Abuse of Discretion

by Pamela Samuels Young

Graylin is smiling like it’s Christmas morning and Santa brought him everything on his wish list.

  “Now I can get out on bail, right, Ms. Angela? Can I go home now?” He grins over at me with hopeful, glistening eyes.

  I’m not a proponent of child abuse, but right now I want to slap him upside his big naïve head. He has no idea what he’s just done. Gus storms out of the courtroom. I can hear his aunt and grandmother weeping as they trail behind him.

  “No, Graylin, you can’t go home now. Your case has to be transferred to adult court first. A Superior Court judge has to set bail.”

  “When is that going to happen?”

  “It could take several days.”

  Shock rocks his face. “So I have to stay at juvenile hall until then?”

  “Yes, you do. And there’s no guarantee that the court’s going to even let you out on bail.”

  He turns to Jenny as if she might contradict me. She meets his stunned eyes with silence.

  Graylin’s voice starts to quiver like he’s about to cry. “But Little Slice said I would get out on bail.”

  “I guess this proves Little Slice doesn’t know everything, huh?”

  “But I thought I could get out right away.”

  “I never told you that.”

  “But Little Slice said—”

  “If you mention Little Slice to me one more time, I swear I’m going to slice you up into little pieces.”

  Graylin smiles. “That’s funny, Ms. Angela.”

  “There’s nothing funny about what you did. The first thing you need to do is apologize to your father for your behavior. He may not even want to post your bail.”

  For the first time, Graylin seems to realize that Gus is holding the keys to his freedom.

  Martinez walks over. “It’s been nice working with you, counselors. On the adult side, the case will be assigned to Lorelei Sullivan. Child pornography cases are her forte.”

  I want to slap Martinez upside the head too. “Thanks for everything.”

  Jenny picks up her satchel and is about to leave.

  “Hold up,” I say. “Why don’t we have lunch? We need to clear the air.”

  ***

  Thirty minutes later, we’re seated at a sandwich shop, not far from the courthouse. We place our orders and take seats until our food is ready.

  “I’m sorry about getting so upset,” I begin. “But I couldn’t agree with you about letting Graylin make the decision on this.”

  Jenny hunches her shoulders. “Well, he did anyway. Now that you’ll be in adult court, you’ll be in familiar territory. Good luck.”

  What I’m about to say will no doubt come as a surprise to her. It’s a surprise to me too. “I’d like you to stay on the case.”

  Jenny blinks.

  “You know these sexting cases backward and forward,” I continue. “I know the adult system. We’ll make a great team.”

  “No, we won’t. Even though he’s in adult court, the same rules still apply. Graylin is the client and he gets to make the ultimate decisions. I’m not going to disregard my obligations to my client just because you want to act like his mother.”

  I remind myself that this is not about me. I need to do what’s best for Graylin, and Graylin needs Jenny fighting for him. I need her too.

  “I wasn’t trying to act like his mother. I was trying to keep him from ruining his life. The fact that he thinks he did something good shows that he’s not mature enough to make a decision like this.”

  Jenny rolls her eyes and looks away. Instead of convincing her that we can continue to work as a team, I’ve just reconfirmed that we’ll still be tugging at opposite ends of the same rope.

  As I’m about to apologize for the second time, someone calls out my ticket number and I get up to retrieve my turkey sandwich. Jenny’s number is called next. We both ignore the cloud of distrust hanging over us and start eating.

  “If we can find out who took that picture and who sent it to him,” I say after several bites, “I think we have a chance of getting him off. Even on the possession charge.” I hope Jenny notices that I’m still using the plural we. “I didn’t want to admit it before, but I do think we have a shot at jury nullification. Frankly, it’s our best shot.”

  Jenny reaches for her phone. “I have an excellent investigator. Her name’s Mei Lau. If anybody can find out who took that picture, she can. She’s great at navigating in juvenile circles. Even though she’s in her thirties, she could easily pass for fourteen or fifteen. I just texted you her contact information.”

