Sometime during the evening of Sept. 23, 2002, 42-year-old migrant farm worker José Luis Cisneros hopped aboard a bus in Tijuana bound for a stop east of Tecate. The two-hour bus ride was to be the first leg of a long journey that was supposed to end in an apple orchard in Washington State.
Cisneros, standing a small 5-foot-6 with straight, black hair, light brown skin and a serious, weathered face, stepped off the bus sometime before midnight and started walking north into the high desert. He joined up with a stranger, who was also planning a clandestine border crossing, and the pair walked for what was probably about an hour and a half before they reached the border fence.
They crossed and walked for another couple of hours to Live Oak Springs, a tiny village in a rural area of East County that few city folks in San Diego have ever heard of, and a popular stop for undocumented Mexican migrants heading north. Just five miles north of the border, it boasts a restaurant with a bar, a small grocery store and a pay phone. Migrants often spend the night in the rocky hills behind the store before resuming their journey.
It's part of an area-including the villages of Live Oak Springs, Boulevard, Bankhead Springs and Jacumba-described, by someone who knows, as a place where residents generally keep to themselves, and populated by people who might not be able to hack it “in town.”
Cisneros doesn't remember leaving Tijuana, riding a bus, walking for miles or crossing the border that night. But he did. And he might have slept up in those hills behind the store. Again, he doesn't remember. Others have had to fill him in on the details.
In fact, Cisneros says, other than remembering being in the hospital at some point, he can't recall much else from the last week in September through mid-October. In addition to partial memory loss, he gets dizzy if he exerts himself, and he has trouble chewing food in one side of his mouth, thanks to nerve damage that has sapped all feeling from the left side of his face. He now lives with a metal plate in his forehead and another in his right cheek.
These are the products of having been in the wrong place at a very wrong time. At about 7 p.m. Tuesday evening, Sept. 24, Cisneros crossed paths with the wrong people-a couple of fresh-faced 17-year-olds named Waylon Kennell and James Grlicky.
On Monday, Sept. 23, Kennell, Grlicky and 18-year-old Justin Smith were passing time outside of Calista Reynolds' house in Live Oak Springs.
As Reynolds later told Richard “Buck” Henry, an investigator with the San Diego County District Attorney's Office, Kennell held up his hand, which was wrapped in a cast, and considered the possibilities. He said he could do a lot of damage to someone with that cast on without hurting his hand. He would use it, perhaps, to play “Romper Stomper.”
Romper Stomper, the stark, brutal 1992 Australian movie starring Russell Crowe about a gang of neo-Nazi skinheads' violent attacks against Asians in Melbourne, had become a favorite of Kennell's. (The movie, critically lauded, was criticized by some for its lack of moral position on the hate-fueled violence.)
Apparently, Kennell got his chance the following day, probably sooner than he expected. That's when, prosecutors say, he gave Cisneros a savage thrashing that put the Mexican migrant in a coma and nearly killed him.
A complex, high-profile, six-week trial ensued, and two weeks ago, Kennell was sentenced to four years in state prison, having been convicted of assault with a deadly weapon and battery with serious bodily injury. Meanwhile, James Grlicky, who claims he didn't touch Cisneros, was convicted of attempted murder, assault, battery, conspiracy and robbery-all with hate-crime sentencing enhancements-and was given five years in prison.
Supporters of Cisneros were left shaking their heads at the relatively light sentences-particularly for Kennell, who seems to have ended up benefiting from both a constitutional protection aimed at shielding defendants from potentially reckless statements made by their co-defendants, and by the calculated risk taken by prosecutors trying to cope with a vexing legal dilemma.
As for Grlicky, he hurt his case by confessing early on to his involvement in the attack-but then benefited by Kennell's unwillingness to do the same.
Nevertheless, the two boys are heading for state prison. Thanks to custody credits, Kennell will be there for probably two years, Grlicky for slightly more than four. At his July 8 sentencing, prompted by his attorney, Kennell told Cisneros-in Spanish-that he was sorry for what he had put him through.
With tears trickling down his cheek, wearing a blue San Diego County Jail jumpsuit, Kennell read to Cisneros a prepared statement, “I'm very sorry for all your suffering. God bless you and your family.”
