Attorney Position Open at Phillips Black

The Phillips Black Project, a nonprofit, public interest law practice, seeks applicants for an Associate Attorney staff position. It is anticipated that the associate will be based in its San Francisco Office. Phillips Black is committed to providing the highest quality representation to individuals facing the severest penalties under law, litigating breakdowns in the capital post-conviction process, and leading strategic litigation to safeguard the integrity of the criminal justice system. From primary offices in San Francisco, St. Louis, Philadelphia, and New York, Phillips Black attorneys represent inmates across the United States at all stages of litigation. In addition, our principal attorneys conduct clinical education and training with law schools nationwide and carry out research and publishing on the administration of criminal justice.

Under supervision of a principal attorney and in collaboration with case teams, the associate will work on post-conviction litigation in several states attacking death sentences and sentences of life without parole imposed on juveniles.  The position requires substantial travel.

Qualifications

  • At least two years of relevant attorney experience, preferably in capital post-conviction litigation
  • Excellent research and writing skills
  • Substantial experience conducting case investigations, including witness interviews
  • Extensive experience in case management responsibilities
  • Spanish language fluency preferred

Salary

The salary will be based on the attorney’s experience. Salary and benefits are highly competitive with similar providers of indigent defense.

Application

Please send any inquiries or simply submit your (a) resume, (b) cover letter, (c) ten-page writing sample, and (d) three references to: admin@phillipsblack.org.

For earliest consideration, submit your application by December 2, 2016.

Details

Phillips Black is a 501(c)(3) non-profit corporation and is committed to providing equal opportunity to all applicants for any position with the organization. Each staffing decision is made on a non-discriminatory basis and with a commitment to attracting diverse candidates with respect to race, color, religion, gender, gender identity or expression, sexual orientation, national origin, citizenship, disability, pregnancy or maternity, veteran or governmental service status, and any other status protected by federal, state or local law.

http://www.phillipsblack.org/opportunities/

 

Statewide Juvenile Defender Call, December 7th, at 1 pm

Our next statewide juvenile defender call will be Wednesday, December 7th at 1:00 PM. Call in number is 919-890-2204. Topics will include an update on the status of the Raise the Age proposal (hint – Sheriff’s Association is supporting!),an introduction to Marcus Thompson, our new Communication and Office Manager,and upcoming communications survey, a discussion about probation and what you can do for your client, and any other issues you’d like to discuss. Looking forward to our discussion!

A Summary of the NCCALJ Committee on Criminal Investigation and Adjudication’s Juvenile Reinvestment Report

The N.C. Commission on the Administration of Law and Justice’s Committee on Criminal Investigation and Adjudication is recommending that North Carolina raise the age of juvenile jurisdiction to include all youth under the age of 18 for all crimes.  Juveniles aged 16 and 17 charged with the most serious felonies may be transferred to the adult system after a finding of probable cause or indictment.  Other recommendations include reducing school-based recommendations to the juvenile justice system and regular training for law enforcement in handling juveniles.  This proposal also recommends more information be provided for law enforcement officers who may interact with juveniles and that information on juvenile records should be more accessible to prosecutors.

Since 1919, North Carolina has been the only state to treat youth ages 16 and 17 years old as adults in the justice system without exception.  However, substantial evidence supports that keeping individuals under the age of 18 in the juvenile justice system rather than the criminal justice system would have a significant beneficial impact on everyone involved, including benefiting the justice system economically.

Statistical data indicates that 96.7 percent of convictions for youth are usually for nonviolent felonies and misdemeanors, with misdemeanors making up 80.4 percent of these crimes.  Scientific studies suggest that because of the maturity level of the brain, for teens the ability to reason and control impulsive behaviors is very limited.  Reports from the John Locke Foundation also support that youth convicted in the criminal court system are actually more likely to be repeat offenders due to light sentencing for petty crimes, less support, and immaturity of the brain to consider the consequences of their actions.  Several United States Supreme Court cases have also held that the treatment of juveniles as adults in certain circumstances violates their Eighth Amendment right.

