OJD wishes you a very Happy Easter & Passover 2021, with sunshine & good times with family. Stay safe and we’ll be back Friday to recap your #JuvenileDefense week. Thank you for all that you do! Happy Hoppy Holiday!
Another Friday in the books and the last one of March! So let’s jump into our Week in Review.
TIP OF THE WEEK!
If you have a client being held on a secure custody order – remember it’s the STATE’s burden to prove to the court, by clear and convincing evidence, that the juvenile should remain in custody AND no less intrusive alternative will suffice (§7B-1906(d)). That means it’s not the court counselor’s role! Ask the court for less restrictive means, for example electronic monitoring or house arrest. If the court finds that your client should remain in custody, the court is bound by the criteria in §7B-1903 and must make written findings of fact.
Thank you to David Andrews!
OJD would like to thank David Andrews for his presentation Wednesday afternoon on Challenging North Carolina’s Automatic Transfer Laws. The information he shared was not only helpful to our defenders, but sparked questions but also how to overcome challenges our defenders see daily. This was a highly participated CLE and we also can’t thank the attendees enough for making this a great training!
Something exciting is coming!
Not only is NCJUVENILEDEFENDER.COM getting a facelift, we’re also bringing you some new content. We’re now in the process of recording a few videos, containing information on juvenile issues, specialization, and all kinds of helpful nuggets that we know our defenders would like. Interested in filming one? Contact LaTobia.
With the new website, you will have to re-subscribe to our blog (and something special) so stay tuned for more information and our launch! Thanks for all that you do and helping us make this possible!
In honor of Second Chance Month this April, NACDL will host “Race + Criminal Legal System: Collateral Consequences,” a program aimed at unpacking the racially disparate and often-permanent consequences associated with criminal convictions. Tune in Tuesday, April 13th, at 4pm ET (1pm PT) with moderator, Cynthia Roseberry, Deputy Director for the National Policy Advocacy Department for the ACLU, and panelists Rob DeLeon, Vice President of Programs for The Fortune Society, David Singleton, Executive Director for the Ohio Justice & Policy Center, and Quintin Williams. Panelists will discuss the long-term impacts of criminal convictions, the specific harm that collateral consequences have caused to communities of color, and what it will take to meaningfully change this system. There will be time for audience questions at the end of the program.
In the jurisdiction where I practice, we refer to 16-17 year-old clients who are subject to potential mandatory transfer to superior court as youthful offenders. This age group has its own special needs and challenges. One challenge is when your client either refuses an offer that will allow him/her to stay in juvenile court and/or requests transfer to superior court.
We know from science that adolescent brains are not fully developed until approximately between the ages of 21-25. We know that these differences in brain development have practical implications which impact their ability to plan ahead and think in hypothetical terms. We also know that they exhibit a greater degree of risk taking and more easily succumb to peer pressure. All of these factors (and more) influence their ability to make decisions and affect a teen’s ability to exhibit self-control. Additionally, they tend to be less sensitive to negative consequences. All of these factors (and more) played a role in North Carolina finally implementing the Juvenile Justice Reinvestment Act (also known as Raise the Age) to include youth under 18 under juvenile court jurisdiction for many offenses.
N.C.G.S. §7B-2200.5 requires a youth who is charged with an A-G felony offense to be transferred to superior court for trial as an adult after a finding of probable cause or indictment. So how does this impact your representation of a 16 or 17 year old client who tells you s/he wants to be transferred to superior court or refuses to admit to an offer that will allow him/her to remain in juvenile court?
What Is Our Role?
The first, and most important, thing to remember is that as defenders our role is NOT to advocate for the best interest of our client. We are express interest advocates and represent our juvenile clients with the same zealous advocacy that we do for our adult clients – even if we disagree with the decision s/he is making once we’ve counseled him/her regarding the benefits and risks of any decision. This means we must give our clients all the information they need, in language they can understand (i.e. age appropriate) to allow them to make their own decision. There is nothing wrong with challenging their thought process or asking someone they respect to have a conversation with them about the risk of transfer.
Assuming you have exhausted all your options in advising your client, and despite all your good legal advice your client insists on moving forward, what do you do? I would suggest the following:
Get a second opinion – talk to a local attorney who you trust or contact our office to get advice on other ways to advise your client.
Review with your client the possible collateral consequences of a transfer to superior court. OJD has a form that lists possible risks/consequences of transfer that requires your client to acknowledge that s/he has been informed and is choosing to transfer against advice of counsel. You can access the form here.
Put it on the record. Make the court aware of your client’s decision, but do it in a professional manner that doesn’t negatively impact the court’s view of your client.
4. Respect your client’s decision. You may disagree, but it’s important to respect your client’s agency in making a decision that s/he will have to live with.
