No Matter How Loud I Shout Page 12

  No one doubts that an honors student with a supportive family and no prior criminal record is a good candidate for rehabilitation. That gets him past three parts of the test. But the prosecution, as it does in almost all fitness cases, is hanging its argument on the two remaining parts—armed robbery, with its potential for injury or death, is inherently grave, and a kid who buys a gun on the street from an arms dealer, then uses a mask and gloves to avoid detection, shows he is capable of planning and executing a sophisticated crime. Sophistication and a grave crime are all that is needed—failure of any one of the five parts of the test requires judges to transfer a kid to adult court, which is why prosecutors win fitness hearings nine out of ten times in Los Angeles. This is the draconian result law-makers intended when they redesigned the law in the 1980s under the assumption that too few kids had been landing in adult court before. And it is why Angela Oh desperately wants to paint John Sloan as a punk: Punks, she argues, are incapable of committing a sophisticated or grave crime.

  “If I use the word ‘punk,’ do you understand what that means?” she persists.

  The prosecutor, Deputy District Attorney Hyman Sisman, decides he has to put a stop to this. “Objection. It’s irrelevant.”

  Judge Dorn agrees. “The fact that one may consider an individual a punk,” he says, emphasizing the word “punk,” almost drawing it out into two syllables, “does not mean that individual cannot necessarily be sophisticated in committing a crime.”

  Sisman sits down and relaxes again. But he seems to have missed the real message behind Dorn’s comment. What the judge is really saying is that whatever Mr. Gutierrez thinks of John doesn’t matter. Dorn’s body language throughout the victim’s testimony has grown increasingly hostile. At one point, he stood up, walked behind his chair, and watched Gutierrez from a distance, as if he did not want to be too close to the state’s star witness. It unnerved the man in the witness chair; Sisman seemed to take no notice.

  A few minutes later, Dorn reveals his feelings about Gutierrez even more clearly as Oh continues to argue that the man’s willingness to pursue two armed robbers shows they were unsophisticated punks, and therefore still suitable material for the ministrations of Juvenile Court. Friends had lionized Gutierrez as a hero for capturing his assailants, but Dorn proclaims his act “something that no reasonable person would ever have done.” It is a curious attack on a victim of a crime, especially from a judge who carries his own gun, even to court, and it should have served as a red alert to the prosecutor that he badly needed to bolster his case. Again, though, the prosecutor appears to take no notice, and he rests his case a short time later.

  The defense calls Dr. Sloan to the stand. John’s father is stiff and solemn, mortified at being in court. His entire family has been devastated by this thing John has done, he testifies. They are all bewildered by John’s crime. He assures the judge that his son’s behavior that night was totally aberrant, that they had no clue this was coming. There are no guns in the household, the doctor says, and John never expressed any interest in them before. I just could not understand this, Dr. Sloan says.

  So he sought an explanation and, to an extent, he got one, the doctor says. John’s father describes a recent visit with his son at Juvenile Hall. John talked about things he had never mentioned before, Dr. Sloan recalls—about pressures at school, about gangs and racial tensions and his fear of being assaulted by Hispanics and blacks. He talked of being held at gunpoint at a Taco Bell by some Hispanic teenagers a year earlier. More recently, he and three friends had been surrounded by Hispanic gang members. Several of them punched John and his friends, while others kept guns trained on them so they could not fight back, John told his father. John seemed to feel he had been targeted because he was Asian-American. He had never mentioned these incidents to his family before. Instead, he bought a gun for self-protection, the doctor tells Dorn. “John said he thought if he had a gun, then the gangs wouldn’t bother him.”

  John does not testify about any of this himself, although he submits a letter to the court saying he had been attracted to gang behavior because it seemed “cool.” It is difficult to tell if he is even following what is going on around him, so withdrawn and still has he been. But the defense theory is clear: John is being portrayed as the victim here, of gangs and of racism. This robbery was completely out of character, a mixed-up attempt to strike back at the people who had been tormenting him, a cry for help from a kid who couldn’t fit in at home or in school. Or so argues John’s lawyer.

