The Letter, however, requires a response.

The basic background facts are these:

Five students [were] expelled from Central High School for cutting down two trees as a senior prank….

The students are all seniors and football players….

…[T]he prank was a case of “significant vandalism,” with estimated damage between $7,500 and $14,000.

The boys said they regret chopping down the trees, a prank meant to deprive junior classmates of shade.

“I wouldn’t do it again,” Jackson said. “It was a bad choice.”  (Tracy Correa, “Central High, expelled students waging legal battle” (March 16, 2010) FresnoBee.com.)

Now, at any given time, my criminal defense practice probably involves anywhere from 40% to 60% juvenile cases.  The majority of these cases come to me because of a limited contract I signed to accept a certain number of indigent cases per month.  I signed this contract a couple of years after I first started to practice law as a means of insuring that I could at least pay the rent on my office while I was trying to build my own practice; the steady income meant that even if I couldn’t help my wife with our family finances, I could at least cover the very basic needs for my office and stay in practice long enough to build a reputation and clientele.  With this contract, the juveniles I represent are typically from lower income families, which for some strange reason means I’m also usually representing minors from minority groups.

I can tell you that in my neck of the woods when a kid causes $7,500 to $14,000 damage to school property, he or she (although almost all of my clients are males) is going to be charged with at least one felony count and the minor is going to be in custody when I first meet him.  In many cases, that minor is going to remain in custody until the case is resolved.

For reasons I don’t completely understand, this case is being handled differently. Here, for example, is part of the letter that finally caused me to write about the case:

Enough already!  Why so many letters condemning the actions of five high school students who cut down two trees?  They have apologized, been punished and offered restitution.  But many of the letters still condemn their parents as well.  For what?  For standing up for their kids after the original school-dictated punishment was escalated?

Obviously, the youngsters made a terrible mistake.  But did it merit this level of denunciations and shaming? (Carolee Trefts, “Enough with the trees prank” in Letters to the Editor (March 29, 2010) Fresno Bee, p. B3, col. 3.)

The letter goes on to talk about Wall Street scandals, corrupt congress representatives and the war in Afghanistan, indicating that these are important problems which were allegedly ignored by those now complaining about these “youngsters.”

The “youngsters” are seniors at Central High School — at least one is 18 years old and thus eligible to be charged as an adult.  Normally, that’s exactly what would happen.  But these kids are not only not apparently charged with any crimes and are not in custody, but they are giving television interviews about the mean school district that expelled them and won’t let them return to class.

In addition, not insignificant segments of the community are rallying behind them and against the school district, as this Letter to the Editor shows.  An earlier story I read in the paper edition of the Bee indicated Fresno’s police chief believed it should be left to the school to handle.  When the school district violated a court order to allow the students to return, the police refused to enforce the court order.  (See the video accompanying this article.)

At first, I thought it must be that the kids were middle-class white kids, but I don’t think that’s it.  From what I can tell, two of the kids are white; the other three appear to be Hispanic.

Maybe it’s because the Hispanic kids are getting a free ride based on their association with the white kids.  After all, it’s normal for charges in Fresno to be determined by considering with whom the miscreants associate.  If, for example, you live in a neighborhood where some of the kids are gang members and you get into trouble with one of them, you’re almost certainly going to be facing a gang enhancement or independent gang charges; it’s a clear-cut case of guilt-by-association.  I suppose it’s possible, then, that what we have here is a case of exoneration or, — since those involved are at least being punished by the school system and by the fact that the parents have had to spend money on attorneys in the civil matter — at least a case where the police are staying out of it because white kids are involved.

Is it possible that the involvement of a couple of white kids can provide absolution for all?

Or maybe Fresnans are just feeling generous and compassionate these days.

Don’t misunderstand me: I don’t think the kids should be charged with crimes.  It was — felony vandalism, yes — but as they said, it was also a stupid prank.  If you read my post from a couple weeks ago, you might guess that I’m in favor of handling the case as it is currently being handled.

Juveniles sometimes do stupid things.  More juvenile cases should be handled like this one.

The simple answer is that they’re numbers.

But you knew that.

In 2006 or 2007, like me, the public defenders of a juvenile justice court in Miami-Dade, Florida, got tired of seeing all their children brought to court in shackles.  They started running motions to have them unshackled.

Today, more than 95 percent of our child clients appear without chains and shackles before all four juvenile judges.  With more than 3,000 detained children having appeared in court since our first motion, we have had no incidents of a child injuring or attempting to injure anyone in court, and no detained child has escaped from the courtroom.  (Carlos Martinez, “Children in Chains: Why are Children in Florida Treated as Enemy Combatants?” (May-August 2007) National Legal Aid & Defender Association, vol. 29, no. 1, p. 10.)

