Defense attorney for the 6-year-old
Q: In some of our research interviews, the police have actually paid credit
and praised you for your role in bringing the mother to a press conference with
the victim's father and mother. Can you tell me about that?
Burris: Well, there was a press conference with the ... one with the
mother. And I'll tell you, the reason being is this. This case had the
potential to be an emotionally highly charged divisive issue. And we had a
Hispanic kid who was badly beaten. And you had a black community, you have a
black kid who was supposed to have done it. And what happens in a situation
like this is people forget what really happens and they immediately become
tribal in their reactions to these things. And the blacks to go for the blacks
and the Hispanics to go for the Hispanics. And the other communities stick up
for the victim.
And I didn't want that kind of issue around this case because when I got into
the case, I wanted to do what I could do for the kid. My kid. And at the same
time, not be unmindful of what happened to this baby, all right? So I didn't
see that as a faction. So I encouraged this mother and family members to
understand what was going on with this family. That you don't really know what
We have a baby that is injured and they are saying your kid did it. So I
wanted her to have some empathy for this family and that it didn't have to be
adversarial. And she is a decent woman, she is a good person. So she
understood that and I didn't have to beat her over the head. She understood
and she was pained by it. And she literally cried. She cried.
And I don't think that ... what I wanted to do was to make sure this case gets
fought basically in the courtroom and not in the media and that is what I want.
And I didn't want ... because I have been involved in a lot of high profile
cases, the media is there for that day, the next day, the day after. But the
people have to live there ... the media people leave. And so I wanted
to make sure when these people have to live together, that the animosity was
not such that there is for a breach, a long-term breach in the community.
Because these were people who all lived in the same community.
I went to that neighborhood and I saw where my kid lived and I saw where that
baby lived. And I saw where the other kids live and it was a community. A
multi-ethnic community. Essentially it wasn't like some people had rich
environment and other people were poor. They were all relatively poor in any
So it didn't seem to me that there were any real percentages for anybody to
have them fighting amongst themselves. That didn't make any sense. Plus, I am
not comfortable, frankly, leading a political charge on a law case. Whatever I
can do to make the case work and there are some political components, I want to
do it within the case itself. And so I wanted to sort of lower the temperature
around race and allow me to do the law work that I can do. And that was my
Q: And how do you feel about the stance that Mr. Bermudez, the baby's
Burris: Humanitarian. I would like to think if it were me, I would
have taken the same position as a person, as a human being ...
Frankly, it wasn't me that made all this work, frankly, it was the two people.
It was the Bermudez family and it was my family. Because they were decent
This was so hard for the Bermudez family. The father could do it, but that
mother, that mother it was hard for that mother. She was petrified ... What mother would not be?
You bring a baby home and in a month you
have got to worry about whether you have an invalid? It was tough
for her to come and to participate on that level and it was tough for my
client's mother because she had the uncertainty of what was going to happen to
These were average, ordinary people who had never been around the media, don't
know, you know, the danger that is associated with being [with the] media. And I had to
make a real decision. As part of my strategy on how should I involve the
mother in the media.
You know, the natural reaction is to go into a cocoon. But then by
the time I got into the case, they had said such awful things about the boy and
the mother that I decided that I needed to do some kind of damage control and
so I put the mother out there. Whether I did the right thing or not,
I don't know.
But my instincts were to let the world know that this was a decent lady, okay?
Who was trying to do the best she could with what she had and that she wasn't a
woman who maybe was abusive, a drug addict, etc. That what happened, but it
wasn't a function of this boy not having a mother.
I am not convinced ... I don't know if I did the right thing or not, but it
seemed to make sense to me that I wanted people to not just treat this woman as
if she was an ogre of some kind. And so I adopted a strategy, at least for a
week, of allowing her to respond until people got to know her and see her. It
was only for a short time. I didn't want to do too much of it. But it was a
strategy that I developed to try to offset some of the negatives about her.
Q: How successful was it?
Burris: Well that remains to be seen. I don't know how successful it
was. I mean, I certainly have reflected upon, did I do the right thing? You
know, the question is did I put a person who was not equipped to handle the
glare of the national media, did I put her in the wrong environment? Did I
hurt her case, did I hurt the kid's case? I don't think that I did, but
whenever you make a decision of putting someone in a public forum, there is a
down side to it. So I took a calculated risk that I was doing the
right thing for the family. Let the people, generalized public, see this kid
and for them to see another side of the minor. And so that was a decision that
Q: You referred to a case that occurred in San Francisco 25 years
ago, involving a 10-year-old and 7-year-old brothers who tortured and beat
and ultimately killed a 2-year old baby they had abducted from a park.