  It is a suggestion open to attack—one could question, among other things, John’s convenient recollection of being assaulted by gang members a year ago, something he never mentioned to anyone before, and which is unsupported by any other source. Or how buying a gun, donning gloves and a mask, and robbing an innocent person fits in with the portrait of John as victim. But the prosecutor chooses not to pursue these points. He has no questions for John’s father. Nor does he introduce counterbalancing testimony from the probation officer who wrote John’s intake report, and who heard John confess that his only motive for the robbery was to get some money. Instead, Sisman, a thin, bearded redhead with a passionless courtroom demeanor, launches directly into his closing argument.

  “This is not something casual,” he argues in a clipped, mild voice. “This minor and his cohort were hiding in a parking structure at night with something covering their faces and wearing surgical gloves. They uttered racial epithets. . . . The fact that a resourceful citizen caught them is not mitigating. It just means these minors chose the wrong victim.

  “The minor seems to think acting like a gangster is a cool thing to do. If that’s what he thinks, then he ought to be ready to pay the price. The proper place for this minor is in adult court. . . . Under the law, there is no choice but for him to be declared unfit.”

  Judge Dorn barely glances at Sisman. He hates being told he has no choice.

  “Defense argument?”

  John’s lawyer, well aware of Dorn’s philosophical leanings, knows just what to say, deftly stepping into the opening the prosecution provided. Her first words emphasize not what Dorn must do, but the power he has to do what’s best. “The court has the authority,” she says, “to exercise its discretion in a way that will, in essence, save this kid. . . . He has never been in the system before, and he has certainly never been before Judge Dorn before. He will respond to your supervision.”

  There is no concealing the pleasure suffusing Dorn’s face at this expression of deference. He is not rubbing his eyes now, or fingering files, as he has done during some presentations in the past. He is sitting up straight in his big chair, his attention focused on Angela Oh, jotting occasional notes on a yellow legal pad. Attorneys in the audience are nodding approvingly at Oh’s masterful turn. Sisman’s mouth is compressed into a thin line. Finally, he realizes he is in trouble.

  “John used to get straight A’s, now he’s just average,” Oh continues. “I don’t know what has happened to John, but something has happened, and no one has paid attention. He comes from a moral family, a religious family, who had no idea. . . . What he did was stupid, it was naïve, and thank God no one was hurt. Even now, he doesn’t seem to realize the lives he has impacted. But, basically, he’s a decent kid. This is a kid on the edge. He can be saved. This court can save him.”

  Judge Dorn is nodding his approval at Oh, a perfectly coiffed private practitioner from downtown LA hired by the family. She is a rarity in Juvenile Court, where the vast majority of kids get overworked court-appointed lawyers paid by the state, since most children are legally indigent and their parents cannot be forced to pay for their legal bills, even the ones that can afford to. Oh has already impressed the judge by filing extensive written motions, affidavits, and a favorable psychological profile of John labeling him an ideal candidate for rehabilitation in the juvenile system (an expert opinion paid for by John’s parents). All this had been neatly compiled in a bound volume with elaborate indexed tabs—again
, a rarity. The assembly-line crush of cases is so great that most kids are lucky if they meet their lawyers before going to court, much less benefit from carefully researched pleadings. Dorn regularly criticizes defense lawyers for blowing off cases with little or no effort. Those who walk into Juvenile Court like Oh, ignoring the peeling paint and futility, treating it instead as if it were the most important forum in the land, find a certain edge in Judge Dorn’s court.

  The defense lawyer is now beseeching Dorn, passionate and heartfelt, asking the judge to compare John with most of the kids Dorn sees—the deprived and impoverished children, kids who have been abused, who have drug problems, whose only role models have been gangbangers and criminals.

  “We understand why these kids end up here, or at least we think we do,” the defense lawyer says. “But children like John have no framework to fit into our juvenile system. We’re seeing more and more kids like this, who don’t come from that background, and it’s troubling. There is no easy explanation for their conduct, but it is a new phenomenon we’re seeing more and more. We need to deal with it. . . .

