Monday Morning Thoughts: Marsh Is the Extreme Example of Juvenile Crime; This Is More Typical

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On January 24, 2011, a white male in his twenties, a musician in a band, was walking home at 10:30 pm on a Monday night in West Sacramento.  He was stopped by a person in a Michael Jordan jersey who asked where he was from and then a group of young individuals came toward him and one of them said, “We’re here to check your pockets.”

He would toss them his wallet and phone.  He described himself as punched and hit in the head over 30 times.

The man flagged down a police officer and ended up identifying the culprits from a group of five or six Hispanic kids aged 13 to 15.

Despite this, there were problems with the case from the start and the identification of most of the youths was problematic at best.  The case, which featured critical expert testimony from memory expert Dr. Goeffrey Loftus, hinged on the police’s poor handling of the show-up identification of the possible suspects – where the police basically brought the suspects to the victim without doing a proper double-blind test to make sure he was actually identifying the suspects.

In short, the dark conditions and the inability of the victim to identify his attackers led to an acquittal for several of the young teens.

In the end, the jury would convict only some of the youths – one found with stolen property from the man and the other wearing the easily identifiable Michael Jordan jersey.

For our purposes today, while this case serves as a poster case regarding properly handling eyewitness identification issues, it also serves as a critical boilerplate case for whether DA’s offices should have the power to decide who gets to be tried as a juvenile versus who gets to be tried as an adult.

In the SB 1391 debate, Jeff Reisig and other DAs are lamenting that the law is too broad and takes away the discretion to try dangerous criminals like Daniel Marsh as adults.  In a letter to Governor Brown, they argued, “Senate Bill 1391 eliminates the authority for a court to decide whether a 14- or 15-year-old charged with certain serious offenses is unfit for the juvenile system.”

But the current law is too broad itself and allows the DA to try ordinary kids, who are behaving badly, as adults rather than juveniles.

The question we must ask is whether the case from 2011 should have been filed as an adult case from the start.

The Yolo County District Attorney aggressively pursued gang charges despite very thin evidence of gang involvement for the youths.  One reason they did this was the ability to “direct file” these youths as adults was based entirely on the gang charges.

The jury acquitted on all gang charges and found all enhancements to be untrue.  It is important to understand that this held for the two suspects for whom the jury did believe there was, beyond reasonable doubt, evidence they were at the scene – the one wearing the Michael Jordan attire and the one found with the victim’s wallet.

The two who were convicted, without the gang charges, were then remanded to juvenile court.

There was a lot of evidence that was very thin in terms of gang involvement.  One of the key points, though, was that the officers at the scene did not believe this to be gang related.

The jury apparently reasoned that if the police on the scene had no reason to believe there was gang involvement, this was probably not a gang case.  Indeed, only one of the individuals even wore colors in the attack and he was wearing a Michael Jordan jersey, which would be questionable evidence at best.

The attackers did not yell out gang slogans as they attacked the victim.  There were no allegations they yelled “Broderick” or “BRK,” as there have been in other incidents.

During the preliminary hearing, Judge Stephen Mock held over the gang charges simply on the statement from one of the defendants who had asked the victim where he was from, which both the prosecution and Judge Mock determined to be gang-related.

There are also questions about the severity of the crime itself.  Not to make light of a robbery, but the evidence suggested some embellishment on the part of the victim.

The victim claimed to the police and in testimony to have been hit 30 times.  But that is questionable.  While the victim testified he was punched and kicked 30 times, that number seems impossible in the face of a number of factors.  First, the victim had a single injury, a cut near his eye which he said occurred as he was trying to drop to the ground to protect himself from the assault.

He had no injuries or bruises to any other part of his body.  His ribs were not bruised, despite claims he was kicked there.  His hands were not bruised or scratched, despite his claims he held them over his head to shield the blows.

Moreover, no injuries or blood were found on the defendants’ hands or bodies.

Evaluating all of the evidence, it is questionable that this case should ever have been tried in adult court.

Once the gang charges were thrown out, the case against the two who were convicted reverted to juvenile court, where it seems the matter should have been tried in the first place.

So why should this case have been an adult case at all?  I think it is easy to look at Daniel Marsh – one of the more extraordinary cases in the state – and argue for the possibility of adult charges on 13- and 14-year-olds, but my experience is that there are far more of these cases that are questionable from the start.

If Mr. Reisig wants Daniel Marsh as his poster case for why the DA should retain the power to petition the court to try juveniles as adults – fine.  But Yolo County had a adult court filing rate of four times over the state average and most of those cases were not Daniel Marsh, but rather these 13- and 14-year-old kids, some of whom did something wrong, but none of whom needed to be in adult court.

