little criminals

Interview with Harold Jewett

Prosecutor for the Juvenile Court:

Harold Jewett has been a prosecutor of criminal cases for 14 years. For the last year, he has been the supervisor for the Juvenile Division.

Q: You've been both a prosecutor in the adult system and in the juvenile system. Is there any difference between being a juvenile as opposed to adult prosecutor, and does your approach change at all?

Jewett: Yes and no. And I think it's as much a reflection of the way the law is structured as it is any personal preference I have. And that is that in the context of prosecuting adults ... our legislature has decided that the penal statutes are for punishment and at a minimum at least to remove offenders from the streets so that the law-abiding citizens of our community are safe. That is in counter-distinction to juvenile law, where the primary emphasis is rehabilitation. In fact, it's only recently that the concept of punishment has been permitted to be used in the juvenile arena at all. So with that kind of background, while in many respects, there are similarities because we are proving violations of the penal code in both instances, and our burden of proof is the same, and due process rights of the accused are the same, the focus of the prosecution is very much different. And I do believe in a rehabilitation in juvenile cases. And I do believe there are many, indeed most, instances where punishment should be mitigated by the fact that an offender is a juvenile. We should work hard to try to implement programs and solutions that help redirect them in a way that they can be productive members of society.

Q: Do you like working in the juvenile system?

Jewett: My personal preference is yes, although I'm a trial lawyer by nature. And the one thing that you don't have in the juvenile context that you do have with adults is juries. And I've essentially cut my prosecutorial teeth trying cases in front of a jury. You don't have that here. It's all in front of a judge and the proceedings are more informal, and so it doesn't give the same opportunity to fully expand on your skills as a trial lawyer when you are in the juvenile division. But there's a lot of satisfaction in evaluating cases where the consequences are serious to the community at large. Particularly in the last four or five years, we're all very much aware of the increase in juvenile crime. It is a significant social problem, and if I can do anything to help, like I said, mitigate that problem in my role as a juvenile prosecutor, I'm happy to do it.

Q: Prior to this case, what was the youngest juvenile criminal defendant that you had prosecuted before?

Jewett: You know, I'm not sure, exactly. I believe the earliest one that I have seen prior to this Brandon T. case was 8-years-old. Although that is fairly rare, it's not unheard of. I know we do have another case pending right now of a minor involving, again, an act of violence in a school context, who is 6-years-old. So it may be that Brandon T. was the first one, but it's not the only one.

Q: How and when did you first hear of the case, and what was your reaction?

Jewett: I think I first heard of this case through the media and within probably a matter of hours of that, received notification from the Richmond Police Department that the case would be coming to our office for filing. My reaction was not really that much different than my reaction in many of these cases. What many people fail to truly understand is we are dealing with children here. And that's what the juvenile division does. And while many of the offenders are 16 and 17, so they are certainly borderline adults, many, many cases we file involve minors who are the age of 11, 12, 13 and 14 who are truly children, who look like children, who act like children. And so while I was certainly mindful of the fact that this child was younger than most, I was not shocked by it. Because that's what we do here, is bring the misbehavior of children to the attention of the juvenile authorities so that the court can do something about their misconduct, and I treated this case, frankly, no different than I did any other.

Q: So it was just another case for you then?

Jewett: Well, I wouldn't go that far. I wouldn't go so far as to say that it's just another case, because certainly the tender years of this particular assailant, and the extreme vulnerability of his victim were noteworthy and unusual. I was certainly sensitive to those issues as I was reviewing the case. But at least in the context of the age of this particular minor, he was not so far removed from the age of other minors whose misconduct we address everyday, that somehow it was something unique or that in my judgement should be treated any differently. In fact, I was trying to make a conscious effort to not treat it any differently, and to evaluate him by the same kinds of standards that we evaluate all people whose cases come to this office.

Q: So you had no difficulty believing that a 6-year old could commit such a serious, vicious crime?

