Les Enfants Terribles
Criminal Cases
Train up a child in the way he should go, and when he is old, he will not depart from it.
—PROVERBS 22:6
What does a judge do with a child who has murdered his brother? That was the question confronting me after the five-day trial of fifteen-year-old Leopoldo (Leo) M. Because there are no juries in the juvenile system, I was both judge and jury.
We’ve come a long way since the first juvenile court was established in 1899 in Chicago. The idea of a separate juvenile justice system was predicated on the theory that children are developmentally different from adults and, therefore, more amenable to treatment and rehabilitation. Punishment, the primary goal of our adult criminal courts, was, until fairly recently, nowhere to be found in the juvenile courts. I use the word “was” because over time, the juvenile justice system has become increasingly punitive. The notion that juvenile offenders are children in need of rehabilitation and guidance is fading fast, in part because of the public’s perception that violent juvenile crime has been on the rise. It hasn’t. But that fact has not deterred opportunistic politicians, legislators, and the media from promoting laws that increasingly blur the lines between the treatment of juveniles and that of their adult counterparts.
In this country, 365 adults have been executed for murders they committed as juveniles. No doubt, there would have been more executions had the U.S. Supreme Court not stepped in, in 2005, when it ruled in Roper v. Simmons that it is unconstitutional to execute anyone who was a juvenile when he or she committed the crime.
Currently, there are over twenty-six hundred inmates who were seventeen years of age and younger (some as young as thirteen) at the time of their crimes, who are serving life sentences without the possibility of parole. Of those child lifers who were fourteen years and younger when they committed their crimes, 70 percent are children of color.
In 2010, in Graham v. Florida, the U.S. Supreme Court banned sentences of life without parole for juveniles who were convicted of nonhomicide offenses, and in 2012, in Miller v. Alabama, the court banned mandatory life-without-parole sentences for juveniles convicted of homicide. This means that while a convicted juvenile killer can still receive a sentence of life without parole, it is the sentencing judge who makes that call. Today, as many as twenty-five hundred men and women who are currently serving mandatory life sentences as a result of offenses they committed as children are now eligible to be resentenced. When fifteen-year-old Leo M. was accused of murdering his brother, Julio, it was 1997, well before the U.S. Supreme Court had issued any of these rulings.
The events leading up to Julio’s murder began at 4:30 A.M., when Reyna, Julio’s girlfriend, awoke and insisted that he drive her home. The two had been sleeping in Julio’s bedroom in the San Jose home of the boys’ mother. Julio awakened his mother and demanded the keys to the family’s van. When she refused, the two argued, awakening Leo, Julio’s younger brother. It was later determined that Julio’s blood-alcohol level that morning was .06 percent. (A person is presumed to be legally under the influence with a .08 percent blood-alcohol level.)
When their mother continued to refuse to give her keys to Julio, he grabbed an exercise bicycle and threw it at her. Bouncing off the floor, the bike hit her knee. Julio picked up the bicycle again—this time, in a rage—throwing it against his mother’s bedroom wall. Hearing the thud of the bicycle and the cries of his mother, a sleeping Leo awoke and ran to his mother’s bedroom, insisting that Julio leave their mother alone. Julio reacted as he usually did, by starting a fistfight with Leo.
The brothers had a long history of fighting. Since he was two years younger and slightly smaller in stature, Leo bore the brunt of their battles. The early-morning fistfight went on for about fifteen minutes, during which time Leo continuously implored his brother to stop. Ultimately, their mother grabbed the kitchen telephone to call 911. But before she could complete the call, Julio pulled the telephone cord from the wall, whereupon his mother ran next door to use a neighbor’s telephone.
Undaunted, Julio chased after her, ordering her back into the house. Terrified, she complied and returned inside; then Julio resumed fighting with Leo, knocking him to the floor and pummeling him. Reyna, Julio’s girlfriend, somehow managed to pull Julio off Leo, at which point Leo got up, only to have his brother come at him again. By this time, the brothers were at the front doorway where Julio shoved his brother out of the house.
