When Derrod Bush was called before a judge last Tuesday, just before noon, chuckles rippled through the courtroom. That might seem odd, given that Bush has been charged with aggravated assault, a third-degree felony that carries a maximum punishment of five years under the state's supervision. But consider Derrod Bush.
He stands a shade over four feet and tips the scales at 60 pounds, with shoes. Heavy shoes. At nine years old, the third grader barely looks six. His entrance into court was not what you'd call menacing - his father nudged him the whole way, then helped him climb onto a chair. Bush's legs dangled a foot off the floor. His head was barely visible over the defendant's table. The police report against little Derrod alleged he had thrown rocks at another boy, but the Dade State Attorney's Office phrased it with a bit more panache, charging Bush with brandishing "a deadly weapon" in a fashion both "felonious" and "unlawful." While Judge Tom Petersen was informed of the charges, Bush looked on in confused terror, sucking his thumb nervously. To Assistant Public Defender Pam Ransome, it was like watching Lady Liberty sit on a whoopee cushion. "That's it," Ransome muttered. "I quit." The judge was likewise bemused. "Case dismissed," he quipped, "due to size." The courtroom erupted with laughter.
But for Ransome and her fellow public defenders, the surge in kiddie cases like Bush's is no one-liner. "You see it more and more - people using the hammer of the law to take care of kid's stuff that should never get here," Ransome says. "Honestly, a lot of these kids, the little ones, don't even know what's going on. They aren't even old enough to formulate the intent to commit a criminal act." A case in point: the same morning Bush shuffled into court, justice came calling on a seven-year-old girl. She, too, had been charged with aggravated assault for throwing "very large rocks" during a dispute. As several dumbstruck spectators sitting in the witness room commented, the wide-eyed whippersnapper wasn't much heavier than a "very large rock" herself. The case has since been dropped.®MDNM¯
Ransome attributes the upswing in such cases to a victim's-rights movement gone haywire and to prosecutors' niggling fears of accountability. "Prosecutors might think on an individual basis that a case like this is ridiculous, but then they've got a victim yelling for justice, somebody ready to go to the media and try to make the office look bad. Unfortunately, instead of saying `Forget this, this is just too crazy,' prosecutors push the thing forward," the defender says acidly. "It's not like cocaine is literally lining our streets or murderers are waiting for trials." After just eight months in juvenile court, Ransome already can relate half a dozen peewee prosecutions. Most of her colleagues have lulus of their own. Recent highlights include:
*A seven-year-old boy charged with both a second-degree and a first-degree felony for aggravated battery on a senior citizen. The child, a hearty three-and-a-half-footer, allegedly threw a rock through a window, hitting an older woman in the stomach and causing a minor bruise. Or, as the state attorney's office conveys it, "did wantonly, or maliciously throw a missile or stone or other hard object which would produce death or great bodily harm to wit: A ROCK."
*A ten-year-old Cuban refugee who allegedly threw a rock through a neighbor's window. The neighbor pressed criminal-mischief charges against the boy after she unsuccessfully sought fifteen dollars in damages from the defendant's mother, who claims to be indigent. When juvenile court Judge Steve Robinson heard the case recently, he pondered its legal intricacies briefly, then divined an ingenious solution. He pulled fifteen dollars out of his pocket and proceeded to count it out - Monty Hall-style - offering to settle the matter then and there. Instead, he wound up removing himself from the case, claiming he could not arbitrate it fairly. It has since been reassigned to another judge.
Stephen Harper, chief of the public defender's juvenile division, has a name for such cases: "Theater of the Absurd." He credits the most outrageous performances to what he terms "ritualistic prosecuting," prosecutors' tendency to charge first and figure out what happened later. "They look at the act and not the kid," Harper says, holding up as evidence a state-attorney's petition alleging delinquency, and listing the defendant as being either seven or seventeen years old. "Sometimes I'm tempted to bring a stuffed animal to court and see what would happen. If the charges are right, would they pursue prosecution with it, too?"