Jewett: I had no difficulty believing that this 6-year-old committed a serious and vicious crime after reading the police reports. It was very clear that he did it. It was very clear that he knew what he was doing and that it was wrong at the time that he did it. And so I didn't prejudge the case until I reviewed the reports and made a determination on the critical legal questions--one of which is for anyone under the age of 14, whether they understand the difference between right and wrong. And that was something that I was certainly mindful of at the time I reviewed it. But after reviewing the material, I had no difficulty believing that at the time that this minor did what he did, he knew of the wrongfulness of his act. And that's the legal threshold that has to be met before we can justify filing a criminal petition. And there was no question in my mind, and there still isn't, that that threshold was met here.

Q: As part of your reviews, did you look at police tapes of the interviews conducted?

Jewett: Several times.

Q: What was your reaction? How important were those tapes to you in reaching your conclusions about the case?

Jewett: Well, they were important, but that was certainly not the only evidence that we had. The tapes of the interview of the minors went a long way to demonstrating the minor's affect--his ability to understand questions and to answer them appropriately, his demeanor while he was talking about some of the things that he did, his sense of remorse--things like that that the written word isn't really going to necessarily draw as accurate a picture of as seeing, hearing inflection of voice, seeing body language does, that kind of thing. So it was important, but so was the observation of other witnesses. The condition of young Ignacio Bermudez's body was extremely important in evaluating what the minor's intent must have been, for instance. So we looked at a lot of factors. His statement was one, but there were many others as well.

Q: There were two ways you could proceed--either through dependency court where children are largely treated as victims, or through delinquency court, where children are treated as offenders. Why did you decide to proceed criminally?

Jewett: Well, number one, when you are talking about the distinctions between dependency versus delinquency, this office has no responsibility over filing dependency petitions, that's handled through another department of county government. For me, reviewing the case, my threshold issue was whether or not he knew of the wrongfulness of his act. And when I decided that he did, based upon the evidence that I had, I thought it was our responsibility to try to invoke the jurisdiction of the court in a way that would include an element of the protection of society. And the biggest distinction between dependency and delinquency is you cannot house a dependent child in a secure setting, precisely because they are treated in the law as victims. Whereas if it's a delinquency proceeding, in the name of public protection, you can hold them in a secure facility. And obviously the security of the public was implicated in the conduct of this minor in what he did. And so it's extremely important for us, from the very beginning, to try to institute a procedure that would ensure both the rehabilitation of the minor and the protection of the public, and the delinquency petition is the only way to do that.

Q: And you thought it was important that we be protected from him?

Jewett: I felt it was important that the other kids in his neighborhood or wherever he is living be protected from him. He has a complete lack of remorse, at least he did during this time, and a history that suggests that there's no impediment to his re-offending. And it was clear that something had to be done before somebody else got hurt. And so I don't have any misgivings about that at all.

Q: Why did you decide to charge the boy with attempted murder?

Jewett: Well, we look at a number of factors in evaluating any case, whether it be a juvenile or an adult case. And that is the conduct of the perpetrator at the time the crime was committed, and what we can say about what they were thinking based upon what they did. The condition of the intended victim and generally the severity of the injuries is going to be some reflection of the extent of the assault, which in turn is a reflection of the state of mind of the assailant. We had a child, an infant, completely defenseless with two separate skull fractures, beating on the brain, out of his bassinet with sticks laying around. We had statements by the minor reflecting an intent to kill. He made a specific statement apparently to another child that he had to kill the baby because he didn't like the way the Mexican family was looking at him. He made threats of physical bodily harm to other children immediately after the beating if they went to the police. So if you put all those factors together, it looks a lot like intent to kill, which is the necessary element of attempted murder, that's why we filed it.

Q: I gather that a statement a [9]-year-old gave to police on videotapes was important in your considerations. What did the girl say and how important was it?