  “But prison won’t do it. Prison won’t help this kid. This kid is going to come back into society. The question is, do we want to help him, or to return him as a hardened criminal?”

  Oh sits down, her presentation concluded. Everything she said is indisputable. State prison, with its hardened criminals, its predatory rape gangs, its rampant AIDS, is no place for a willowy seventeen-year-old. With an intact family eager to work with Dorn, with John’s track record in school and his previous involvement with the church, he has far more going for him than most kids who, simply by virtue of their birthday, must be treated as juveniles. He is the sort of kid everyone agrees is most likely to be rehabilitated by the juvenile system, and most likely to be destroyed if punished as an adult.

  There is only one problem: The law has changed since Dorn last sat in Juvenile Court. It is no longer interested in reforming John. The law says an armed robber over sixteen should be tried as an adult, unless hard evidence shows the crime was neither grave nor sophisticated. If the gun wasn’t real, or if Richard had forced John to commit the robbery, or if they had forgotten their gloves and masks, or if they had suddenly stopped and apologized to Gutierrez and refused to go through with it—if the crime was clearly and demonstrably childish, and lacking in any potential for serious injury or death, then, perhaps, Dorn might have a legal way to keep hold of John. But there is no such evidence, and everyone in the courtroom knows it. It was a cold, calculated, and, except for a locked getaway car, well-planned crime, mature in its execution if not in its outcome, with fatal consequences but a finger twitch away, and no real extenuating circumstance—no real excuse—for Dorn to grab hold of.

  Sisman gets in the last word of argument with one pithy comment: “The fact that the minor comes from an intact family and gets good grades is not justification for this sort of conduct. If anything, it only makes what he did more reprehensible.”

  Dorn quickly clears his throat. It is the sort of comment judges must reflexively agree with if they hope to stay in office. “Clearly, there is never, never any justification for this sort of conduct,” Dorn says. John’s mother resumes weeping at this, for it sounds as if the judge is about to rule for the prosecution—until Dorn finishes his thought. “But the issue is where should this minor be tried.”

  Sisman quickly interrupts, drawing a glare from Dorn. “The legislature says this sort of crime should be prosecuted as an adult offense, unless there are some powerful reasons not to. Those have not been proven here.”

  It is the last statement the prosecutor is allowed to make. “Well, there are some powerful reasons,” Dorn roars. “Nothing sophisticated about what occurred here. It happens every day. You see individuals with a gun and mask go out . . . and do this all the time. Nothing sophisticated about it.”

  With the question of sophistication summarily dispensed with—apparently because armed robbery by juveniles is so alarmingly common—Dorn moves on to the question of the gravity of the offense, the other part of the fitness test John Sloan needed to overcome. Yes, armed robbery is a very grave crime, Dorn says, but that is offset by the fact that if he were transferred to adult court, he would probably get off with a very light sentence, a year or two at most, because of his youth and previously clean record. In Juvenile Court, Dorn said, I can keep him incarcerated until he’s twenty-five, if necessary. That’s eight years. Over in adult court, he’s small potatoes. They might just drop the case. And if they do imprison him, it won’t be in a rehabilitation program, as would be the case in a juvenile lockup.

  “If the only thing you are interested in is a pound of meat, the only thing you are interested in is being vindictive, that is what you get. . . . The District Attorney’s Office is always ready to file a fitness. . . . But I can’t see any benefit whatsoever from him being tried as an adult. None whatsoever . . . I find the minor is fit to be tried in Juvenile Court.”

  Dorn’s reasoning is eminently sensible, compassionate, seemingly indisputable. His analysis of sentencing patterns is true, too: California’s tough juvenile fitness law has in many cases achieved shorter sentences, not longer ones, exactly the opposite of its intended effect. Except in murder cases, kids sentenced in Juvenile Court to the Youth Authority for major violent crimes tend to do more time than kids tried in adult court for the same offenses. (This is a function of “time off for good behavior” and other early-release gimmicks designed to relieve overcrowding in adult prisons and to cut sentences by as much as half—breaks juveniles do not get.) And, ironically, the vast majority of teens sentenced as adults to prison are “housed” at the Youth Authority anyway, so they can serve their shorter sentences safe from the violent confines of the state’s adult prison facilities.