For his part, aside from the permanent plates in his face, the various impairments and the loss of certain memories he's all too happy to have forgotten, Cisneros is doing OK physically, considering how badly he was beaten. But he is unable to work, and he, his wife and his boys-including one from a previous relationship-are relying on the financial support of the Mexican Consulate.
“I would like things to come back how they were, how I was before,” Cisneros said. “I don't know what's going to happen next, but I'm just gonna keep going and try to do something-get a job-and take care of my family.”
Kennell and Grlicky had not known each other for more than a month before Sept. 24, but, judging from the evidence, they shared a common bond: white pride and a certain distaste for people of color. At about 6:30 p.m., they were hanging out in front of the Live Oak Springs grocery store, where Kennell's girlfriend worked. Justin Smith, a longtime acquaintance of Kennell's, was also there.
The store's surveillance camera caught the boys on tape-Kennell in his sleeveless white “wife-beater” shirt and Grlicky wearing suspenders that hung down below the waist, as is the fashion in the white-pride crowd. All three had close-cropped haircuts, which helped fuel prosecutors' claims that the boys were white-supremacist skinheads.
According to an account given by Smith to Sheriff's deputies, on their way out of the store, a Latino man bumped into Kennell. Outside, sitting on a short wall, Smith and Grlicky told Kennell he should have kicked the guy's ass. Kennell went back into the store and intentionally bumped the man again. Kennell followed the man out of the store, court records say, and yelled at him, “You fucking beaner! You stupid pussy!” Kennell threw a rock at the man, missing him, as Smith and Grlicky watched.
Kennell rejoined his cohorts at the wall, where the three agreed it might be fun to go find a “beaner,” beat him up and steal whatever money he had on him. (Each of the three later said it was the other two who hatched the idea.) Knowing migrants sometimes camped up in the trail system behind the store, that's where they headed. They split up and searched for perhaps 20 minutes or so, but their efforts turned up no Mexicans.
At some point while they were separated, Smith disappeared. Kennell and Grlicky didn't see him again that night. Smith later told a probation officer that he had no intention whatsoever of kicking anyone's ass. He said he went along with the tough talk so the other two wouldn't think he was a “wuss,” and he got away from them at first opportunity.
Kennell and Grlicky decided to head up across the road and up a brick path to the Country Broiler restaurant, which is connected to the Live Oak Springs Resort, where guests spend anywhere from $99 to $199 a night to stay in quaint, A-frame cabins situated near a small waterfall.
Inside the restaurant's bar, Cisneros nursed two beers and left the bar. When he got outside, judging from court records, he probably saw a Border Patrol agent, who drove into the area right around that time. Cisneros dashed over to a decorative antique wagon that sits in front of the restaurant and hid beneath it. Grlicky spotted Cisneros and alerted Kennell.
“Good, let's go beat him up,” Kennell responded, according to an interview Grlicky gave investigator Henry.
Grlicky told Henry that he and Kennell approached Cisneros and lured him over to an alcove at the east side of the restaurant, ostensibly to hide him from the Border Patrol agent, who had been summoned by a restaurant employee. Grlicky told investigators he was actually intending to lead Cisneros to the Border Patrol. Walking in front of Kennell and Cisneros, Grlicky says he heard some commotion and turned back to find Cisneros laying face down and Kennell stomping repeatedly on the back of his head.
Kennell and Grlicky then took off, using a tunnel as an escape route and bolting toward Kennell's house. Grlicky said that as they ran, Kennell said excitedly that he had just “beat the fuck out of that beaner.”
“Cool,” Grlicky responded.
The attackers then made their way to Kennell's house, where Kennell showered, just in case he had his victim's blood on him. He stashed his shoes, a pair of size-13 Vans sporting a small amount of Cisneros' blood, in a hidden area off the garage behind some peg board and a motorcycle.
At about 7 p.m. agent Chris Walker of the Border Patrol pulled up on the west side of the Country Broiler and walked around to the front of the restaurant and saw two white males running toward the grocery store. He heard moaning coming from the alcove, where he found Cisneros lying on his side on the brick patio with his face in a pool of blood.
Cisneros was in bad shape, blood trickling from his nose, mouth and one of his ears. Within less than a half hour, his eyes were swollen shut, and he drifted in and out of consciousness but was coherent enough at one point to say the two boys running away had beaten and robbed him. A paramedic who responded to the scene found Cisneros had suffered fractures to just about every bone in his face.
