Nov. 20, 2007: First Sentencing Day

THE WAITING ROOM at juvenile court rarely gets louder than a whisper. Youth of all stripes—grilled-out hyphy kids, emo kids staring at the ground, jocks wearing the logo of their schools' sports teams—stifle nervous energy or slouch in depressed resignation. Alongside them sit parents brimming with the frustration of having to take off work, and a fear that today their child will be getting locked up. Everyone here has had better days.

This is where Gail Noble is pacing, staring at the door to the courtroom as she waits for her son Karim's attorney to speak with her before his court proceeding. It's 1:45pm, 15 minutes after court was supposed to start for Karim, and Gail is inching closer to the door in and out of which attorneys and probation officers are constantly floating. Seventeen-year-old Karim is the calm one, trying to convince his mom to take a seat. Karim is an athletically built young man, who stands around 5-foot-7, with a composed, quiet presence. His demeanor betrays the stereotype—he is a teenage black male with dreads who many would expect to go hyphy, but it seems more likely that he'll take a nap.

Finally, Yoyi Franco, the attorney who represents Karim, appears through the door, and Gail zeroes in on her immediately. Her urgency comes from not knowing what will happen with Karim's case. Today is his sentencing day, and he is facing eight months in the Ranch, a juvenile detention facility. Even more worrisome, a felony strike could follow him the rest of his life.

To be a black male marked with a strike before he's even old enough to get into R-rated movies could spell disaster for Karim later in life. Individuals who have one previous serious felony conviction, even if they were a minor at the time, and are convicted of any new felony (it need not be serious or violent) generally receive a prison sentence that is twice the term otherwise required for the new conviction. Individuals who have two previous serious or violent felony convictions and are convicted of any new felony are generally sentenced to life imprisonment with a minimum term of 25 years. These are the "third strikers." The three-strikes law was billed as a way to lock up violent criminals, but according to the Department of Justice, a "majority of California inmates have been sentenced [under the Three Strikes law] for non-violent crimes."

Then there are the issues of race and class. The Center on Juvenile and Criminal Justice, based in San Francisco, says that most strike-enhanced sentences are given to ethnic minorities and to the poor. They cite that "31,573 of those serving second and third strike sentences are minorities, 74 percent."

Just two days earlier, Gail met former Santa Clara County public defender Aram James at a Jena Six panel discussion at San Jose City College. She was moved to approach him after he told the crowd that "Jena Sixes happen every day in Santa Clara County." Gail believed he was talking about Karim. She told James how her son was accused of pulling back a man's finger during an altercation around a bike, how her son's trial seemed like little more than a speed bump on his road to incarceration and how she felt powerless to stop it. He escorted Karim and Gail to court on sentencing day to speak with the attorney.

Franco, 37, addresses the group politely and gracefully. "I'm sorry I haven't called you back, I have just been so busy in back-to-back trials," she says through a concerned smile. She tells Karim that she just got the probation report, which was recommending the maximum sentence in his case. According to court protocol, an attorney is supposed to review the probation report with their client, to see if there are inaccuracies, and to develop a proper defense. An attorney can also develop their own Independent Probation report, to offer a counter recommendation. As Franco did not have time to do any of these things, Karim was about to walk into a courtroom defenseless.

It is quickly becoming clear in Karim's case that something is broken within the Santa Clara County juvenile court system. Juvenile incarceration rates have ballooned in Santa Clara County at unprecedented rates, hitting numbers in the upper 300s which haven't been seen in over 30 years, and impacting the system far beyond what it is equipped to deal with. This clogging of the court machinery puts an emphasis on speed that calls into question the guarantee of a fair trial, even with the most well-meaning of attorneys.