  There is only one problem with Dorn’s ruling: It is at odds with the law.5 Ten years ago, his reasoning would have passed muster. But now the law specifically forbids judges from balancing one part of the fitness test—in this case, the length of time John can remain in the juvenile system—with another. If armed robbery is a grave and serious offense—something every other judge in Los Angeles Juvenile Court has concluded—then John should be on his way right now to adult court. Judges who haven’t toed the line on this point in the past have been appealed and embarrassed—including Dorn’s predecessor as supervising judge, who was slapped down on an appeal by Peggy Beckstrand for precisely the same sort of ruling as Dorn just made.

  Sisman tries to say as much, but Dorn silences him while the prosecutor’s knee joints are still cracking from standing up. “Counsel, I heard your argument. I have made my ruling,” Dorn says. The judge turns away from him and asks his clerk for a trial date. Sisman is left sputtering.

  Next to him, defense attorney Oh quickly whispers with her client, then, before the clerk can finish studying the layers of penciled entries on her battered desk calendar, the lawyer stands and announces that John is ready to plead guilty to all the charges immediately—as a juvenile.

  Judge Dorn says he will be happy to oblige. He tells Sisman to take “the waiver,” a lengthy series of legally mandated questions intended to safeguard against coerced or ill-informed guilty pleas by juveniles—but which amounts to fifteen stultifying minutes of monotone inquiries from the DA, proddings from the defense attorney, and uh-huhs from the kid. (Do you know what a trial is? Yeah. Do you waive your right to trial? Uh-huh. Do you know you can call witnesses on your behalf? Do you waive your right to call witnesses? . . . ) Sisman goes through this numbing recitation at least twenty-five times a day, like all the other prosecutors here. Without objection or hesitation, he does it now on autopilot, voice flat and disinterested. John says yes to each question—the only words he speaks during the entire ninety-minute hearing—after which Dorn officially accepts the boy’s admission and declares John a ward of the Juvenile Court.

  John looks more confused than relieved as he is unceremoniously escorted back to the h
olding tank, but his family is overjoyed, smiling and hugging one another and pumping their attorney’s arm. Dorn sets sentencing in three months, leaving time for an extensive diagnostic study to aid him in deciding what to do with John.

  Deputy DA Sisman, meanwhile, slips out of the room at his first opportunity and crosses the street to his office, to complain to Peggy and to ask permission to appeal the ruling. Dorn watches him go, but he is unworried, confident in his vision of justice. He congratulates Angela Oh for a job well done, wearing a sly smile, as if the two of them are sharing a secret.

  But the judge seems to avoid meeting the eyes of a large, forlorn man standing shell-shocked in the back of the courtroom—a man who has a very different opinion about the gravity of being robbed at gunpoint, a man who will never again feel secure in his neighborhood and whose daughters still cry when he leaves the house.

  Instead, Judge Dorn grabs a file and says, “Call the next case,” then, a moment later, as a new set of attorneys step forward to begin the ritual anew, the bailiff asks the victim of John Sloan’s armed robbery to please leave the room while court is in session.

  · · ·

  “God, that makes me furious,” Peggy Beckstrand says when Sisman briefs her a short time later. “What’s he saying, that just because armed robberies are a dime a dozen, it’s okay? We’re going to say it’s acceptable behavior now for a kid to stick a gun in someone’s face and threaten their life, because that’s what everyone’s doing? Can you believe a judge actually said that?”

  She is up and pacing now, voice raised, hands waving, already framing in her mind the legal issues at stake. “There’s no way we can lose an appeal on this. We’ve got to get a transcript.” Then she looks hard at her prosecutor, and asks one question in a slower, more subdued voice. “You requested a stay, right?”