Hey, Where’s My Discovery?

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What’s the Issue?

Recently our office has been made aware that not every jurisdiction handles the distribution of discovery the same way.  Traditionally, the assistant district attorney will receive discovery from law enforcement and share with defense counsel. Some jurisdictions practice “open file discovery,” where the prosecution delinquency file is made available to defense counsel to inspect and copy. Yet in other jurisdictions, the juvenile court counselor receives the discovery from law enforcement, and places it in their file, separate from the court file.

What’s the Law?

Under NCGS 7B-2300, the petitioner must disclose, on motion of the juvenile:

  • statements of the juvenile
  • names of witnesses
  • documents and tangible objects and
  • reports of examinations and tests

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Presumably, the U.S. and North Carolina criminal rights to discovery would also apply (see NCGS 7B-2405).   The confusion arises because the term “petitioner” is defined as “[t]he individual who initiates court action by the filing of a petition . . . alleging the matter for adjudication.”  It’s unclear if this refers to the court counselor, who procedurally initiates the court action by determining whether to file a complaint as a petition, the prosecutor, who has the authority to file the petition and overrule a decision not to file, or someone else.

Because the court counselor generally makes the determination of whether or not to file the complaint, she might receive discoverable information, such as described in 7B-2300, to make the decision.  Note that whatever information is in the court counselor’s possession, either in document or electronic form, is immediately accessible to the attorney via NCGS 7B-3001, and doesn’t need a discovery motion.  There doesn’t appear to be any law or rule which provides that, after the decision is made to file the petition, the discovery is turned over to the assistant district attorney.  So it would seem this is why the information may remain with the court counselor, instead of with the assistant district attorney.

Best Practice?

Receiving discovery is essential to juvenile defense practice.  It’s impossible to consider the strengths and weaknesses of the state’s case without law enforcement field reports, statements, evidence logs, examination reports, etc.  And remember that the number one piece of evidence against youth is their own words!  So should juvenile defenders rely on court counselors or prosecutors to receive this critical information?

While some may say it depends on the relationships you have with these individuals, it seems that the best practice would be to receive discovery from the assistant district attorney.  First, prosecutors are used to this process, and may even have a defender-friendly open file policy.  Second, prosecutors, as trained attorneys, are better equipped to make the legal decisions of what is and is not discoverable.  And on that note, if you have trouble receiving what you ought to be receiving and have to file motions to compel, the court counselors aren’t in a position to argue to the court the legal validity of their position.  Additionally, it may be better practice to have a set, established plan to receive this information in a routine manner.  Individuals may come and go, and you don’t want to be reinventing this process every time there’s turnover.

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OJD Spotlight: Q&A with Burcu Hensley

Today, we would like to turn our OJD Spotlight on Burcu Hensley, a four-year career attorney and one of the newest contractors in the N.C. juvenile defender family.  Burcu is a graduate of N.C. State University with a Bachelor of Science in Business Management and Norman Adrian Wiggins School of Law at Campbell University.  She possesses a strong desire to help anyone in need, and she enjoys photography and the great outdoors.

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What inspired you to become an attorney? And what drove you to become a juvenile defender?

Before attending law school, I worked in preschools teaching and playing with kids. Toward the end of that chapter in my life, I began working with children with special needs and quickly realized there was a great need for advocacy for this group of people. That’s when I decided to go to law school and do what I could to make a difference in the lives of these children. Of course, when I moved here to Western North Carolina, job opportunities were scarce, so I decided to stay solo, practicing criminal defense as it seemed to be an area with the greatest amount of work. When the opportunity to work as a juvenile defender presented itself, I was happy to jump on board because I knew this would allow me to work with the children and young population that inspire me so much to be an advocate in a field where I have already familiarized myself with the rules, procedures, and court system.

What is your greatest motivation in your work?

The human element. I love to work with people, whether adults or children, and take on multiple roles, including advocate and counselor. I find it very rewarding to be able to help someone through my work, whether it’s as simple as relieving their anxiety by explaining what to expect during a court session or as dramatic as a verdict of not guilty.

