Why is the SF DA trying a 14-year-old as an adult?

I haven’t heard back from District Attorney George Gascon. Adachi told me that Gascon had promised the young man would be moved to juvenile court after a preliminary hearing, and maybe he will.

But I sat through the preliminary hearing, and Deputy DA Sarah Hawkins wasn’t talking about sending the child to juvenile court, where he would be part of a very different criminal justice system. She was busy introducing evidence that Q was old enough to be tried as an adult.

And Rebecca Young, Q’s attorney, told me that the DA’s office would only consider moving this case to juvenile court if Q would agree to plead guilty.

(I am following what used to be considered standard journalistic practice, and not naming a juvenile in a criminal case. Other news outlets don’t seem to care about that any more. I still do.)

Derrick Hunter and Lee Sullivan weren’t in the courtroom when the charges against Q were presented. Both have been indicted by a grand jury – another route to bringing a case to trial.

A preliminary hearing isn’t a trial – there’s no jury, and the judge doesn’t determine guilt or innocence. The standards of evidence are looser. In the end, the judge determines whether the charges should be dismissed or whether there’s enough evidence to send the case to trial. The rules are very favorable to the prosecution.

Still, the evidence presented at the hearing cast a tremendous amount of doubt on whether Q was involved in the crime.

Witnesses stories change

On the afternoon of the shooting, two young girls – we will call them Y. and E. – were in a bedroom overlooking the intersection of West Point and Middle Point, watching movies. They were, according to police testimony, some 50 feet away. Neither of the juvenile witnesses testified at the preliminary hearing, and they didn’t have to: Their statements, and the statements of the officers who talked to them, fit the criteria for evidence in a preliminary hearing.

According to the evidence presented by the prosecution, the two girls identified Q as a shooter. One said he was firing from the open driver’s side window, and that someone was shouting “mob, mob, mob,” an apparent reference to a Hunters Point gang.

The vehicle had been rented by Renesha Lee, who, testimony indicated, was dating Sullivan. She was found in the van several blocks away a few minutes after the shooting.

Lee spoke to the police at least seven times – and every time, her story was different. She said she’d loaned the car to someone named “Man Man.” Later she said she loaned it to a guy named “Smooth.” She didn’t admit for a long time that Sullivan, her boyfriend, was among those who borrowed the vehicle.

“It’s abundantly clear that she changed her statement over and over and over again,” Young noted in her closing argument.

And before she fingered Q and Derrick Hunter, the police offered her immunity from any prosecution: Young noted that, in a statement, Lee said that the cops had told her they “didn’t care if she shot the Pope” – they weren’t going to charge her with anything.

Neither of the two girls gave a positive identification of Q when first asked. E said, when shown a photo lineup, that Q “looked like” the shooter, but she also said he was firing from the driver’s seat – odd, since the young man has never learned to drive. And video evidence clearly shows the shots coming from outside the vehicle.

Y at first ducked down when she heard the gunshots, and if she got a look at the shooter, when she later went to the window, it was only for a brief moment, the testimony showed.

But in a remarkable situation that defies normal police procedure, the two witnesses were left alone in a room at the Hall of Justice before their interrogation – and Sergeant John Burke somehow left his notepad, with Q’s name on it, in the room with them when he walked away.

Under questioning by Young, Burke at first said he couldn’t recall what happened with his pad. But Young produced video taken in the interrogation room that showed Burke leaving the notes on the table – and Y picking them up and reading them, and whispering to E that “his name is Q.”

Although the homicide investigators said that the girls had identified the suspect, Young went through the transcripts and showed that, at best, they had “glanced” at someone – and got the details all wrong. The killer clearly wasn’t firing from the driver’s seat. “We know they didn’t see the shooting,” Young argued. The girls described, for example, the shooter wearing a brown and black sweatshirt – “and nobody else saw that.”

They said nobody jumped out of the car, that the shots were fired from inside – but a video shot from a nearby camera clearly showed the killer outside the van. “The shell casings are all in one area,” Young noted – and that area is consistent with a shooter standing behind the vehicle.

“Inspector [John] Cagney and Sgt. Burke testified to statements that are contradictory,” Young said.

Hawkins presented very little in the way of a rebuttal to that evidence, arguing, in effect, that the two officers were seasoned professionals whose word should be believed.

Young – an experienced defense lawyer who has seen it all in court – seemed astonished that a judge could take this case seriously. “Does anybody care about the Constitution and the protection of minors?” she asked. “It’s as if nothing matters except the outcome and the goal [of the prosecution]. If we don’t respect our process, we might as well just move this operation to Iran.”

There were other anomalies: Hawkins failed during the evidentiary part of the case to introduce a birth certificate showing that Q was in fact 14 and could be tried as an adult. But on the morning when final arguments were to be presented, she asked the judge to accept that new evidence “as a housekeeping matter.” Young objected, saying she hadn’t been given any notice that this new evidence would be entered after that phase of the case was closed. “I know for a fact that there are at least two birth certificates” for Q, she said.

Judge Cheng ignored that objection and allowed the birth certificate – a critical piece of evidence, since if Q wasn’t yet 14 at the time of the crime, he by law would be treated as a juvenile – entered into the case file.

Young noted: “The DA seems to believe that the evidence doesn’t have to be credible, that cops can lie, that we can call critical allegations ‘housekeeping’ matters.”

I called and emailed Gascon’s media people, and nobody got back to me by the time I was ready to post this story.

Kids are not adults

There are good reasons why 14-year-old typically aren’t tried as adults. State Sen. Leland Yee, a child psychologist, has introduced a number of bills limiting sentences for juveniles, noting:  “Children have an extraordinary capacity for rehabilitation. The neuroscience is clear; brain maturation continues well through adolescence and thus impulse control, planning, and critical thinking skills are still not yet fully developed.”

