The Marker

October 24, 2012
/ Author: Rick

If you’ve read this blog for awhile, you know I don’t usually write about my own cases. This is particularly true when the case involves a juvenile. I take it on faith that the reasons probably don’t need to be stated.

Sometimes, though, something happens, and I realize that I have to tell the story.

I don’t, of course, have to give identifying information, and I won’t, of course, give it. The story does not depend upon any of that, at least partly because this story is being lived by more children with each passing day.

In the juvenile justice system in California, a child who gets into a bit of trouble for the first time can be dealt with in a number of ways. By the time they arrive at court, though, the sane way has usually already been forsaken, leaving only a menu of bad and less-bad choices.

Among the “less-bad” is the option of Deferred Entry of Judgment, or DEJ. Let me describe how that works where I practice law.

If a child is eligible for DEJ, the child admits to having committed the crimes with which he or she is charged. The child and family are then referred to the Probation Department, and a Probation Officer assesses the child and the child’s situation — family, school, etc. — to determine whether Probation believes the child is “suitable” for the DEJ program. My understanding is that Probation is assessing the likelihood that the child will succeed on DEJ.

If Probation believes the child is suitable, then a report is prepared, recommending to that the court “find” the child to be suitable. Probation recommendations are usually, though not always, followed by the courts.

If found suitable and the court accepts the recommendation, the child is placed on probation, sometimes given some tasks such as community service, perhaps attending a class on why it’s bad to steal (or whatever class is appropriate), or the child may have to write a three-page essay called “Character Counts.” In addition, the child has to stay out of trouble, attend school (and get acceptable grades), observe a curfew, and so on.

Where I practice, the child is told probation can last up to three years, but a review hearing is set for one year from the date the court accepts the recommendation, and if all is going well, the child’s admission is withdrawn, the Petition is dismissed, and the record is automatically sealed. It’s almost as if nothing had ever happened, and the child was never charged with a crime.


Child in handcuffs
Child in handcuffs

Of course, the child knows that he or she has been marked as a criminal. But as far as we’re all concerned, that’s A Good Thing™. The shamed child will learn to watch out and behave in the future. Maybe learn a little subservience. Be properly subjugated. Any long-term effects from having been deemed a criminal that may occur are either irrelevant, or deserved.

The child must admit to all the charges listed in the Petition against the child, or DEJ cannot be allowed, and if the child cannot do this, the child must either go to trial, or admit without the benefit of DEJ. Admitting without benefit of DEJ might allow amending the charges to something more appropriate, but it doesn’t come with any of the benefits of withdrawing the plea, dismissing, and automatically sealing the record if the child “learns the lesson.” The mark is slightly more permanent.

Trials, of course, are always risky. For one thing, courts appear to think that erroneously making true findings is not that big a deal — it’s kiddie court, after all — so even though the “beyond a reasonable doubt” standard is supposed to still apply, it really doesn’t. Even more so than in adult courtrooms, if a police officer writes something in his report, regurgitates it under oath, and it contradicts other testimony, particularly from the child, the kid is going down.

Police officers are even sloppier and less truthful when writing reports about kids than they are with adult crimes. To some extent, I think this is, again, because it’s “just kiddie court.” The kids might get locked up, but they’re usually not going to be locked up for “a long time.” At least from an adult’s perspective.

Of course, kids have a different sense of time. I remember as a kid, I thought a year was forever; as an adult, if I have a year to get something done, I beg for more time.

At any rate, the officer’s sloppiness and ready willingness to lie combined with the court’s attitude regarding kiddie court means a greater likelihood of a “true finding”; i.e., more kiddie convicts.

And so it happened that I found myself in court today, defending another child, trying to get him into DEJ.

On a felony charge of burglary, along with misdemeanor charges for vandalism and possessing a marker with intent to write graffiti.

For using a butter knife to open a locked classroom door, going inside, writing a nasty word on a whiteboard with a dry-erase marker.

But that’s not the bad part.

The bad part is that the possibility of DEJ was almost scuttled — which would have forced us to risk a trial — because the kid had a difficult time providing a factual basis for his admission.

Remember, the child has to admit to all the crimes with which he has been charged. None of those charges can be dismissed until after successful completion of the DEJ program. So if the prosecution has charged, as it did here, a felony that could (at least technically) be proven, but a misdemeanor that could not, a way has to be found to allow the child to admit to all the charges. This sometimes means “helping” the child find a way to say something that is truthful…enough…to…uhm…”create”?…a factual basis for a charge that should not have been filed. Because if you can’t do this, then you’re going to a trial that could result in a felony being found “true” (i.e., a conviction), although it will possibly result in one or more of the misdemeanors being found “not true.”

Depending on the judge.

And who wants to chance that?

So that’s the less-bad option which resulted in a particularly tortuous hearing today, as I attempted to walk my client — the child — through the process of admitting to crimes that he maybe-kinda-sorta did, but for which the sane option of having the school handle the situation had already been avoided through the filing of a felony charge of burglary concerning the “theft” of an Expo dry-erase marker (which, incidentally, had been left at the scene) and its being used to write a nasty word on a dry-erase board.

Unfortunately, the marks on this child will not be as easily erased.

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