According to a Juvenile Justice Commission report, over 80 percent of the youth in Santa Clara Juvenile Hall are people of color. The system even has a term for the racial imbalance—"disproportionate minority confinement. As identified by the Juvenile Justice and Delinquency Prevention Act, "DMC is a condition that exists when the proportion of youths detained or confined in correction facilities who are members of minority groups exceed the groups proportions to the general public." The United States has black youth arrest rate double their general population numbers, and California has a 9 percent black youth population that makes up 43 percent of the detained population. But Santa Clara County's numbers are even worse, with black youths being arrested at seven times their general population.

Perhaps that explains why Gail Noble senses that her son's fate here has been decided already. She is tense, but not combative, her demeanor is more care-giver than fire-starter. She is a medical assistant by trade, and volunteers for the African-American Center on San Jose's Sixth Street, and has a strikingly close relationship with her son. Whatever typical teenage rebellion and distance normally exist between son and mother seems to be absent. But she is a mom, and will turn that switch when she needs to. When asked how she's handling all this, she says, "I'm trying to be patient, but it is all fourth of July on the inside."

As Gail tries to skim through the report, James asks Franco about a comment she had said the judge made during the proceedings: "Did you really hear Judge Loftus say that Karim was 'probably selling drugs' when you told the court that Karim got a new job?" Yes, I did hear that, but I think he was joking," she says, explaining that although it was in the courtroom, it was somehow "off the record." When asked if she is going to take action on the statement—ask for a recusal of the judge or a new trial—Franco says she would have to file for a conflict of interest, as a witness to the statement. Such a filing would mean Franco would be pulling herself off the case, and Karim would get a new attorney, who would then ask Franco to testify to what she heard Judge Loftus say. While a judge can refuse to recuse himself, he cannot refuse a conflict of interest, and the attorney who files it is not obligated to explain the conflict. The action would also stop the sentencing from going forward, and Karim would be given the time needed to review the probation report, and challenge the recommendation.

Nov. 20, 2007: In the courtroom

A juvenile courtroom is a much smaller, more intimate space than adult court. There are only two rows of seating behind the attorneys and clients. Any "guests" need to be invited by the family, and James and I are the only people besides attorneys from the district attorney's office in the back rows. Judge Loftus calls court to session. He has a "Don't test me" type look on his face. Franco makes a hail-Mary type plea for a continuance to review the probation report, and is denied. The judge asks the district attorney, Catherine Constantinides, if she has any witnesses, but she says that she does not, because the probation report is enough. The move is a sign of utter confidence that her side is going to win. The judge than asks Franco if she has any people she would like to call to the stand. The Nobles are expecting Franco to call for the conflict of interest, but instead she calls Gail to the stand as a character witness. After some commotion on the defendant's side, Franco approaches the bench. Eventually, Judge Loftus says in an annoyed tone that there will be a recess. Once outside, Karim is calling his girlfriend and giving play-by-play updates. Franco is racing by us at a frantic speed, and Gail asks her what is going on. "I am going to call for the conflict, I just need to talk to my boss."

Gail seems relieved that Karim's attorney hasn't completely abandoned the game plan, but she is concerned that despite whatever strategy they may discuss beforehand, she has no control over Franco, let alone the rest of the courtroom. As we go back in to the waiting area, I realize that it is this paralyzing position that defines the anxiety on the faces of parents and children in juvenile court. Being here means you are a boat on the ocean—you end up wherever more powerful forces are inclined to take you.

Team Karim waits for hours, and watches as the court empties. It is past 5pm now, and no one else remains other than the required attorneys and a few bailiffs. Karim gets called into court, and Judge Loftus says that he will resume Karim's sentencing on Dec. 4. Franco still has not raised the conflict of interest. Judge Loftus decides that Karim should be remanded, and he is taken by the juvenile hall counselors.

Outside, Gail stands in the cold, shell-shocked. She is using her anger to hold herself together, having watched her child leave handcuffed, on the verge of tears, to be locked away.

