Most recently, State v. Saldierna, 794 S.E.2d 474 (2016) has brought into question my understanding of how the North Carolina appellate courts view juveniles. In the midst of a strong push by many judges, prosecutors and defense attorneys for legislators to raise the age of adulthood for criminal purposes, the North Carolina Supreme Court essentially places the onus upon juveniles to affirmatively invoke their statutory rights.
If you haven’t read LaToya Powell’s blog post on Saldierna, it offers a thorough analysis of the facts, ruling, and dissent and can be found here. I will only offer the highlights as necessary to address some questions about what impact Saldierna may have going forward.
In Saldierna, a 16-year-old juvenile was arrested for his alleged role in burglaries of homes in Mecklenburg County. During a custodial interview, the juvenile asked to call his mother, specifically asking “Um, can I call my mom?” The interrogating officer allowed him to place the call, but the juvenile was unable to reach his mother and subsequently returned to the booking area where the interview resumed and the juvenile confessed.
The trial court denied the defendant’s motion to suppress the statements after the call to his mother and determined that the interview was conducted in a fashion consistent with the requirements of N.C.G.S. § 7B-2101 and was not made in violation of his Miranda rights.
Court of Appeals
The Court of Appeals opined that while § 7B-2101(a)(1), (2), and (4) are essentially codified, Constitution-based Miranda rights and must be invoked clearly and unequivocally, § 7B-2101(a)(3) is a “purely statutory right granted by our State’s General Assembly…” Id. at , 775 S.E.2d at 332. The appellate court noted that their “review of the provisions of section 7B-2101 reveals an understanding by our General Assembly that the special right guaranteed by subsection (a)(3) is different from those rights discussed in Miranda and, in turn, reflects the legislature’s intent that law enforcement officers proceed with great caution in determining whether a juvenile is attempting to invoke this right.” Id. at , 775 S.E.2d at 332.
The North Carolina Court of Appeals reversed the trial court’s order denying the motion to suppress and vacated the judgments entered on the defendant’s guilty pleas, remanding the case back to the trial court. State v. Saldierna, N.C. App. , , 775 S.E.2d 326, 334 (2015).
North Carolina Supreme Court
The North Carolina Supreme Court reversed the decision of the Court of Appeals. The Court held that a juvenile’s right to have a parent present during a custodial interrogation is analogous to the constitutional right to counsel and the same standard must be applied to such situations. Saldierna, __ N.C. at __, 794 S.E.2d at 478.
Following the guidance of Davis v. United States, the Court ultimately determined that the Saldierna did not clearly and unequivocally invoke his right to a parent’s being present and thus his statutory rights, N.C.G.S. §7B-2101(a)(3) were not violated under were not violated:
“Although defendant asked to call his mother, he never gave any indication that he wanted to have her present for his interrogation, nor did he condition his interview on first speaking with her. Instead, defendant simply asked to call her…As the trial court pointed out, defendant’s statement was at best an ambiguous invocation of his right to have his mother present. As in Davis, without an unambiguous, unequivocal invocation of defendant’s right under N.C.G.S. §7B-2101(a)(3), law enforcement officers had no duty to ask clarifying questions or to cease questioning.”
Id. at 479.
This case appears to leave juvenile defenders in an increasingly difficult position. The varying levels of sophistication and maturity alone have placed a significant burden on young men and women as well as their attorneys in navigating a very complex set of rules.
I imagine most juvenile defenders have at least one story of a young client who struggled, despite their best efforts, to fully understand even the plea transcript used in juvenile court. With little surprise, a juvenile in a high-stress, custodial interrogation with a law enforcement officer may find themselves in similar difficult straits attempting to understand and invoke their rights under § 7B-2101(a).
While the facts of Saldierna alone can leave one with a sour taste in their mouth, what I envision as most troubling is the tone the Supreme Court sets with this case. The Court appears to have placed the burden upon juveniles to not only to know and understand their rights, but to unequivocally, unambiguously assert them. The rather adult responsibility of being a fully informed, civically astute citizen being placed upon the juvenile appears to run counter to the very idea underlying a fairly distinct court operating for the benefit of those same juveniles.
So what does this mean for cases going forward?
Ignoring for a moment the differences between jurisdictions and varying procedure among the counties, entertain the following hypothetical:
Suppose four siblings (A, B, C, and D) are in the custody of the Department of Social Services while the Department looks deeper into abuse and neglect in the household. Social Worker Jane is assigned to investigate the family, looking specifically into sexual abuse of Sibling A, C, and D by sibling B.
After a brief investigation, there is an allegation that A, B, C, and D may have all been engaged in underage, incestuous sex acts and drug use, without complete clarity on who is the initiating party/catalyst of the illicit activities. The juveniles’ father, previously primary custodian and caretaker, recently had his parental rights terminated.
Juvenile B finds herself in a custodial interrogation with local law enforcement. The officers are polite and respectful, advising Juvenile B of all relevant rights and call Social Worker Jane to meet them at the station. Juvenile B asks “can you call my daddy?” The officers oblige and call her father. The officers then wait until Social Worker Jane walks into the interrogation room and begin their questioning. About 15 minutes into the interrogation, her father arrives and sits in the interview room with B, the officers, and the social worker. B then makes several incriminating statements with father’s nudging approval, hoping that cooperation will reunite the family quickly.
Instead Juvenile B is charged with several sex and drug crimes and now seeks the advice of counsel.
Has B invoked her statutory right? Did she properly request a parent’s presence? Did she have a “parent” present?