Written by Kim Howes, Assistant Juvenile Defender for The Office of the Juvenile Defender. Kim Howes has extensive juvenile court knowledge and directly represents juveniles for OJD while also supporting the middle districts of North Carolina, including Wake & Durham counties.
Happy Friday Readers! We’ve conquered the last week of February and ready to start new challenges on Monday, March 1, right? Right! A Monday and first of the month? Please! Just a little humor to get us going but as always, here’s to your week in review.
Tip of the Week – Discovery
The Juvenile Code has similar discovery rules to those followed in adult criminal court. Though Juvenile Court is in District Court, most jurisdictions understand that discovery transfer is a practice for both misdemeanors and felonies in Juvenile Court. Even if there’s an “automatic discovery” rule in your jurisdiction, you should always file a motion to receive discovery. Note that the state may also file a reciprocal motion, which may impact your decision on presenting expert opinion testimony or reports.
Have you seen our FINAL #BlackHistoryMonth Spotlights?
This week we showcased two great attorneys and their work within the juvenile defense community. First up was Charlotte Dover on Tuesday and Aleta Ballard on Thursday via our Twitter and FaceBook pages. To catch up on their spotlights: You can see Charlotte’s spotlight here & Aleta’s spotlight here. We would like to thank all of our Spotlight Attorney’s for being so willing to participate and show us what #BlackHistoryMonth means to each one of them and the importance of equality in our juvenile justice system. We appreciate you!
And if you haven’t followed us on Twitter & FaceBook yet, click the links to do that too!
LGBTQ CLE: Representing LGBTQ Youth
OJD would like to thank Ames Simmons on his presentation for our Representing Youth CLE held on Wednesday. The class covered topics such as a LGBTQ 101, pronouns, identity, how to support and approach young LGBTQ members who may not know how they identify and how to advocate for them individually.
Eric Zogry for the NC Bar Blog
OJD’s Eric Zogry was a guest blogger for the NC Bar titled, “Reconsidering North Carolina’s Minimum Age of Jurisdiction. He speaks on the need to raise the minimum age of children that can be charged with a crime, citing committees and tasks forces that have worked to recommend what that age should be. To read Eric’s blog, click here.
Happy Friday Readers! We hope your week was productive with plenty of moments to catch your breath too. Couple of announcements for you this week, along with a new (and free) OJD CLE!
Tip of the Week!
Where Can I Find the Law on RTA?
If you want to see the Session Laws which include the Raise the Age changes, see:
Senate Bill 413: 2019 Session Amendments to the RTA Bill (Juvenile Justice Reinvestment Act)
Senate Bill 257: The final bill budget for Session Law 2017; info pertaining to the Juvenile Justice Reinvestment Act can be found on pages 309-325
You can also check out the NC General Assembly website. Look under “Bills and Laws,” then “General Statutes.” You can search by citation or test, or you can look at Chapter 7B under the Table of Contents, and see the most recent changes to statute text on the right side of the statute.
The Commission on Indigent Defense Services recently approved a modest, but much-needed, partial restoration of rates paid to private counsel providing representation in some case types. Specifically, the Commission voted to raise by $5 an hour the rate for high-level felonies, with a corresponding increase in non-hourly representation for adult criminal and juvenile delinquency proceedings. The Commission also voted to raise by $5 an hour the rate for DWI and Class A1 misdemeanors disposed of in the district court, with a corresponding increase in non-hourly representation. The increases approved by the Commission will take effect on March 1, 2021.Please click here to read the notice from Darrin Jordan, the Commission Chair, and IDS Executive Director, Mary Pollard. Also, if you have any questions, please reach out to Whitney Fairbanks via email.
Have you seen our #BlackHistoryMonth Spotlights?
This week we showcased two amazing women and their work within the juvenile defense community. First up was Lyana Hunter and then Staisha Hamilton. To catch up on their spotlights, click here for Lyana and click here for Staisha!
OJD CLE OPPORTUNITY!
Wednesday, February 24, 2021 at 2:30 PM, OJD is hosting “Representing LGBT Youth”. This CLE will be presented by Ames Simmons, the Policy Director for Equality NC. This program will be a 90 minute CLE, with application pending and FREE TO THE FIRST 35 REGISTRANTS. This webinar includes a general review of introductory concepts and terminology related to LGBTQ identities, including the importance of pronouns to professionalism. We will discuss gender-expansive youth and the processes of gender transition for young people. We will talk about LGBTQ youth in out-of-home custody and present best practices for advocating for LGBTQ young people in the juvenile legal system. CLICK HERE TO REGISTER.
Happy Friday Readers!! It feels like January is taking forever to move on into February but hey! We’ll take it. This week was pretty quiet so let’s recap some of what happened.