Assemblymember Tom Ammiano, who has chaired the Public Safety Committee, told me that the Legislature has pushed to limit the ability of prosecutors to charge people as young as 14 as adults. “They can legally do it, but we’re tried to say you shouldn’t do it,” he said.

It’s not as if the young man would get off easy – under state law, a juvenile can be held for a serious crime until he’s 23. That would be a sentence of more than eight years for a teenager who, by all the latest scientific thinking, has nowhere near the mental and emotional capacity of an adult.

I spoke to his mother, Leona Hunter, and she told me her son had a 3.0 average — in middle school. He has never seen a high school. He was arrested in June, shortly after finishing eighth grade, and has been incarcerated since.

“He really liked to fix up bicycles,” she said. “He would make bikes and give them to other people.”

I wasn’t on the scene when the murder happened. I wasn’t in the van, and I have nothing to go on except what I heard in court. But it seems pretty clear that the police did some very funky stuff to get the case this far, that the judge and the DA allowed some very dubious testimony to influence their decisions – and that, whatever Q did, he doesn’t belong in an adult prison for the rest of his life.

“He has no felony priors,” Young told me. “He has no record that would justify this. I have to say, I think that race was a factor here.

“I hope that I never have to see a prosecution like this again in the City and County of San Francisco.”

 

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4 Responses to Why is the SF DA trying a 14-year-old as an adult?

  1. (From Compliance Campaign for US compliance with international norms)Article 37 of the Convention on the Rights of the Child states that:

    (a) No child shall be subjected to torture or other cruel, inhuman or degrading treatment or punishment. Neither capital punishment nor life imprisonment without possibility of release shall be imposed for offences committed by persons below eighteen years of age;

    (b) No child shall be deprived of his or her liberty unlawfully or arbitrarily. The arrest, detention or imprisonment of a child shall be in conformity with the law and shall be used only as a measure of last resort and for the shortest appropriate period of time;

    (c) Every child deprived of liberty shall be treated with humanity and respect for the inherent dignity of the human person, and in a manner which takes into account the needs of persons of his or her age. In particular, every child deprived of liberty shall be separated from adults unless it is considered in the child’s best interest not to do so and shall have the right to maintain contact with his or her family through correspondence and visits, save in exceptional circumstances;

    (d) Every child deprived of his or her liberty shall have the right to prompt access to legal and other appropriate assistance, as well as the right to challenge the legality of the deprivation of his or her liberty before a court or other competent, independent and impartial authority, and to a prompt decision on any such action.

    While the case of Paul Henry Gingerich has received quite a bit of attention, it is by no means unique. Trying and sentencing young children as adults occurs with alarming frequency in the U.S. according to a 2009 report by the Lyndon B. Johnson School of Public Affairs.

    The report, ”From Time Out to Hard Time: Young Children in the Adult Criminal Justice System,” finds that more than half the states permit children age 12 and under to be treated as adults for criminal justice purposes. In 22 states, plus the District of Columbia, children as young as seven can be prosecuted and tried in adult court where they would be subject to harsh adult sanctions, including long prison terms, mandatory sentences and placement in adult prisons.

    The report notes that the United States stands nearly alone in the world in its harsh treatment of young children:

    Punishing young children violates international norms of human rights and juvenile justice, and yet the United States continues to lead the world in both policies and practices aimed at treating young children as adults. The way the United States punishes pre-adolescents who are waived to the adult criminal justice system is of special concern in light of the basic principles of international human rights law. From the U.N. Convention on the Rights of the Child to the International Covenant on Civil and Political Rights, the United States has disregarded international laws and norms providing that children should be treated differently than adults. A number of international laws offer support for increasing the minimum age of criminal responsibility and argue against long, mandatory minimum sentences for children.

    Nearly all nations in the world follow both the spirit and letter of these international instruments. As a result, most countries—including those Western nations most similar to the United States—repudiate the practice of trying young children as adults and giving them long sentences. Our research has yielded no findings of any young children elsewhere in the world who are imprisoned for as long as some children in the United States. Moreover, the international community is seeing a trend whereby juvenile punishments are being rolled back, at the same time that certain states in America are increasing the possible array of punishments for children. Ultimately, while international norms do not control the criminal justice policy of the United States, they do signal the extent to which the U.S. is out of step with the global consensus that children should be treated as children.

    If the United States hopes to be considered a civilized democracy, it must start by respecting the rights of children as spelled out in international agreements, beginning, hopefully, with Paul Henry Gingerich.

  2. Tony Brass says:

    What a lopsided piece of journalism. Juveniles are often tried with adult co-defendants in order to spare victims from having to deal with the fear and pain of testifying twice. Here, it sounds like you have a surviving victim who suffered the trauma of being shot, and two juvenile witnesses. Trying the juvenile with the adult does not at all mean he will be sentenced as an adult. There are many legal mechanisms to ensure that a juvenile is sentenced as a juvenile even after a conviction in adult court. Mr. Adachi and Ms. Young are both well familiar with this part of the process. As a criminal defense attorney, and former gang prosecutor, I found this article terribly misleading.

  3. Pingback: San Francisco Bay View » Why is the SF DA trying a 14-year-old as an adult?

  4. Ken says:

    Maybe the prosecution is hoping that under pressure the kid will testify against his co-defendants in exchange for leniency? If the kid was present and he refuses to cooperate by offering testimony, then the prosecutor might consider that he is in the very least aiding and abetting a crime after the fact by withholding evidence.

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