Danville mother talks about the ongoing struggle to get her son released from prison
On the outside, Diane Rose hasn't changed much in the last three years. She's still incredibly fit, with short black hair, liquid brown eyes and a big, kind smile.
On the inside, she has come to terms with a mother's nightmare: Her son Brendon, now 23, has been in state prison since May 2003 for "assault in which great bodily harm occurs," after a drunken college party brawl turned ugly. Brendon, seeing his twin brother Adam being assailed, pulled off one attacker, punched him, then kicked him when he was down. The following spring, Brendon pleaded "no contest" and was sentenced to eight years in state prison (see sidebar).
"I've been pulled into a world I couldn't possibly imagine," says Diane, who lives in Danville and works as a personal trainer.
She's seen her 18-year-old son arrested 10 days after the fight; she's been in court when he was sentenced after his lawyer advised him to plead "no contest"; and she's visited him regularly in two different prisons.
The family tragedy caught national attention on July 31, when Diane appeared on Fox News' O'Reilly Factor TV show along with actor Robert Duvall, who promised to do what he could to bring the case to Gov. Schwarzenegger's attention. After the segment aired, SaveOurRose.com, a Web site dedicated to Brendon's cause, had more than 3,200 new hits; some people added their names to a petition to get Brendon freed or left messages of hope and prayers. Some copied e-mails they'd sent to the governor.
Diane and her two sons had met Duvall a few years ago while visiting her good friend's father, whose property is near Duvall's Byrnley Farm in Virginia.
"He invited us to go on a set of a movie in L.A., just before Brendon was sentenced," Diane says. "The movie was 'Kicking and Screaming.' He's a wonderful man, funny and witty in person."
"We didn't talk about the trial," she adds. They were still hopeful Brendon would receive probation.
But visiting Duvall on the set helped build their relationship.
Two years after Brendon went to prison, an evidentiary hearing was held, in June 2006, to go over the facts of the case but the judge denied Brendon's request for a trial by jury. That's when Diane went to her friend in Virginia and asked for help.
"He talked to Robert Duvall, who said he wanted to help," says Diane.
She is hoping Duvall and his friend actor James Caan, who is also interested in the case, can bring it to Schwarzenegger's attention and get a commutation of the remaining sentence.
"It could be commuted to time served," Diane says, "which was three years on May 10."
Some people have told her she wasn't emotional enough on the TV show, she says, but after viewing it several times she decided she was pleased with the presentation.
She says she tried to portray passion without anger.
"I needed to be clear. I needed people to see this is real, not just a mother saying, 'My poor baby,'" she says.
She talks about their last outing
Two days before his sentencing, Diane and Brendon went out together to talk over everything, then she drove him back to his home in Pleasanton, where he lived with his father.
"He walked over to a rose bush, picked a rose and handed it to me and said, 'This is for you. I want to thank you so much for what you do for me,'" she recalls. "Two days later, they took him away."
She cries softly as she remembers this incident and says this is not the heart of the cruel person they insisted he was when they sentenced him to eight years in prison.
"That's his heart and his spirit. I can still see it," she says, adding about his part in the fight: "This was someone in a situation who reacted."
She talks about the trial
"I think about it all the time," she says. "I'm frustrated more than anything else. Frustrated that I have to fight so long and so hard and to realize that the sequence of events can happen to anybody."
"I feel like I'm in a bag, trying to get out, and there is no hole," she explains.
She and her ex-husband Ken, who at the time was a car salesman, hired Alameda County attorney Jack Noonan, paying $25,000 for his services.
"He didn't do his job," she states flatly. "He should have sent us to a Santa Clara County attorney."
Noonan said he consulted a physician who told him the victim's head injuries were caused when Brendon kicked him. So Noonan advised Brendon to plead no contest. In the evidentiary hearing last year, it came out that the doctor was a gynecologist. Nonetheless, the judge denied Brendon's request for a trial by jury.
"I've learned that one person, the judge, had way too much power," says Diane. "The prosecutor had too much power."
