Judge Elaine O'Neal hugs James Berish after sentencing him to probation in the state's first felony case to go through a formal pretrial restorative justice process.
Tears, hugging and applause aren't something you often see when a person pleads guilty to a crime.
But that was the case Thursday morning in Durham County court as James Berish pleaded guilty to accidentally shooting an eleven-year-old girl last year. It was the culmination of a year-long restorative justice process in which Berish apologized to the girl and her family, and they forgave him.
The case is believed to be the first felony to go through a formal pretrial restorative justice process in North Carolina — a rehabilitative approach that focuses on reconciliation between a defendant and a victim and the community.
Berish was unloading a handgun in his apartment last May when it accidentally discharged, sending a bullet through his floor and into the apartment below, where Deisy Medina was sleeping. The bullet struck her between the ribs and hip. On Thursday, he pleaded guilty to assault with a deadly weapon inflicting serious injury and possession of a stolen firearm.
The Durham County District Attorney's Office already refers lower-level offenses to the Religious Coalition for a Nonviolent Durham, which works with Campbell Law School’s Restorative Justice Clinic. Representatives from both were present at Thursday's hearing, including Campbell Law students.
"Restorative justice is a theory of justice that recognizes that crime and wrongdoing does not only violate laws of the state but that it damages people, relationships and communities," said Jon Powell, the director of the Restorative Justice Clinic. "So restorative justice processes come along our traditional systems and try to address those needs that are created when crime is committed."
Through the process, Berish and the Medina's met individually with the facilitators of the program. They met each other face to face for the first time Tuesday night for a healing circle, in which Berish asked for forgiveness. Thursday represented reconciliation with the broader community.
Berish's attorney, Nisha Williams, said tears started flowing immediately when the twenty-three-year-old introduced himself to the family. He learned through the process that Deisy loved art, and gifted her with art supplies.
In court, Williams said Berish had purchased the gun for protection. When the gun went off he was "terrified" and left the apartment, but as soon as he learned a child had been injured, turned himself into police, gave them access to his apartment and guided them to the gun.
It was an emotional hour-long hearing in which attorneys on both sides spoke about Berish's character and what the restorative justice process has meant both for him and the Medina family.
"What I see in Mr. Berish is a man taking full responsibility, a man who made a mistake and owns it," said Assistant District Attorney Kendra Montgomery-Blinn. "What I see in Deisy and her family is a family who was wounded physically and emotionally, a family who asked for healing, a family who got answers to their questions and a family who found peace and forgiveness."
Williams said Berish is a father of a two-year-old girl, so knowing he had harmed someone else's daughter "impacted him in the most serious way."
"He wanted to make sure that little girl could sleep at night and not worry some harm would come to her," she said.
After court, Berish said because of the restorative justice process, "bigger things" are in store for him and his family.
"A lot of people out here need it," he said.
Judge Elaine O'Neal sentenced Berish to twenty-four months of supervised probation. Once he pays $1,380 in restitution to the Medinas, gives at least two speeches on gun safety and donates art supplies to another child victim of gun violence, he'll be transferred to unsupervised probation. He could have received as much as ten and a half years in prison under sentencing guidelines. (The restitution covers wages lost by Deisy's mother during the week of work she missed, counseling and a new bed.)
In delivering the sentence, O'Neal invoked Martin Luther King Jr., saying "the arc of the moral universe is long, but it bends toward justice." Everyone in the room probably has a different definition of what justice is, she continued, "but on this morning in this great city of ours, we we know what it feels like." She thanked Berish for helping her to be part of a "historic" case and left the bench to give him a hug.
"This is one day out of twenty-four years that I am glad to put somebody on probation," she said.
Montgomery-Blinn said when she first met with the Medina family "they wanted to know how could this happen and who is this man." By chance, Echols sent her to restorative justice training a few days later and she found a way to answer those questions.
"This is why I went to law school, this moment," she said after court adjourned. "Criminal justice is changing. There is a sea change coming and this process is part of it."
Dirstrict Attorney Roger Echols says two other felony cases are currently going through the restorative justice process and a third has been identified as a candidate.
"Restorative justice helps us get more appropriate dispositions," Echols said. "It doesn't keep us from doing the things we're supposed to do as a legal community ... It helps us meet those goals that we say we're about, which is helping victims and placing defendants in a better position to succeed."
The Religious Coalition for a Nonviolent Durham holds restorative justice circles to introduce people to the principles of the approach and train them to be volunteers. Sessions
will be held on April 18 and 19.