Jewett: If you are referring to the witness to whom the minor made a threat, I believe, as we have already disclosed in other public proceedings, he threatened to hurt her, if she went to the police. That was a very important statement. It shows a number of things. Number one, it shows his understanding of the wrongfulness of his act. Why else would he threaten somebody who would be a witness to the beating with bodily harm unless he knew what he just did was wrong and would therefore get in trouble for it? So that was extremely important on the knowledge of wrongfulness legal element. The other aspect of that, though, that I think is also important is his statement he would hurt her if she went to the police. That suggests that he has an understanding of who the police are. He doesn't have to have an adult citizen's understanding of what's going on to be legally responsible. But certainly by that statement he did demonstrate his understanding that the police were agents of the community who were there to enforce the community's rules. And he knew that he broke the rules, and the people that are responsible for enforcing it may come to see him because of that. And he didn't want that to happen, so he had to threaten a witness to try and prevent that from happening. That shows, I think, significant sophistication of thinking on the part of the minor-- related both to the issues of knowledge of wrongfulness and to the more generalized issue of understanding society's rules, and who's responsible for enforcing them and who's responsible for obeying them. And that statement he made to that child was made within minutes of the time he beat the baby. So it's an extremely important statement, I think.

Q: And as you watched the [9]-year-old girl give her statement to police, did you think she was a reliable witness?

Jewett: Well, the [9]-year-old statement to the police on videotape was somewhat circumspect, as I recall. It's been a while since I've looked at it, but she was a reluctant witness, and the statement that she made that I relied on primarily was not the statement she related on the videotape many hours after. In fact, it may have even been the next day after all this happened. It was a statement that she made to a police officer at the scene, before she was even brought to the Richmond Police Department, before all of the attention and concern and misgivings and pressures and stress associated with being a witness in a high profile case began to come into play. This was a statement that was given to a police officer in an unintrusive kind of setting where she could just be herself and tell the officer what happened. It was that statement that I was primarily relying on for making the decision regarding knowledge of the wrongfulness of the act.

Q: And you didn't worry about her later ambivalence with police the next day?

Jewett: Well, it's a concern in the sense of how is she going to come across as a witness at a hearing and to what extent are we going to be able to develop that information directly from her when she testifies. Because clearly, like we see many times, she was concerned about the prospect of being a witness. She's 9 years old, so she's certainly old enough to be a witness, but she has a lot of legitimate concerns, as many witnesses who testify in criminal cases do. So you don't know exactly how that concern is going to reflect themselves in the actual testimony. Her reluctance as the investigation became more in-depth is certainly something that could suggest a concern about her testimony. But as is the case, as in so many different contexts, usually what I'm most interested in is what is the statement of the witness as close to the time of the crime as possible before all the other outside influence begin to come to bear on the witness's state of mind, while it is still fresh in their mind, when things have just happened.

Q: Based on police reports and the videotaped interviews, what do you think happened on April 22nd?

Jewett: Well, as I've stated in court several times, what I think happened that day was those kids went in there to get hot wheels tricycles. And as they delved more deeply inside the residence with two of them going in, one of them originally waiting outside, they came into or in proximity to a room where there was a sleeping baby. Whether or not it was curiosity on their part that motivated them to go to the bassinet or whether the baby heard them and began to cry of his own volition, perhaps thinking his mother was there and he needed his mother, he was hungry, we don't know. He may never be able to tell us at this point. They were then concerned because they-- n particular Brandon T.--knew he was in a place he should not be, undoubtedly knew there was somebody there watching the baby. And I believe he was motivated by desire to silence the baby so that he would not be detected inside somebody else's house. And I believe that his efforts to silence the baby are what resulted in the child's injuries ... In the meantime one of the kids ran out of the house with the tricycle, Brandon left and threatened the 9-year-old. Fortunately, the neighbor across the street saw one boy run out with the bicycle and put it in a bush someplace. And that's what essentially started the interest in the Bermudez residence and caused the neighbor to go in just about the same time the babysitter was coming out of the restroom. Both of them then went into the room where the baby was laying on the bed, not moving. And upon approaching saw the injuries to the child, picked the child up and the child began to cry, but it was clear that the child had been injured in some way. There was a broken stick in the bassinet and it was pretty clear that somebody had been there. And certainly with the neighbor seeing the boys leaving the residence, it was pretty clear that the boys had been in there, and the entire investigation then flowed from that.

Q: Did you see pictures of the baby, and what was your reaction?

Jewett: Yes, I did see pictures of the baby. The photographs don't even begin to demonstrate just how brutally the child was beaten. His injuries primarily were internal, so the photographs themselves don't really tell the story as to what the extent of the injuries were, how seriously he was hurt.