What personal skill do you possess that makes you better in your professional life?

I make it a point to practice being empathetic. I think it is extremely important to be able to see things from the client’s perspective so that I can strive for the outcome the client desires. It’s also a lot easier to answer questions when I can understand why the question was asked in the first place. We work in a service industry and an ability to understand what the client wants is a skill that allows us to do our jobs more completely.

What has been one of the most challenging parts of your job/what has been one of the most challenging cases you’ve had in your career so far?

Since day one, I have always found the hardest part of my job to be “delivering the bad news” to a client. While being empathetic (see above!) is helpful in most aspects of this career, it can also make telling a client something they don’t want to hear that much more difficult.

If you could do any other job, what would it be and why?

I truly love what I do, so this question stumped me a bit. But then a burst of cold air came through the office and I realized that maybe I would like to try my hand at being a bartender, preferably at an exotic beach resort with palm trees and white sand beaches. Margaritas and good stories sounds like a fun job description, and I wouldn’t mind learning a little bottle-spinning trick or two.

Just for fun, do you have any secret talents?

Well it wouldn’t be a secret if I told you, would it? However, if I could have one super power, I would want to be invisible, on command of course.

Is there any advice you would pass on to future juvenile defenders?

I still consider myself to be pretty new to the world of law in general, and most certainly in the world of juvenile defense, but I think one thing that any attorney can do, whether fresh out of law school or well-seasoned, and whether for juvenile defense or otherwise, is to ask questions. Ask questions of colleagues, ask questions of clients, ask questions of clerks, judges, court counselors, just ask questions! Ours is a profession where the more information we have, the better (well, usually), and just asking questions is one of the best ways to gather information. It builds relationships with people, it provides for a more thorough understanding of the problems and tasks at hand, and often even identifies problems or complications we didn’t know existed before so that we can address them before it’s too late.

For a brief background and other info, please see my website attorney profile: http://hensley-law-firm.com/profile/

Defending Juveniles is What We Do!

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Who are the true heroes of the children who are cast into the juvenile justice system?  In large part, it is the defense attorneys who champion them through their time in the justice system.  And what every great hero needs is…  A sidekick!  And OJD fills this role while also championing the rights of youth in the courts as well.  It sounds cheesy, but hear us out…

The N.C. Office of the Juvenile Defender’s main mission is to provide support and services for defense attorneys and to work with other juvenile justice actors to promote positive change in the juvenile justice system.  OJD works to not only ensure the child’s right to counsel, but to also improve the quality of counsel they receive.  OJD desires to make sure that every child has access to quality legal counsel throughout their time in the juvenile justice system.

As part of our office’s role as “the sidekick” in support of the many juvenile defense attorneys across North Carolina, OJD wants to make sure that the heroes on the ground are appropriately equipped with all of the resources needed to do an exceptional job.  In order for defense attorneys to save the futures of the kids they represent, sometimes a little help goes a long way, and we are always ready whenever they call.

As “the sidekick”, OJD provides training (i.e. CLE trainings) and provides information for defenders (i.e. reference materials, sample motions and briefs) who are protecting the rights of juveniles in the system.  OJD also aids in compiling the research and evaluating the data to improve the system of juvenile justice as well.

OJD desires to ensure that each champion for these children is also specially trained to work with juveniles, communicate appropriately, and be respectful of cultural differences.  Public defenders are not limited to a specific group, but work to champion all juveniles, regardless of race, gender, or sexual orientation.  Often children are at risk of having their constitutional rights violated, however OJD works with diverse upholders of juvenile rights and seeks resources to help them alleviate the concerns of the ones they protect.

OJD is always seeking talented individuals to partner with who possess a variety of expertise in working in the juvenile justice system and leadership skills.  We have fantastic leaders in the field, and are constantly looking to expand our state roster of trainers, mentors and writers.  So don’t be surprised if an opportunity comes your way soon!

No tights or capes needed.  OJD is a champion for juvenile defenders, the youth they represent, and a sidekick for any advocate of juveniles in the justice system.  We want to make sure that our heroes are always at their best.