Research also shows a lower rate of recidivism for youth kept in the juvenile justice system rather than the criminal justice system, because those placed in the juvenile justice system are more likely to rehabilitate and are less likely to commit crimes as adults, resulting in less crime and safer communities.  By reducing recidivism rates the government’s costs of maintaining youth who would become part of the adult system would also be reduced, and the increased lifetime earnings of youth kept out of the adult system, given the chance for better education and better employment, would also benefit the economy.

Adults from North Carolina who possess a criminal record due to an incident that occurred in their youth are placed at a competitive disadvantage with those who may have been adjudicated delinquent in other states when it comes to job opportunities.  When youth go to trial in criminal court, whether they are found guilty or not, all information becomes available on the public record, which may negatively affect youth for the rest of their lives in many areas, including obtaining employment, education, and public housing.  In contrast, youthful offenders adjudicated as juveniles have a greater chance to be rehabilitated through other alternatives and their record remains confidential.  Even though expunction is an option, it rarely happens, the legal fees may be problematic for some, and it does nothing to erase information about arrests and convictions presented in the media.

The juvenile justice system also allows more parental and community involvement to assist in the rehabilitation process, which includes mental health, education, and social services participation to encourage a greater social contribution, future societal contributions, and less chance of recidivism.  While some fear that raising the age will allow gang-affiliated youth more time to recruit for illegal activities, statistics show that roughly 8 percent of juveniles are associated with gang-related activity.  Those youth with gang connections are also more likely to perform better if they remain in the juvenile justice system because they are exposed to gang awareness and substance abuse programs, but those placed in the adult system do not have access to the same programming.

Because of high rates of juveniles being referred to the court system by schools for minor behavioral issues, new methods to remedy this problem have also been developed.  School-justice partnership programs have proved to be an effective method for reduction of juveniles entering into the criminal justice system and increased graduation rates.  Wilmington is one of the first cities in N.C. to adopt proposals for mediation and school conflict training programs that have gained approval since their introduction in other states.

It has been argued that raising the age could negatively affect public safety, overcrowd detention facilities, increase caseloads in the juvenile justice system, and result in unmanageable fiscal costs.  However, as demonstrated by states such as Illinois and Connecticut, raising the age of jurisdiction proved far more beneficial as opposed to the practice of lowering the age, which Rhode Island attempted in 2007, only to rescind the law shortly after due to poor results.  Illinois and Connecticut both reported that the juvenile justice system maintained caseloads at a lower rate than expected, spending on the state budget was reduced, public safety did not suffer, and the need for juvenile detention and incarceration facilities actually declined as a result of raising the age.

In North Carolina, due to already declining numbers in the delinquency rate, the reduction in pretrial detentions and commitments to youth development centers, and closures of detention facilities, the Division of Adult Corrections and Juvenile Justice has already saved more than $44 million from the 2008-2009 fiscal year to the present.  The money that the state has already saved as a result of these factors can contribute greatly to the estimated cost for the state to raise the age of juvenile jurisdiction.

Two fairly recent studies on raise the age legislation commissioned by the N.C. General Assembly (performed by the Legislative Research Commission and the Youth Accountability Task Force) affirm that N.C. should join the majority of states and raise the age of juvenile jurisdiction.  The proposal to raise the age has already received tremendous support from juvenile justice stakeholders, members of law enforcement, the public, and bipartisan lawmakers.  In fact, in the public hearings held and comments received in August of this year, 96 percent of the comments supported raising the age.  Several groups, including the American Legislative Exchange Council, the Conservatives for Criminal Justice Reform,  the N.C. Sheriff’s Association, the N.C. Association of Chiefs of Police and the N.C. Division of the Police Benevolent Association, have also issued statements in support of this proposal.