Q: Horribly hung the baby's body on a makeshift cross. It became known as
the crucifixion murder. Now, in that case, neither the 10-year-old nor the
7-year-old, was there ever any hint, statement by the prosecution or the
police that they should be prosecuted for what was truly a horrifying,
Burris: Not once.
Q: Not once?
Burris: In that case, where the crucifixion killing where the 7- and
10-year-old killed this toddler, was a big story in the sense that it was
horrible, but no one thought that the kids should be prosecuted. I could not
in any way understand how the sociologists and prosecutors of that day could
easily make that decision, but yet there was this rush to prosecute this kid.
Who essentially committed a horrible, allegedly committed a horrible crime and
the baby wasn't dead.
So, you know, there was always the question whether this was racially
motivated. Why the facts were different? Maybe politically the times were
different. It might be in the political ambitions. I thought perhaps, solely,
the political ambitions of the D.A.S that were involved. Because socially
there is no real reason to have prosecuted this particular kid.
In that other case, the dealt with that case with social work. Counseling, do
whatever they could do to help those kids, like they should have done here at
the outset. This case should have never been in the media forum where we had
all this media attention around this case.
We had a case, same time, recently, where a 12-year-old autistic kid who
functioned maybe at a 6-year-old level, kills a baby ... a horrible situation.
The D.A. in that case says, "We are not going to prosecute this kid. We don't
treat kids that way." The irony of it is, that kid functioned at a
6-year-old level. My kid was 6 years old and he functioned at a
I could, for the life of me, could not see the logic as to how they could
prosecute my kid's case. That wasn't to say they should prosecute the 12-year-old.
Because obviously the kid had problems, but so did my kid. And so
it turned in large measure, it seems to me, on the individualness of the person
who made the decision to charge. Because all of the indices there, a kid in
need of help, were there. And he could have easily said, I refer this case
over to social services, but he chose to do it another way. But why would you
treat a kid like a criminal in this case and you don't treat him like a
criminal in other case?
The answer to it is you shouldn't treat kids that way. At all. That, granted
there was a lot of discussions during the time our case was filed about what
was going on politically around juvenile justice system. And I think the
politics of that, along with the ambitions of this juvenile... This lawyer,
caused this case to reach this level of hysteria and public acknowledgement
that it did when prudence and good sense and civility would have dictated that
we do something differently.
Q: I hate to keep kind of harping on it, but the... I mean there was,
aside from the differences in the prosecutors in this case, the 12-year-old
case and the case 25 years ago, there was in all those cases a
difference in race.
Burris: There is no question that race is a big issue. And I certainly
have said as much, and I did my argument in this case. I cited these other two
cases and said the differences I see is that our client was black. And that
ultimately could have been the real difference.
Now, that is the easy thing to say. It is the factual ... it is factually
correct that it was different. That the only thing that would suggest a
difference was race. But I don't know that I have to call the person racist.
It seems to me that things are so obvious that you don't have to put labels on
them. Why should I do it?
Q: Well, in a lot of other cases, people, attorneys in your position, have,
as you know, been anxious to play what is known as the race card...
Burris: Well, I don't know that playing the race card in terms... As a
label it the thing to do unless it is something that you can clearly see that
it makes a difference. I didn't see where playing a race card made a
difference because ultimately the question had to be decided by the judge.
Now the judge's reputation was that of a fair man. Now it is true,
I always have concerns about any judge that works
closely with a prosecutor. I really do. I just... Human nature being what it
is and so even though I had comments that I want to make about the judge, I
would never expect the judge to buy in to it, because he has to live with that
particular person. So I had concerns about it.
But, in asking around, everyone said that he would make a decision based upon
the evidence and so I had to have confidence in that. Now, you don't then go
out and make racial statements because then, it seems to me, that the trier of
fact, the judge, might get offended by it. You know, and plus it doesn't
promote the proper resolution of the case.
That is not to say in my heart of hearts I didn't think that it was a racial
decision that was made, because I did argue and clearly said what I thought
about the racial differences...The differences in the ethnic backgrounds and
what that portends for the case. But in terms of placing a label on the case,
it did not promote, in my view, a resolution of the matter and therefore it was
superfluous and did not, in my feeling, help and do what was in the best
interests of my client.
Q: I guess the question everybody asks, both in and out of the case, is why
did the boy attack the baby?
Burris: Well, number one, I can't say that he did or did not do. Okay?
That issue has not been resolved. I want to be very clear about that.
I have not adopted a position that he did or not. It is true we have all acted
as if he did because of the effort to resolve the matter in a humane way and
all of that.