In an interview later with a probation officer, Justin Smith couldn't say why exactly he loitered around the grocery store after freeing himself from Kennell and Grlicky. But there he was, caught in the spotlight of a Border Patrol helicopter that had begun to circle overhead. Border Patrol agent Marco Fuentes pulled up in his truck at about 7:15 p.m. and apprehended Smith. Discovering blood on Smith's clothing, Fuentes ordered Smith into his truck and drove him to where Cisneros lay. Fuentes told Smith to stick his head out of the truck, and Cisneros managed to-falsely-identify him as one of the attackers. The blood on Smith's clothes turned out to be his own, the result of a cut on a piece of sheet metal that afternoon.
Cisneros was airlifted to Sharp Hospital, where neurosurgeon Dr. Sanjay Ghosh performed emergency surgery. Ghosh told investigators that Cisneros suffered bleeding and swelling of the right side of his brain, a right frontal skull fracture that lacerated his brain, a right eye-socket fracture (a portion of the eye socket was dislodged and “floating” free, according to prosecutors), a fractured cheekbone, a fractured nasal passage and fractured forehead.
Smith was swiftly arrested and taken to the Boulevard sheriff's substation. That's where he recounted what had happened up to the time when he was separated from his friends up in the foothills behind the store. He said he believed Kennell and Grlicky attacked Cisneros, but he didn't see them do it. Smith was taken to county lockup and booked.
Deputies called Grlicky and Kennell at their homes and summoned them to the substation. Grlicky arrived with his mother and denied involvement in the attack. Kennell showed up with his father and declined to talk without a lawyer. The two were then released.
At about 10 p.m. that night, Kennell called his friend, Matt Somales, and told him that he had tried to “curb” a Mexican. This, according to an interview Somales gave investigator Pat Espinoza.
The term “curbing” comes from the movie American History X, which stars Edward Norton as Derek Vineyard, a neo-Nazi skinhead who becomes a charismatic leader in racist violence against African-Americans and other minorities in Los Angeles. Unlike Romper Stomper, American History X takes a moral position against the skinheads, as Derek reforms himself in prison with the help of a Black inmate and, upon his release, attempts to pull his little brother from the clutches of the white-power movement.
But what Kennell took from the movie, according to court testimony, was the scene depicting the murder that sends Derek to prison. The scene shows Derek forcing a young Black man to lay face down, open his mouth and bite down on a sidewalk curb. Derek then stomps down hard one time on the back of his victim's head, crushing his skull with an audible snap and killing him instantly.
On Sept. 27, three days after the attack, no one was home at the Kennell house when officers let themselves in. Their subsequent search of his room showed the boy to have, at the very least, an intense interest in racism: a confederate flag, a notebook containing drawings of swastikas and Nazi SS lightning bolts and references to “white pride” and the Ku Klux Klan. Another piece of evidence was a textbook of Kennell's that included a world map. Someone had circled Africa and scrawled, “nigger land.”
On the same day, Grlicky and his mother were home when officers arrived. At first, Grlicky maintained his innocence but eventually told officers his version of the story. Marino, Grlicky's mother, said Kennell had told her what he'd done. She said his plan was to write a letter clearing Justin Smith and then flee to Indiana. Officers returned to the Kennell house and arrested him and booked him into county jail, where he remained until Oct. 1.
Kennell, has lived his entire young life in Live Oak Springs, recently sharing a house with his father, Marty, and older brother Levi. His parents have long since split, but his mother lives just down the road.
This wasn't the first time Kennell had encountered trouble. Over five and a half weeks in July and August 2001, when he was 16, he broke into a couple of houses, a motor home, two churches, a senior center, an automotive repair shop, a video store and the Live Oak Springs restaurant (twice) and stole, among other items, TVs, a VCR, a microwave oven, jewelry, cash, food, alcohol, a motorcycle, a gun, stereos, a cell phone, a microphone system, a computer printer, video games and movies and an American flag. From the auto shop, he took four sets of keys and a car. The car stalled not far from the shop and was abandoned. While detained for those crimes, Kennell offered that he had on occasions made explosives from scratch and admitted that he'd blown up two mailboxes.