Three-thousand unshackled children.  (Unshackled!  My G*d!  What is the world coming to?!)  Zero incidents of injury, attempted injury or escape.

California, according to the California Supreme Court and numerous judges who have read and accept their duty to uphold the law,

held that minors cannot be shackled in any juvenile court proceedings without an individualized showing of need, the same as in jury trials, even though no jurors are present in juvenile court.  (James R. Brandlin, “Safety First” (Date Unknown) The Daily Journal, p. 7.)

But Fresno loves nothing if it doesn’t love living in and endorsing a police state.  So in Fresno, California, shackles are de rigueur.

I’ve written one or more articles on this situation in the past, so I won’t go into all the arguments against shackles again here.

What I want to add, though, is this:  Fresno’s juvenile court claims that they are not violating the law against shackling because they are not shackling as a matter of policy.  Any Fresno juvenile court judge making that claim is intellectually dishonest.  Deputies have testified under oath that minors were shackled because it was policy.  Deputies have stated off-the-record that it is policy that drives the shackling.

No amount of going back after the fact to find out that the child told another child — or even an adult — to “fuck off,” or that he stuffed toilet paper into his toilet until it overflowed, or that he banged on the door of his cell because he was bored stiff, is going to change that.

By the way, I think the fact that I “win” about 50% or more — two out of three since yesterday — motions that I bring to have children I represent unshackled shows that they are being indiscriminately shackled.  Most of these “wins” occur without argument: I make a challenge, the completely irrational procedure allowing deputies to go look for a reason is implemented and upon the deputies’ return, they state “The Sheriff’s Department will not object to the minor being unshackled.”

Boom!  The shackles — which clearly should never have been placed on the child to begin with — come off.

And something else that needs to be understood is this: the courts do not have to earn respect like most other entities or people do; the court has armed officers to enforce their power to lock people up for “dissing” them, for one thing.  But beyond that, they are duly-constituted courts of law under our system of government.

One thing courts can do, however, is to lose respect, when they forget that they are duly-constituted courts of law under our system of government.  Just because the Sheriff’s Department wants to do something does not make it legal.

And I know one way they the courts can lose respect.  Or, rather, I’ve heard the California Supreme Court say one of the ways it can be done.  The California Supreme Court — so please don’t shoot the messenger here –notes one difficulty for courts is:

the disrespect for the entire judicial system…incident to the unjustifiable use of physical restraints….  (People v. Duran (1976) 16 Cal.3d 282, 291 [127 Cal.Rptr. 618].)

Moreover, the Fresno juvenile justice court judges who approve shackling for some children on the basis of the Sheriff’s deputies coming back — after being unable to find any better reason for shackling children – to run through the list of sins of those children while in custody in their pods is — well, I already said it: an exhibition of intellectual dishonesty.

[N]o child should be brought into the courtroom in shackles except under extraordinary circumstances backed by evidence.  (Brian D. Gallagher and John C. Lore III, “Shackling Children in Juvenile Court: The Growing Debate, Recent Trends and the Way to Protect Everyone’s Interest” (2008) 12 U.C. Davis J. Juv. L. & Pol’y 453, 455.)

“But that’s not the law!”  I can hear these intellectually-dishonest judges shouting already.  “That’s just some namby-pamby touchy-feeling liberal writing some silly law review article!”

Well, how’s this for some law?

[T]he use of this technique is itself something of an affront to the very dignity and decorum of judicial proceedings that the judge is seeking to uphold.  (Tiffany A. v. Superior Court (2007) 150 Cal.App.4th 1344, 1355-1356 [59 Cal.Rptr.3d 363], quoting the United States Supreme Court in Illinois v. Allen (1970) 397 U.S. 337, 344 [90 S.Ct. 1057, 25 L.Ed.2d 353].)

Or maybe this?

[N]o California State court has endorsed the use of physical restraints based solely on the defendants’ status in custody, the lack of courtroom security personnel, or the inadequacy of the court facilities.  (Tiffany A., supra, 150 Cal.App.4th at 1358.)

What about this?

While we are sympathetic to the obligations and responsibility our conclusion may impose upon the juvenile delinquency court, the Sheriff’s Department and the People, those pale in comparison to the values we uphold.  (Tiffany A., supra, 150 Cal.App.4th at 1362, emphasis added.)

One last one, for now,

Although the Duran opinion was written in the context of a jury trial it has application to other proceedings as well.  Respect for the dignity of the individual and the court are values to be preserved whether or not a jury is present.  (Solomon v. Superior Court of Los Angeles County (1981) 122 Cal.App.3d 532, 536 [ 177 Cal.Rptr. 1].)