Part of my sense is that we are just now honestly getting to those issues and
that is why it was so important that we get the kid out of the program, put him
in a safe program that allows for him to ultimately get in touch, through
professional work with whatever was existing that caused this to occur.
And so, to answer the question, we don't know, yet. We will, in time and when
we do, I think we will have done what was right for the 6-year-old. Because
my feeling has been and would be that the juvenile justice criminal side would
never get to the issue of what caused this to occur? It could only occur in a
setting where we are looking to find out what is in the best interests of the
child and to prepare him to grow up as an adult without placing the hammer of
the criminal justice system on him. And that, to me, is the beauty of the
process that we have engaged in. Because we don't know the answers yet, but we
are getting there.
Q: Was this an important case? Where there important principles at stake
and what were they?
Burris: I think it is important that you have to say to the system,
that there are breaks here. That you can't use any old case and any old person
to promote your own personal issues or to use the system to promote a political
agenda. And that someone has to say, maybe later, but not now.
And the people who have to say, "Not now" are people like myself, who will say,
"What you are doing here is fundamentally wrong." From our point of view,
it is another example that you want to preclude prosecutorial abuse. That
people who have power have the ability to abuse that power and someone has to
call them to into check. This is an example, to me, of calling the prosecution
into check and not allowing them to abuse the power that we have given them.
Q: The report by Dr. Blinder and in a subsequent interview... where he
suggested that the boy was... not suggested, said that the boy was a
natural-born killer and that there was no real remedy to fix that condition and
short of locking him up forever he would be dangerous...
Burris: The analysis that one gives to adults is not the same
analysis that one gives to children. You need to know about child psychology
and you need to know about children and how they function and how they think
before you can make an assessment like that. Frankly, Dr. Blinder's not
qualified to make that assessment. He has done very little, if any, children's
Everyone that I speak with, have spoken with, have all said, you can't make a
judgment as to where this kid is going to end up. Whether or not he has an
anti-social behavior, he has a personality disorder of some kind, psychopath.
We don't know that yet. He is much, much too young and that the philosophy,
the moral values, all of those things are in their very early formation stage
and there is much work to be done. And as a consequence of that, it is too
early to say whether this kid will be salvaged or not.
Q: In the court of public opinion, can an audience sort of accept your
argument that a 6-year-old boy should be treated as a victim, victim of his
environment, a victim of...well, his environment...?
Q: As opposed to a D.A. who says, "I have got to protect society and this
kid is dangerous. I don't care what produced him. Let's get tough with
Burris: Well I don't know that they are necessarily incompatible. They
are not necessarily incompatible. Because I don't know that I am saying
anything differently than that? I am saying not only is he a victim, but we
also need to protect him from himself and from others. Given what we know
about him. The only thing I have said is, we don't do that in the criminal
justice system. We do that in the social services department. And that is
something that I think that anyone, if they were objective and fair-minded,
free of racism and look at any kid, could say that. They could say that and
that is not a difficult pill to swallow.
There are those who have had problems, but I have listened to those comments
and I have had to wonder where they were really coming from. But if you had
children and have raised children and know the kind of things that children can
do, you know that a child can be salvaged with proper training, proper
treatment and that it is not a good thing to through them away at 6. It may
be that at 16, that kid's philosophy has formulated and maybe we can. I am not
convinced that is true, either, but it can be.
But I am certainly not prepared to say it at 6. And I think any fair-minded
person and I think I would say that that is right, let's see what we can get
done and I think that society has an obligation to do that. It is safer and a
better expenditure of dollars to do it while they are young and to save them
before someone is dead or someone is hurt or you have to spend thousands and
thousands and thousands of dollars while they are in prison or on death row or
paying lawyers for that. So I think this is an investment well spent.
Q: ...What [did you think] about him being sent to juvenile hall and
spending two months there with much older kids?
Burris: You know this boy was sent to juvenile hall at the very outset.
And when I got into the case he had been there a week or so. I considered it
my primary mission to get him out of juvenile hall while this process was going
on. Initially, I thought he should go home, but later, as I have I said, I
thought that wasn't a good thing for him to do.
My opposition to juvenile hall that was rooted in the fact that he was the
youngest kid there by six or seven years. And that he was there with older
kids and learning about things that older kids are talking about, whether it is
girls or... I mean he really got into the genre of teenaged
kids liking each other and girls and boys and, god knows, what else he was
learning there. That is number one, in terms just being exposed to a high
level of criminal conduct and/or lifestyles of juveniles ... that's number one.
