Attorney for the 8-year-old twins who were with the 6-year-old

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Q: Do you like working with juveniles?

Fullerton: It's the easiest group to work with, juveniles, because they've got the most potential. You know, they're still very young. They're still very open. They're still willing to accept life with an openness that adults frequently close down on.

It's also probably the hardest because they're children, and they're in a system that is not particularly kind; it's not designed for children. I mean, it's theoretically designed for children, but it isn't where you'd want to put your child and it's very scary to them. They don't quite understand what's going on, even the older ones. So it's a sense of, this isn't right, this isn't what's supposed to be happening to me. How did I end up here? What's really going on?

But the kids themselves tend to be really wonderful. Once in a while you'll come across a child that's really a disturbed kid, who's really had a tough life and it's already showing. But on the whole, they're still very open and very vulnerable.

Q: When did you first hear about the case and what was your reaction?

Fullerton: I first heard about it, I guess, the day it happened. And I was horribly saddened. You know, it's tragic that young children would harm another child. And when I had heard about it, I had heard that all three children were involved. And in fact, when I got appointed to the case, I had assumed that my client was involved in some level with the beating. And it wasn't until I actually entered the case that I realized that he had nothing whatsoever to do with any of the injuries to the baby. But I just found it tragic when I first heard about it.

Q: What were your first impressions of your client? Where and how did you meet him?

Fullerton: I met him in the holding cell at juvenile hall, and when you hear your client is 8 years old, you know what 8-year-olds are like. However, I'd never seen a child that young in the hall. So when I walked in and they brought him in, I was absolutely shocked to see what a baby he still was. Even though, intellectually I realized that yes, in fact, he'd be that young. And he was a very, very sweet child. And everybody you talked to, from the schools to the neighbors to the police to everybody, there's never been any indication that my client was anything but a very sweet child.

And he was confused and he was scared, and one of the first things he asked me was how the baby was doing. And I really liked him. A very nice little kid.

Q: Were you able to talk to him about what had happened? Did he even understand who you were?

Fullerton: No, he didn't really understand who I was. The concept of a lawyer made absolutely no sense to him whatsoever. You know, he was concerned with whether I was with the police, and did I work with the police. And I said, "No, I was different from the police. I was his lawyer," and I tried to explain that it was my job, I'd been called upon to help him. Then he asked me about the judge because he understood that the judge would be determining whether he went home or not. And he wanted to know if it was a black judge. And I said, no, actually he was a white judge. And then he said, "Well are you the judge's sister?"

So there was a process of trying to figure out how people interact with each other and were connected with each other, that, at 8, was something that he was having a really difficult time understanding. I mean, who is a prosecutor? Who is a defense attorney? What are judges' roles? I think as time went it on made sense to him, but certainly didn't the first day I met him.

Q: Was he able to give you any account of what happened?

Fullerton: Yes, yes he was.

Q: What did he tell you?

Fullerton: I think it would probably violate the attorney-client privilege to go into much detail about it. But it was very clear that he was not involved whatsoever. And that was before I had gotten the police reports when I met him. And, as I was talking to him, it was becoming clear that this child was not involved in any way with the assault on the baby. He did indicate that he had at one point touched the baby, which was clear throughout the police reports and the interviews of him on tape. And the first question, of course, I asked is, "Why did you touch the baby?" Which was never asked in the police interview. And he said, "To see if he was alive." Which made sense to me at that point.

Q: How did you feel about the DA's decision to charge the twins with burglary?

Fullerton: I think that the decision to charge those two young babies with burglary in this particular case is one of the cruelest things I have ever seen come out of the district attorney's office. There was no question that the twins were not involved in any level with any of the harm to the baby. I mean, I have questions about whether a 6-year-old should be charged criminally, but when you look at these two 8-year-old children, to charge them in a way that would expose them to nationwide, if not worldwide, publicity for the taking of a tricycle seemed so cruel and so vicious, and the repercussions were so horrendous that I don't think I will ever understand why you would do that to a child.

You know there were adults, not children, who were giving them death threats. They had to leave school. They couldn't go outside and play. They had to move from their home for taking a tricycle at age 8--it just seemed absurdly cruel to me.

Q: Why do you think the DA did it?

Fullerton: I don't know. Part of it, I assume, why the DA did it, would be that it was political. I think he got carried away with his role and his power within the situation. I think there was a heartlessness in how the children were going to be affected by this. I would certainly hope that if he had any idea that it would be as massive an affect on their young lives as it was, that he would not have done that. Although I think with any amount of contemplation, knowing the press hysteria almost at the point would be inevitable, that these children would be exposed to the world for taking a tricycle at age 8.

Q: How did you feel about your client being at juvenile hall?

