Defense attorney for the 6-year-old

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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 happened, right?

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 generalized sense.

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 objective.

Q: And how do you feel about the stance that Mr. Bermudez, the baby's father took?

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 people.

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 her child.

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 I made.

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.

Burris: Right.

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, sensational killing.

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 4-year-old level.

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 work.

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...?

Burris: Absolutely.

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 him."

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 citizen?

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.