Given the high level of support both statewide and nationwide, the statistical data and scientific studies presented, and in consideration of the future of our youth, it stands to reason that raising the age of juvenile jurisdiction is a critical step forward for North Carolina.

For more information please find the original report here.

New Resources for Miller and Transfer Cases

Earlier this year, the Supreme Court of the United States issued its opinion in Montgomery v. Louisiana, 193 L. Ed. 2d 599, 622 (2016), which made the holding of Miller v. Alabama, 183 L. Ed. 2d 407, 424 (2012), retroactive. Miller, of course, held that mandatory life without parole sentences for juvenile defendants violate the Eighth Amendment ban on cruel and unusual punishment. However, Miller also laid the groundwork for the Court’s determination in Montgomery that a discretionary life without parole sentence also violates the Eighth Amendment “for a child whose crime reflects ‘unfortunate yet transient immaturity.’” Montgomery, 193 L. Ed. 2d at 619 (quoting Miller, 567 U.S. at ___, 183 L. Ed. 2d at 424).

To help attorneys prepare for these hearings, a working group of attorneys from the Office of the Juvenile Defender, the Office of the Capital Defender, the Office of the Appellate Defender, and North Carolina Prisoner Legal Services has developed a handout entitled, “Strategies for Litigating Miller Cases.” The handout provides advice for obtaining mitigating evidence, a description of the research that influenced Miller and Montgomery, a discussion of constitutional arguments against life without parole sentences, and much more. The handout also provides hyperlinks to sample motions and other resources that will aid attorneys as they defend their clients in these cases.

However, for the juvenile defense bar, the handout’s usefulness is not limited to cases involving litigation of a life without parole sentence for a juvenile who is 16 or 17 years old or a 13-, 14-, or 15-year-old who has been transferred to superior court on a first degree murder charge. Many juvenile defense attorneys have to defend their 13-,14-, and 15-year-old clients from discretionary transfer to the adult system if they have been charged with a serious felony and the district attorney requests transfer. The handout provides arguments and resources that can be used to argue against transfer during the discretionary transfer hearing. Counsel should follow the advice in sections III, IV, and VI in the handout to present a comprehensive view of the juvenile to the court and argue that the juvenile should remain in juvenile court in order to receive treatment and rehabilitation that is unavailable in superior court.

If you are appointed to handle a case involving a new first-degree murder charge against a juvenile client or your client may be subjected to discretionary transfer, please be sure to review the handout, which is available in the “Transfer Hearings” section on the Office of the Juvenile Defender website and the “Litigation Guides” section on the Appellate Defender website. In addition, if you are interested in joining a listserv about Miller issues, please send an email to David Andrews, Assistant Appellate Defender, at David.W.Andrews@nccourts.org. The listserv will enable attorneys in the working group to post new appellate court decisions on Miller issues and provide a forum for questions on Miller cases. Finally, please stay tuned for announcements on training events for Miller cases. Over the next several months, the working group will develop presentations on Miller issues and will work to share those presentations to attorneys across the state.

NCAJ Juvenile Defense Roundtable, November 16th

JUVENILE DEFENSE ROUNDTABLE DISCUSSION

The North Carolina Advocates for Justice Juvenile Defense Section is hosting an open meeting discussion on November 16th, 2016 at 3:00 pm at the NCAJ offices at 1312 Annapolis Dr, Raleigh, NC 27608 followed by a reception with new admittees at 4:30 pm. Members and non-members are invited. (If you are a Public Defender and already a member of another section, you may also attend. Membership in this additional section is only $20 for Public Defenders and NCAJ Public Service Members).

We will be discussing issues that practitioners are dealing with in juvenile court across North Carolina including RAISE the AGE and MENTAL HEALTH ISSUES.