Q: How did the boy attempt to silence the baby. What did he actually do?

Jewett: He kicked the child in the head. He struck the child with his fists. This is while the baby is lying on the ground. He may have, although the evidence is somewhat ambiguous on this particular point, struck the baby with a stick.

Q: And how severe were the injuries?

Jewett: Extremely serious. At the time the case came in, it was our belief that this would be a homicide case. We were advised that the child had multiple skull fractures, bleeding on the brain, and he was not expected to live. It had been my understanding that, in fact, that prognosis had been given to the family ... but young Ignacio was tough and those first 48 hours or 72 hours were probably extremely critical to his prognosis. Frankly, I had all but prepared a petition for murder to be ready by the time the minor originally appeared in court on Friday, because it was my belief based upon what I had heard that the child was not going to live the night. Fortunately, that did not happen.

Question: How did you feel about the way the police questioned the 6-year-old and 8-year-old twins?

Jewett: I was very happy with it. Frankly, I thought Steve Harris did an excellent job. In both instances he had the minors parents or guardians, some trusted persons, sister, present. He not only advised them of the legal technical elements of the admonishment, but also put it in terms that they would understand. Much the same way the judge did at the time of the minors' arraignments, not only reading the specific charges, but then explaining to them in lay terms what those charges mean. And I think Officer Harris did that and did it as well as he could. You know, it is an open question that may or may not ever be resolved, depending on where this case goes from here, whether or not the minor had the kind of understanding specifically of the right to counsel that he would need for the Miranda admonition to be effective. But to the extent that some courts should ultimately decide that this kid didn't really understand what a lawyer was or his right to consult a lawyer before he talked, it certainly wouldn't be a product of what Richmond did. They did a great job.

Q: Did you feel looking at the tapes that he had understood the Miranda warning?

Jewett: I have a concern about it. I think he understood his right to remain silent. I think he understood he didn't have to talk to the police if he didn't want to. But I have subsequently obtained knowledge from the doctor's reports and from the representations made by Defense Council about his difficulties in communicating to his client. So there may be a significant issue about whether he has an understanding, or did at that time, of the right to council.

Q: The attorneys for the 6-year-old and the 8-year-olds reacted quite differently. They feel that the police were treating those kids as adult suspects, and they object to the way the police were even wearing their guns. What's your reaction to that?

Jewett: Well, I've given you my reaction. I frankly don't recall whether or not any of the officers were wearing their guns or not. And they do it as a matter of course, it's second nature to them, particularly the police department. My recollection is that Officer Harris's coat was off. He was sitting down in a chair, leaning over, and the kids were sitting in a chair. It's a room, it's carpeted, it has toys over on one side on a table. His mother was present. He was not being abusive in any way. He was not being overbearing in any way. It was not my impression at all that he was trying to intimidate or otherwise coerce in some sense of the word any information from the kids. And I thought they did a great job.

Q: What was your reaction to prosecuting a 6-year-old?

Jewett: Probably the same reaction I had when I first came into this unit and was confronted with the idea of prosecuting kids. Once you get over that idea and recognize, that yeah, they are kids, but we're not prosecuting them in the sense that we're looking to put them in jail and throw away the key. Then really the fact that this was a 6-year-old, as opposed to an older child did not, was not a particularly great moment to me when I was appearing in court.

Q: He was just a kid who had done this brutal and vicious crime?

Jewett: Yes. And you look over, you look to your right, you see the minor sitting next to you. They're always young. They always look like children. It's very difficult, frankly, to look at them and imagine that they did this, whatever it is, crime. We have drive-by shootings, we have rapes, okay, by children who are 12, 13 years old. Some very serious, vicious crimes. And to look at them, boy, you would never know. But they do it.

Q: Same for this 6-year-old, I would imagine?

Jewett: That's right. I did not, in terms of my approach to the case, in my reaction to it, really have a particularly significant reaction to his age. Anymore than I would to any of the youngsters out there who were committing more serious crimes. And you know it's certainly a reflection of a tragic trend in our society that it's happening. But it is happening. And I feel and continue to feel we have to do something about it. And that's what we're trying to do.

