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August 14, 2004
BECA President Urges Davis Residents
To Oppose Plea Deal in Vandalism Case
Jann L. Murray-García published an essay on the editorial page of the Davis Enterprise on Sunday, August 1, urging citizens to voice support for efforts to fight Yolo County Districft Attorney David Henderson's plan to reduce charges against a 16 year-old Davis youth accused in a spree of hate crimes last October. Read the essay here.
Wake Up, Davis, and Say No To This Plea Bargain!
Many Davis young people, parents, educators, and community members have worked tirelessly over the past 18 months to transform the Davis community into one that is an emotionally and physically safe place in which to live and raise our children. The truth be told, countless folks have had to labor over decades in pursuit of this same goal. That work is now being jeopardized by the actions of one of our elected officials, Yolo County District Attorney Dave Henderson.
On October 26, 2003, four young people, including at least one DHS student, tagged with graffiti and threw more than 10 dozen eggs at the cars of an openly gay man, Robert Russell, and that of an African American family. Mr. Russell had a gay pride flag hanging on the door of his townhouse, and his car was parked in the designated space. Liquid from the eggs seeped into Mr. Russell’s car engine, causing over $4000 worth of damage. Witnesses, who reportedly heard the youngsters shouting racist and homophobic slurs, got a portion of the license plate, leading Davis police to a 16 year old DHS student, the driver of the "get away car." Mr. Russell, no doubt in sheer terror, watched this from his front window and later picked the student out of a police line-up. Charged with felony vandalism with a hate crime enhancement, this youngster refuses to identify his three accomplices, and has never apologized to Mr. Russell, a true community hero.
Both DA Henderson and the youth’s lawyer shocked the court on July 8th when they presented a mutually agreed upon plea bargain, reducing the six counts of vandalism to misdemeanors and removing the hate crimes enhancement. Thankfully, presiding Judge Timothy Fall delayed his decision, reportedly communicating that he is under no legal obligation to accept the plea bargain case. In fact, contrary to a statement by the DA, Proposition 21 clearly states that the judge "may" defer judgment, a privilege and not a "right" that may or may not be granted by the court. (http://primary2000.ss.ca.gov/VoterGuide/Propositions/21text.htm) Judge Donna Petrie is scheduled to issue a decision on the case on August 11th.
By mandate of the California State Legislature, hate crimes cannot be treated as simple acts of vandalism, adolescent angst, "boys will be boys," or "girls will be girls." Penal Code Section 422.6 states that "No person shall knowingly deface, damage, or destroy the real or personal property of any other person for the purpose of intimidating or interfering with the free exercise or enjoyment of any right or privilege…because of the other person’s race, color, religion, ancestry, national origin, disability, gender, or sexual orientation, or because he or she perceives that the other person has one or more of these characteristics."
In the Russell case, the proposed plea bargain lets the offender go without any real penalty because his sentence will be deferred and then wiped clean from the record. If we know that charging a minor with a felony will essentially mean that the minor walks away without facing any consequences, then charge the minor with misdemeanors – which at least have some consequences. In the Russell case, the offender and/or the accomplices he is protecting committed several acts of vandalism, punishable as a misdemeanor by imprisonment for up to one year, a fine of $1,000 or both. These are serious and meaningful consequences.
The DA also argues that he can’t prove the necessary intent to prosecute a hate crime. Since this juvenile is protecting the identities of the ones whom he may claim did these wrongful things, it is the offender’s word against the DA’s that he wasn’t motivated by hate.
But should the offender’s refusal to identify his accomplices allow him to walk away from this without paying any price? No. The offender can be charged with conspiracy (California Criminal Jury Instruction Nos. 6.10 and 6.11). He can be held responsible as an aider abettor (California Criminal Jury Instruction No. 3.00). It was this juvenile’s car that they were driving and used to escape after committing their crimes. Those who conspire with others to commit a crime or help them do it are equally responsible for those crimes as those who actually do the wrongful acts.