We hope that you can join us, but if you are unable to attend you may call in or submit your issue for discussion in advance:

Call Information:

Join from PC, Mac, Linux, iOS or Android: https://zoom.us/j/905547995

Or iPhone one-tap (US Toll):  +16465588656,905547995# or +14086380968,905547995#

Or Telephone:
Dial: +1 646 558 8656 (US Toll) or +1 408 638 0968 (US Toll)
Meeting ID: 905 547 995
International numbers available: https://zoom.us/zoomconference?m=T9qQ9jaCFxFctwAjvSuMHnUQ0U3-qekR

You may submit topics in advance to Section Chair, Valerie Pearce at Valerie.E.Pearce@nccourts.org or Juvenile Defender Eric Zogry at Eric.J.Zogry@nccourts.org .

WE HOPE TO SEE YOU ON NOVEMBER 16th!!!!!!!

 

 

Due Process Rights and Children: Fifty Years of In re Gault – Part Four, the Right to Confrontation

This post is the fourth in the series centered on In re Gault.  The Confrontation Clause of the Sixth Amendment provides that “[i]n all criminal prosecutions, the accused shall enjoy the right . . . to be confronted with the witnesses against him.” U.S. Const. amend. VI.  This protection applies to state court criminal actions by virtue of the Fourteenth Amendment.  It also applies to juvenile proceedings because of In re Gault, 387 U.S. 1 (1967).  Simply put, the right to confrontation allows juveniles to face their accusers in court and dispute their testimony through cross-examination.  It allows juveniles to challenge the state’s evidence and protects them from the improper admission of certain testimonial hearsay under Crawford.  This post explains a juvenile’s right to confront and cross examine witnesses and how far it extends in juvenile court.

The Right to Confrontation

The allegations against Gerald Gault stemmed from an alleged lewd phone call to a neighbor.  However, in none of the proceedings that led to Gerald’s ultimate confinement was the neighbor ever called to testify.  There was no opportunity for Gerald to contest either the call being made or the substance of the alleged call through face-to-face confrontation.  Explaining how the denial of this right, along with an invalid confession, impacted Gerald’s case, the Supreme Court stated:

[t]he Arizona Supreme Court held that sworn testimony must be required of all witnesses including police officers, probation officers and others who are part of or officially related to the juvenile court structure.  We hold that this is not enough.  No reason is suggested or appears for a different rule in respect of sworn testimony in juvenile courts than in adult tribunals.  Absent a valid confession adequate to support the determination of the Juvenile Court, confrontation and sworn testimony by witnesses available for cross-examination were essential for a finding of delinquency and an order committing Gerald to a state institution for a maximum of six years.

387 U.S. at 56.  Thus, confrontation includes the right to be present and to cross examine witnesses who testify under oath.

The court later explained in Crawford v. Washington that the primary purpose of confrontation is to ensure that evidence is reliable “by testing [it] in the crucible of cross-examination.” 541 U.S. 36, 61 (2004).  This protection is particularly important in juvenile proceedings which often turn on a “he said – she said” scenario, where the trier of fact must determine the truth based on the credibility of witnesses and the content of their statements.

Because cross-examination is essential for assessing the reliability of evidence, the Confrontation Clause bars the admission of certain hearsay statements. Under Crawford, “testimonial” statements made by witnesses who do not appear in court are not admissible unless the witness is unavailable and there has been a prior opportunity for cross-examination. Id. at 68.  Testimonial statements include, at a minimum, prior testimony at a preliminary hearing, grand jury proceeding, or trial, and statements to police officers during interrogations. Id.  For a more detailed discussion of the Crawford analysis, see Jessica Smith, Understanding the New Confrontation Clause Analysis: Crawford, Davis, and Melendez-Diaz, available at http://sogpubs.unc.edu/electronicversions/pdfs/aojb1002.pdf).

