The Judicial Reality Show

A friend — a civil law attorney — contacted me the other day to tell me that she was referring someone over. A more-than-worthy cause, if it checked out, she said. If and when she reads this post, I suspect she’s not going to like it (which is why I’m not going to identify her, or provide any identifying information on the case), but I hope she will not dislike it.

I don’t know what the world of civil law is like: so far, I practice only criminal defense. I have resisted repeated encouragement — you could even class some of the encouragement as entreaties — to give in and practice some form of civil law, because I think if you want to be expert at something, you have to focus on doing that thing. Thus, I have been fairly fanatical about the defense of adults and juveniles accused of having committed crimes. I read enough civil law to ensure that I’m not missing something which would make me a better criminal defense lawyer, but I have no wish to practice it. ^[1]Maybe this will change one day. It’s becoming harder and harder to make a living in this economy based on doing only criminal defense. Potential clients have less money and, unlike the world of civil law, they have the option of going with a public defender.

What I do know is that the world of criminal defense does not — neither in my own experience nor in stories I hear from other criminal defense lawyers — function as my friend believes it does.

The world of criminal law has much to do with criminals — both those enrobed and those accused — and not so much to do with law.

A case in point comes from a juvenile case I handled this past week. Since I intend to writ the result, I (again) won’t be going into any specific details on the case. Nor do I need to, because I’ve had more than one juvenile case over the past few years with the identical result.

The case involved what is known in the literature as a “fitness hearing.”

Myself, I refer to them as “fuck you” hearings. We could perhaps call them “fuck you and the attorney you rode in on” hearings.

A “fitness hearing” — and remember that I’m a criminal defense attorney practicing in the area of Fresno, California, so I’m always discussing California criminal law — is allegedly a hearing held when a juvenile has committed a crime and a specific set of circumstances are alleged. The details are unimportant for a blog post. According to statements of California courts, including the California Supreme Court, the purpose is to determine “whether the best interest of the minor and of society will be served” by keeping the child in the juvenile system. In other words, the purpose of a fitness hearing is supposed to be to determine whether a juvenile is “fit” to be tried and convicted — because, as you’ll see, if a fitness hearing is considered, there will never be a question of finding the allegations not true — within the juvenile “justice” system. ^[2]People v. Superior Court (Ronald H.), 219 Cal.App.3d 1475, 1479, 269 Cal.Rptr. 4 (1990), citing People v. Chi Ko Wong, 18 Cal.3d 698, 718-719, 135 Cal.Rptr. 392, 557 P.2d 976 (1976).

In reality, the purpose of a fitness hearing is to transfer a juvenile to the adult court, to be tried and convicted, or plead out by his attorney, and punished, as an adult.

Because, again, the question of guilt never really is considered.

In fact, under California law, for purposes of a fitness hearing, guilt is presumed. ^[3]Rene C. v. Superior Court, 138 Cal.App.4th 1, 10, 41 Cal.Rptr.3d 71 (2006). You cannot even argue it. However specious the evidence may be against your client, the best you could possibly do is use evidence tending to show innocence as hopefully also capable of showing that your client — the child you defend — is still fit for adjudication in the juvenile “justice” system.

As you will soon understand, only in the extreme case where somehow, some way, the prosecution screwed up and actually charged a juvenile who everyone quickly realized was probably one-hundred-percent innocent — only then could you possibly successfully utilize the evidence to also show that he was fit to remain in the juvenile system.

This, as I said, has nothing to do with the law. It has everything to do with those enrobed and entrusted to apply the law. But the days when the judiciary cared about the law — if they ever existed (and a frequent criticism I hear from many older lawyers is that I pine for a time that never existed) — are long gone.

Today the judiciary is just another arm of the government, coterminous with law enforcement and the prosecution. Only in the most egregiously obvious or easy of cases will the judiciary deviate from the co-extensive governmental bounds to which it has adapted itself.

There is more than one way a juvenile — a child — can come to a fitness hearing. Under certain scenarios, the prosecution will have to prove that the child is unfit. The scenarios I’ve always had to deal with require that the child is presumed to be unfit. ^[4]Rene C., 138 Cal.App.4th at 10. Then I have to show by a preponderance of evidence, that my client, the child, is actually fit; in other words, that the prosecution and probation departments are wrong. ^[5]Id.

There are five criteria to assess in determining fitness. ^[6]People v. Superior Court (Jones), 18 Cal.4th 667, 682, 958 P.2d 393 (1993). The child must prevail — using the preponderance of evidence standard — on each of the five. Lose one, and you’ve lost the whole enchilada.

Or child, as the case may be.

The factual findings made by the juvenile court judge will be upheld on appeal if supported by “substantial evidence.” ^[7]Marcus W. v. Superior Court, 98 Cal.App.4th 36, 40, 118 Cal.Rptr.2d 919 (2002). Surprisingly, to those who speak English instead of courtspeak, this is a significantly lower standard than “preponderance.” ^[8]I can’t point you to a case that actually states this. You have to look at the results of cases where “substantial evidence” is considered. Oh, and be sure to look at the ones where the burden is on the prosecution, or where a lower court judge’s decision is in question. If you look at cases involving “substantial evidence” where the burden was on the defense, you will find that “substantial evidence” is suddenly a very, very high standard. If I made my living studying linguistics, or if I were independently wealthy and could devote the time to it, I would write an article on the way these standards, defined by exactly the same labels, change, depending on whether you’re a government agent, or a defendant.

So what are these five criteria?

As defined by Welfare and Institutions Code section 707, in each of the subsections which cover them, they are:

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.