Fullerton: Again, I was horrified. I think that the staff at the hall did as much as they could do to make it as nice for these children as they could. But they're 8 years old and this is a jail. And it is really not situated for children of that age to be in. And I think it was confusing to them, scary to them. It is, in my experience, unheard of for any child who is accused of taking a tricycle, at any age, to end up actually incarcerated. For them to have been incarcerated for a full week, I think, is completely outrageous. And as time when on, I think the children have really suffered from that experience.

Q: Meaning the trauma ...

Fullerton: The trauma. They're still getting over it as they get further away from it. But they were really concerned about it. They viewed themselves as bad. They thought the world was looking at them as bad. It was the wrong thing to do. Babies should not be locked up in jails.

Q: As part of your preparations you watched videotapes of police questioning all three boys, what was your reaction to that?

Fullerton: When I watched the videotapes of the police interviews, I was horrified. I do not think that police officers should be wearing firearms, guns when they are talking to 8-year-old children, 6-year-old children. I think that it's almost unbelievable that they would give them their Miranda Rights that you give an adult in pretty similar language that you give the adults, with no parental supervision, and consider that a waiver of your 5^TH Amendment Miranda Rights. They treated these children as you would treat an adult suspect. And I don't think you talk to an 8-year-old the way that you talk to a 38-year-old who is accused of a crime, where you try to break them down and get them to talk and put pressure on them. And I was, quite frankly, really disturbed; and as time has gone on that has been one of the most disturbing parts of this whole experience for those young children.

Q: The experience of the police station and ...

Fullerton: You know, they're frequently asking why the adults are carrying guns. They weren't used to being interrogated by folks carrying guns.

Q: Did the tapes demonstrate the difficulty of treating 6-year-olds and 8-year-olds as criminal suspects?

Fullerton: I think that the issue of whether the interrogation showed that 6-year-olds and 8-year-olds shouldn't be in the system, is just a minute part of a much broader issue. I don't think there's any justification for taking someone as young as 6 and criminalizing them. Certainly you don't take an 8-year-old and make them a national criminal for taking a tricycle, when everyone agrees that's all they did. And I think it's part of an ongoing system of criminalizing much of our population. When I started practicing criminal law 18 years ago, even the most right wing elements agreed that if you were under 18 you were clearly able to be rehabilitated. And there was no question that children, minors, could still be rehabilitated. The argument at that point was whether adults could be.

Then in the '70s, they changed the laws where prisons were not even supposed to be for rehabilitation--simply for punishment. And as the years go by they keep cutting back on the concept of children being able to be rehabilitated. You know, even now, we certify as an adult by age 14, which is equally absurd. And the legislation that's been proposed is pretty draconian regarding children. And debates now are not a given that 18 and younger kids can be rehabilitated, but the question now is can you be rehabilitated at age 6? And it's a really horrible commentary on our society that by 6 years old, people are giving up on that child. To give the police credit--as I am sure they are not used to interrogating 6-year-olds and 8-year-olds that are accused of serious crime --and to give them the benefit of the doubt, I would suspect that possibly they really had no clear concept of how to do that. I think it's regrettable that they did it the way [they] would do it with an adult.

Q: As part of your preparations, you met the twins' mother. What was her situation and what were your impressions of her?

Fullerton: When I first met the twins, their mother was very ill with cancer. And you could tell that she was ill with cancer; she looked very sick. But she was very mobile and functional, and was deeply concerned about her children and deeply worried about them being incarcerated. We got them out the next week. We had a court hearing. And she was noticeably more sick by that point. We had to get a wheel chair for her.

The whole thing was absurd. The children were out of custody. They had to come to the hall for the hearing because it was ordered that they be present. There were press--probably 50 or 60--out in front, with cameras and microphones. So it was really unacceptable that they go in the front door, so we worked out a way for them to come in the back door and be supervised in. And their mother had to have a wheel chair meet her and bring her in because she had gotten much weaker and much sicker under the stress of that week. And within a few weeks after that she actually died. And I am quite sure, as is the family, that this incident deteriorated her health much quicker than it would have deteriorated had it not been for the stress, trauma and sorrow of seeing her children locked up like this.

Q: So she was another victim of the case.

Fullerton: She was another victim of the case.

Q: He had a 6-year-old, and made him the bad guy in the case, why does he even bother with the twins?

Fullerton: I cannot really figure out any reason to bother with the twins. He kept articulating that they had to learn responsibility, but at which point does an 8-year-old learn responsibility? You know, they were clearly traumatized by the event itself. They were not used to watching one of their friends do something as tragic and as mean as what happened. They were traumatized by being arrested. They were traumatized by being held for close to a week in custody before the decision to file charges was made. At the point, I think by all accounts, the children had, quote, "Learned a lesson."