In other words, there is no legal justification for this plea bargain. All it does is show those motivated by hate in our community that they can harass and attack their victims without any risk of punishment. It encourages those who commit hate crimes to blame their actions on those who can’t be found and it guarantees that those caught won’t cooperate with police to locate their accomplices. This plea bargain encourages more hate crimes against us and our neighbors and protects those who express their hate through violence.
There are other compelling reasons, in the interest of justice, why this community would be better served at this time by fully prosecuting this case as a hate crime, and/or by offering a plea bargain only with strict stipulations. Three weeks before the spray painting in West Davis in February 2003, an African American Fairfield High School basketball player wrote a letter to the editor of the Davis Enterprise, poignantly detailing how he was made to feel like Jackie Robinson, enduring numerous racial taunts during a DHS home game.
This Autumn, a DHS student wore a t-shirt denigrating Latinos to a Woodland High School basketball game, even after school-wide warnings the preceding week and after the young man’s father warned him about "calling attention to himself" with the t-shirt. He was not thrown out of the gym. Dozens heard this young man in a standing room only DHS Social Climate meeting boldy declare how he had done nothing wrong, but if it made someone feel bad, he was sorry. It was chilling to listen to this arrogantly unapologetic apology.
And we must never forget 13 year old "Bob," the Holmes Junior High student, who took his own life last Spring, following an unbearable and ongoing sense of exclusion from schoolmates, based on his sexual orientation.
Finally, just over two years ago, a White DHS student began to serially harass an African American DHS student, ultimately featuring the Black student on a sophisticated web site, frequented by several DHS students, graphically detailing the physical harm he would like to do to the Black student. The website included stereotyped caricatures of Black people, as well as (sham) links to militia, pornography and hate web sites.
Yes, in Davis, in our university town, these are not isolated incidents of spur of the moment, adolescent misjudgments and impulsivity. Will it take someone or perhaps dozens of people getting hurt before we listen to our children and form a consistent, firm chain of adult leadership and behavior toward this degenerate behavior? We see the DA’s actions as a weak link in this essential chain of justice and in the unequivocal lessons we need to teach our young people.
Much has been done in our community over the last year to improve our community. The Davis Human Relations Commission, the new leadership at the Davis Police Department, the Davis Joint Unified School District School Board and educators, the Davis Enterprise, and more recently, the Davis City Council have all actively embraced this issue as one of urgent concern to all of their constituents. Community groups and individuals have launched web sites, established hate crime rewards funds, provided educational conferences for teachers and parents, and led book clubs, presentations and dialogue sessions.
We believe in restorative justice, and in mercy, and are not necessarily seeking jail time for fully cooperative juvenile perpetrators of hate crimes. As others have suggested, any plea bargain or probation should meet the following conditions: 1) an admission by the perpetrators of having committed these crimes; 2) revelation of the names of the three accomplices; 3) immediate payment of property damage to Mr. Russell; 4) completion of a cultural sensitivity program and/or one year of counseling, specifically targeted to the anti-social behavior, as suggested in Penal Code 422.95; 5) payment of counseling and legal services for the victim, in this case, Mr. Russell; 6) the completion of community service, as mandated by the State Legislature; and 7) the retention of the hate crimes designation.
Please consider writing a letter to DA Dave Henderson at 301 2nd Street – Woodland – 95695 (666-8180), and to Judges Timothy Fall and Donna Petrie at 725 Court Street – Woodland – 95695 (666-8589) to express your opinion. As the non-violent victor and world hero Ghandi might say, the health of our children and community depend on each of us – this week – being the change we want to see in Davis.
Jann Murray-García, M.D, M.P.H. is a pediatrician, health policy consultant, and President for Davis Blacks for Effective Community Action. She can be reached at jmurgar@pacbell.net
Posted by Neil Henry at August 14, 2004 12:03 PM