In the Duran case, by the way, the two defendants were in a courtroom where there was only one bailiff.  It was an adult court, so there was access to the outside.  The defendants had been charged with armed robbery.

The Tiffany A. case involved minors who had access to the outside and, if they could just get loose from restraints and away from a deputy, they could escape.  Nevertheless, Tiffany A. found that shackling is “anti-therapeutic for juveniles [and] antithetical to the rehabilitative aims of the juvenile justice system.”  (Tiffany A., supra, 150 Cal.App.4th at 1354, fn.7.)

Fresno’s judges seem to be unconcerned with the use of shackles in juvenile court.  The deputies want them.  There’s no one there to see inside the locked courtroom (except the attorneys, court personnel, families of the kids and possibly “victims” accompanied by their court-appointed hand-holders).  But,

[w]hile a primary concern regarding the use of physical restraints is the resultant prejudice if they are viewed by the jury, that is not the only reason for the limitation of their use. Also of concern is the potential unsettling effect on the defendant and therefore on his ability to present a defense, and ” ‘the affront to human dignity, the disrespect for the entire judicial system which is incident to unjustifiable use of physical restraints, as well as the effect such restraints have upon a defendant’s decision to take the stand.’ ” … As we have noted, the…rule of ‘evident necessity’ serves not merely to insulate the jury from prejudice, but to maintain the composure and dignity of the individual accused, and to preserve respect for the judicial system as a whole; these are paramount values to be preserved irrespective of whether a jury is present during the proceeding.  (In re Deshaun M. (2007) 148 Cal.App.4th 1384, 1387 [56 Cal.Rptr.3d 627], at times quoting People v. Fierro (1991) 1 Cal.4th 173 [3 Cal.Rptr.2d 426].], emphasis added.)

When the court does not know why a child has been brought to court shackled, then, at least for that period of time, these paramount values are being ignored, the court sacrifices its dignity and the only respect it gets is that which it can force at the barrel of a deputy’s gun or threat of incarceration.

I’m just sayin’.

Friday’s court session made me realize I had no choice.

To get into a juvenile courtroom in Fresno County through the front door of that courtroom is impossible unless the door is opened from the inside.  For anyone.  It’s physically impossible.

To get out of that courtroom is impossible without a keycard.  Defense attorneys — except public defenders and employees of the firm that handles conflict cases the public defender cannot take — do not have keycards.  Obviously, family members of minors brought before the court, as well as the minors themselves, are also not given such cards.

Since it is nearly impossible to exit the courtroom, why are numerous minors brought before the juvenile court shackled?

In a word, it happens because of an illegal policy, and local judges who have chosen to thumb their noses at the California Supreme Court.  Fresno County, it seems, is not a part of the State of California.  We are not subject to the jurisdiction of the California Supreme Court.  Their opinions are advisory only.

About the middle of this past year, I attempted to challenge the policy because the California Supreme Court has clearly held that the reliance on “policy” is illegal.  The essential circumstances are outlined in this linked brief.

The immediate upshot of my objection was that the court allowed the Sheriff’s Department a couple of hours to come up with an excuse for investigate why the minor was shackled and ordered requested they have someone present in the afternoon to state the excuse provide the reason for the shackling.  During that time, the minor was apparently kept in a cell adjacent to the courtroom, because when I attempted to visit him at the Juvenile Justice Campus, I was told he was not there, that he was in the cell adjacent to the courtroom and that there was no way that the Juvenile Justice Campus could contact anyone to inform them I wanted to visit the client.  The Juvenile Court, it should be noted, is located on the Juvenile Justice Campus.

During the afternoon session, the sole witness was a deputy who had researched the issue.  The prosecutor led him through a series of questions about the minor’s behavior during six months of custody.  The minor had been a bad boy.  He sometimes yelled at other minors.  He occasionally broke the rules by, for example, banging on his door or not standing up properly in line.  Over a six-month period, there were — as I recall — a couple dozen incidents.  (A later attempt by me to argue that this was a fairly typical record for juveniles in the pod met a retort from the court that there was no such evidence before the court and that the court believed “most” juveniles in the pods followed the rules.  Any juvenile defense lawyer can tell you otherwise.  Next time, I will put “a few” witnesses on the stand who can testify about such things under oath.)