So to insist on continuing to prosecute them makes absolutely no sense to me whatsoever. If you had in fact believed that the children needed some kind of a lesson, you could have charged them in a way that did not make news. You did not have to charge them at the same time you charged the 6-year-old, where the entire world was aware what was going on. You could have charged them with some kind of a misdemeanor that would have given them more privacy and more closed hearings within the early period of time.

He charged them with a crime that in fact allowed television cameras or, they didn't have cameras in the courtroom, but they had photographers and they had artists and reporters in the courtroom. It was absolutely unnecessary to set up a situation where the twins were going to get that kind of exposure. And I think it's inexcusable.

They could have--if he truly believed, which I find hard to believe at that point, that they needed more punishment--found ways to do it where they weren't exposed to the media circus that the 6-year-old was exposed to.

And let me make it clear, I don't think the 6-year-old should have been exposed to that; but certainly there's two issues. There's what you do with the 6-year-old who is troubled enough to have done what he did. The second issue is why would you take two 8-year-olds that just happened to be there with him and expose them to the level of publicity and ridicule and contempt that these children were exposed to.

Q: If the kids had been white do you think the DA would have done that?

Fullerton: You know that question about whether the fact that they were African American children is raised a lot on this. I think that this instance is true of the entire criminal justice system. I don't think any DA sits in the office and says, "Oh, he's black, I'll therefore charge him." However, I think there is demonization of African American males that seems to be going down to 6-year-olds at this point.

Q: What's your view of the future of those twins? Where are they now and what do you see for them?

Fullerton: What is the future of the twins? Certainly, the last thing that I would do on camera is say where they are now.

Q: I don't mean specifically; I meant with their mother dying, what happened to them?

Fullerton: They are with a relative. They seem to be in an environment where they seem to be thriving. They're academically doing fine. This case has, as in many cases--as ugly as much of what happened to them was--also has a phenomenal amount support that was shown towards them.

The school that they were in came through with flying colors and gave them both tutoring and support, and made them realize that their fellow students cared for them, and didn't view them as bad kids because this happened. They got counseling. They've been loved from the point that they got out. And there is no way that they could have been, you know, jailed, taken out of school, not allowed to go out and play, have their mother die, watch what occurred with one of their friends and not have it have a tremendous impact that will undoubtedly last the rest of their lives.

Q: What lessons should we learn from this case?

Fullerton: The lessons to be learned, I think, from this case are plentiful. I think we, as a society, have got to absolutely stop and look what we are doing. When you start criminalizing 6-year-olds and 8-year-olds there is something fundamentally wrong. You have to start looking at how it is that we've lost the sense of community, where, if some of our children are in trouble, we come to their aid instead of put them in custody.

And I think we really have to start saying, what are we doing with our children? How are we handling our children? Why is it that we are so quick to be willing to incarcerate, to be willing to criminalize, to be willing to punish what are really babies? And then I think we can take that on up. You know, why are we a country that has the highest percentage of our population incarcerated of any country in the world. Maybe we're doing the same thing wrong with adults that we were doing for locking up 8-year-olds.

I think it's a chance that we have of looking at a system that's gone completely awry, and saying, maybe there are different answers. And maybe we ought to stop in a society, look at what's happening, look at how we are criminalizing people all over the place. And maybe find different solutions. At this point, all we're doing with any problem is make it against the law. Lock them up and lock them up for longer and longer periods of time. And for younger and younger ages.

And hopefully, if there's anything good to come from this, it's the chance to look at both our juvenile system and the adult system.

Q: Was it an important case and were there important principles at stake?

Fullerton: Yes, it was an extremely important case. And probably the single most important principle that comes out of this is how do we treat babies? How do we treat children? You know, what is happening to us as a society? How could it happen that a tragedy occurs and our gut-level reaction as a society is lock them up?

Now clearly as time goes on, other alternatives have come for both the 8-year-olds and the 6-year-olds, as well it should. But the immediate reaction was criminalize them, lock them up, treat them as bad. And that is so wrong. There is no reason to make that as your initial response to babies that are in trouble.

And if there's a principle that we have to learn, it's that maybe we have to become a little more sensitive to the environment our children are living in, to the problems they're facing, and to help them first before they get into this much trouble, and once they're in it, they help them out of it.

Q: There was another case of very young children involved in the violent death of a toddler in San Francisco 25 years ago. How have things changed?

Fullerton: A lot has happened in that 25 years. I think the simple answer is that we are treating children differently. I don't think there is as much compassion in this society as there once had been for children. You also have this huge number of people going into the prison population. All of the resources are being taken out of the public education system and put into prisons. So the school systems are now going down amazingly fast. For the first time in history, you have more money going into prisons than going into the entire higher-education system of the state of California. So you have that economic change that has criminalized people...Other issues are much more crucial to us as a society than demonizing crime. But it seems to be the thing taking all of our resources and all of our energy. And I think that's one of the things that's changed in the last 25 years. For a short answer to that question.