Tip of The Week
Suppression motions aren’t often used in the District Court setting (outside DWI cases), however juvenile court offers many opportunities for suppression. The juvenile code outlines the procedure for filing a motion to suppress (§7B-2408.5) and it may be made either in writing before the adjudicatory hearing or orally during the hearing. Consider whether or not your client’s statement or identifications may be subject to suppression. Remember – “in custody” is an objective test! The test is whether a “reasonable juvenile” in the position of the respondent would believe him/herself to be in custody OR that s/he had been deprived of freedom of action in some significant way, and is not based on the subjective intent of the interrogator or the perception of the person under questioning. That means if your client is in the principal’s office and the SRO is standing in front of the door, would your client feel free to leave?
NC IDS Re-Appointments
During the IDS Commission’s quarterly meeting on January 22, 2021, IDS voted to re-appoint Rob Sharpe as the Capital Defender for the Office of the Capital Defender and our very own Eric Zogry as the Juvenile Defender. To read more about these great public servants and their roles, click here.
Big thanks to Jason Mahoney for presenting yesterday during our first CLE of the year. This training covered best practices for our Defenders to protect themselves and their mental health when being exposed to multiple traumatic stories or actions a day. The training also covered ways to ensure Defenders are taking care of themselves as well, discussing ways to add in some self-care in their day. Definitely worth re-watching and you’ll be able to do that soon on our Defender Only Page.
February 5, 2021, NC CRED is hosting a free virtual symposium beginning at 1 PM. Please click here to register. Here is a brief synopsis of the program:
“First, a panel of historians (Timothy Lovelace, Seth Kotch, and David Cecelski) will describe the historical origins of these modern forms of brutality. Second, a panel of activists and advocates (Dawn Blagrove, Will Elmore, and Henderson Hill) will discuss the ways racial violence is wielded today and the importance of exposing its historical roots. Finally, keynote speaker James Ferguson will offer closing thoughts on how we reckon with racial terror, in all its forms, to end its grip on our nation.”
IDS will continue to offer the webinars as part of a more formal series, which will help make it easier for you to attend, while getting CLE credit! This new series will start on Feb. 4.
If you’d like to attend some or all of the programs, please sign up using this link. We look forward to seeing you on the webinars!
The Department of Juvenile Justice (DJJ) is implementing a new screening tool (YASI) to replace the current risk and needs assessment. The stated purpose of this new assessment is to better measure the risk of recidivism and to help develop an appropriate case plan to best suit the needs of the youth who is placed on probation. You can access the presentation from DJJ here.
The assessment addresses nine domains: basic needs, physical health, school, family, aggression, peers, attitudes, free time, and adaptive skills. There is both a pre-screen assessment and a full assessment. The Department of Juvenile Justice provided an overview of the assessment in November and as a result we want to provide you with some of our concerns as well as provide you with issues you may need to be aware of to assist you with advocating for your client at disposition.
Most importantly, this assessment is designed to take place at intake or prior to adjudication. While statute §7B-2413 specifically provides that the risk and needs assessment shall not be submitted or considered by the court prior to disposition, we know that in some jurisdictions this isn’t the case and information is shared prior to adjudication. This is especially an area of concern given the new assessment. As an important reminder – §7B-2408 explicitly prohibits any statement made by the youth to a juvenile court counselor during intake to be admissible to the court prior to the dispositional hearing.
Issues to be aware of:
The child accumulates points for not only prior adjudications, but also referrals and petitions filed for probation violations, regardless of whether or not the violation was adjudicated.
Several sections (basic needs, free time, community involvement, school) have the potential to create disparity based on poverty and DSS involvement, not necessarily factors that are in our client’s control.
There are broad stroke assumptions about who may or may not be a positive influence and who may or may not be a gang member.
The sections addressing attitudes and aggression are areas of significant concern. These sections assume the youth is responsible and if the youth doesn’t admit there are points assessed for impact of behavior and willingness to make amends. There are several additional questions that address sex offenses that could possibly lead to additional petitions.
These concerns are difficult to address because the majority of these assessments will be conducted prior to assignment of counsel. As a result, depending on your jurisdiction, you may need to proactively ensure that any information received is not provided to the ADA prior to adjudication, and if it is, consider objecting to the court and, if necessary, making a motion to suppress statements made to the court counselor. We have a sample motion here.
We hope by making you aware of this new assessment and its potential issues you will be better able to protect your client’s rights and help the court understand your client in a way that will help the court better address your client’s individual needs at disposition. Please reach out to OJD to let us know of any concerns you see as this is implemented.
You can access and review the pre-screen assessment here, and full assessment here.
If you would like to save this blog post as a document, please click here.