Nov. 28, 2007: Meeting With Attorney

THE COUNTY'S CASE against Karim was suspect from the start. He was convicted of "assault by means of force likely to produce great bodily injury" because of an accusation that he had broken a man's finger in a scuffle over a bike on May 12, 2007, in Santa Clara. Even though he was a minor, he was charged with a felony strike due to a strategy which is considered standard practice by the district attorney's office. Since his arrest, Karim has consistently denied doing what he is accused of, and there were multiple witnesses supporting his claim. Although at first glance the incident looks like typical teenage stuff—stolen bikes and confrontations—a deeper review raises the specter of a targeted arrest that was intent on incarcerating Karim and a couple of his friends, with the hopes of getting them out of Santa Clara.

According to a Santa Clara Police Department Incident Report, officers received a disturbance call from Valero Gas Station/Speedy Oil Change on Homestead Road. It says that the suspects who were stopped, including Karim, were associated with a house on Princeton Street which was labeled a "Nuisance Suppression Project." The Santa Clara police, as explained in the report, were taking a "focused problem-solving approach to any and all activities by people associated with, or in and about, the area of that residence." The arresting officer writes that he told one of the youth detained in the incident that the police were going to "stop the nuisance" behavior of those associated with the house.

The officers responded to the call around 6pm. A man had approached Karim and two of his friends, and said the bike that Karim's friend was sitting on belonged to his son. There was a verbal confrontation, then a tug of war with the bike. At some unidentified point, the man's finger was broken. Officers who knew Karim and the two other youth as being associated with the "nuisance house" arrested them. According to an investigation by private investigator Anthony Castaneda, who was hired by Franco, there were multiple eyewitnesses to the incident who said that Karim never touched the man; however, these witnesses told Castaneda they were denied an interview by police. Michael Daniher, the 31-year-old manager of the Speed Oil Change located at the gas the station, told Castaneda that while he saw the whole incident, he never saw Karim make any physical contact with the man in question. Daniher also said that he heard one of the officers tell the youth that he was going to, "do everything he can to get them out of Santa Clara." Daniher was not interviewed by the police officers at the scene.

Trinidad Montes, a hood tech at Speed Oil Change, was also an eyewitness to the incident. He said that he would be willing to testify in court that Karim did not injure the man in question. When another eyewitness, former Speed Oil hood tech Jeremy Cuihbert, also confirmed that Karim did not break the man's finger, Castaneda asked him why he didn't offer his statement to the police. Cuihbert says that he in fact attempted to give statements to the officers on the scene, but they weren't interested in obtaining witness statements from him or his co-workers. Cuihbert further stated that when he tried to speak with a Santa Clara police sergeant who was on the scene, he was told, "This has nothing to do with you."

It was at this moment, when Santa Clara police officers were writing up their reports, that Karim's arrest, prosecution and sentencing was essentially determined, according to Kimo Uila of the Center on Juvenile and Criminal Justice. Uila is the director of the Dentention Diversion Advocacy program, and mobilizes support for families, acts as a navigator through courts proceedings and tries to intervene to get youth into programs rather then incarceration.

"No question there is racial disparity in the system, the numbers are sickening and incarceration just makes things worse," says Uila. Pointing to a report the research arm of his organization produced, he says, "It starts with the police in the community, how they write up the report, this is what sets the tone for the entire case." Gail agrees with Uila, but has had has a simpler way of describing the process. She calls is being "pencil-whipped."

Karim's trial came and he was convicted, hardly an unusual outcome here in Santa Clara County. More than 80 percent of the time, the judge in a juvenile case will follow the recommendation of the district attorney's office.

After a few requests, Franco agrees to meet with Gail, Aram and a couple of civil rights leaders—Lessie James of the Coalition of Concerned Citizens and human rights advocate Kenny Woo. In her office, she says she has had a change of heart regarding Judge Loftus' alleged comment. Upon further reflection she has decided the statement she says she heard was not racist or prejudicial. Everyone in the room seems stunned. Gail presses the point that even if it was not a racist comment, it shows a pre-conceived and prejudicial position by Karim's judge about Karim. Franco is unmoved.