At this point, Leo pulled a folding knife from his back pocket, opened it, and waved it at his brother. Undeterred, Julio advanced on Leo, threatening to take the knife and kill Leo. As Leo continued to brandish the knife, he jabbed it at Julio, inflicting a superficial wound on the underside of Julio’s right arm. Now, completely out of control, Julio ran toward Leo, who reacted by quickly thrusting the knife in Julio’s direction, stabbing him in the abdomen. Julio backed up, staggered to the driveway, sat down, and then, unbeknownst to Leo, quickly bled to death.
Immediately after stabbing Julio, Leo ran into the house, sat on his bed, and screamed, “I shanked him! I shanked him!” Then he ran back outside and, with his mother at his side, administered mouth-to-mouth resuscitation to his brother. His mother frantically called 911. The operator eventually spoke to Leo who, as he screamed and cried, admitted to stabbing his brother. Shortly thereafter, Leo was arrested and once in police custody, he gave a taped confession to the police.
At the trial, the tape recording of Leo’s interview with the police was played in court. Throughout his hour-long interrogation, Leo could be heard sobbing and tearfully asking to see his mother and brother. He cooperated and told the police what happened, all the while insisting that he had not meant to hurt his brother. The interview was excruciating for all of us in the courtroom to hear. At no point during the questioning did the police officer tell Leo that his brother was dead. At the conclusion of the interrogation, when the officer finally broke the news of Julio’s death to him, Leo went berserk, sobbing and screaming for his mother. Amid the screams, the police interrogator could be heard on the tape yelling: “You fucked up, Leo! You killed your brother! He’s dead! You killed him!”
It only got worse. After the county coroner, three police officers, and Leo’s mother testified, it was Leo’s turn. He didn’t have to testify because children, just as adults, have the Fifth Amendment right against self-incrimination; they cannot be forced to testify against their own interests. Since it was the prosecutor’s responsibility to prove his guilt beyond a reasonable doubt, Leo could choose to remain silent throughout the entire trial; he was presumed innocent and therefore not obligated to prove anything.
Nevertheless, on his attorney’s advice, Leo chose to testify. Sitting in the witness stand, he described what happened. While he was nervous, he was clear and seemed to me to be speaking truthfully. However, when, during cross-examination, the prosecutor held up graphic color photographs of Julio’s lifeless body covered in blood, Leo buried his head in his hands and sobbed uncontrollably. I called a recess. We all needed a break.
The district attorney’s office had charged Leo with second-degree murder, the unlawful killing of a human being with “implied malice aforethought.” There are two kinds of malice aforethought—express and implied. Had Leo planned the murder of his brother, he would have acted with express malice, which meant that he would have faced a charge of first-degree murder. But early on, both the prosecutor and Leo’s defense attorney had agreed that Leo did not deliberately set out to kill his brother. There was no premeditation and, therefore, no express malice.
For Leo to be found guilty of second-degree murder, as the prosecutor alleged, he would have had to stab his brother with implied malice, meaning he deliberately endangered his brother’s life and did so with “conscious disregard for life.” I had no problem concluding that when Leo waved his knife at his brother, he had deliberately endangered his brother’s life. The more difficult question was whether the evidence demonstrated that he acted with “conscious disregard for life.”
This is where Leo’s taped confession describing the moment of the stabbing was critical:
Leo: But then I was trying to go back inside and ignoring him, like he come and pushed me out. And then that’s when I stabbed him back. I don’t know why … Like he was still four feet away … he still had his hands up, like me, like boxing … [I was] telling him to stay away.
Police: You actually swung the knife more than one time, right? To keep him away?
Leo: Twice. I didn’t even use it on him, man.
Police: Do you remember actually stabbing him though?
Leo: No.