The court committed Kennell to a program called “Breaking Cycles,” ordered him to complete 20 hours of community service and an “anti-theft class” and to pay victim restitution of $12,813. He was still on probation for those offenses the day he stomped on José Cisneros' head, and he still owed $8,012 in restitution.
On Oct. 2, Grlicky volunteered to give the cops another statement, which was consistent with the previous confession. Asked why he wanted to beat up an illegal immigrant, he replied, “Just something to do. We thought we could get away with it.” Grlicky admitted that both he and Kennell were racists and that they often referred to people as “beaners” and “niggers.”
A little more than a month later, on Nov. 8, Grlicky was arrested and booked into county jail. He remained in custody until he was sentenced on July 8. A search of his house also uncovered racist material.
An investigator with the Anti-Defamation League who's intimately familiar with evidence in the case said Grlicky and Kennell are like two hate-filled peas in a pod. “My impression,” he said, “is that they were ideologically in about the same place.”
Grlicky, born and raised in Escondido, has lived off and on with each of his parents, who divorced when he was little, but, he told a probation officer, have remained good friends. He's been in and out of school and has not graduated, and he says that other than helping his dad with drywall work, he's never had an “official job.”
For Grlicky-like Kennell-with youth came a fondness for property that wasn't his. During a six-week period in October and November 2000, when he was 15, he and a couple of friends went on a burglary spree, forcing their way into three houses and making off with shotguns, knives, a Border Patrol radio and bullet-proof vest, alcohol and cash.
Records show that while on juvenile probation, Grlicky left mandatory placement in his mother's house and repeatedly failed to pay victim restitution. Like Kennell, he was still on probation when Cisneros was beaten.
When it came to strategy during the investigation and the trial, Kennell and Grlicky chose opposite routes. Grlicky spilled his story several times during the investigation, but he went silent in the trial. Kennell, on the other hand, remained tight-lipped throughout the investigation, but testified in court in his own defense.
That set of circumstances complicated matters for Deputy District Attorney Wendy Patrick, whose prosecutorial hands became somewhat bound, particularly by Grlicky's decision not to take the stand. The law would not allow Patrick to use Grlicky's out-of-court statement against Kennell, unless Grlicky was willing to be cross-examined by Kerry Armstrong, Kennell's lawyer. Had Grlicky testified, it could have opened the door to more incriminating evidence against him.
“There's been a lot of talk about this being a technicality. It's certainly not a technicality,” commented Justin Brooks, executive director of the San Diego-based California Innocence Project. “The idea is that anytime evidence is introduced in your trial, you should have the opportunity to cross-examine it. If it's your own statement, you have the opportunity to take the stand and dispute it. If they're bringing it in through you on the stand, your own attorneys can explain it
“The other problem of it is, it's kind of an old maxim of law that a co-conspirator's statement is inherently unreliable after arrest, because the first thing you do as a co-conspirator is start blaming your other co-conspirators.”
Patrick had to answer some tough questions: Take Kennell and Grlicky to the same jury at once in the same courtroom? Separate their trials completely? Or hold one trial but with two juries?
“We chose to try Grlicky and Kennell together in one courtroom with two jury panels,” she said. “The reason for two juries was because of the statements that each defendant made that could only be used against that defendant. Grlicky's statements that he made to law enforcement could only be used against Grlicky. Kennell's statements that he made to friends of his could only be used against him.”
But Patrick had a lot of evidence that she wanted both juries to hear at the same time-such as physical evidence, crime-scene evidence and testimony about the extent of Cisneros' injuries. “But when it came to the testimony about who did it,” Patrick said, only “one or the other jury [could] be in the room.”
Both defendants were charged with conspiracy, robbery, battery with serious bodily injury, assault by means likely to produce great bodily injury and premeditated attempted murder-all with hate-crime allegations. Kennell also faced a charge of torture.
The case against Grlicky turned out to be fairly easy for Patrick to prove. Grlicky had already implicated himself in a conspiracy, and although Patrick argued that he and Kennell contributed equally to Cisneros' physical beating-claiming it would take two people to inflict that measure of damage-the jury was told that even if they believed he was merely guilty of aiding and abetting, that's enough for conviction on all charges. And that's just what he got.