Gail leaves the meeting feeling she has taken a step backward. She says that Karim is having a hard time at the hall since being remanded. She sees him every day, gives him pep talks and explains what she and others are doing for him on the outside. And sometimes it is Karim giving Gail pep talks. After the meeting with Franco, Gail is even more determined to fight for Karim, and she has become somewhat of a legal expert in the process. She has copied and organized all of the paperwork, gone through the reports meticulously and developed her own legal analysis and strategy for why her son should not be labeled as a strike offender.

It is a transformation of necessity—and she is not the only parent who has become an advocate/attorney/paralegal to fill the void. Over 90 percent of all cases are handled by publicly employed attorneys—either public or "conflict panel" attorneys like Franco (private attorneys contracted with the county)—and they have developed a bad rap. This is why a lot of the young people jokingly refer to public defenders as "public pretenders." But every now and again, you get a believer. Aram James was that kind of public defender in his day, for over 25 years, and he is outraged about Karim's situation. Before Gail gets in the car to visit Karim again, Aram tells her that, according to their training, "a defense attorney is supposed to be a zealous advocate for their client." He says "zealous advocate" slowly for emphasis.

Dec. 4, 2007: Sentencing, Day 2

WHEN SHE RETURNS to court, Gail has organized family, friends and civil rights leaders. Team Karim is now an army. In fact there are more supporters than there are seats in the courtroom, and a number of people have to wait outside. Franco meets with Gail and tells her that, once again, she has changed her position on the alleged statement from Loftus, and is willing to address the court about it. Gail has a wait-and-see type attitude.

Franco addresses the court: "Your honor, my client and mother have raised concern, due to a comment made by the court off the record, that they have anecdotal evidence that this court thinks all black people are drug dealers and users." She then asks Karim if he is satisfied with her representation, to which he responds affirmatively. Gail is clearly not satisfied with this rather sanitized description of the situation, and is suspicious of Franco's move to get Karim's approval on record.

The proceedings are a parade of parole officers and school and juvenile administrators, both for and against Karim. One character witness, William Chapman, former principal of New Valley, a school Karim attended, offers the most interesting testimony. After telling the court that Karim rarely had disciplinary problems, he says, "I believe Karim was mistreated because of his race and ethnic origin." After being cross-examined, he goes on to say that although he was not at the scene at the time of the incident, he did speak to the officers, which formed his opinion.

Judge Loftus says that he will uphold the recommendation of the probation report, but will go with the Alternative Probation Academy if Karim qualifies. Going into APA would be a slight victory in that he would be able to stay at home with Gail, and just attend the school during the day while he fights for his appeal. There are no guarantees Karim will qualify. In an editorial by county Supervisor Blanca Alvarado, who chairs the Public Safety and Justice Committee, she says, "Many youths who are committed to juvenile hall are found guilty of crimes that make them ineligible for community-based interventions." The alternatives to incarceration are empty gestures if the youth can't get in them.

Just a day before the final sentencing, Gail learns that the APA will not take her son. This means he's going to the Ranch. They have little time to prepare, but after a number of strategy sessions, Gail and Karim have come up with a game plan. Even if it's just hearsay, bringing up Judge Loftus' comment is critical for Karim's appeal possibilities as well as bolstering his claim for a new trial. If the comment is not noted on the record before Karim is sentenced, it will be much harder to introduce it later on in the process. The Nobles decide that Karim will file a Marsden motion, which is the official way to fire an attorney. Although a judge can deny the motion, and chances are he would, this would in effect, allow Karim to address the court and get Loftus' alleged comment on record. Plan "B" is for Gail to address the court and get the statement on record.