After considering Leo’s taped confession, along with his testimony and that of his mother and Reyna, who were the only eyewitnesses to the stabbing, I didn’t feel the need to prepare a written decision and ruled right then, saying,
At the trial, Leo testified on cross-examination that he knew that if he were to stab someone, he could hurt the person badly or even kill the person. He was aware of the dangerousness of wielding a knife at another person. However, the evidence does not support the conclusion that he acted with conscious disregard for human life when confronting his brother. Rather the evidence is that Leo brandished the knife, waving it back and forth, to keep his brother at bay, that he made an effort to keep a distance from Julio and that, while brandishing the weapon, he continued to plead with his brother to stop the fighting. By expressing fear of Julio, by warning Julio to stay away from him, and by showing a reluctance to use the knife against Julio, Leo evinced a concern for his brother’s welfare. This was not the conduct of one who treats his victim as unworthy of regard or notice. When Leo stabbed his brother, he did not act with a conscious disregard for his brother’s life. He stabbed his brother without malice aforethought. Therefore, he is not guilty of second-degree murder, so that charge in the petition is not sustained.
But that wasn’t the end of the matter.
The prosecutor now wanted me to find that the evidence supported the charge of manslaughter. Manslaughter is the unlawful killing of a person without malice aforethought. There are three types of manslaughter—voluntary, involuntary, and vehicular.
Voluntary manslaughter occurs when someone is killed “during a sudden quarrel, in the heat of passion, or based on an honest but unreasonable belief in the need to defend oneself.” In 2014, a California jury properly convicted thirty-six-year-old Tom Franks of voluntary manslaughter when, during a heated argument, he shot and killed his domestic partner, forty-eight-year-old Jacqueline Millan. He intended to kill but hadn’t planned to; the killing had been a spur-of-the-moment decision.
Involuntary manslaughter is the unintentional killing of another that can occur when someone is killed as the result of someone committing an unlawful act that isn’t a felony. For example, when someone steals a bicycle (a misdemeanor) and while riding it collides with a pedestrian, killing her, that’s involuntary manslaughter. Or, the crime is committed when a person commits a lawful act that results in death because the person failed to take appropriate precautions. That happened when Michael Jackson’s personal physician, Conrad Murray, lawfully prescribed and administered doses of propofol to Michael but failed to maintain proper oversight of the treatments. Dr. Murray was convicted of involuntary manslaughter in the resulting death of Michael Jackson and received the maximum sentence of four years in prison.
Finally, there is vehicular manslaughter, where a death results from the gross negligence of a person operating a motor vehicle. Intoxicated drivers who have multiple drunk driving convictions are typically charged with vehicular manslaughter when their drunk driving results in the deaths of others. In California, the maximum punishment for voluntary manslaughter is eleven years in prison; for involuntary manslaughter, it is four years; and for vehicular manslaughter, it is six years.
After quickly ruling out vehicular manslaughter, I was left to consider whether Leo’s conduct constituted voluntary or involuntary manslaughter. My analysis was short and direct: Since both the prosecutor and the defense attorney agreed that Leo never intended to stab his brother, he could not have committed voluntary manslaughter. What he did commit was involuntary manslaughter. Why? When Leo brandished a knife, he committed an unlawful act (brandishing is a misdemeanor) that resulted in Julio’s death—the textbook definition of involuntary manslaughter.
But Leo’s public defender wasn’t satisfied. She contended that when Leo unintentionally stabbed Julio, he did so in self-defense, which would mean that the killing was justified and, therefore, not a crime at all. The prosecutor could not have disagreed more; he vehemently argued that Leo’s stabbing of his brother was definitely not a case of self-defense.
In law school, students are taught to “think like lawyers” by analyzing legal issues in four steps: (1) identify the issue, (2) identify the rule, (3) apply the rule to the facts, and (4) make your conclusion—longhand for the acronym IRAC. So, thinking like a lawyer, I resorted to the IRAC analysis to determine if self-defense was applicable to Leo’s situation:
(1) The issue: Did Leo act in self-defense?