—David M. Greenwald reporting


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David Greenwald is the founder, editor, and executive director of the Davis Vanguard. He founded the Vanguard in 2006. David Greenwald moved to Davis in 1996 to attend Graduate School at UC Davis in Political Science. He lives in South Davis with his wife Cecilia Escamilla Greenwald and three children.

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22 Comments

  1. PhilColeman

    The rebuttal is correct and accurately points out the Marsh case was extraordinary due to its rarity and severity. To claim this as being normal misleads the reader to think this representative of the justice system is also true.

    And the rebuttal case history follows the same condemning rational and gives the same exact pattern of distortion and deception. The pot and the kettle are both black.

    Henceforth, in the true spirit of “criminal justice reform,” we should no longer allow any posters to remain unchallenged who (1) cherry-pick any feature of the justice system for any time frame, (1) pluck extreme and rare cases, (2) give a biased one-sided narrative and (3) boldly claim this isolated example typifies the norm found in the justice system everywhere.

     

     

    1. David Greenwald

      Actually, as I pointed out in this piece, in my nine years of observing court cases in Yolo – this case is far more typical of direct file cases in Yolo (memory problems not withstanding) than Marsh. In fact, I had a universe of several cases to pull from, and chose this one because the jury acquitted on the gang charges rather than hung like they did in several of the other direct file juvenile cases.

    2. Tia Will

      Phil

      Or maybe we could take the words of the DA and gang “specialists” on their own merit. As covered in Citizen’s Academy, the DA’s office takes a broad definition of gang activity when considering how to charge cases. Asking someone where they are from, and being with a group of similarly aged youth seem to be quite broad criteria for “gang activity”. It is of particular interest in this case that the officers on the scene did not consider this to be gang related.

  2. Ron

    “A gang is a group of associates, friends or members of a family with a defined leadership and internal organization that identifies with or claims control over territory in a community and engages, either individually or collectively, in illegal, and possibly violent, behavior.”

    https://en.wikipedia.org/wiki/Gang

    In any case, I’d label this as a pretty significant crime, regardless of the number of times that the victim was hit.

    1. Ron

      I wonder if the parents of those convicted apologized to the victim, and will now take some responsibility for what their kids are doing at 10:30 p.m. on a weeknight?

      Give ’em a couple more years to gain physical strength, and they’ll have the ability do more damage next time.

       

    2. David Greenwald

      Once the gang case was thrown out, it was no longer an adult case. It wasn’t a significant crime in that (A) limited injuries; (B) not considered gang; (C) small amount stolen. It was a felony however, but that is not the standard for trying as an adult.

      1. Ron

        Getting robbed and beaten by a group is “significant” – even without major injuries. I haven’t seen anything (one way or another) which actually addresses whether or not this is a “gang”, but I’d suggest that it makes no difference regarding the result.

        Regarding the appropriate venue to be tried – I would agree, based upon the information provided.

        The “effectiveness” of either of those venues (juvenile, vs. adult) is questionable.  (How effective is the juvenile justice system at turning lives around, when parents don’t control their own kids in the first place?) (An “honest’ question.)

        Is there any reason to believe that these kids won’t continue along this path, as they gain physical strength?

        1. Ron

          My main interest is in keeping streets safer.  How to do so is debatable.

          It’s difficult for me to care much about the immediate interests of those committing violent crimes (except for the fact that they generally remain part of society).  Since these are young people, they might have a better chance at turning their lives around if there’s adequate support.

          In general, the threat of facing charges as an adult might be a deterrent. And, even if it is not, it begins the process of incarcerating those who are a threat to others.

          But again, I would agree that this particular case does not seem to merit adult criminal charges.

          1. David Greenwald

            The issue here is about whether or not treating kids under 15 as adults in the criminal justice system is the way to do that.

        2. Ron

          That is an issue that seems unresolved.

          I’m curious as to the programs and effectiveness of the juvenile justice system, which presumably coincides with the period in which those convicted have the best chance at turning their lives around.

          I’m also wondering if there’s any way to improve it.

        3. Ron

          Just noticed that you stated “under 15” years of age, but the article started out mentioning 13-15 years of age.

          I’m not sure there’s a set age (other than the “agreed-upon” age of 18), at which we become fully accountable for our own actions.

          In fact, can’t parents be held legally accountable for what their kids do (in some circumstances), up until the point that that they reach the age of 18?

          Wondering if you ever interview the parents of those convicted to get their thoughts on these issues, and whether or not they generally assume some responsibility for what their kids are doing.