We have reached the Year in Review portion of our weekly reviews! How did we get here so fast?! While this year has been the most challenging, between Zoom & WebEx, crashing technology and “Can you hear me?” ten times a day, everyone has worked so hard to keep our support of #JuvenileJustice strong. So true to tradition we have put together a culmination of what OJD has done throughout the year and it feels like so much :D.
With the tremulous year of 2020 ending, The Office of the Juvenile Defender (OJD) would like to recap how the year unfolded through it all. We’ll review how OJD hired a new Assistant Juvenile Defender, hosted new trainings, managed the first year of Raise the Age (RTA), and produced several materials as required for the second year of the federal OJJDP grant. OJD has worked throughout the year to keep our defenders informed and supported, while working on new ways to serve the state, such as our Regionalization plan.
Activities and Initiatives Since COVID-19
Since the beginning of the pandemic, OJD has held weekly check-ins to speak about current projects, ways to engage in the community without physical contact, and how to support defenders in the best way through the various projects listed in this report. OJD has been reaching out to defenders in the field, offering support and resources and gathering information to relay to the defender community. Additionally, we have communicated with other court actors, especially juvenile justice administration, to stay updated with ongoing changes in policies and procedures. We began work on additional pocket guides like the RTA guide released in December. Each guide will highlight a specific area of juvenile delinquency law and provide defender strategies, such as secure custody and adjudication. We also began developing remote training capabilities and plan to pilot trainings during the court closure. Each one of these activities and initiatives will be discussed further below along with updates from the initiatives from 2019.
Raise the Age
While RTA implementation has been slowed by the impact of COVID on the courts, OJD has been steadily reacting to the impact of the new law:
General consulting on trial and appellate issues
Focusing on specific issues, including indictment procedure and the intersection of bonds with youth in detention
Challenging the “automatic” transfer provisions through motions practice
Working with IDS General Counsel on the development of a comprehensive chart on the appointment/payment/recoupment of attorneys representing transferred juveniles
Participation on the Juvenile Jurisdiction Advisory Committee, with a focus on discussing ongoing conforming changes to the law, as well as the minimum age of juvenile jurisdiction in NC (it is currently 6, the lowest stated age in the U.S.)
Happy December Readers! Can you honestly believe we are in DECEMBER already? With everything we have collectively experienced in 2020, raise your hand if you’re ready for a new year! So let’s start our countdown together, shall we?
LET’S CELEBRATE ONE YEAR OF RAISE THE AGE!
It’s officially been 1 year (and 3 days to be exact) since Raise the Age went into effect. One year of some legal shaking in the courtroom, 1 year of 16 and 17 year old’s who commit crimes (with exceptions) being treated as youth and not adults, in the eyes of the law. How has RTA affected your stance in the courtroom? Has it been more difficult, challenging or a breeze? We want to hear from you!
Tip of the Week – RTA Edition
What Is the Process for Indictment?
Once a petition is filed against a juvenile, the prosecutor may submit the petition to a grand jury for indictment. Unlike in adult criminal court where the prosecutor submits a bill of information prior to charges being filed, in juvenile court the grand jury process starts after the formal charging process (petition filed) begins. If an indictment is handed down against the juvenile and the juvenile is given notice, the juvenile court must transfer the case to superior court.
The Council for Children’s Rights in Charlotte / Mecklenburg County. They are seeking to hire a full-time Juvenile Defense Attorney to join its Children’s Defense Team. The Juvenile Defense Attorney will represent children in delinquency and civil commitment matters in Mecklenburg County Juvenile Court. To apply, please submit a cover letter and resume by December 7, 2020.
A direct link to this job posting and to apply can be found by clicking here. Please feel free to share this on your social media and with your colleagues. We have also posted this on our Twitter (@NCOJD) and our FaceBook (@NCOJD) for easy re-sharing.
Happy Friday Readers! While it’s been rainy this week for North Carolina, we hope wherever you’re reading this from, your week has been great and you continued to champion for Juvenile Justice. It’s a short and sweet blog today, just enough to get you headed to your weekend!
Appeals Tip of the Week: Courtesy of David Andrews, Office of the Appellate Defender
To preserve issues for appeal, object to any evidence that you suspect is inadmissible. Make sure you provide specific grounds for your objections and constitutionalize your objections. Lastly, get a ruling. If you don’t get a ruling, the argument might be waived on appeal.
IDS is seeking a new Contracts Administrator based in Durham, NC. The Contracts Administrator would enter into and administer contracts with individual attorneys, law firms, and non-profits for indigent representation throughout North Carolina, primarily through a Request for Proposals (RFP) process. This is a data and systems driven position.
Do you have knowledge of:management and maintenance of a database system to monitor contract performance and to generate reports; and policies related to issuing and evaluating RFPs and individually negotiated contracts in a government setting? Want to know more about this job posting? Maybe you’re looking for a change of pace? Well, click here to learn more and apply today! This posting closes 11/17.