  “I’m sure I can use her, but I also need you. Graylin does too. Will you please stay on the case?”

  Rather than answer me, Jenny takes a bite of her sandwich. I put mine down and stare across the table at her. If I have to grovel for Graylin’s sake, I will.

  “Look, Jenny, let’s make this about Graylin. Not about—”

  “I don’t know,” she says. “Let me think about it and get back to you.”

  CHAPTER 46

  Angela

  As usual, arraignment court is a zoo. Being back here fills me with a strange, yet familiar calm. This is my territory. I look toward the cage and spot Graylin in his gray sweat suit. He looks like a small ferret next to the five grown men in the cage with him. He waves at me. I don’t wave back because that isn’t allowed. There’s a sign to that effect on the wall inside the cage.

  When the judge calls Graylin’s case, a deputy escorts him to the table where I’m standing.

  “How are you doing?” I ask.

  “I’m good,” Graylin says, hugging me. “Can you get me out today, Ms. Angela?”

  “Maybe.”

  I don’t say any more than that because the truth would crush him. His aunt Macie agreed to put up her house. Assuming the judge grants bail, it could still be two or three days, maybe longer, before all the paperwork is processed.

  “Your dad’s supposed to be here,” I say, looking over my shoulder.

  “He’s still mad at me. But when I win my trial, he’ll understand.”

  I’m still mad at Graylin too. A fourteen-year-old can’t drink, drive, smoke, vote or even sign a contract, but the law says he can make his own legal decisions? Whoever came up with that jewel was smoking something.

  “When the judge asks how do you plead, say not guilty and not a word more,” I tell him. “And you better not pull any of that disrespectful crap you did in juvenile court.”

  Graylin grins. “Okay, Ms. Angela. I won’t.”

  The judge opens a folder, then stares out at me. “You’re kidding me. Another sexting case? How old is the defendant?”

  “Fourteen,” I say.

  The exasperation on the judge’s face matches mine. “How do you plead?”

  I give Graylin a nudge.

  “Not guilty,” he calls out in a loud, clear voice.

  “My client has never been in trouble before. We’d like to ask that the defendant be released on O-R to his father. He’ll be under twenty-four-hour supervision at home.”

  The judge turns to the prosecutor. “You okay with that?”

  The deputy D.A. handling arraignments today is a fifty-plus, hard ass who plays it by the book. When I tried to talk to him earlier this morning, he said he didn’t have time. I’m glad he won’t be the prosecutor trying the case.

  “We object, Your Honor,” the prosecutor says. “The defendant’s in adult court because he tried to intimidate a witness. We’re asking that he remain in custody without bail.”

  Without bail? My heart starts to palpitate.

  “Your Honor, that’s unfairly excessive for a case of this nature. This young man is an excellent student with no prior criminal record. And the charge of witness intimidation is a farce.”

  The judge looks down at the papers on his desk. “Counselo
r, since a juvenile court judge sent his case here, he’s obviously not the angel you want me to think he is.”

  The prosecutor interrupts. “I’d like to direct your attention to the judge’s certification and the transcript of how disrespectfully the defendant behaved toward the court.”

  The judge pauses to read. “I see that here.”

  “In addition,” the prosecutor continues, “the victim’s mother is in court today. She’d like to see the defendant remain in custody because she fears for her daughter’s safety.”

  All eyes turn to Simone Carlyle, who’s dressed in black like she’s here for a funeral. She stands up even though she wasn’t asked to. Gus and Dre are sitting four rows behind her.

  “Your Honor, I strongly disagree. I’m requesting house arrest, ankle monitoring and no computer access except for completion of his schoolwork, which will be supervised.”

  “I’ll split the baby,” the judge says. “Bail is granted at fifty thousand dollars. The defendant will also be under house arrest and required to wear an ankle monitor. Next case.”

