Sunday, October 11, 2009

Oct. 7, 2009 Oral Arguments

Thank you for all of the love and support you have sent our way. October 7th was hard; in many ways taking us back to the time of the first trial so many years ago. In a courtroom, regardless of which side you are on, and unless you are a judge or an attorney, there is little to do but sit and listen. So many times you want to leap up and yell, "That's wrong because of this and this and this!" but you can't. You must leave it in their hands.

The best way to update you on the actual day in court is to share the many questions we have received and the answers we have given:

What was this day in court for?
The appeals filed for Brandon Hein, Tony Miliotti, Jason Holland and Micah Holland have reached the level of the United States Court of Appeals for the Ninth Circuit. Up until now, they have been reviewed by the state appellate courts (where cases are known to have a 3-5% success rate). Once an appeal is filed, the attorneys can request the opportunity to present Oral Arguments to the judges (3 judges were assigned at this level). This request is not always granted but it was granted this time and that is a positive because it gives the attorneys the opportunity to answer the judge's questions and give additional emphasis to the strongest issues for appeal.

Was Brandon's attorney the only one there?
We have also been asked if Brandon would be present. The answer to both questions is no. Brandon, Tony, Jason and Micah were not allowed to be there. Attorneys for each of the parties to the appeal were present (the parties being Brandon, Tony, Jason and Micah as petitioner-appellants, and the state, represented by the Attorney General, as the respondent-appellee). However, because each side (rather than each party) was limited to 15 minutes of argument, it was decided among the attorneys for each of the petitioners that one attorney would address the court for all of them as to all of the issues that were commom to all of them, and Brandon's lawyer was the lawyer who argued for all of them. This is a common practice in such cases because the judges usually ask questions and switch between issues and it becomes very frustrating to the judges (and laywers) if every two or three minutes they have to stop and start with another lawyer. Tony's lawyer also presented argument on his behalf because he had a separate claim that only applied to him. A lawyer from the Attorney General's office presented argument on behalf of the state. After the state's lawyer argued, rebuttal argument was presented by Brandon's lawyer (on behalf of all the petitioners) and Tony's lawyer (as to his separate claim). Although the time limit was set at 15 minutes for each side, for a total of 30 minutes, the arguments actually lasted about 90 minutes because the judges had so many questions.

We have heard the courtroom was full. Who was there?
The courtroom had pew seating and was able to hold 150 to 200 people. It is the largest of the three courtrooms at the District Court in Pasadena.
This is who attended:
- The family members of Brandon, Tony, Jason and Micah were there as well as many of our dear friends and supporters. This injustice is so apparent that many are compelled to become actively involved. Those who could possibly be there, stood with us.
- Mr. and Mrs. Farris were also there with family and friends.
- Also present that day were students from ITT Tech criminology classes. We speak to schools often when these goals: to help students to know about the Felony Murder Rule and to understand how it is used and abused; to help them understand that they will shape the future of the justice system - one way or another; to help them understand that the decisions they make about how they conduct themselves today will impact all of the people who love them; and most of all to try to keep families and children from this nightmare of loss, whether from death or incarceration.

What are the grounds for appeal?
There were four separate and distinct legal claims that were presented as grounds for why the petition should be granted: (1) Michael McLoren's provided false testimony as to (a)whether he had immunity (that is whether he could be prosecuted based on what he told the police and testified to at the trial) and (b) why he was testifying for the prosecution given that to do so he had to admit he possessed marijuana and sold marijuana previously); (2) the prosecution failed to disclose evidence favorable to the defense, consisting of (a) a letter granting McLoren immunity; and (b) the detective's notes of an interview of a witness who said she had seen the boys before they went to McLoren's fort and that they had said they were going to "buy" marijuana; (3) misconduct by the prosecution, which included asking improper questions, telling the jury the defense lawyers were dishonest and telling the jury they should believe McLoren because by testifying he had exposed himself to criminal liability - meaning he could be prosecuted for what he said during his testimony, which the prosecution knew was false because they had given him written immunity; and (4) cumulative error, meaning that even if any of the first three claims was not sufficient by itself to have caused a constitutionally unfair trial, the cumulative impact of the individual errors resulted in a constitutionally unfair trial. The claim that seemed to concern the judges the most, and which upset them the most, was the misconduct, especially the false statement to the jury that McLoren had exposed himself to criminal liability. At the same time, however, it appeared that the judges were not convinced this misconduct made a difference in the outcome of the trial, so that even if it was wrong for the prosecution to do it, that did not justify overturning the jury's verdict.

