Durham man avoided prison time in a unique restorative justice program
James Berish removed the clip from his gun but didn’t know there was still a bullet in the chamber, his attorney said.
As he put the gun away into a drawer around 3:20 a.m. May 14, 2017, the bullet tore a hole through his apartment floor.
“He was terrified,” said Durham attorney Nisha Williams.
In the apartment below, a 10-year-old girl sleeping her bed was shot in the stomach.
Berish went to police a few hours later after he heard a little girl had been shot. He gave a full confession.
“He himself is a father of a 2-year-old daughter,” Williams said.
Nearly a year later, Berish appeared in a Durham Superior Court courtroom Thursday as part of a plea deal that earlier this week put him face to face with the now 11-year-old that he shot.
"It was hard," he said. "That little girl made me a better person."
'A sea change'
The case is the first violent felony in the the state to proceed through a formal restorative justice program pre-trial, according Durham County court officials.
“I think it is a beginning of a sea change for the criminal justice system,” said Kendra Montgomery-Blinn, the assistant district attorney on the case. “Once people know about this process, more and more cases are going to be eligible.”
Until now, most restorative justice programs in the state have involved diversion programs for youth and meetings in prison between perpetrators and their victims.
On Thursday Superior Court Judge Elaine O'Neal sentenced Berish, 24, to two years probation after pleading guilty to both of his original charges: assault with a deadly weapon inflicting serious injury and possession of a stolen firearm, which he said he bought on the street for protection. He had faced a maximum sentence of more than 10 and a half years for the two felonies.
The girl and her family, who did not want to be interviewed by the media this week, did not attend Thursday's court proceeding.
The deal requires Berish to speak about gun safety and pay restitution of $1,380, which covers a new bed for the 11-year-old, time her mother's missed work, and counseling for the child and her family. If he violates his probation, he could spend 15 months to 30 months in jail.
Everyone has a different idea of what justice looks like, O'Neal said. But it was clear that justice was unfolding Thursday morning, she said.
"So young man I say to you I am glad that you have chosen life and to live it well and to take responsibility for what happened," the judge said. "And to that family, we thank them for allowing this history-making opportunity occur. This is one time in 24 years that I am glad to put somebody on probation."
And then she got off the bench and gave Berish a hug.
District Attorney Roger Echols asked Montgomery-Blinn to work with others to bring restorative justice to the criminal justice system in Durham around June. Montgomery-Blinn had just been assigned to prosecute Berish, and she immediately thought he was a good fit.
Facilitators met separately with Berish and the girl and her family to see whether they would participate in the voluntary program.
The restorative process was facilitated by Marcia Owen and Jon Powell. Owen is the former executive director of the Religious Coalition for a Nonviolent Durham. Powell is director of Campbell Law School's Restorative Justice Clinic. They having been working with organizations to develop the program in Durham.
Powell’s program receives referrals from the juvenile justice system, Wake County Schools and other youth-related programs and walks them through a pre-trial diversion process that includes taking responsibility, speaking with victims and creating an agreement that addresses the harm caused by the criminal activity.
"If crime creates harm, justice ought to create healing, and that is is what we witnessed in this case," Powell said during the hearing Thursday.
For 11-year-old Deisy Medina and her family, the formal restorative justice process concluded in a “healing circle" Tuesday night.
Berish, Deisy and her family, the lawyers and facilitators gathered at Shepherd’s House United Methodist Church in East Durham.
When Berish walked in, he started crying, participants said. So did Deisy's mother. Berish carried a box of paint, markers, glitter glue and coloring books for the girl. He later provided another box for child victim of crimes to play with while at the District Attorney’s Office.
Deisy beamed when she saw the art supplies.
“I think everybody gasped,” Owen said. “It was just such a beautiful smile.”
In the circle, Berish became emotional as he read a letter asking for forgiveness.
The family talked about the night of the shooting. Deisy spent two days in the hospital and returned home too scared to sleep in her bed.
While they were in the circle, she grabbed the art supplies and started coloring.
“I think that was his moment,” Montgomery-Blinn said. "It was beautiful."
Afterward, everyone shared a meal — take out from Alpaca Peruvian Charcoal Chicken.
One of the thing that has made the experience especially hard for Berish, his attorney said, is that he has a 2-year-old daughter.
“He hated the idea that this young girl, that she could be harmed in the middle of the night while she was sleeping,” Williams said. “He wanted her to know that she should feel safe.”
At his sentencing Thursday morning, Berish said a "big weight was lifted off my shoulders," after he apologized to the family.
The restorative justice program is the best thing to happen to Durham, he said, and many others need it.
Montgomery-Blinn said a second case has already started going through the process.
“This was the first,” she said. “This is not the last.”