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2016 Year in Review

Bringing a close to another eventful year, the Office of the Juvenile Defender would like to highlight some of our achievements throughout 2016:

Contracts & Trainings:

Contracts: There were no new contracts established in 2016, however we made several combined contract visits, incorporating contractors from adjacent districts and encouraging community building among defenders.  We continue to seek new ways to identify future contractors and contract districts.

Trainings:  OJD helped host the Southern Juvenile Defender Center’s Sixth Annual Summit in Charlotte in June, along with partners including the National Juvenile Defender Center, the Council for Children’s Rights, and the N.C. Advocates for Justice.  The day-and-a-half conference focused on the fifth anniversary of the U.S. Supreme Court decision J.D.B. v N.C., and featured participants and presenters from the seven-state region.

We were also proud to have collaborated with the Office of Indigent Defense Services and the UNC School of Government in this year’s Intensive Juvenile Defender training, Annual Juvenile Defender training, and two North Carolina Advocates for Justice Roundtable Discussions on Navigating Mental Health Issues in Juvenile Court.  We also provided local district trainings.

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Legislation:

In addition to honoring the upcoming 50th anniversary of the Gault decision, which granted due process rights to children, we are also proud to have taken part in the push to “Raise the Age” in N.C.  This year with the growing support of the Chief Justice’s Commission on the Administration of Law and Justice’s Raise the Age proposal, OJD attended all meetings, assisted with requests from the Commission staff and reported, and participated as a member of the Juvenile Age Subcommittee.

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Outreach:

As part of OJD’s ongoing effort to better communicate with juvenile defenders in the field, this year we introduced Marcus Thompson as our new communications and office manager.  With the creation of this new role and introduction of fresh eyes to the juvenile justice field, we intend to develop more consistent contact with defenders statewide and a stronger social media presence.  Going into 2017, a communications survey will also be distributed to help us coordinate better methods to maintain regular contact with partners and stakeholders going forward.

 

OJD has also made more effort to connect with defenders in the community by working with partners to provide local training opportunities and holding meetings with regional contractors to discuss strategies on improving practice.

OJD provided consultation with defenders across the state, providing trial assistance, as well as trial strategies and research assistance when requested.  For example, OJD attended a multiday trial, offering assistance with research and witness questions.  OJD has provided draft motions and briefs, advice regarding appeals, dispositional options, as well as case law research to defenders across the state.

This year, OJD also assisted in the rejuvenation of the NC Advocates for Justice Juvenile Defense Section.  Led by Section Chair Valerie Pierce, the section has diversified membership and sponsored local trainings.

New Initiatives:

OJD provides direct representation of juvenile clients. This has allowed our Office to observe and respond to trends in juvenile court as well as continue to have a presence in the court room.  OJD has represented juveniles in cases transferred from other districts and been able to identify issues for appeal and base trainings on issues that have arisen in multiple cases in various districts such as proper amendments to charges on petitions and improper dispositional levels.   Collaboration with defenders in other jurisdictions when we have juvenile clients in common has resulted in better outcomes for juveniles with petitions in multiple districts.

OJD has partnered with 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 to assist attorneys who represent juveniles charged with murder and other serious felonies. This group 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. We will consult with any attorney who would like additional information.

 

Case Summaries Update

Please see the latest update to our “Case Summaries” (previously “Case Notes”) list in the Materials for Defenders page.  We have most recently added a “Sex Offenses” section and copied opinions from other sections on previous cases pertaining to this subject for your convenience!  The latest case in this category was the published opinion In the Matter of S.A.A., which established that:

(1) The State must provide sufficient evidence that the juvenile touched someone for the purpose of sexual gratification, sexual arousal, or sexual abuse in order to adjudicate him on the charge of sexual battery.

(2) The juvenile must move to dismiss at the close of all evidence in order to properly preserve the argument.

Additionally, there has also been a new published opinion on State v. Saldierna, after the N.C. Supreme Court reversed the Court of Appeals decision which held that the trial court erred by denying the juvenile’s motion to suppress his incriminating statements.  Justice Beasley’s dissent has been included with this new update as well.