X

Thank you for sharing!

Your article was successfully shared with the contacts you provided.
New to San Jose’s Santa Teresa High School last year, George T., known as “Julius,” approached Mary, a girl in his honors English class, and asked her to read a poem he had written. Mary quickly went pale. The poem, titled “Faces,” described the author as “dark, destructive and dangerous,” and ended with a warning to parents that he could be “the next kid to bring guns to kill students at school.” Within 48 hours, Julius was in custody, facing charges that he had made three criminal threats when he shared his poem with Mary and two other students. A judge eventually committed Julius to juvenile hall for 100 days. Last week, San Jose’s Sixth District Court of Appeal in a split decision upheld the commitment, even as the dissenting justice waxed poetic about the dangers of overreacting to artistic expression — especially that of adolescents. What happened to Julius isn’t uncommon in these post-Columbine days, defense lawyers and civil rights experts say. In the haste to ensure students’ safety after a rash of school shootings nationwide, they claim, school administrators are trampling all over their young charges’ free-speech rights. “It is a troubling trend,” says Eleazar Aramburo, a San Francisco solo practitioner who represents juveniles in misdemeanor and felony cases. “There is a very strong pressure to prosecute young people who are expressing themselves or drawing pictures or writing poetry that the courts or the school districts deem inappropriate.” The evidence supporting Aramburo is mounting. In addition to Julius, students prosecuted in the last two years by California authorities have included a Cupertino student who drew a picture of a teacher being shot with a cannon, a Butte County kid with a painting of him shooting a peace officer, a Redwood City boy for threatening a teacher who accidentally hit him with a door, and a Santa Clara County youth who threatened to kill another teen-ager with whom he had argued. Each of those cases cites other instances in which youngsters have been accused of criminal threats for statements, poems or drawings. Civil rights experts say school authorities have every right to be cautious in gun-happy America and investigate students who say or do things that cause others concern. But they say filing criminal charges should be a last resort. “Courts have very much overreacted in deferring to schools in situations where there’s really no justification for restricting speech,” says Erwin Chemerinsky, a well-known constitutional law professor at the University of Southern California Law School who’s currently a visiting teacher at Duke University School of Law. “First Amendment rights of students have been tremendously compromised.” Of course, there are two sides to every story. Richard “Rick” Gardner, the veteran Santa Clara County deputy district attorney who prosecuted Julius, says some people would complain “if we prosecuted child molesters.” Prosecutors and school administrators tread a fine line, he says, in trying to determine whether an adolescent’s comment or drawing goes from being normal kid’s behavior into something more sinister and threatening. “There are times when things get filed that are an overreaction, and there are times when things are under-reacted to — that aren’t taken seriously enough,” Gardner says. “If I had thought this case was one of someone expressing his unhappiness, his philosophy, it never would have gone to court.” PLATH AS PRECEDENT In In re George T., 02 C.D.O.S. 10613, Julius, the high school student who authored the so-called “dark poetry,” was charged under state Penal Code � 422, which punishes anyone who threatens someone in a way that causes the victim to seriously fear for his or her safety. Both Santa Clara County Superior Court Judge Nazario Gonzales and a two-judge majority of the Sixth District found sufficient evidence to support the charges. But Sixth District Justice Conrad Rushing jumped to the defense of the defendant, calling him a “lonely young man” simply trying to “make a new friend” at a new school. He argued that the words in the poem were “devoid of any evidence” that Julius intended to threaten anyone. Rushing also cited the angst-filled poetry of Sylvia Plath, Allen Ginsberg, John Berryman and Robert Lowell as evidence of text that was often violent, but not threatening. “Had Lowell handed someone his poem, ‘Skunk Hour,’” Rushing said, “where he wrote, ‘I watched for love-cars. Lights turned down, they lay together, hull to hull, where the graveyard shelves on the town � My mind’s not right. A car radio bleats, “Love, O careless Love �” I hear my ill-spirit sob in each blood cell, as if my hand were at its throat � I myself am hell; nobody’s here.’ Could it have been considered a threat?” Julius’ lawyer, Michael Kresser, executive director of Santa Clara’s Sixth District Appellate Program, says he intends to seek review by the California Supreme Court. And a grant by the high court wouldn’t be surprising. Determining whether a criminal threat has been made under Penal Code � 422 isn’t easy and, as the courts have shown, somewhat subjective. Julius was convicted for words in a poem, while the Third District in In re Ryan D., 100 Cal.App.4th 854, decided in July that the Butte County boy’s drawing of him using a gun to blow off an officer’s head wasn’t criminally threatening. “If anything,” Rushing wrote in his dissent in Julius’ case, “the circumstances of Ryan D. are more serious than those here because Ryan identified a specific victim and admitted that he was angry with the officer and hoped she would see the drawing.” To satisfy � 422, he added, “the recipient of the threat must not only be in sustained fear for her own safety, but that fear must be reasonable.” AFTER COLUMBINE Julius might have just had bad enough luck to get the wrong appellate panel. While trial courts have been favorable toward student prosecutions in these kinds of cases, the appeal courts — including in two rulings by another panel of the Sixth District — have been more reluctant. As graphic as the painting was in the Third District’s Ryan D. ruling and despite the fact that the subject was identifiable, the court unanimously held that the artwork was too ambiguous to be taken as a threat. “The painting certainly reflects anger on the minor’s part,” Justice Arthur Scotland wrote for the court, “but without more it does not appear to be anything other than pictorial ranting.” Similar results were reached last year in a published First District ruling involving verbal threats toward a teacher, and two unpublished Sixth District cases — one concerning a verbal altercation between two students and the other a drawing of a cannonball headed for a teacher. In all three, the justices felt that there was no criminal threat when all the circumstances were examined closely. Ann Brick, a staff attorney with the American Civil Liberties Union of Northern California who has handled many student rights issues, says cases of this type are “very context specific.” “Reasonable people will differ, and when you are talking about artistic expression,” she says, “it’s important to be very careful and distinguish between angry feelings and the intent to make someone afraid.” Brick says the ACLU saw a spate of school-based free-speech cases shortly after Columbine and other school shootings, but believes they are going down. However, San Francisco solo Aramburo and Kresser, of the Sixth District Appellate Program, say they’re seeing little, if any, drop in the number of cases being filed. “You’ve got kids under a fair amount of surveillance, and a lot of them talk the way rappers talk or tough guys in movies talk and people are hearing them,” Kresser says. “There’s an overreaction, although that’s not to say some inquiry might not be appropriate.” Aramburo says she’s seen high school yearbooks from just a year before the Columbine shootings filled with student drawings of plane crashes and other violence — innocent pictures that might now land a kid in juvenile hall. “After Columbine,” she says, “schools were being very intense.” Vivian Linfor, the Sacramento-based education programs consultant for the state Department of Education’s counseling and student support office, says school authorities do try to distinguish between adolescent behavior and possible criminal threats. “What we have tried to do in a subtle way is advise school districts that they need not ignore these things,” she says. “But we leave it up to the discretion of the school and school district to determine what action needs to be taken in each case.” School authorities, Linfor says, should have policies in place that ensure fair and consistent action in each instance. Gardner, of the Santa Clara County DA’s office, says an overabundance of caution when dealing with over-the-top statements, poems and pictures is warranted. Kids have been killing other kids and their teachers, after all. “But the question is,” he asks, “are there more threats since Columbine, or are people more sensitive to it now?” That’s a good question, and civil rights lawyers hope that it can be answered without stifling students’ artistic expressions and free-speech rights. Even Gardner agrees with that. “Expressions of unhappiness in general shouldn’t be illegal,” he says. “You have to have free speech or you don’t have a free society.”

This content has been archived. It is available exclusively through our partner LexisNexis®.

To view this content, please continue to Lexis Advance®.

Not a Lexis Advance® Subscriber? Subscribe Now

Why am I seeing this?

LexisNexis® is now the exclusive third party online distributor of the broad collection of current and archived versions of ALM's legal news publications. LexisNexis® customers will be able to access and use ALM's content by subscribing to the LexisNexis® services via Lexis Advance®. This includes content from the National Law Journal®, The American Lawyer®, Law Technology News®, The New York Law Journal® and Corporate Counsel®, as well as ALM's other newspapers, directories, legal treatises, published and unpublished court opinions, and other sources of legal information.

ALM's content plays a significant role in your work and research, and now through this alliance LexisNexis® will bring you access to an even more comprehensive collection of legal content.

For questions call 1-877-256-2472 or contact us at [email protected]

 
 

ALM Legal Publication Newsletters

Sign Up Today and Never Miss Another Story.

As part of your digital membership, you can sign up for an unlimited number of a wide range of complimentary newsletters. Visit your My Account page to make your selections. Get the timely legal news and critical analysis you cannot afford to miss. Tailored just for you. In your inbox. Every day.

Copyright © 2020 ALM Media Properties, LLC. All Rights Reserved.