  “Fifty thousand dollars!” Graylin looks as if he’s about to crumple into tears. “My dad doesn’t have that much money!”

  “He only has to have a portion of it. Don’t worry. We’ve already worked it out. I’ll come back to talk to you after I speak with your father.”

  A deputy appears to escort Graylin away.

  I motion Gus into the hallway and explain everything I need him to do to get the bail taken care of. I’m about to head back inside when I see Jenny standing a few feet away.

  “Nice job in there,” she says.

  She has no idea how happy I am to see her.

  “So is this just a coincidence or can I interpret your being here as a good sign?”

  Jenny smiles. “I’m in.”

  I give her a hug.

  “What made you change your mind?”

  “Good old-fashioned outrage. I’m sick and tired of the D.A.’s Office filing these cases and labeling good kids as sex offenders for the rest of their lives. I’m ready to help you kick some butt.”

  CHAPTER 47

  Angela

  Jenny and I are in my office waiting for her investigator to arrive. The three of us are going to discuss case strategy and outline the evidence we need to get Graylin acquitted.

  There’s a gentle knock on the door and a cute Asian girl with a nose ring and a purple streak in her bangs steps into the room. Jenny’s right. Mei doesn’t look anywhere close to thirty.

  After introductions and some quick background on the case for Mei, we start tossing around ideas.

  “We need someone else to point the finger at,” Jenny says. “And that someone is the person who took the picture and sent it to Graylin.”

  “Are you certain it’s the same person?” Mei asks.

  Jenny stops to think. “I just assumed it was, but you make a good point.”

  “So you’re confident your client didn’t take it?”

  “Yes,” I say before Jenny can answer.

  “I’ll need to interview him.” Mei scribbles in her notebook. “He can help me determine which of his classmates I should talk to.”

  I feel a twinge of discomfort. Despite my response just now, what if I’m wrong about Graylin not taking that picture? I’ve certainly had clients look me in the eyes and flat out lie to me. Is my closeness to Graylin clouding my legal judgment?

  “Since the note was left at school,” Mei says, as she examines it, “one of his classmates is probably involved. And it sounds like it was written by a kid.”

  I glance down at my copy and reread it.

  Dear Mrs. Keller,

  Graylin Alexander should be ashamed of himself. He took a naked picture of Kennedy Carlyle with his iPhone. He also said he was going to beat her up and embarrass her by posting the picture on Instagram so it could go viral. Please stop him from doing this!

  Signed, Anonymous

  “What makes you think it was written by a kid?” I ask.

  “Because of the Dear Mrs. Keller part and because it says he took the picture with his iPhone, not phone or cell phone. Kids are more conscious about brands. I don’t think an adult would’ve been that specific.”

  “The exclamation mark at the end also seems like something a kid would use,” Jenny adds.

  I tug at a swatch of my hair. “I just wish we knew which kid.”

  “Don’t worry,” Jenny says. “Mei will find out. She’s amazing.”

  Mei puts the note away and starts examining the photograph found on Graylin’s phone. In the picture, Kennedy Carlyle appears to have been captured mid-stride in what looks like a bedroom. Her breasts and pubic area are clearly visible.

  “Can’t you argue that the picture doesn’t meet the definition of obscenity under the statute?” Mei asks. “In another case I worked on, the attorney got an acquittal by arguing that.”

  I reach for my iPad and reread California Penal Code Section 311.

  “Obscene matter” means matter, taken as a whole, that to the average person, applying contemporary statewide standards, appeals to the prurient interest, that, taken as a whole, depicts or describes sexual conduct in a patently offensive way, and that, taken as a whole, lacks serious literary, artistic, political or scientific value.

  “If this is the legal standard,” I say, growing excited, “the charge can’t possibly stick. That picture doesn’t show any sexual conduct.”

  Jenny shakes her head. “I wish it was going to be that easy. You have to read section 311 in conjunction with the section that defines sexual conduct.”

