer. This case was no different. The evening before trial, the DA called me and told me that “after talking it over with [his] supervisor,” a non-strike was called for.

At this point my client is not receiving mercy. I pushed a rookie DA into a corner through parliamentary tricks, and he decided that it was easier to drop some of the juggling pins.

So it goes.

I speak with the DA again about amending the charge to a non-strike. We then discuss the subject of sentencing, which is called “dispostion” in juvenile court – doesn’t that sound nicer? He thought my client deserved commitment. I disagreed, stating that probation and the judge should have the ultimate say.

I found the DAs offer distasteful because I was taught that we don’t negotiate a “plea bargain” with kids. “Plea bargaining” is that unsightly process that keeps the adult courts moving despite the grotesque over-burden. If every adult defendant exercised all of his constitutional rights, the system would grind to a screeching halt. To prevent this from happening, defendants are offered “deals” to make them plea guilty. But we’re not supposed to do that with kids – they take responsibility for what they did and it’s up to the judge and the probation officer to decide a suitable “rehabilitation” program. Because I was taught we don’t “punish” kids, either.

The DA left our conversation there, but I could tell that he was holding something back. He almost said SOMETHING several times, and made vague references to what His Office had discussed about the case.

When it came time to recite the plea bargain on the record, he finally said what he was thinking. What he wanted was for my client to plea to the non-strike with the expectation that he would receive a commitment – if the judge decided otherwise, the deal was off and my client would once again face trial-keep in mind this boy is barely legal to drive- for a strike offense.

Because after all, he gave my client SOMETHING. Is it so unreasonable for the DA to ask my client to give the State a little sumpin’ sumpin’ in return? Say a little sumpin’ like six months’ worth of shitting in a bathroom with no doors? This would be like a pickpocket telling you, “I didn’t take ALL of the money out of your wallet, so you should give me half of what I left in there out of consideration.”

My client took the deal anyway – I guess I did a very, very good job of explaining the dire consequences of having a strike on his record. But I worry that I failed him in a number of ways. Mostly, I worry that I failed myself. So many thoughts about this case needed to be said because I think they were true. And I suppressed truth. And where I didn’t suppress it, I lacked the emotional vocabulary to voice it in real time. Would it have helped my client? Maybe yes and maybe no. I did get him the best offer he could have received from the DA’s office without having to put my client through a trial. But I think it would have also helped him to see someone stand up to “the man” on his behalf and to hear someone on the record call “bullshit” to a totally egregious sentence.

Mercy is not given in exchange for something, otherwise, it is “consideration.” Mercy is given despite being in a position of strength; flexing your strength to make someone accept your “mercy” is actually intimidation. Mercy is given regardless of whether the person deserves it; if the person deserves what they get, that is justice, not mercy.

And very, very few boys do not deserve mercy.

What do you mean my son is a gang member?

The following is a faithful paraphrase of what I told my juvenile client’s father this morning in response to his protests that his son was not a “gang member.”

Sir, I understand that this is your son’s first time in court on a juvenile case. I also understand that your son is not involved in an organized criminal enterprise simply because he and his friends beat up another kid for wearing the rival gang’s colors. Trust me, I would never label what your son and his friends did as “organized” in any way.

Your son is not a member of a gang; he’s the member of a group – and kids LOVE group identity. High school is even worse now than when you and I were there. Kids still worry about being liked by their peers. They want acceptance, but not from their parents. They want approval and support, but not from adults. Also, high school is DANGEROUS today, much more so than when we were kids. Three decades’ worth of poverty and urban decay have created an entire subclass of high school students who fear for their physical safety at the hands of kids whom they have to see every day in school. They don’t want safety from the police because the police can’t give it to them. They don’t want safety from the school administration because their actions often make things worse. One well-meaning adult can have a devastating effect on a child’s equilibrium with regards to safety and security. In short, teenagers want even less to do with adults now than we did when we were teenagers. But now they don’t just need social acceptance, they need safety and economic opportunity.

And so how do you expect a kid to react when he’s told that so long as he wears the same color as another group of kids, draws the same symbols on his binder, and shares the same hatred for a rival group, that he will have that group’s loyalty and support? The feeling must be intoxicating.

Now some of these kids are, in fact, organized into criminal enterprises. Some may even get orders from friends or relatives who are, in fact, involved in the prison gangs. They may even receive written orders that the prison gang leaders write on scraps of paper in their own urine. And after these leaders bribe prison guards to smuggle them out and these notes find their way to the streets, some kids may actually carry those orders out. However, this is a tiny fraction of the kids who claim any sort of gang affiliation.

But once boys like your son start aligning themselves with the handful of kids who are parts of these gangs, the state machine takes over. Every kid who yells “Norte” during a fight is believed to be part of a disciplined, quasi-military enterprise. The DA then charges these kids with “strike” offenses. When they turn 18 or 19, they pick up their first felony. Because of their strike offenses, they go away to prison for years and years. Once in prison, they join the actual prison gangs that the police claimed they were affiliated with in the first place. Eventually, they return to the streets with faces full of prison tattoos and no source of support or approval outside of the gang.

In short, the State wants to jump your son into the very gang they’re accusing him of having joined.

The good news is that the DA didn’t have the information that I have when he decided what to charge your son with. They don’t know about the victim’s concussion, so they won’t add the “great bodily injury” enhancement. Although I am more than a little annoyed that your son decided to waive his Miranda rights and brag about his gang “affiliations” to his probation officer, the District Attorney did not have any of your son’s boneheaded statements before deciding what to charge him with. Therefore, they didn’t have time to add the “gang” enhancement.