Q: Is a competency hearing unusual in the juvenile system?

Jewett: Yes.

Q: Why was it done in this instance?

Jewett: Well, it was done on the behalf--really at the request, almost the insistence of defense counsel. In a typical criminal context, it is usually the defense attorney who requests a competence hearing, because it is he or she who has the most exposure to their client, and therefore, presumably are in the best position to know whether or not there's a problem. So it was done here by Mr. Burris insisting that he could not meaningfully communicate with his client. The court found what's called a "doubt" as to the existence of legal competence, and therefore, referred it out for further doctors' reports on the question of whether or not the minor understood the nature of the proceedings and could competently assist his attorney in his defense. And that's why it was done at the request of defense counsel.

Q: And how were the panel of three psychiatrists and psychologists chosen?

Jewett: Typically, there's a list of doctors who will receive appointments on a 1368, which is the section that deals with competence, and usually, although not always, the court will then invite input from counsel for both sides as to which of the doctors they would be willing to accept on the appointment. Sometimes there's only one doctor. Sometimes there's two. Sometimes there's three. Particularly because we had two interesting and somewhat perhaps competing issues, one, regarding the appointed doctor's ability to understand child psychology on the one hand. And the other the ability of the doctor to understand the legal standard of competence, on the other. We wanted at least two doctors. And I, for our part, was insisting that we have at least one doctor who was knowledgeable in the area of 1368 --that he had examined patients specifically with an eye towards whether that person is competent to face charges.

So it was important for us to make sure that there was at least somebody who could offer an opinion that included an understanding of the legal definition of competence. Similarly, I'm sure it was important for defense counsel to have somebody who would offer an opinion as to the psychological makeup of children. And then you have three in case it's a tiebreaker kind of situation? ... And it was based on those considerations, at least from my point, that three doctors ultimately were selected.

Q: And when the reports came back, two out of three said the 6-year-old was not competent to stand trial. Why was there such a difference between the professionals on the case?

Jewett: You have to ask them that. I am persuaded that, at least in our opinion, the minor, perhaps not like an adult would, but nevertheless understood what the nature of the charges were. And I understand the court's ruling. And the court did not find that the minor did not understand the nature of the charges. And there is, I think, very strong evidence that in fact he does understand the charges, he does understand the procedure. But as I recall, Judge Easton found that the minor could not rationally assist his attorney in his defense--which is the second prong of that two prong inquiry into a 1368 question.

So, you know, it's difficult for me to offer speculation as to the state of mind of the various doctors, and why they came down the way they did. Part of it, I'm sure, has to do with their fair and objective evaluation of the minor's responses to certain questions and things that he did. But frankly, I also think that part of it has to do with an underlying concern about whether or not a child ... 6 years old, should be a part of the juvenile justice system. And there may be an element of that that's coming into play in the picture, as well [as] their own personal opinions about that question. But I don't know. They haven't testified, so we don't have the benefit of that kind of insight. They've simply offered their opinion. I'm sure you'll take every opportunity to ask them that question.

Q: How do you feel about the judge's decision to suspend the charges, and that he was incompetent?

Jewett: Well, I, you know, the finding was hardly a surprise given the opinions expressed by the two doctors, or two out of three, who said in their opinion the minor was not competent to face the charges. And I could see the writing on that wall very easily. So at the time that the court actually rendered its opinion, it was not unexpected. So it didn't surprise me.

Q: Why do you feel he shouldn't be treated as a victim?

Jewett: Because I think he's responsible for what he did. He, like I said, with knowledge of the wrongfulness of his act, seriously beat a defenseless infant. And we're not saying that he should be held to the level of responsibility of an adult, or even of an adolescent. But there is a level of responsibility for anybody who acts against the interests of others with knowledge of the wrongfulness of that act. I mean, that is the essential equation in a free society, is social responsibility. It doesn't matter whether you're 6 or you're a 106. If you do something that hurts somebody else with knowledge of the wrongfulness of it, you're responsible for it, period.

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