How did it go?
What is written above is from a legal perspective. From the perspective of family and Brandon's supporters, it was more like this: The judges seemed harsh in their questioning of our attorneys and made some statements that made it seem like they had made up their minds against us. That was painful to sit through. However, when the attorney from the Attorney General's office stood at the podium, they were also very hard on her. Each time she tried to say that the prosecutors had made errors they corrected her and said, "Those were not errors. That was misconduct."

What are the possible outcomes?
The three judge panel can either (1) "affirm" the decision of the district court denying the petition for a writ of habeas corpur; or (2) "reverse" the decision of the district court and order that the petition should be granted. If the court reversed the district court and ordered the petition to be granted, it would mean that the state would either have to retry them within a specified time period, or release them. There is a third possible, but unlikely, outcome, which would be for the court of appeals to return the cases to the district court for a hearing about a question of fact, e.g., whether the witness actually told the detective the boys said they were going to "buy" marijuana. In that circumstance, the court would not affirm or deny the district court, but instead remand the case and order the district court to make a new decision on the petition after conducting a hearing.

What happens now?
If we have learned one thing in this process, it is that we have little or no ability to guess the outcome. Now we wait. It will probably take from 2-6 months before they give their decision. If the panel of three judges affirms the district court, a petition for rehearing may be made to the full Ninth Circuit Court of Appeals; conversely, if the panel were to reverse the district court, the state could petition for a rehearing. Rehearings, however, are rarely granted.

The bottom line:
All those wonderful prayers and thoughts for a good outcome that you have been sending our way...they are needed now more than ever.

Gene and Janice Hein


Blogger Emily said...

I just want to say that if i had the money I would have been there. I have been thinking about Branden and the boys every second of everyday for for weeks. I cant believe that they are in prison for life for something that they did so long ago! they were young and made a mistake, one that they never ment to make. One that should not have been punished the way it was. This case should be taken back to court and looked at again. I can not imagine why someone would sent those kids to prison FOR LIFE for what happened. It sickens me. I am praying and sending good energy for all of the families and the boys in prison.

4:18 PM  
Blogger Gersy said...

My prayers are with you all . I just saw this case for my law class in high school. I live in Miami, Florida. What was done to Brandon and the rest of the boys was not right. If only there was something i could do. Ever scince i saw and read about this case i have not been able to stop thinking about it. I give you all my support and good energy. I would also like to send Brandon a letter from my teacher and my fellow class mates. Leting him know that we belive that he was scentenced unfairly and to keep is hopes up and his head up high because he is innocent and does not deserve to be put in there. If possible please let me know if I am able to send that letter through this email ( plaese send the adress of the prision to me through the email. with all my prayers with you. Sencirly Gersy Leon.

7:05 AM  
Anonymous Anonymous said...