(2) The rule: For self-defense to apply, the force used must be proportionate to the assault. If, for example, someone threw a small rock at you and you reacted by shooting the assailant with a gun, your claim of self-defense would not be justified because your use of deadly force—firing a gun in response to a thrown rock—is unreasonable and unwarranted.
(3) Apply the rule to the facts: The evidence adduced at the trial was that Julio and Leo had a long history of fighting that never escalated beyond the use of fists. At no time, before this incident, had they ever used weapons of any sort.
(4) Conclusion: It was unreasonable for Leo to believe that Julio would inflict sufficient force upon him to warrant Leo introducing a knife into the fight.
So, I agreed with the prosecution and ruled that this was not a case of self-defense. Leo, I announced, had committed involuntary manslaughter.
Now, I was faced with the difficult question of what to do with this devastated fifteen-year-old who, for the rest of his life, would live with the knowledge that he had killed his brother. From the time of his arrest and throughout his trial, Leo had been detained on a suicide watch at the juvenile hall and was prescribed antidepressant medications.
I had two options: send Leo to one of three youth prisons operated by the California Youth Authority (CYA) for four years or place him in a residential- or community-based treatment program, where he would remain for two years. Juvenile prisons are locked facilities, the last stop for minors before they enter the adult prison system. Located in remote areas of the state, the focus of these institutions is punishment and control. Far less punitive are local residential and community treatment programs, whose primary goal is rehabilitation. (In September 2020, California’s governor signed Senate Bill 823, which eliminated youth prisons and replaced them with local facilities where juvenile offenders are provided rehabilitative services.)
The probation officer’s report recommended that Leo be committed to CYA, exactly what the prosecutor had requested. Leo’s attorney objected; she wanted me to consider an alternative placement. Since the probation officer had not included any alternatives in his report, I asked him for information about placements that might be appropriate for Leo. Grudgingly, he nodded and said that he would provide me the information.
True to his word, the probation officer prepared a supplemental report in which he listed seven alternative placements, ranging from an out-of-state boys’ treatment program to six residential programs located throughout the state. However, he noted five of these placements had rejected Leo based solely on the seriousness of his crime. The other two—one based in San Jose and the other in San Francisco—agreed to accept him. I had just four days until the next court date to decide.
On February 27, 1998, the hearing resumed. The prosecutor argued forcefully that placing Leo in CYA was appropriate because of the violent nature of the crime and, as importantly, the public would be protected for the next four years from this “aggressive, impulsive, and angry” young man. Leo’s public defender countered that he was not impulsive or aggressive or angry. Rather, she said, he was “depressed, guilt ridden,” and in dire need of treatment. Given that I had found that the killing was unintentional, Leo’s lawyer insisted that her client wasn’t a cold-blooded murderer; he needed treatment, she pleaded, not punishment.
I decided that Leo would go to the program in San Francisco and remain until his seventeenth birthday. The highly structured program with a focus on intensive psychiatric care housed sixty juveniles ages thirteen to seventeen, but it was, by law, unlocked. I knew that Leo could walk away, but I also knew that Leo understood that if he were to leave, the California Youth Authority was next. A handcuffed and visibly relieved Leo walked out of the courtroom, Benita at his side.
A few months later, Leo was back, having failed the placement in San Francisco. Still reluctant to send him to CYA, I decided to try another placement. Leo didn’t make it there either. He broke the rules, started fights, and attacked the counselors. None of this was surprising to me. Leo had killed his brother, and no amount of therapy was likely to diminish his overwhelming sense of guilt. At his trial, fifteen-year-old Leo was thin and forlorn. Now, at age seventeen, he was bloated, likely a reaction to medications, and suicidal. Our juvenile justice system left me no further options; I ordered Leo to the California Youth Authority, where he served his time and was released.
Ten years later, in July 2009, Leo was sentenced to two years in a California state prison, convicted of multiple drunk driving offenses. The juvenile justice system failed Leo and so had I.