  I scroll down to that section, which provides multiple definitions of sexual conduct, including sexual intercourse, masturbation, and sadomasochistic abuse. Kennedy’s picture still doesn’t fit. My excitement starts to build again but crashes when I get to the fifth definition.

  As used in this section, “sexual conduct” means . . .(5) Exhibition of the genitals or the pubic or rectal area of any person for the purpose of sexual stimulation of the viewer.

  I glance back up at Jenny. “Can’t we argue that it wasn’t for the purpose of sexual stimulation?”

  “I’ve tried that argument before,” Jenny says. “And it didn’t go well. This picture definitely falls within the statute.”

  I turn to Mei. “How did the attorney in your other case get the kid off?”

  “Sorry,” she says. “It wasn’t a kid. The guy was an artist. I guess they must’ve used the artistic exception. I’ll take a look at Kennedy’s social media pages as soon as I leave. That should give us some helpful information.”

  “Her pages are all shut down now,” Jenny says. “But I took a look at her Snapchat, Pinterest, Instagram, Tumblr and Facebook pages the same day I got the case.” She hands several pages to Mei. “Here are my notes and some screenshots. I wrote down the names of the kids who seemed to communicate with her the most.”

  Mei quickly scans them. “It amazes me that kids can find the time to manage all of these sites. Find anything interesting?”

  Jenny shakes her head. “She loves hot pink, puppies, owls, all things Paris and has a big-time crush on Drake and Katy Perry. My first thought after spending two hours on her social media pages was that she’s a nice little girl.”

  “So who does Graylin think sent him the picture?” Mei asks.

  “His best friend Crayvon Little,” Jenny says. “I didn’t find anything helpful on his social media pages. And I don’t know about motive, but he certainly had means and opportunity. Not only does he live across the street from Kennedy, he just happens to have made a trip to the administration office right before a school clerk found the note lying on a counter. Unfortunately, no one saw him or anyone else put it there.”

  Mei asks for the spelling of Crayvon’s name and writes it down.


  “Is there any way to subpoena Snapchat’s records?” I ask. “Then we could find out whose account the picture came from.”

  Mei shakes her head. “Snapchat only gives that information to law enforcement. We can check to find out if the prosecution subpoenaed them, but I doubt it. They aren’t going to spend that kind of time and money on a minor case like this.”

  I understand what she means, but Mei’s calling this a minor case rubs me the wrong way. There’s nothing minor about the possibility of Graylin being labeled a sexual predator for life.

  “If we’re going to win this,” Jenny says, “we have to pull at the heartstrings of the jury. Every juror in that courtroom has to see their son, grandson, or nephew in Graylin and understand that the same thing could happen to them.”

  “How do you guys get around the possession charge since the picture was on Graylin’s phone?”

  “It’s a specific intent crime,” Jenny explains. “We’re going to argue that he lacked intent. He saved it to his phone, but he didn’t know it was pornography.”

  Mei frowns. “Ignorance of the law is no defense. Have you won with that argument before?”

  “Nope. But there’s always a first time.”

  “And you’re sure Graylin’s telling you the truth when he says he didn’t take the picture?” Mei asks again.

  “Yes,” Jenny and I say in unison.

  “I know Graylin pretty well,” I add. “I don’t think he’s lying to us.”

  Jenny quickly concurs. “I’ve been doing juvenile criminal defense for close to ten years. There’s a sense of righteous indignation in a child who’s been falsely accused. I see that in Graylin. An adult understands that life isn’t always fair, especially when you’re talking about the justice system. But a kid thinks that if they’re telling the truth, everything will turn out fine. And that’s precisely what Graylin believes.”

  CHAPTER 48

  The Shepherd

  Wallstreet and I are kicked back on our bunks shooting the breeze. When the door opens and Oaktown steps inside our cell, I immediately spring up.

  He closes the door behind him and walks over to Wallstreet, who’s on the bottom bunk.