Week in Review: March 15-19

Happy Friday Readers! Short and sweet Week in Review for you today. We’re at the middle of the month and who doesn’t love getting to the weekend faster?

Tip of the Week

Transcript of Admission

Filling out a transcript of admission on any admission of a new offense is important for several reasons.  It memorializes the record of admission in writing if subject to an appeal.  Reviewing the transcript with your client helps your client better understand the admission and the rights s/he is asserting or waiving.  Make sure you complete the transcript with your client present and do so in a confidential space. Consider making a copy of the transcript to keep at the attorney table to help your client answer questions.  Stand with your client when the court asks your client the listed questions and be prepared to confer with your client if any issues arise.

PAC Fee App & New Juvenile Rates

The Office of the Juvenile Defender has been notified of an increasing number of errors on fee applications for delinquency matters.  In order that all fee applications can be processed, and payments issued in a timely manner, please read the following MEMO & view the Juvenile Rates Chart.

March CLE!

Have you registered for our Challenging North Carolina’s Automatic Transfer Laws, presented by David Andrews? Join us March 24, 2021 from 4:00-5:00 PM. This CLE will be 1 hour long, with CLE currently pending. Please remember this CLE is DEFENDER ONLY.

This presentation will provide juvenile defense attorneys with an understanding of North Carolina statutory provisions for the automatic transfer of children from juvenile court to adult criminal court.  The presentation will also discuss strategies and arguments that juvenile defense attorneys can use to challenge automatic transfer laws, including provisions in the United States and North Carolina constitutions covering due process, cruel and unusual punishment, equal protection, and the right to counsel.

To register, please click here.

From A Lawyer’s View: The Kitchen Sink

Over the past several months, attorneys at the Office of the Juvenile Defender, the Wake County Public Defender’s Office, and my office (the Office of the Appellate Defender) have been strategizing on how to challenge automatic transfer from juvenile court to superior court.  One other attorney – Katie Kerr – served as both scribe and generator-of-ideas.  Katie helped move this process along and deserves a great deal of credit for pulling us over the finish line.  The finish line, of course, are new packets for juvenile defenders to challenge automatic transfer from district court to superior court.

The new packets come in two varieties.  One for 13-, 14-, and 15-year-olds and one for 16- and 17-year-olds.  Each packet contains instructions, a motion and a supporting memorandum for district court, and a separation motion and memorandum for superior court. 

Why all the fuss?  There two primary concerns: completeness and waiver. 

Regarding completeness: Those of us who worked on these packets tried to come up with any and all arguments that might convince a court to strike down automatic transfer.  The kitchen sink, you might say.  We might have missed a few arguments, but we included several, including procedural and substantive due process, cruel and unusual punishment, and even the deprivation of the right to counsel.  We don’t know which – if any – of these ideas might work, but we hope that at least one will.

Regarding waiver: Appeals are byzantine.  There are many traps for the unwary, including waiver.  In order to blunt inevitable waiver arguments on appeal, we strongly recommend that you challenge automatic transfer in both juvenile court and adult court.  File the motions and memoranda.  Then, raise all of the arguments orally and get rulings on them all.  As I mentioned above, we might not win on the merits, but we at least want to be able to argue the merits on appeal.

If you have questions about challenging automatic transfer, I encourage you to post them to the juvenile listserv.  I guarantee others will have the same concerns.  And good luck litigating this important issue!

The motions and instructions can be located on the Office of the Juvenile Defender website in the Defender’s Only Section. If you need to obtain access, please contact LaTobia Avent at Latobia.s.avent@nccourts.org


Written by, David Andrews. David W. Andrews is an Assistant Appellate Defender in the North Carolina Office of the Appellate Defender (OAD), a division of the Office of Indigent Defense Services. OAD staff attorneys represent indigent clients in criminal, juvenile delinquency, and involuntary commitment appeals to the Court of Appeals of North Carolina and the Supreme Court of North Carolina.

Youth Assessment & Screening Instrument (YASI)

Youth Assessment & Screening Instrument (YASI)

by Kim Howes, Assistant Juvenile Defender

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.

Interstate Compact for Juveniles Overview – Week in Review: Oct 12-16

Happy Friday Defenders! Today’s blog post is one giant Tip of the Week written by our Assistant Juvenile Defender, Terri Johnson. This tip covers the Interstate Compact for Juveniles and is an overview of the enforceable federal law and how it is applied to juvenile delinquency court.

Interstate Compact for Juveniles Overview

Please continue reading today’s blog post by following the link above. Feel free to print yourself a copy and if you have any questions, please email Terri (terri.a.johnson@nccourts.org).

Announcement

There’s still space and time to get your FREE CLE credit from OJD this month. Thursday, October 29 from 2:30-3:30 PM: Probation Violations & Post Supervision, covering ongoing detention hearings as well as violations of probation and post release supervision. Commitment extensions, motions for review, and expunctions will also be covered. This CLE will be free to the first 35 registrants and CLE is currently pending approval. Please join us for a fresh new topic, great strategy and a few tips. PLEASE CLICK HERE TO REGISTER.

Week in Review: Sept 28-Oct 2

New month, same Week in Review. Happy Friday readers! We have a brand new tip for you today, an important Fee App memo and then it’s off to the races! Enjoy!

Important Fee App Information

There has been an increase in fee apps that have had errors in filing and causing delay in payment. We have gathered some information and created a memo to both Public Defenders and PAC to ensure accurate and timely filing for your fee apps, including which forms to file per your title and what to double check. Please see this memo for further instructions and feel free to download and print for your reference.