Dec. 13, 2007: Final Sentencing

IT'S GAME DAY. Gail has gone over her written address to the court so many times that she has it memorized, and Karim is so angry at his experiences with the process that he is ready to burst. Judge Loftus calls the court to session, Gail says she wants to address the court. Nobody associated with the court, even Franco, knows what she's going to say. Her voice steady, Gail condemns the court, and accuses Loftus of making the prejudicial statement. She says he should be removed from the case, and that Karim deserves a new trial. She says that her son would like to file a Marsden motion. Franco, the district attorney and Judge Loftus are dumbstruck. Judge Loftus denies making the statement, saying "the information is not true." He says that whoever told her that he made such a statement was wrong. He also says that Karim's request is out of order and inappropriate. He asks Karim, "Do you even know what a Marsden motion is?" Karim calmly replies," It's when I feel I was not represented correctly." Judge Loftus says that he will nonetheless hear Karim out. According to procedure, the courtroom is cleared, except for Karim, his attorney and the judge.

Outside, Gail says she needs a cigarette as family members congratulate her. Everyone is doing facial imitations, taking turns with Loftus, Constantinides and Franco. The group is called back to court, where Loftus sentences Karim to the maximum. Since he is a minor, this means about eight months at the Ranch, but his strike is official.

This is the outcome Gail feared, but expected. Karim is being warehoused at juvenile hall—since the Ranch is overcrowded, he is incarcerated with an entire unit of youth who are waiting to do their Ranch time. But he will not get "straight time," and two days at the hall will count as one day of his Ranch sentence. In the meantime, Karim's case is headed to appellate court.

Jan. 10, 2008: Meeting With Marc Buller

While Gail and James are waiting to meet with the Sixth District Appellate Court, James has arranged a meeting with the district attorney's office. Gail and James sit down with Marc Buller, the chief assistant district attorney, who also supervises the juvenile court. Gail explains all of the issues she had with Karim's case, including the judge's supposed statement. Word has already gotten around regarding Karim and the explosive statement, and Buller, has does some research. He says that he spoke with Constantinides, who has a different version of what went down. According to Buller, Constantinides says Franco and herself her at the bench with Loftus due to issues of showing proof of work for Karim. Constantinides says that it was she who said something to the effect that they needed proof, because "he could be selling drugs for all we know." Gail and James are hesitant to accept this version, and ask that Buller do a more thorough investigation and report back to them, to which Buller agrees.

James has been sitting on a few questions he's been anxious to ask an active insider. He asks about disproportionality among youth of color in the juvenile system. Buller, a straight-talker, is forthcoming. "Its been an issue forever; no question they are disproportionately represented," he says. His office, along with the other branches of the juvenile justice system, has been working on reducing the numbers for the past three years. "The numbers don't lie, African-Americans are 2 percent of the population and 14 percent of the juvenile hall population."

Buller says that in all aspects of the system there are, "decision points that are creating a bias." He tells Gail and James that, "We [D.As] do not affect the proportionality, positively or negatively." But Jeffrey Butts of the Urban Insitute thinks that every factor affects the proportionality.

"At each stage of the process, there's a slight empirical bias," says Butts. "And the problem is that the slight empirical bias at every stage of the decision-making accumulates. ... By the time you reach the end, you have all minorities in the deep end of the system."

Buller says the key is more programs for youth, so they can stay out of the system all together. While Gail and James acknowledge Buller's efforts, they have a simpler idea. "Why not just say that the district attorney's office will stop giving kids strikes?" Aram asks. Buller isn't ready to embrace this idea just yet, but he does agree to meet again in a couple weeks.

It is actually an astonishing moment. With no institutional assistance, no high-finance nonprofit and no political ally, a mother has initiated a policy discussion with one of the top law-enforcement officers in the county about a reform that can dramatically alter the juvenile justice system, just through an unflinching determination to help her son.

Gail and James leave Buller's office with an expanded view of the significance of Karim's case. In the car they discuss how they can get other parents involved, swapping stories of youth they know who got caught up like Karim, how they can build a movement with all the families they know, who fell in the "disproportionate" category.

James drops Gail off at her light-rail stop, on First Street and they exchange a quick goodbye, no long congratulations. They are going see each other tomorrow morning anyhow at their weekly planning meeting, and they have a lot of work to do.

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