She talks of her visits to Brendon in prison
Diane has visited Brendon at two state prisons, going through security checks where guards decide seemingly at whim whether they approve of her clothes or if she must spend precious time rummaging through a trailer of spare clothing and changing, hoping to pass muster.
Brendon was first brought to San Quentin; then he was held at the California Correctional Institution in Tehachapi before being transferred to Ironwood State Prison, near Blythe. It's a nine-to-13 hour drive, depending on the traffic, Diane says.
"Between Ken and myself, and his brother, he gets a visitor at least once per month," she says. "The time and cost is huge."
After making the ride on Friday afternoon and night, Diane will rise at 4 a.m. to go to the prison, be cleared for entry, and waiting at 8:30 a.m. to spend as much time as possible with Brendon in the visitor's area. They eat from vending machines, and the cool room provides Brendon relief since the air conditioning does not work in the old gymnasium where he's housed with 120 men.
"He wants to keep busy," Diane says. "He's taking responsibility for what's been handed to him. He's proud and says, 'I don't want anyone to feel sorry for me. I want to do the best I can while I'm here.'"
He works at prison jobs whenever he can, for 13 cents an hour, she says. Sometimes Diane sends him money. Both of these incomes have 55 percent taken out to go toward restitution damages of $153,000 that Brendon was ordered to pay the victim, with interest accumulating while he's in prison.
"I've learned to appreciate things in life - my freedom," Diane says. "I have found out who my friends truly are. I've been so blessed and I'm so grateful for their support."
"Brendon has learned to appreciate things like a hug - and being able to go into a room by himself," she adds.
She talks about the future
Life has gone on for the Rose family. Adam withdrew from University of Oregon to move back home and is finishing his bachelor's degree in business at Cal State East Bay. He also is working as a personal trainer, sometimes side by side with Diane, as well as coaching football at Amador Valley High School in Pleasanton and working for his dad who is now in the trucking brokerage business.
Brendon has completed some correspondence courses but found it was difficult to study in the prison atmosphere plus most colleges require the Internet. He has been studying Spanish on his own.
"Some wonderful people donated money for a guitar," Diane says. "He tries to get along as best he can."
"He has a passion for the arts. He draws, he has paper and pencils," she says. He hopes to attend the San Francisco Academy of Arts and become a graphic illustrator.
"It's my goal not to be bitter or angry any more," Diane says. "Last year was tough, and the year before was tough."
She says her physical line of work has helped keep her balanced. After the twins were born, she wanted to get toned and acquire strength using diet, weight training and cardiovascular workouts, so she hired a personal trainer. She loved the physical and mental sense of well-being so she pursued the field of personal training herself. Also the flexible hours were perfect while rearing her two little boys. Now, at 55, she specializes in women in her age bracket.
"I have great clients," she notes. "They've been very supportive."
Diane now is optimistic for several reasons. There are plans to transfer Brendon to the California State Prison in Solano, which is located in Vacaville. She thrills to think of Brendon living closer plus she'll be able to visit him often. Also she is hopeful that the efforts of Bill O'Reilly and Robert Duvall might bear some fruit.
And Brendon's new attorney, Steven Gruel, who specializes in appeals, has submitted the case to the state Supreme Court.
"The work that was done before was not as thorough as it should have been. There was not a reasonable medical analysis done," says Gruel.
The new motion is based on a document from a neurologist who says it is medically probable that the injuries to the victim were not caused by the kick.
"The kick," Diane says. "It's always been about the kick."
"I myself was a former federal prosecutor for 16 years in San Francisco, prosecuting organized crime and white collar, the worst of the worst," says Gruel. "Granted there was an altercation. Granted Mr. Rose should be punished for his role in it. But one of the objectives for justice is to make sure the punishment fits the crime. In this instance, I think it is a severely overreaching punishment for this particular matter."
He found the O'Reilly Factor exposure fabulous.
"The appearance helps draw attention to the fact that there are real life events, tragedies, that do occur that affect and continue to affect a lot of people. It shows it can happen to your son, your loved one, just as easily," he adds.
"My hope is to have the case as it exists looked at by not only the courts but the executive branch, which is the governor," he continues. "I'm contacting the governor's office pretty much on the heels of the O'Reilly show and asking to see if the governor is interested in doing a commutation, not a pardon. It says, basically, you've done enough time for this crime."