By accounts, Grlicky's jury generally believed his version of the story, but that didn't matter in the eyes of the law. The jurors took it upon themselves to draft a “jury note,” in which they turned their attention to Grlicky's parents: “While James has now been convicted, in adult court, of these crimes... his parents were and are remiss in the performance of their parental roles.”
In a probation interview, Grlicky expressed remorse but stuck to his story: “I know it was wrong. I did not lay a hand on him, but I sat there and watched it happen. I can't say why I did it. I don't know. I just want him to know that I am sorry.”
Convicting Kennell proved a more difficult task. Unable to tell his jury what Grlicky had said, Patrick leaned on Cisneros' blood on Kennell's size-13s and the statements of Kennell's friends and acquaintances-particularly Matt Somales, Greg Haughton and Calista Reynolds-who testified about Kennell's racist tendencies and his confessions to them that he had “curbed” Cisneros.
Armstrong, Kennell's lawyer, managed to poke holes in the testimony, arguing that Somales and Haughton were high on cough syrup at the time Kennell confessed to them and that Reynolds was a “huge liar” and a “drama queen.” He also used the fact that Cisneros had alcohol, marijuana and meth in his system against him, planting the notion that drugs made Cisneros violent.
But Armstrong said Kennell's best defensive tool turned out to be Kennell himself. “I thought he was an extremely good witness,” Armstrong said, “and I think that they believed Waylon Kennell for the most part.
“If he's a liar,” his lawyer said, “he's the best liar I've ever seen in my life. He was excellent on the stand.”
Kennell, by this time wearing a full, thick head of hair, testified that he thought the idea of beating up a Mexican was a dumb one. He told jurors that it was he who wanted to turn Cisneros in to the Border Patrol that evening. His version of the story contrasted greatly with Grlicky's: He claimed Cisneros lunged at him, and that, in self-defense, he dropped Cisneros with one punch. Then, as Cisneros tried to get up off the ground, Kennell said he twice kicked Cisneros in the face. Kennell said Grlicky stepped in and gave Cisneros a swift, hard kick to the head, and that's when Kennell took off running.
“So you can only assume that James did most of the damage,” Armstrong said.
Someone certainly did a lot of damage, Patrick said. “I mean, there were smashed facial bones and there was a fractured orbital, and the bone was floating back in the skull area, and there was a complex fracture that lacerated the brain, and the area of the skull that was fractured was the thickest part, so it was very, very serious injuries,” she said. “The magnitude of force necessary to cause those injuries... one of the examples the doctor gave was a 60 to 70 mile an hour car crash. I mean, not a kick in the face.”
Kennell's jury convicted him of felony battery with great bodily injury and felony assault by means of force likely to produce great bodily injury, and acquitted him of the robbery, torture, conspiracy and attempted murder charges.
Armstrong says he's taken a lot of heat, even from other defense attorneys, because he got Kennell off relatively lightly. Supporters of Cisneros rallied July 7 against the verdicts and in favor of harsh sentences.
For her part, Patrick bites her tongue and chooses diplomacy. “I have faith in the jury system,” she said. “We would always like convictions on everything we charge, because we wouldn't have charged them if we didn't have the evidence to prove them... but we left justice up to those two juries, and we respect their verdicts.”
As a DA, there's a lot Patrick isn't allowed to say. Others aren't so encumbered. Brooks, of the California Innocence Project, said often in this type of situation, prosecutors use two consecutive, separate trials.
“They'll first go after the guy they have the best case on,” he said. “Then, once they get a conviction, they'll cut a deal with [him] to come in and testify against the other guy, and then, in exchange for some deal, they'll waive their right against self-incrimination. Now that you have an opportunity to cross-examine the guy, it's fine. And then you can bring the statement in. But if they're going to bring the case against both of them simultaneously, you can run into these kinds of problems.”
Brooks said the constitutional protection that came into play in this case appears to have gotten in the way of justice. “I know on the face of it in this case it looks bad,” he said. “It is a horrible case, I can see people just looking at the individual case and saying, ‘This isn't the right result,' but you can't throw out the baby with the bathwater.”