I agree that in an ideal world, your son wouldn’t have to plead to a felony assault charge that will prevent his juvenile record form being sealed; a kid should be allowed to make one non-fatal screw-up without having it hung from his neck forever. But none of that compares to having a strike on his record. If your son pleads TODAY, the DA won’t have time to aggravate the charges. Please, despite the fact that you met me only ten minutes ago, you need to trust me on this.

Drive-By Lawyering

Since I started doing juvie, I sometimes find myself rehearsing my legal advice in my car on the way to work. My seven-mile drive gives me precisely the amount of time that I have to advise my clients on important legal issues. It’s easier for my clients to understand me when I am concise and using fewer words is always more difficult than foaming at the mouth with whatever feels good to say. Explaining the pros and cons of various courses of action to boys who often have only a third-grade reading level in such a way that they actually understand complex legal concepts in under twenty minutes cannot be done without practice.

With traffic, my drive to work takes about 18 minutes. A sampling of things that I explained to my client in under 18 minutes today:

1. You tell me that you didn’t know the car was stolen. But the police report says that you confessed, and that he tape-recorded the entire confession. No, I don’t know if I can get you out today. I’m genuinely touched at how much remorse you feel for not being a better father to your daughter, but I have no idea what I can do for you if you don’t tell me which version of your story is true.

2. So I know that you remember me. I got you a “not guilty” on your last case here. You see why I’m really, really unhappy to see you back, right? Yes, you will probably “get out” of juvenile hall faster if you plea guilty today, but that is really not a good reason to plea. Well, you’re right, I can’t stop you from doing it if you want to. You do have the absolute right to decide how you plea. Just remember your rights next time before waiving your right to remain silent and confessing EVERYTHING to the police.

3. I know you didn’t actually steal the car, but your little thuglet friend told you that it was stolen moments after the police pulled him over for running the red light. And when the cop walked to the window, you and the other kid ran. Since you ran in different directions, the cops could not catch either of you. You knowingly, and successfully, helped your friend get away with a crime. That makes you an aidder or abettor to the crime and thus equally guilty. No, “accomplice” is a word that only exists in TV shows. The real term is aidder or abettor. Look, if you finish the probation program, they’ll wipe out your juvenile record anyway.

It should be noted that I had to repeat much of Item 3 to the district attorney. The district attorney was “offended” that my client was pleading guilty in court despite the fact that he denied involvement. Why? Because my kid cares more about getting out of custody as soon as possible than having the “real” story told and so he will say whatever it takes to make that happen? It may be the first time I have ever had to argue my client’s guilt to a DA.  And I don’t need to tell you that took less than 18 minutes.

Respectfully submitted,

Norm DeGuerre

On Behalf of the County of…

At some point during my time on the juvie team, I became the de facto spokesperson for the county whenever a parent is owed an apology. To illustrate:

Three Spanish-speaking mothers arrived promptly at 8:30 in the morning for their children’s court date. All three women had sons in custody, and for all three, this would be the first time seeing their sons after the arrest.

Through the combined efforts of no fewer than ten county employees, all three mothers would find themselves waiting until 1:30 in the afternoon to finally learn what would happen in their sons’ cases. Let’s start with our court reporter who works so hard on her Milf-Madness Cross-fit routine that she does not roll into court until 9:00. Why can’t she work as hard to keep her court schedule as tight as her ass? Meanwhile, the Sheriff’s deputy in the courtroom next door took it upon himself to request transportation for all of his department’s minors from juvenile hall at 8:00; this tied up the one and only holding cell that our two departments share even before these kids’ attorneys had a chance to talk to them. Why do I bother to make it a point to visit my in-custody clients in jail and show up early when I have court appearances? I just need a single-minded deputy working on my side! Thus, the attorneys in the department next door had to meet, greet, advise and assist their clients while in that holding cell, thus adding to the time that we, in the other department (yes, deputy, there is more than one department) had to wait until our minors could be brought over.

And has anyone seen the Spanish interpreter? The judge has a lunch to get to at 12:00, sharp! What do you mean the DA isn’t ready on the next case?! If he has the time to prepare such a lengthy and detailed excuse, wouldn’t it be easier just to prepare for the case? The judge isn’t the only one to whom you owe an apology, you know. And if you see the court reporter down at the coffee cart, can we get her back in the courtroom, please?

And so when the remaining cases are trailed to 1:30, why am I the only one who feels the need to explain to these three mothers that their sons’ cases just couldn’t be heard this morning? Was I tacitly “nominated” by a basic sense of decency? I’m sure the deputy next door feels the need to give an explanation. Oh, he knocked off for lunch already?  What about the DA? He represents “The People,” right? Ah, he means “His People.” That leaves the judge: You’re not shy about expressing your annoyance in court, are ya, Judge? Oh right, you’re only responsible for making decisions, not for dealing with the fall out. As the courtroom empties for lunch, I find I’m the only one left besides the three mothers whose helpless pairs of eyes follow my every move. How do I find myself serving as the ombudsman for the county? I put my three years of high school Spanish classes to use and talk to them without the aid of an interpreter.

Now off I go to eat the sandwich I brought from home at my desk. Maybe I’ll be able to get enough office work done in the 45 minutes before I go back so that I don’t have to explain to my wife later why I’m so late…

Respectfully submitted,

Norm DeGuerre