I grew up in Torrance California and Gumby is something that my boyfriend used to call himself he too sold pot as did the “victim” of this crime. My boyfriend at 17 even had the green Gumby figure all it means is tweaker or drug user. The Gumby gang??? Lol The jury fell for that?? Sickening, Gumby is a green figure that bends for kids. Gumby is a term for middle class drug users, not gangs!!! We keep building more prisons, this kind of things usually happens only to Hispanics and African Americans who take up most of the space in our prisons. I majored in criminal justice and I am a psychology major now and want to help kids from dysfunctional homes. There are no perfect parents and the cop and his wife have lost a child but it could have been their child who killed yours in that fight! They talk of parents who let their children run wild not even realizing they are those parents. A fort for their kid to have sex, do drugs or whatever in I would never allow that in my back yard… never. Their teen had a locked drawer, and they were ok with that??? Where were the victims cop dad and mom to supervise their child when he was doing drugs and fighting?? Had they supervised him better perhaps he would be alive today, he was running wild and doing drugs too. A little empathy here would have gone a long way because it could have easily been their kid who killed your kid.
Guess what the cops kids sentence would have been had he killed your child instead? The jury should have been more afraid of the cop and his gang of men we all know about Rampart and what cops are capable of doing as a band of uneducated men with guns. I believe the dead kid’s father was a corrupt and crooked cop who bent the legal system his way. I knew justice was not blind the laws were originally created according to my text book “not any kind of moral or ethical code but to protect the rich from the poor.” I feel bad for all of these boys, even if they were let out now they have served time under a gang law for no reason at all except being in the wrong place, wrong time. The jury was very misguided thanks to the cop and his friends. This I am sorry to say makes it hard to feel much of anything for the family who lost their son.
Vengeance is mine sayeth the lord, turn the other cheek says Jesus. This family had a right to be angry but the DA and the family did corrupt illegal things to persecute and I do mean persecute these boys!!!!!Sorry I always say what I think without worrying about what others may think if this is not good for you feel free to delete it. I have worked as a volunteer for children of the night and a nun said to me had she had been raised differently she could be one of them. This type of insight is incredible for such a young nun about 22; to bad the family of the “victims” did not see things that way because the kids on trial could have easily been their own, had one thing happened differently in that fight. God bless and please if I can help in anyway post how.

5:49 PM  
Blogger princess1furfun said...

God bless you, this case makes me very sick as a former criminal justice major, and a current psychology major. I am not in my twenties I am 43 and live in Glendora Ca and like many of my friends I am no longer a republican. The Bush administration has taken many freedoms and the republicans love to build new prisons and outsourced prisons as well. It is a thriving business when rehabilitation should be instead your son was right there are too many innocent people in jail or just victims of circumstance. I read that everyone sees a defendant as guilty until proven innocent including the public defender and the judge instead of the other way around. I am sorry for your loss he seems like a great kid who just made bad choices and it is truly unjust. I will keep you in my prayers and the boys too as they really need prayers where they are is a terrible place. Please let me know if I can help in any way.

5:56 PM  
Blogger Julia Negron said...

I introduced myself to you at Centinela visiting. I am a mother who's son is on this level 4 yard for a non-violent drug crime. while my activism and advocacy has been focused on ending incarceration for "drug war" crimes I also work for restorative justice, sentencing reform and prison reform. You (and Brandon) is on my mind everyday. My son should not be where he is and neither should Brandon. I will keep praying and working and hopefully our sons (and many other sons) will come home. Stay Strong!

11:24 AM  
Anonymous simone said...

Yes there is a movie called “the injustice system in America” it is a documentary and it is what I have learned in my books in criminal justice classes. President Reagan called the federal government in on the war on drugs; as a result California alone has gone from 13 prisons to 33 prisons. The privatization of prisons systems is money making business and the prison unions are only backing those who are "tough on crime". We now have more prison workers in the state of California then we have school teachers, which does break up families and cause more social problems than it helps.
The only way to try to stop this is by making the people of America who vote aware that there is a problem, and making those who are voted into office aware that we know what is really going on and are not going to stand for it anymore. Put the money back into the schools and after school programs in urban areas, not the prisons!!! That is and should be the message we send to our governor and everyone else in politics who want to keep their jobs serving the people of this great nation. We are not any safer because we build more prisons, until the war on drugs was called into action we had less social problems and less crime then we do today. I find peoples indifference to this problem due to ignorance, or non caring attitudes very upsetting.

3:53 PM  

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