* * *
I presided over a variety of cases in juvenile court—thefts, vandalism, drunk driving, robbery, drug possession. But those cases involving acts of violence, like Leo’s story, stay with me. To this day, I am haunted by the case of Kristyn K. On October 5, 1995, thirteen-year-old Kristyn K. was the victim of a gang rape. Her accused rapists—five of them—ranged in age from fifteen to seventeen. All were African American; Kristyn was Caucasian. Nearly two years later, in April 1997, I presided over the juvenile court trial of two of the juveniles, fifteen-year-olds Edward B. and Lemar C. The other three defendants—sixteen- and seventeen-year-olds—faced trial in adult court. (In California, juveniles must be at least sixteen years of age to be tried as adults.) Why had it taken this long for their cases to get to trial? There were lots of reasons: pretrial motions, investigations, busy lawyers, overcrowded court dockets.
I quietly wondered what Kristyn and her mother would think when I entered the courtroom to preside over this trial. Would they worry that a Black judge would be biased in favor of the two Black juveniles? Conversely, what would the two accused rapists think when seeing me for the first time? Would they breathe a sigh of relief, thinking that with a “sister” on the bench, they would surely get a break? I hated the optics—Black males accused of raping a White female—a stereotype that for more than four hundred years has dogged African American men.
While the testimony of the investigating police officer was important, the key prosecution witness was Kristyn. From the witness stand, she described in excruciating detail what her attackers did to her, adding that she had been on her menstrual cycle and had a tampon inside of her when she was raped.
On cross-examination, Kristyn had to face not one but two defense attorneys. Amazingly, she held up remarkably well under their intense questioning. She was clear, and I found her to be credible. Still, I withheld my judgment; the accused had a right, if they chose, to tell their side of the story.
The physician who examined Kristyn testified that as a result of the gang rape, her tampon had been shoved into her vaginal canal; testing of the tampon revealed the presence of Edward’s DNA. With such damning testimony, Edward’s lawyer must have figured that his client had no choice but to testify. And what a witness he was.
Edward testified that he didn’t rape anyone and that even though she was on her period, they had consensual sex in Kristyn’s bathroom. He arrogantly boasted that Kristyn “wanted it.” After listening to Edward’s fourth version of the incident, I lost count, and I lost my patience. The evidence was clear that Edward had orchestrated this entire affair, left Kristyn to be raped by his buddies, and then returned to rape her. Sitting stoically in the front row of the spectator seats, Kristyn never took her eyes off of him.
Then there was the matter of Lemar, the other accused juvenile. Kristyn was unable to say with any certainty that he was among her attackers. While there was some evidence that placed Lemar at the scene, without Kristyn’s testimony identifying him as taking part in the rape, there likely wasn’t sufficient evidence to establish beyond a reasonable doubt that Lemar assaulted her. As a result, Lemar’s attorney wisely chose not to put his client on the witness stand.
When the trial testimony concluded, I ruled that the prosecution had proven beyond a reasonable doubt that Edward B. had raped Kristyn. I looked right at Edward and told him that he was a liar, that he had not helped himself by testifying falsely, and that what he had done to Kristyn was heinous and despicable. I usually refrain from lecturing defendants, but this little thug warranted a lecture. He sat next to his attorney, glaring at me. I would see him again at his dispositional hearing.
With respect to Lemar C., I ruled that the prosecution had failed to prove that he had participated in the rape and found him not guilty. I later learned that Lemar had earlier been convicted and sentenced in an unrelated case of strong-armed robbery (forcibly taking the property of another, without the use of a weapon). So, he wasn’t going anywhere anytime soon.
The dispositional hearing for Edward B. was set for the week after the Memorial Day weekend. I had read the probation report and knew that both the deputy district attorney and Edward’s public defender would be in full attack mode. I needed the weekend to contemplate my decision. Wouldn’t you know, that weekend was Memorial Day, and I was the duty judge.
Copyright © 2021 by LaDoris Hazzard Cordell
