Excerpt: Mitigating Circumstances
In this age of zero-tolerance policies, the Chicago Public School's system is "one of the harshest in the land," attorney Steven Drizin writes in Zero Tolerance, a new collection of essays on the subject. Drizin, director of a teaching legal clinic at Northwestern University School of Law, recounts the case of 12-year-old Arturo, who was kicked out of South Side Academy, no questions asked, after administrators discovered he'd brought a gun to school. An expert in representing juvenile defendants, Drizin believes the Chicago district's gun policy fails to "take into account the individual circumstances of each case." And in Arturo—whose father, Hector, had called on Drizin and his legal team for pro bono help—the attorney saw a good kid who'd been treated too harshly. So he hoped, in preparing for the boy's expulsion hearing, that he could convince school officials to cut the remorseful Arturo a break.
After interviewing Hector and Arturo separately, my students and I pieced together the following story. One day, toward the end of his 7th grade year, Arturo asked his father if he could borrow the key to his desk to get some markers for drawing. While looking for the markers, Arturo stumbled across a case, which he opened. To his amazement, he found a handgun inside. The gun was not his father's but his uncle's. A truck driver from Arkansas, where it is legal to carry concealed weapons, the uncle had brought the gun with him on a visit to his family in Chicago. Arturo's father had taken the gun from his brother and locked it away so that the kids would not be tempted to play with it. Before storing the gun, he asked his brother to remove the ammunition. The uncle had forgotten to take the gun with him when he left and planned to pick it up the next time he was in Chicago.
The gun mesmerized Arturo. He picked it up, pulled out the clip, put it back in, aimed the gun, and squeezed the trigger. He then put the pistol back in its case. But the weapon was a powerful magnet. Arturo was drawn to it, and over the next few days, he handled it several more times while ostensibly looking for markers. Each time, he carefully put the gun back in the case to conceal the fact that he'd handled it.
One day at school, Arturo saw a group of classmates gathered around Sean, who was not one of his close friends. The boys were looking at Sean's magazine, which was filled with pictures of weapons. Arturo mentioned casually that he had access to a gun. From that moment on, Sean relentlessly pursued Arturo. He talked to him several times a day at school about the gun. He even called Arturo at home, asking him each time to let him see the weapon. He offered Arturo money just to borrow it. Finally, Arturo succumbed to the pressure, agreeing to let Sean have the gun for a few days. The exchange took place in a school bathroom. Sean gave him $9, and Arturo agreed to hand over the gun on one condition—that it be returned a few days later.
After several days had passed, Sean still had the gun. Arturo started to panic. What if his father discovered the gun was missing? He grew worried and pleaded with Sean. He wrote notes to him in class. Desperate, he even tried to negotiate a new deal with Sean, agreeing to swap one of his father's cigars for the gun. Sean kept making excuses, and before Arturo could figure out his next move, an incident occurred that would lead to his suspension.
Several weeks after he'd acquired the gun, Sean was confronted on the school playground by several boys from a neighboring Catholic school. The boys were there to continue a fight that had started the day before. During that fight, which was over a girl, Sean had pulled out the gun and waved it around. Tipped off by an administrator at the Catholic school that another fight was imminent, Sean's principal dispatched the school security officer to the playground and called the local police for backup. The officer chased the boys away, and Sean was taken to the principal's office for questioning. During the interrogation, he told police and the principal that Arturo had given him the gun. He also said, however, that Arturo had had nothing to do with the conflict between Sean and the Catholic school boys.
Summoned to the principal's office, Arturo immediately admitted he'd given Sean the gun. Arturo's parents were called, he was summarily suspended for 10 days, and his parents received a letter in the mail notifying them of the date of his expulsion hearing. The letter outlined the charges, informed Arturo's parents that he could be expelled for up to two years, advised them to attend the hearing, and, in a throwaway last line, informed them that they "may have an attorney or other representatives at the hearing for [their] child."
Hector called my office a few days before the hearing. He had tried to retain a private attorney, but the price was too steep. His actions showed great initiative. Parents are not encouraged to seek counsel, and, in my experience, they are sometimes actively discouraged from doing so. They often are told that being too adversarial in expulsion proceedings will backfire, causing the hearing officer or school board to mete out the heaviest possible punishment. The best strategy, it's suggested, is to confess wrongdoing, express remorse, and throw yourself at the mercy of the hearing officer.
