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.”
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