Sitting behind the bench in an El Cajon courtroom July 8, Judge Allan Preckel considered punishment for James Grlicky, Justin Smith and Waylon Kennell. As expected, he sentenced Smith to probation. The drama was in anticipation of how he would handle the two wildly different verdicts for Grlicky and Kennell.
Grlicky faced a maximum 14 years in state prison, Kennell only four. For Grlicky, prosecutors recommended 13 years; the Probation Department suggested 11. Observers knew Preckel would be more lenient-he opted for five years-but they were surprised by his explanation.
The judge, who, unlike the jurors, had the benefit of having heard all the evidence, made it clear he didn't like the result. He obviously believed the testimony of Kennell's friends, and he was not swayed by Kennell's tearful apology to Cisneros, who sat in the front row. “In the court's view, Mr. Kennell was the more culpable,” he said, but the Kennell jury was “at a disadvantage legally.”
Preckel, a decidedly low-key personality, sounded like he wanted to shout at Kennell but couldn't. “It's argued strongly [by Kennell's lawyer, family and friends] that this is a probation offense,” he said, seemingly battling self-control. “The hell it is. Hunting human beings does not merit probation.”
However, as disgusted as he was with the crime and as disappointed as he was with the verdicts, Preckel said he felt the need to achieve uniformity in sentencing. He chose a light sentence for Grlicky for its consistency with Kennell's four years maximum.
Armstrong says Preckel completely disregarded the jury's verdict in his sentencing of Kennell, and he will appeal the ruling. “I think the judge could have come up with the four years in another way, but by saying that he thinks... that Waylon Kennell is the most culpable or responsible-I think that's just tragic that he said something like that because that's not what the jury came back with.”
Kennell had a courtroom full of supporters at his sentencing hearing. As he was led out of the courtroom and back into custody, a woman, perhaps his mother, uttered, loudly enough for him to hear it, “Love you.”
The judge commented that he wishes “that support had exhibited itself” the day Cisneros was attacked.
Kennell's older brother, Levi, interviewed by CityBeat while working at his dad's hardware store in Boulevard, said he didn't think Waylon was capable of such a vicious beating. He said that he worried years ago about his brother heading down the wrong path, but leading up to last September, he thought he was on the right track.
As for media reports that Waylon is a “white supremacist,” he said that's a bunch of “B.S.” Levi said drawing swastikas on notebooks is somewhat common out in Boulevard and Live Oak Springs, and he said there's tension at the high school between the whites and the Mexicans, but it's just kids being kids and all very harmless.
In an interview with a probation officer, Kennell said he once aligned himself with white pride but doesn't any more.
“I really honestly think he's done with the white-power stuff,” Armstrong said. “Waylon is a follower; he's never been a leader. He picks some wrong friends-I'll put it that way.”
Others say that's nonsense. “Of course he's going to deny that,” remarked the Anti-Defamation League investigator. “I mean, I'm sure... at some point you've sat down and just doodled crap on a piece of paper, but have you ever taken it upon yourself to cover something that you carry around with you everywhere you go with swastikas? You don't do that unless it's something that you believe in.”
It was perfectly clear to the ADL investigator that Kennell and Grlicky were trying to emulate that ugly scene in American History X. “They duplicated that murder,” he said. “They put a guy down on the ground, they put his mouth on the brick and they stomped on the back of his head.”
That guy, Cisneros, who's currently living with his wife and son in a rundown Tijuana apartment with no furniture, other than one bed plus a fridge and a small stove, says publicly-to the judge at the sentencing hearing and to reporters-that he just wants everyone to get along. He says he doesn't harbor hatred for his attackers.
But the anger begins to seep through when he pulls his hair back to reveal the scar that spans the top of his forehead. That's where the surgeon peeled back Cisneros' face in order to install the titanium plates that now form part of his forehead and one of his cheeks.
He said it felt good when he was comforted by the Grlicky jury after they handed down their verdict. But it hurt when members of Kennell's jury congratulated Kennell after the trial. He said he can't help but feel his race played a role in their decision.
Despite what happened to him in this country, he believes this is where a prosperous future lies. “If I will be able to work again, I would like to come back and keep working in the United States.”
For now, Cisneros cannot work. A trust fund has been established for people who'd like to help with his family's living expenses: José Luis Cisneros, First United Methodist Church of Escondido, 341 South Kalmia St., Escondido, 92025.