Confrontation in Juvenile Adjudication Hearings

In addition to confrontation rights under the state and federal constitutions, the Juvenile Code confers a statutory right to confront and cross examine witnesses in juvenile adjudication hearings.  See G.S. 7B-2405. In at least two unpublished decisions, the Court of Appeals has reversed adjudications based on violations of the juvenile’s right to confrontation at trial.  See In re A.J.W., K.S.W., No. COA07-1229 (N.C. Ct. App. Oct. 7, 2008) (the admission of testimonial statements made by non-testifying witnesses to a detective violated Crawford); In re A.L., No. COA04-1452 (N.C. Ct. App. Jan. 3, 2006) (the admission of the victim’s “show up” identification of the juvenile as the offender was testimonial, and thus, violated Crawford).  However, the Court of Appeals also held that statements are non-testimonial when made in response to preliminary questions by investigating officers during an ongoing emergency.  See In re A.L., No. COA04-1452 (statements made by assault victim immediately upon the officer’s arrival on the scene were non-testimonial).  Non-testimonial hearsay does not violate the Confrontation Clause but must be admissible under the Rules of Evidence.

Confrontation rights apply not only to adjudication hearings but also to juvenile admissions.  G.S. 7B-2407 provides that an admission may be accepted only after the court is satisfied that the juvenile understands, among other rights, that the juvenile is waiving the right to be confronted by the witnesses against the juvenile.  The court’s failure to advise a juvenile regarding the waiver of confrontation rights before accepting the admission is reversible error.  In re P.L.N., No. COA07-1414 (N.C. Ct. App. July 15, 2008) (unpublished); In re M.A.M., No. COA08-968 (N.C. Ct. App. April 7, 2009) (unpublished).

Confrontation Beyond the Adjudicatory Hearing

The Juvenile Code extends the right to confrontation beyond the adjudication hearing.  For example, juveniles have the right to examine witnesses at secure and non-secure custody review hearings. G.S. 7B-1906(d).  At probable cause hearings, juveniles “may testify, call, and examine witnesses” and “[e]ach witness shall testify under oath or affirmation and be subject to cross-examination.” G.S. 7B-2202(b).

Although still unsettled, the right to confrontation likely applies to juvenile probation revocation hearings but not as a requirement of the Sixth Amendment or the Juvenile Code.  The Juvenile Code does not specifically require confrontation at probation hearings (although a hearing is required) and the Sixth Amendment does not apply because probation is not a stage of a criminal trial.  See State v. Belcher, 173 N.C. App. 620 (2005).  However, as a matter of due process under the Fourteenth Amendment, adult probationers are entitled “to confront and cross examine adverse witnesses (unless the hearing officer specifically finds good cause for not allowing confrontation.”  Gagnon v. Scarpelli, 411 U.S. 778, 786 (1973).  This limited right to confrontation is codified in G.S. 15A-1345(e).

Without specifically addressing whether Gagnon applies to juveniles, the N.C. Court of Appeals has implied that juveniles also have a due process right to confront witnesses at probation hearings.  In an unpublished case, In re D.W-S., No. COA12-233 (N.C. Ct. App. Oct. 2, 2012), the juvenile argued that his right to confrontation was violated when his court counselor testified about behavior reports prepared by staff members at a detention center where the juvenile was confined.  The court counselor had no first-hand knowledge of the incidents described in the reports, and the staff members who wrote the reports did not testify.  Without specifically holding that the juvenile’s right to confrontation was violated, the court applied harmless error analysis and found no prejudicial error in the admission of the evidence.

There are many unresolved questions about the scope of confrontation beyond the adjudication hearing.  However, given the nature of juvenile probation revocation hearings, it would seem that juveniles are entitled to at least the same due process protections at probation revocation as adult defendants.  Compare In re O’Neal, 160 N.C. App. 409, 413 (2003) (“the better view is to treat a juvenile probation violation as analogous to the revocation of probation in the criminal justice system[.]”).

*In collaboration with the NC Office of the Juvenile Defender, this post is the fourth in a series of posts related to In re Gault and its impact on due process rights for juveniles. The blog posts in this series will be posted to both the On the Civil Side Blog and the Juvenile Defender Blog.