Leon Botkin, juvenile-division chief of the State Attorney's Office, admits there are times that a frivolous case will "slip through" and wind up in court. But he insists prosecutors make every effort to find a diversionary program - involving community service and/or counseling - before prosecuting the court's youngest defendants. "For every case that ends up in court, you're not seeing all the complaints we plea out," he stresses. Though he admits there may be a rise in the number of cases brought against pre-teens, he cites a huge, overall leap in referrals to his office, from 9000 in 1984 to 17,000 last year.
Botkin, a ten-year veteran of juvenile court, says his prosecutors often are caught in a Catch-22, because they don't have adequate information about a case and can only obtain the facts through court proceedings. "And what happens when kids won't take part in a diversionary program?" he demands. "What are we supposed to do then? Just let it go? Sometimes the only other choice we have is to bring them into court to make sure they go." The juvenile system, Botkin stresses, exists to insure that kids are evaluated and, if necessary, counseled at an early age.
But public defenders insist even a referral to a diversionary program can come back to haunt a young kid. "If they come into court again on a real charge, the chances of being prosecuted go up because the record shows little Billy already went to a diversion program, even though it was only for throwing a rock when he was seven years old," Harper notes. He contends cases involving grade-school mischief should never end up on a prosecutor's desk in the first place. "Ten years ago, these kinds of disputes were handled in the family or in the neighborhood. The question is, why are neighbors now calling the police? Why are the police arresting little kids? Why are little kids being prosecuted? And at the end of the day, what are we supposed to do with them?"
Most disturbing, Harper says, is the rash of sexual-battery cases that have been brought against moppets. "Kids playing doctor are being labeled sexual offenders," Harper asserts. "Show me a kid who doesn't experiment with sex and power games." One seven-year-old, for instance, was charged with sexual battery against a little girl a few years his junior - a felony punishable with counseling, community service, and/or probation until his nineteenth birthday. According to a police report, he placed his fingers and penis in the little girl's vagina on three occasions.
Kristi Kassebaum, the boy's public defender, says the defendant, now nine, can barely articulate what, if anything, transpired. "When I brought the alleged victim in for a deposition, she couldn't even tell me how old she was," Kassebaum adds. The prosecution offered to drop the charge if the boy would attend counseling, but Kassebaum says she couldn't guarantee the family, Haitian immigrants, would make it regularly. So she is now faced with trying to establish legally that her client is not competent to stand trial, which she says will require more court time and hundreds of dollars in psychological evaluations. "None of these kids are really competent," observes Gale Lewis, a public defender who so far this year has handled three sex-battery cases against kids ten years or younger. "Asking them questions is like visiting Mr. Rogers's neighborhood."
But prosecutor Botkin contends there is a dramatic difference between innocuous child's play and sexual battery. "You look at these cases and they involve genital-genital or oral-genital contact. Do you call that doctor? I don't think the victims call that a game." Public defenders may not like the notion, Botkin adds, but in a city where eleven-year-olds are versed in ways of stealing cars, innocence dies young.
Derrod Bush's certainly did. The night before his court appearance, he came to his parents near tears. "What if they take me to jail?" he asked. "You are not going to jail," his mother, Patricia, answered. "But Mom, you don't know," the half pint whined. To Bush's parents, who maintain their son is innocent, his indictment has evolved from surreal to maddening.
"One day Rod's outside playing with his little friends," recounts Patricia, an Opa-locka postal worker. "Next thing I know, I receive a call telling me he's a juvenile delinquent. I took it as a prank at first and started laughing." When a juvenile caseworker called to request that the defendant take a community-service assignment, Derrod's father lost his cool. "I told them, `I don't need anybody telling me anything about my kids, because I'm with 'em.' If Rod gets in a fight with some other kids, I send him to his room. Let them forgive and forget. Kids always do."
An official at the State Attorney's Office says that Bush's case is being reviewed in the hopes of resolving it out of court. If it can't be, Pat Bush vows she'll take the appropriate action: "I'm getting ready to call Oprah Winfrey. I think she'd be interested in this case.
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