The district attorneys in Sacramento and Yolo counties – at some point, maybe all state DAs – are going to fight Gov. Jerry Brown on his 11th-hour approval of a misguided bill that says no one under the age of 16 can be tried as an adult, no matter how horrific the crime.
Brown signed Senate Bill 1391 on Sunday night, despite the passionate lobbying of families destroyed by teenage perpetrators of some very high-profile cases.
“There is a fundamental principle at stake here: whether we want a society which at least attempts to reform the youngest offenders before consigning them to adult prisons where their likelihood of becoming a lifelong criminal is so much higher,” Brown wrote in a signing message on Sunday that was not received well by everyone.
“This is not over,” said Sacramento County District Attorney Anne Marie Schubert. “We’re going to challenge it.”
Brown’s action immediately affects the high-profile killing of J.J. Clavo, a Grant High school football player who was gunned down at a busy intersection in north Sacramento on the afternoon of Nov. 13, 2015.
A hearing Friday was supposed to determine if the suspect in Clavo’s killing, Keymontae Lindsey, will be tried as an adult. He was 15 when he was arrested on suspicion of killing the 17-year-old Clavo.
Right now, whether Lindsey’s hearing will even take place on Friday is unclear. Even though SB 1391 doesn’t take effect until Jan. 1, it covers all juvenile cases that haven’t been settled by then and Lindsey’s case unlikely will be.
Sacramento prosecutors want to try Lindsey as an adult because of the nature of the Clavo killing. Authorities described a brazen gunman who walked up to Clavo’s car and opened fire, killing a high school senior who was college bound. The gunman exhibited little regard for the carload of young men riding with Clavo.
What form Schubert’s challenge of Brown would take is unclear, but she is not the only local DA with a major case that could be upended by Brown’s decision.
Jeff Reisig, the Yolo County DA, had already secured the conviction of Daniel Marsh, who was 15 in 2013 when he broke into the home of a an elderly couple, asleep in their bed. Marsh entered their room, stabbed the couple repeatedly and mutilated their bodies.
Marsh was days away from his 16th birthday when he murdered 76-year-old Claudia Maupin and Oliver “Chip” Northup, 87, in their south Davis home. In 2014, a Yolo County jury found Marsh guilty of two counts of first-degree murder with enhancements – using a knife, lying in wait, killing two people.
Marsh received a maximum sentence of 52 years.
“We’re going to fight this every step of the way to try to distinguish this case by whatever legal and factual grounds we can,” Reisig said.
“This was one of the most heinous and horrific crimes any of us have ever seen,” he said. “It was gruesome. It was terrifying. This kid planned this out and executed it with some degree of sophistication. He didn’t leave behind any physical evidence. We found out because he talked to his girlfriend. I can’t even put into words how upsetting it would be if Daniel Marsh were released when he was 25.”
Marsh, now 21, was in court on Monday for a hearing to determine if he should be re-tried in juvenile court. Why? In 2016, California voters passed Proposition 57 which, among other things, changed how juveniles are prosecuted as adults. After Prop 57, DA’s could not send juveniles cases directly to an adult court. They had to go before a juvenile judge at a “transfer hearing” where they had to make a case for transferring a youth to adult court.
Lindsey’s transfer hearing is supposed to conclude Friday. Marsh started his on Monday.
But here is the question: Will Brown’s signing of SB 1391 hold up in court?
California voters approved Prop 57. In California, changes to ballot measures require a public vote. Clearly, Brown weighed this possibility when signing SB 1391. But just as clearly, his signature is going to be legally challenged. If that happens, it will place Attorney General Xavier Becerra squarely in the middle of a battle between DAs and liberal criminal justice reformers in the state legislature.
It is true, that too often young kids of color are prosecuted as adults.
“Unfortunately, I have seen too many cases over the last 20 years of young immature kids who were followers and ended up in prison for much too long,” said Kevin Adamson, the lawyer representing Lindsey.
“The vast majority of those kids were black or Latino, from poverty stricken homes,” he said. “We need to start educating and rehabilitating these kids, not throw them in prisons for massive amounts of time.”
There is no question that Adamson is right. But there are exceptions. Marsh is white and does not come from abject poverty. And though Lindsey is African American, so was the victim of his alleged act.
Clavo’s family, led by his mother Nicole, is African American. Nicole Clavo is an advocate for young black men. But what happened to her son happened. He really was killed in broad daylight. He really was in a car full of young African American men who also might have been killed.
Brown argued that state law allows for extended detention in juvenile facilities in cases of juveniles who still pose a threat when their incarcerations are nearing an end. The state Director of Juvenile Justice can request that the prosecuting attorney petition for more jail time. Theoretically, that petition could result in another trial of the defendant. It sounds good, except neither Schubert nor Reisig can recall this ever happening in their jurisdictions before.
Besides, a strong case can be made that Prop 57 is working. In fiscal year 2017-18, the Sacramento County DA filed 1,035 juvenile delinquent cases. But since October of last year, Schubert’s office has only petitioned for five transfer hearings to adult courts. These are rare cases when teens under 16 are prosecuted as adults.
“This is not just about public safety, this is about the crimes themselves,” Schubert said.
Said Reisig:”Why wouldn’t you want to let a juvenile court judge make the call whether a juvenile should be tried in adult court? Why not enact common sense modifications instead of an all-or-nothing rule?”
The DAs need to challenge Brown. Signing SB 1391 was a mistake. One that has deeply affected those victimized by young people like Marsh, who challenge the notion that all youthful defendants are alike.
“My thoughts have been completely on the victims’ family,” Reisig said. “I can’t imagine what they are going through. The pendulum is swinging toward criminal defendants and away from victims.”