In virtually every fitness hearing in which I’ve been involved so far, the Probation Department writes a report in which it recommends that the child be found fit in regards to numbers 2, 3, and 4 above. In virtually every fitness hearing in which I’ve been involved so far, the Probation Department writes a report in which it recommends that the child be found unfit in regards to numbers 1 and 5.

Remember: lose on one, and the child is gone. History. Thrown away. The court washes its hands. The child ceases to exist. He is now an adult.

Even when he’s not.

I almost always write my own fitness hearing brief in which, naturally, I disagree on the recommendation for a finding of unfitness. My points are nearly always variations on the same thing: the law doesn’t allow it.

Why? Because in virtually every case in which I’ve ever been involved, the Probation Report finds the child unfit based on the fact that he committed the crime. For example, in the last fitness hearing I lost, probation had stated, “The minor should be found unfit as to criminal sophistication on the basis of having used a weapon alone.” ^[9]Without pulling the file, I believe that is an exact quote. It was so stunning to me that they would actually say such a thing that it was seared into my brain.

But, as I said, the law does not allow that as a basis for finding the child unfit. As multiple courts have noted:

If we were to accept this reasoning, which we do not, all fitness hearings involving a minor charged with any of the offenses enumerated … would reach a foregone conclusion and thereby be deprived of purpose. Such a result is impossible to reconcile with the language of [the statute], which clearly does not create a mandatory or irrebuttable presumption. ^[10]Jones, 18 Cal.4th at 682-683, quoting and citing Edsel P. v. Superior Court, 165 Cal.App.3d 763, 777, 211 Cal.Rptr. 869 (1985)(emphasis in Jones); In re William M., 3 Cal.3d 16, 30, 473 P.2d. 737 (1970).

As I have said in more than one argument to a trial judge:

“Clearly, the legislature intended that the court should exercise its discretion on the facts of the individual case….” William M., 3 Cal.3d at 30.

In doing so, the court should take into account not just the nature of the offense in the abstract, but also the facts specific to the crime alleged against the individual. See, People v. Dillon, 34 Cal.3d 441, 479, 194 Cal.Rptr. 390, 668 P.2d 697 (1983) (emphasis added). The California Supreme Court stated that a juvenile can use police reports and other submissions to the court “to argue that his participation was not as grave or serious as the charge would initially lead a court to conclude.” Jones, 18 Cal.4th at 682, quoting People v. Superior Court (Zaharias), 21 Cal. App. 4th 302, 307, 25 Cal. Rptr. 2d 838 (1993)(emphasis added). ^[11]The internal cites here may be “incomplete” in the traditional sense, because this is an extraction from one of my own briefs.

This argument, however, has never swayed a judge before whom I’ve appeared yet.

In one case I handled, where a child was charged with first-degree murder, the child in question had been born nearly dead. ^[12]The details of this case are now a matter of public record, since I lost the fitness hearing and the child’s family subsequently told him to accept a plea agreement that resulted in 11 years for manslaughter. So deprived of oxygen was he that his intestines began to rot and sections of them had to be cut out within days of his birth. You can imagine the impact the original insult had on his brain. The subsequent “short bowel syndrome” meant further insult due to nutritional inadequacies. The child was alleged to be part of a group which killed a man. The murder was a terrible crime. Horrific. Ugly. Most decidedly uglier than your typical murder. But eyewitnesses at the scene saw two figures — they could not identify anyone — standing apart, not participating, who then ran away. My client was interviewed and — there’s no other way to put this — tricked into saying that he actually hit the man “once.” During one part of his “confession,” he alleged he hit the man “once” on the leg; during another part, after the interviewer had repeatedly rubbed his own belly while asking the question, he said he hit the man “once,” but this time his “once” was on the abdomen. My world-known expert testified for two days concerning the child’s mental capabilities. If you cobbled together one million children, you could find approximately a thousand who were as bad off as my client. A thousand sounds like a lot, unless you remember you have to go through a million to find the thousand. Oh, and if you believed all the evidence, he was given beer by the other kids, which he drank until he threw up. After which they teased him mercilessly and had a good laugh. According to the expert, who had authored over 225 peer-reviewed journal articles and led symposia over 80 times in numerous countries throughout the world, my client was probably so overwhelmed as to be frozen in his tracks while the murder occurred before him. And remember, I had eyewitnesses that at least two figures appeared to be standing back, not moving. Just standing there frozen.

But this was not enough to overcome the preponderance of the evidence standard. Because someone killed a man. The child was present when it happened. Whatever the degree, whatever the level, of his own involvement, the circumstances and gravity of the offense were horrific. However mentally impaired he was, his level of criminal sophistication was too high, because he did not run away soon enough.

The prosecution never bothers with a brief. There’s no need. The law as I stated it above is crystal clear, but no judge I’ve ever seen will follow it. So why should a busy prosecutor waste time, energy, and paper writing a brief, even to refute my points and authorities?

Which brings me back to my friend, the civil law attorney. Based on what she’s told me, I agree that the case is as good as they get on the issues involved in it. As I said, I won’t give details. I will only tell you that it involves medical marijuana. I agree with my friend that if ever there was a case that shows law enforcement is not only pursuing criminals who cover their illegal activities under the guise that they are exempt, but is going after anyone at all who possesses marijuana, this is the case. It’s possible — possible — that because the individual being targeted is destitute and because it’s such a clear-cut case, I might be willing to take it on pro bono.

But I’m not at all certain it’s the no-brainer that my friend thinks it is. I’m not at all sure this will be the “poster child” for all that law enforcement is doing wrong in going after individuals like the one she is referring to me.

It’s not because the law is against this person. Not all all. Not even remotely.

It’s because I’ve been a contestant a number of times already on The Judicial Reality Show.