On cross-examination, the deputy stated that he had never seen, nor was he informed of, any incidents involving the minor being disruptive in court, or on the way to court.  I periodically noted, for the record, that my client had sat quietly next to me throughout the proceedings — at least once pointing out that he had responded to questions from the court by appending the honorific following his response.  The deputy further testified, under oath, that the policy of the Sheriff’s Department was to shackle all juveniles wearing purple shirts.  The purple shirts apparently signified that they came from a particular pod.  The criteria for being placed in the pod was either unclear or unknown.  (My own experience shows that it does not seem to be necessarily related to behavior.)  The deputy was not sure why “purple shirts” were shackled, merely stating that was the policy.

Notwithstanding the testimony of the deputy making it clear the minor was shackled because “that was the policy,” the court held that he was shackled — as the law allowed — for particularized reasons.  Although I had argued that the particularized reasons should relate to behavior within the courtroom, the court rejected this, going on to state specifically that he was shackled because of his “disruptive” behavior while in his cell, or in the pod.

The court then made the rather astounding statement, on the record, after having found that there were particularized reasons why the minor needed to be shackled during the proceedings, that:

It’s just an arraignment where a plea or a denial is entered.  We do not have a trial.  We do not have a disposition and the Court finds that there are safety concerns; there are disruptive concerns based upon the nonconforming behavior that the minor has demonstrated while he has been in Juvenile Hall.

Now that having been said, the minor has behaved and done extraordinarily well in court.  There is no reason for me to believe that he wouldn’t.

Let me repeat that.  The judge stated that the minor had behaved “extraordinarily well” during the hours spent in court that day.  He went on to state “There is no reason for me to believe that he wouldn’t.”  No reason!

So why were the restraints necessary again?

Before I could get the copy of the transcript and complete a writ on the issue, the misdemeanor case — did I forget to mention that it was a misdemeanor case? — was dismissed “in the interests of justice.”  This is often a euphemism for “we don’t have enough evidence to move forward, but we don’t want to say that on the record.”  I cannot prove that my making it clear I was not going to drop the matter is the reason for the dismissal.

Immediately after the hearing, I revised a form I utilize for keeping progress notes on my cases in court.   At the top, I added “OOC/IC” for “out of custody/in custody.”  Next to that, I have: “Shackles? Y N CO NA” — “Yes  No Cuffs-Only Not-Applicable.”  Whenever I go into court now, I circle the appropriate acronyms.  Suffice it to say that I intend someday that this will be useful.  (If only I could convince other defense attorneys to keep track.)

I was pleasantly surprised to note for quite some time that my clients were not coming to court in shackles.

Okay.  So now we get to what I mentioned at the beginning of this post: Friday’s hearing in another juvenile case.   My client is brought into court and he’s in shackles.  I noted that he’s been present numerous times in the past without shackles.  I asked the reason he was shackled this day and, of course, nobody knew.  The court asked the bailiff to find out.  The bailiff invoked the presiding judge’s “one-hour-to-find-an-excuse-reason” rule.   She had, meanwhile, called for backup the minute I started complaining about the shackles.

Her supervisor having arrived in response to the call, the court suggested that the minor be unshackled and the extra deputy remain in the courtroom; there being two of them, it would be that much harder for my client to escape the locked private enclave where the public cannot see what is happening.  It would also be harder for him to jump up, get around the (fairly massive) table and sprint the 30 feet or so to the hyper-elevated bench before the two deputies accidentally shot the judge to death or mistakenly tasered his clerk.

Still, that seems reasonable, doesn’t it?  Remove handcuffs for a kid — a kid! — who was there to be told he was going to a group home before being reunited with his parents, and allow two armed deputies to stand nearby instead.

“No! That’s not how it’s done!,” exclaimed the bailiff.  And, I kid you not, she used her “stop right there” voice.  The judge (quite briefly) looked startled.

Now if I had used that tone, or spoken those words, to a judge?  I probably would escape tasering, but not a tongue-lashing.  (I know, because I once made the mistake of muttering to my client in a near whisper, “Or as the Constitution does” when a judge told me I would get as much time to cross-examine someone as he allowed.  But that’s another story.)

The judge, however, did not respond to the bailiff as he would to me.  Perhaps it’s because she’s armed.  Instead, he said, “Oh…okay.”  I looked at him and said, “The law says the judge is in control of his own courtroom,” but was told in no uncertain terms that “we aren’t going to get into that.”

After consultation with my client, he decided that he wanted no further delay and was willing to proceed with the hearing, ignoring the shackling issue.

But here’s the kicker:  As I was being escorted from the courtroom — remember, it is impossible to get out unless the bailiff unlocks the door — I asked the bailiff why my client was shackled today, when he has never been shackled before.

Her response?  “Our policy hasn’t changed, Mr. Horowitz.”