Prior to Saldierna, I believe the answers would be more clear: Yes, she invoked her statutory right; her request for parental presence was sufficient; and in effect, Juvenile B had no true parental representation. My contention would be that Social Worker Jane was not serving in any parental, custodial, or guardian-ad-litem capacity and certainly not even acting in the best interest of Juvenile B. She was (and is) assigned to investigate wrongdoings that may have befallen Sibling A, C, and D, leaving her ill-positioned to strongly argue that she could fairly be considered a “parent” examining the facts for 7B-2101 purposes.
As in Saldierna, B made a request, ambiguous or otherwise, that I submit the officers should either heed (and arrange for her father to be present at the interrogation) or, at minimum, ask questions to clarify. The law affirmatively provides this protection to specifically and solely to juveniles.
While my exposure to the civil/family court side of this is limited, I imagine there are some questions that would need to be answered as to the father. I would submit biological father would be problematic if for no reason other than his lack of custody of his own children. I have yet to find a case on point that would indicate that such a father would be sufficient for the purposes of being considered a parent for custodial interrogation purposes.
Post-Saldierna, I am not certain the North Carolina Supreme Court would agree. The Court’s apparent call for a clear and unambiguous request to have his mother present makes it difficult to expect that questions regarding the adequacy of a juvenile’s parental figure would carry much weight. Does Juvenile B have the responsibility of clarifying her father’s current parental rights and whose custody she is actually in? Does Juvenile B have to affirmatively request from the court a DSS representative or guardian to serve as a custodian of their specific best interest? Even asking these questions helps me realize we have shifted into far too sophisticated a standard to assume the juvenile is receiving any semblance of due process protections.
That said, we need not shift too far into the theoretical to glean what protections the legislature intended for juveniles to have; § 7B-2101(c) clearly states: “If the juvenile indicates in any manner and at any stage of questioning pursuant to this section that the juvenile does not wish to be questioned further, the officer shall cease questioning.” It would seem that the legislature intended to be overly deferential, via the “in any manner” language, to the line of thinking that acknowledges juveniles should not be held to any specific language in invoking their constitutional and statutory rights.
“I want my mommy and my lawyer.”
While reflecting on how to best advise juveniles, the most complete and honest answer: “it depends.” For practical purposes, I offer the following:
- Be Proactive in Advising
We can debate and discuss recidivism and WHY juveniles may find themselves seeking counsel, but the reality for many of us is that we have repeat clients. Counseling, mentoring, and advising can and should be forward looking, particularly for the client (or two) that may pick up subsequent charges after we are appointed. Take the opportunity to walk them through your local law enforcement’s juvenile rights advisement form (7B-2101) and help them understand, in plain language, that they have a voice and are entitled to help.
- Discovery, Discovery, Discovery
It seems trite and rather obvious to suggest that the more information you have, the better off you’ll be, but it’s true. Thorough investigation and interviews are often the only way to obtain the facts needed to advocate on behalf of your client. DSS records (including social worker reports/notes on parents, juvenile client, and siblings), DNA results, officer statements and notes provide invaluable information and potential mitigation for even the worst of cases.
Of course, there is no substitute for experience and open communication. Reaching out to colleagues, who practice in both adult and juvenile court, willing to share their experiences may yield insight about what information would be helpful or could be missing. Particularly when dealing with medical records, for example Sexual Assault Nurse Examiner (SANE) evaluations/reports, experienced colleagues can be the best resource for help interpreting these documents and providing referrals to experts.
- Develop/Reassess Relationship with DSS Social Workers and DSS Attorneys
I admit, on first glance, this may seem like I asked you to put your hand on a hot stove. That said, I have found, particularly in sex offense cases, the Department of Social Services are an invaluable resource. Because many of the sex cases I have worked on often involve either a history of abuse of the juvenile or wrongdoing by another as well, DSS’ interest may align with your client’s. At the very least, you can chat about the Ritchie motion you plan on filing.
- Guardians ad Litem
A guardian can go a long way in helping both you and your client navigate the legal and non-legal challenges. In our jurisdiction, several of our guardians are attorneys who take (or took) juvenile clients and often continue to work in family (non-criminal) court on DSS and TPR cases. In two recent cases, the guardian I worked with is a former public defender that was able to connect with my client and form a bond that led to some very helpful information that aided us in securing a reduced charge.
- Make the Constitutional Arguments
I believe Saldierna is in part a reflection of the lack of case law focusing on the unique nature of juvenile court. I choose to believe that the North Carolina Supreme Court has lacked sufficient opportunities to review the reality that juveniles very rarely appear to appreciate that they can, or now, have to, advocate for themselves even when interacting with authority figures they may have been blindly taught to obey without question.
Policy can quickly change, but it’s our responsibility to put the issues before the Court of Appeals and NC Supreme Court. The Court of Appeals opinion and Justice Beasley’s dissent both included strong, helpful language and I would relish seeing more of that reasoning make its way into COA and Supreme Court decisions, or at the very least, dissents.
Martin Moore is an Assistant Public Defender in Asheville, North Carolina. He graduated with a Bachelor of Arts in Political Science and Philosophy from the University of North Carolina at Chapel Hill; Moore went on to obtain his Juris Doctor from the University of North Carolina School of Law. In his free time, he enjoys music and volunteers with a local non-profit helping underprivileged youth gain access to education. You can connect with him via LinkedIn at https://www.linkedin.com/in/martin-moore-8792814b, or contact him by email or his website at Martin@MartinEkimMoore.com or www.martinekimmoore.com.