Diane says other parents in similar situations have contacted her for advice.
"Do your homework, face to face and on the Internet," she says she tells them.
"It's been great for me to help educate them," she adds.
The last three-plus years have been surreal, she says. She strives to remain strong and not be bitter, but even when Brendon is free she plans to keep asking questions about the justice system that need to be addressed. Why does one judge have so much power? Why are other people sentenced to less prison time, even when their victims die? Why was the judge able to award restitution at a criminal procedure, which, Diane says, was unprecedented?
Meanwhile part of her is imprisoned with Brendon on the Arizona border.
"I pray every day for his health and safety," she says.
Does the punishment fit the crime?
The events of the college brawl during Spring Break on March 22, 2003, were fuzzy even at the time. But they would dramatically alter the lives of Brendon and Adam Rose, 18-year-old twins who had graduated the previous June from Amador Valley High in Pleasanton, and their parents Diane and Ken Rose.
It was the wee hours of the morning, near Santa Clara University. Brendon, who was attending Las Positas College, had gone to visit friends and check out the party scene. His twin brother Adam, who was home from University of Oregon, arrived with other teens when Brendon called to say a fight was brewing and he might need help.
A melee did ensue and Adam recalled that three or four guys jumped him. Brendon pulled off one, a 21-year-old from Gilroy named Jed Bober, and punched him. Bober fell, striking his head on the pavement. Then - in an act that was to be scrutinized for years to come by family, attorneys and judges - Brendon kicked him in the head.
Bober was injured badly enough for police to investigate although questions remain whether he was injured by the fall, by friends carrying him into their apartment and dropping him, or by the kick. Ten days later, police arrested Brendon at his Pleasanton home and he was booked on attempted murder. Seven months after the fight, the grand jury indicted him on two counts of battery with serious bodily injury and one count of assault by means of force likely to produce great bodily injury.
Diane and Ken Rose hired attorney Jack Noonan to defend Brendon. Noonan advised him to plead "no contest," telling them he would probably receive probation, the Roses recalled. Santa Clara County Superior Court Judge Diane Northway extended the hearing date from April 23 to May 10 to wait to hear from Brendon's probation officer.
"The report was scathing," Ken Rose said in June after the hearing. "It said he was self-centered, non-remorseful and has all his family and friends in Pleasanton fooled."
Diane Rose said this report was written after the probation officer spent one hour with Brendon. She said it contains more than 60 discrepancies plus things were misinterpreted. For instance, when Brendon said he couldn't wait for the hearing so he could get on with his life, the probation officer found it callous. Diane Rose feels the interview should have been recorded so someone else could review it.
Members of the community appeared in court to vouch for Brendon's character and to refute the report's conclusions while others wrote letters, including teachers, coaches, a police officer, two fire chiefs and a psychologist.
"These were all people whose lives this kid has touched and who know him very well," said Diane Rose.
Bober's family lobbied just as hard for a tough sentence. Jed had gone into a coma, with swelling that put intense pressure on his brain. He had spent a month in the hospital and, at the time of the hearing, was still suffering from headaches, some visual impairment, and a loss of the sense of smell.
Noonan came to court without the notes he and Brendon had assembled a few days earlier, so Brendon unexpectedly had to take the stand. The judge kept questioning him about the punch to Bober's face, the kick, and the intervening amount of time, Diane and Ken Rose said. Brendon, totally unprepared, did not know how to answer.
Judge Northway sentenced Brendon to three years in prison with an additional five years mandated by the state Legislature because of the bodily injury, Deputy District Attorney Bud Porter explained. This added up to an eight-year sentence, with the possibility of parole after six years 10 months.
"People may disagree or have walked away with a bad feeling, but they ... need to have all the information the judge did before forming opinions about the system," Porter said a month after the decision.
The Rose family never denied Brendon deserved to be punished. But they continue to be outraged by the length of the sentence.
"It's not about Brendon being responsible," said Diane Rose. "He knew he deserved consequences, but not this."