We arrived at the Chicago Public Schools' headquarters half an hour before our 9:30 a.m. hearing time. Soon the waiting area was filled with children and parents. At 10:15, our case was called, and we were led by the school board's attorney to a small conference room. The hearing officer, an employee of the school system, entered the room and turned on the tape recorder, and the hearing commenced.
Before the first witness was called, the board's attorney, a wannabe prosecutor, started flexing his muscle. He objected that Arturo had too many attorneys and told me and my colleague that we had a choice—either our students stay and represent Arturo, or we do it; everyone else had to go. We explained that we were required by law, and as clinical teachers, to remain in the room with the students and supervise them. They would handle the case, but we'd stick close by should they need help. We weren't going anywhere. The hearing officer, bowing to the board attorney, said she had to leave the room to consult with her superiors before ruling on the motion. After returning, she allowed us to stay, but demanded we keep our sidebar conversations as short as possible.
These pre-hearing antics only reinforced our impression that giving kids due process was not a high priority. Several other incidents made this fact crystal clear. Repeatedly during the hearing, the board attorney reminded the hearing officer that there were several other families waiting and that our case was taking up too much time. The message from these objections was also crystal clear: "Keep the assembly line moving."
Our strategy was simple. We wanted to tell our client's story—his narrative, his biography. Our goal was to give the hearing officer a picture of who Arturo was, where he came from, how he came to possess a gun, and what influences may have led him to bring the weapon to school. If successful, we would paint the incident as a one-time, isolated mistake in judgment, the result of peer pressure rather than malice. We'd portray Arturo as a good kid who'd made a bad decision, who was sorry for what he'd done, and who desperately wanted the chance to prove to himself, his parents, and his teachers that he had learned from his mistake.
The board attorney's strategy was also simple: Get out the fact—and repeat it often—that Arturo had taken a gun to school and, as much as possible, try to tarnish the kid by bringing up blemishes in his academic record and questioning the sincerity of his remorse. The attorney would save most of his thunder for closing arguments, when he'd rail about the dangers of guns in school and the need to punish children who bring them there by imposing the maximum two-year expulsion penalty.
We knew that the most important witness called by the board would be the principal. While talking to us at length before the hearing, she expressed serious misgivings about expelling Arturo but made it clear that she had no choice under the board's policy. She genuinely liked Arturo and his family and knew what a blow it would be for them to expel him from school. She was torn. Somehow, we had to get her to show the hearing officer her angst.
During direct examination by the board attorney, she played the loyal soldier, citing the board's policy chapter and verse and talking about the primary need to protect staff and students. Even during cross-examination, she held firm. She did say that Arturo was a good student with few disciplinary problems and expressed how shocked she was when she learned he had brought a gun to school. She admitted the case had many mitigating circumstances that the board's chief executive officer, Paul Vallas, could take into account when deciding whether to make an exception to expulsion. But she would not agree that Arturo should not be expelled for anything less than the maximum period of two years.
After she was finished, the students and I took a break and made a special request of the hearing officer. We moved to allow the principal to remain in the hearing room during the testimony of our witnesses. We told the officer that it was important for the principal to hear Arturo's account of what had happened and evaluate the sincerity of his remorse. Both Arturo and his parents wanted her to know how heartbroken the whole family was by the incident. We were confident that she couldn't help but be moved by what she would hear and were hopeful that her reactions would lead her to plead Arturo's case to Vallas.
The board attorney objected. "She is my witness," he screamed. "She is finished with her testimony and has no right to stay in these proceedings."
"She has every right," we countered. "Her recommendation to Mr. Vallas may be given great weight, and she can't make an informed recommendation unless she is fully informed."
The principal said she'd like to stay, and the hearing officer, over the board attorney's objection, honored her request.
By the end of the hearing, after Arturo's narrative was told, both the principal and the hearing officer were dabbing their eyes with Kleenex. The board attorney's closing argument, full of bluster about the evils of guns and the need to enforce zero-tolerance laws, sounded silly in the context of Arturo's case. We knew we weren't going to win the hearing, but we believed the officer, the principal, and, most importantly, Arturo and his family appreciated the point of this story. This was a good kid, from a good family, who'd made a stupid decision. If ever there was a case for mitigation, this was it.
Apparently, Vallas got the message, too. Several months later we were notified that Arturo was expelled—not for the two years the board attorney had sought, but just for one.
Vol. 13, Issue 3, Pages 46-47Published in Print: November 1, 2001, as Excerpt: Mitigating Circumstances