But number two, there was always the question of getting more special treatment
than he needed. He didn't need to be a kid that was receiving special
treatment because he was the youngest person there. He needed to be in an
environment where there were other kids who were his own age and maybe had
comparable anti-social behavior that didn't result in and needed to be in the
criminal justice system. So I thought that it was adversely, could adversely
impact his long-term development by being amongst kids who have done criminal
conduct or even learning about things before you need to learn about them in
terms of juvenile stuff.
But, number three, maybe being pampered by the staff and not getting a hold to
the kind of things that 6-year-olds need to get a hold to in terms of learning
discipline and learning the environment that you typically have to deal with.
When you are a 6-year-old and everyone else is 15 and you are only
accustomed to dealing with older kids, they have a tendency to treat you
babyish. And so there was a lack of appreciation for any of this.
And so I thought it was important to get him out of there. And there was
always the view of becoming acclimated and we were always surprised, frankly,
how happy he was. He was truly happy. That meant to me that his home life was
not good. There was no stability in the home life. That also contributed to
my need to make sure that he didn't go home until we had addressed his needs
and/or the family's needs of providing an environment. But it was a very
strange signal. I mean most kids who are 15 or 16, they go to
juvenile hall, they are, like whining and crying if they are the first time out
of the box. But not him. Not him.
So we knew that there was some downside to this. There is this whole
acclimation question that we were concerned about. So we had a ... I had a lot
of mixed emotions about this and I wanted him out of juvenile hall and that was
a big deal. I didn't, after my first appointment, I didn't actually want him
back at home.
Then we had this incredible difficulty of finding a place for him. Because I
thought that juvenile delinquency side or probation and social services was
sort of in a philosophical conflict as to who was going to have to pay if he
went out of juvenile hall. There is no question that if he left juvenile hall
and went on the delinquency side, probation then [they] would have to pay. They
didn't want to pay. Their view is, "We have got juvenile hall. Why should we
pay twice?" You know.
And Social Services had not really taken over yet, but they are thinking, "Why
should we pay if he is going to be a ward of the court. That's something that
probation should pay." .... So each was sort of waiting to see how I was going
to do this case and I think that contributed in large measure why it took such
a long time to get him out of that place. Because there was a sort of "go slow"
policy. And I found this place. It took an incredible long period... It took
over six weeks after we found this place, if not longer, to get him out of
juvenile hall. And I thought there was a considered effort to go slow, you
know. Who was going to pay? And maybe this case would be over.
You see that was always it. Maybe this case would be over. Maybe the D.A.
will come to his senses and the case will get dismissed. So, no one, you
know it is all about... And I don't even view this with ill will. I think
these were bean counters as you have in agencies. I mean, it is not an uncommon
situation. They are bean counters. They are trying to figure out who is going
to have to pay. Whose budget is it coming out of? And so we were sort of at a
budget tussle there with me fighting the legal component. But the
people who were looking about who is going to have to pay this whole thing, you
know, they are looking too. So he got caught a little bit in there.
But those were my concerns around juvenile court and what ought to be done and
not done and some of the problems I foresaw.
Q: Did you find yourself sometimes during the case in conflict with your
duties as a defense lawyer in a classical way and your responsibilities as a
Burris: ....My responsibilities as a citizen are pretty much tied into
my sense of myself as a lawyer. So I never have ... that is not a conflict I
have and I didn't have it there. If there was a tinge of conflict as a lawyer,
and that was, if I make this motion to set aside the criminal proceedings, I
could be having this kid in a home for an indefinite period of time? Versus
going forward, putting all the issues out on the table now. If we win, he
could be out.
So I really ... I did have a twinge of philosophical conflict that was really a
question of tactics and strategy. And I resolved it by saying that probably,
if I go this route, I can win no matter what because winning to me was getting
the treatment that the kid needed. That is number one. And number two, out of
the criminal justice system. And then I thought, I can take care of anything
after that. It is like, you live to fight another day.
I figure that if I can get the treatment for him, no matter what else
happens, I can make him a better person. And number two, I will have the
criminal justice system out of this thing and have it not in the public forum.
And if I have to come back and fight this later, I'll fight it.
I always thought that I could fight this case straight up. You know, but I
have always had a disadvantage because of the judge. But I always
thought that I could make a good fight and it would have been good for me, as a
lawyer, to fight it out ... but I didn't want that. I mean, it was
always what was in the best interest for him.
And so it was more a question of strategy. And I did have, with my
lawyers around him, we had discussions about is this the right thing to do?
What makes sense? What are we trying to do here? Is this really helping in a
long way. Because in many ways we put aside the fight on did he do it or did
he not do it. The Miranda questions. The voluntariness of the thing. We put
aside all that and wanted to go this route.