          1. David Greenwald

            Bill text: “This bill would repeal the authority of a district attorney to make a motion to transfer a minor from juvenile court to a court of criminal jurisdiction in a case in which a minor is alleged to have committed a specified serious offense when he or she was 14 or 15 years of age”

        4. Ron

          I see that you don’t want to answer my questions / engage in a broader discussion.

          In any case, that bill causes me some concern.  (But, not necessarily in this particular case.) I can certainly envision some scenarios in which society’s interest might be better-served by direct referral to the adult correctional system.

          Seems like all of the “cut-off’ ages discussed here are arbitrary, in nature.

        5. Ron

          Understood.

          It is an issue that I’m generally/openly interested in. As with many things, it seems like there’s no easy/clear answers, and conclusions can be influenced by ideology (one way, or another).

    3. Tia Will

      Ron

      I agree that this is significant crime. However, I am wondering, since the officers on the scene did not consider it gang related how you feel your posted definition factors in?

      1. Ron

        Tia: Seems like the “weak point” might, or might not be the existence of a “defined leadership” and “internal organization”. (It’s not “my” definition that I posted, however.)

        If I’m getting beaten and robbed (even by a group of 13-15 year olds), I’m probably not going to be too concerned about the definition of a “gang” (or even the definition of a “hate crime”, for that matter). If that occurred to me, I’d probably not even be all that concerned about giving them a break because of their age. In short, I’d be pretty angry – at them and their parents. (And, I wouldn’t be too happy with those who downplay such incidents, either.)

        In a larger (non-ideological sense), I’m interested in what might work to reduce such problems. (I’d really like to know what works.)

        1. Ron

          (And, I wouldn’t be too happy with those who downplay such incidents, either.)

          From my perspective (when I was younger, in particular), this was a major problem.  And frankly, had racist overtones against white youth (e.g,, in public school, and on public transit).

          And, this is where I sometimes parted company with those who had more liberal views. It is a sore point with me, to this day.

          There’s even some folks on this blog continue to deny reality, and blame the victim. (Similar to blaming sexual assault victims.) (I do not see you doing this, however.)

        2. David Greenwald

          “If I’m getting beaten and robbed (even by a group of 13-15 year olds), I’m probably not going to be too concerned about the definition of a “gang” (or even the definition of a “hate crime”, for that matter). ”

          First, if you’re getting beaten and robbed, you’re worried about getting the police to come, not worried about legal definitions.

          Second, there is a crime that getting beaten and robbed involves – actually two – assault or assualt with a deadly weapon and robbery.

          Third, gang has a specific definition.  There are clear reasons why the jury in this case acquitted / found the gang enhancements untrue across the board.

          None of this deals with the issue at hand here which is whether these individuals should be tried as adults or juveniles at the age of 14 and 15.

          Under the old law, the gang charges were needed to direct file in this particular case.  I believe, and I think a lot of others do, that encouraged prosecutors to file gang charges in order to control how the cases were filed.

          Under this new law, if signed by Gov. Brown, the DA will have no say over whether the juveniles are tried as adults or juveniles.  Some believe that goes too far – many who do are the ones trying these cases as adults to begin with.

          To me, this case was not an adult case.  It was 14 and 15 year olds who did some bad things but the case was overcharged.  The jury largely agreed with that assessment.

        3. Ron

          David:  Tia asked me a question regarding the definition of a “gang” (in reference to the Wiki link I posted), and I responded.

          I would say that it’s possible that 13-15 year olds can form a gang.  However, I did not actually state whether or not that definition had been met, based upon the information provided in the article.  It seems to me that the group did meet part of the definition, but perhaps not all of it.

          So, there’s two issues:  1) are/were they a gang, and 2) should they be tried as adults.

          I’m inclined to agree with you and the jury, based upon the information that was posted.

          But, I stand firmly behind my other statement, that those with more liberal viewpoints seem to downplay/overlook crimes committed by “persons of color” against white people.  (Especially in urban public schools and transit systems.)  It is almost like victimizing people twice, as sometimes occurs with sexual assault victims.  I’ve seen examples of it on this very blog.

          Truth be told, I’m not sure which part of this relates to an honest belief that there’s a better way to deal with crime, vs. an outright denial of the severity or frequency of crimes committed by people of color.

          But, I’ve witnessed (what I view as) potential hypocrisy/denial regarding this issue since the time that I was very young.

           

        4. Ron

          Also – I suspect that we witnessed this same type of hypocrisy in regard to the statements made by the local Iman a year or two ago.

          It’s generally better to honestly acknowledge reality, rather than excuse it based upon skin color, religion, whatever. Failure to do so actually works against progress (and ends up generating 100+ comments – some of them angry, whenever racism is brought up on the Vanguard).

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