Tip of the Week

Venue – by Assistant Juvenile Defender, Terri Johnson

7B-1800 provides that adjudication shall take place in the county where the offense was alleged to have occurred.  If the juvenile is in residential treatment or foster care in that district, disposition shall occur there as well unless the court finds that transfer would “serve the ends of justice or is in the best interests of the juvenile.” 

Subsection (b) provides that the court may transfer disposition to the juvenile’s county of residence.  If the Court does not transfer disposition, it must notify the chief district court judge in the district where the juvenile resides and shall transfer the matter if the chief district court judge requests it.  If the court does not exercise its discretion to transfer a matter to the juvenile’s county of residence under 7B-1800(b)(1) or (b)(2), the court shall advise the juvenile of his/her right to transfer under 7B-1803(b)(3)If the juvenile requests transfer to his/her county of residence, the court shall transfer the matter to district where the juvenile resides for disposition.

Defenders should be aware of 7B-1800 and utilize venue where appropriate for both adjudication and disposition.  Utilize motions to dismiss for improper venue prior to or during adjudication hearings.  Additionally, the statute may be utilized for disposition to benefit a juvenile.  Remember different counties may have different policies and transfer or retention of disposition should be considered by counsel carefully.

Counsel with cases where venue may be an issue may contact OJD for assistance connecting with attorneys in other counties to collaborate on those matters.

SAVE THE DATE!

Our October CLE will be October 29, 2020 from 2:30-3:30. The topic is Probation Violations & Post Supervision and will be presented by Mary Stansell, Juvenile Chief, Wake County Public Defender Office. Be on the look out for your official registration link. As always, this CLE will be free to the first 35 registrants. CLE is currently pending. Hope to see you there!

And lastly…

THANK YOU TO EVERYONE WHO ATTENDED OUR SEPTEMBER CLE “DEFENDING CHILDREN FROM ICE”!

We hope to see you face to face soon with trainings and CLEs and appreciate your constant support and registration every month!

Week in Review: Sept 7-11

Happy Friday Readers! Another week down in 2020 and we’re still all trying to figure it out. But no worries, OJD is here to help along the way. Before we get started, we take a moment to recognize the importance of today, and remember those lives lost and the heroes from September 11, 2001.

Tip of the Week – Prior Record Level Matters

If your client’s prior record places him/her in a position for the judge to enter a level 1 OR 2 dispositional level, ALWAYS argue for a level 1 disposition.  You can find a copy of the disposition chart here.  Make sure to check the final written order for accuracy.

Who could turn down free learning? CLE OFFER!

Friday September 25, 2020, 2:30-3:30 PM OJD is hosting “Defend Children From ICE.” Presented by Helen Parsonage, Board Certified Immigration Specialist and FREE to the first 35 DEFENDERS who register. Discussing the topic of children and immigration, strategies in your defense and other great information, You DON’T want to miss this training. Register herePLEASE PUT YOUR BAR NUMBER IN THE JOB FIELD BOX.

Symposium: The Roles of Prosecutor and Public Defender in Criminal Justice Reform

October 2, 2020 from 10:00AM-3:00PM (EST). This will be a virtual symposium presented by the North Carolina Commission on Racial and Ethnic Disparities (NC CRED) in collaboration with the National Consortium on Racial and Ethnic Fairness in the Courts. The Keynote Speaker is Jonathan Rapping, Founder and President, Gideon’s Promise, Atlanta and will also feature presentations from prosecutors and defenders from across the country and of course, North Carolina. You can see a list of speakers and topics, by clicking HERE. To register, click HERE. Thank you!

“A Lawyer’s View” Needs an October Submission

LaTobia is looking for guest bloggers to contribute to our Week in Review. Defenders and those in juvenile justice are welcome to write in on topics of their expertise: secure custody, mental health in juveniles, etc! We want to hear from you! There’s plenty more weeks left in the year! Reach out to LaTobia here for more information.

Week in Review: Aug 31-Sept 4

Hello September! Who else is ready for sweater weather? Fall is approaching and all we can think about is hot coffee and comfy socks, of course while we continue working :D.

Tip of the Week – What’s an Alford Plea?

A plea under State v. Alford is where an accused will admit to responsibility in court, not because they believe they are guilty, but because they believe it is in their best legal interest to do so.  While Alford is not explicitly afforded in the Juvenile Code, the Court of Appeals upheld an Alford plea, In re C.L. (2011).  Defenders should remember to explain to clients that an Alford plea has the same impacts and consequences as a standard admission.

Defenders, Register for our September CLE!

Friday September 25, 2020, 2:30-3:30 PM OJD is hosting “Defend Children From ICE.” Presented by Helen Parsonage, Board Certified Immigration Specialist and FREE to the first 35 DEFENDERS who register. Discussing the topic of children and immigration, strategies in your defense and other great information, you DON’T want to miss this training. Who could turn down free learning? Register herePLEASE PUT YOUR BAR NUMBER IN THE JOB FIELD BOX.

Racial Justice for Youth Toolkit

From the National Juvenile Defender Center, the “Racial Justice for Youth: A Toolkit for Defenders empowers juvenile defenders with the training, resources, and information to fight the over-policing, over-criminalization, and school exclusion of youth of color.

Through the Toolkit, we hope to inspire juvenile defenders to view racial justice advocacy as an integral and essential component of their youth advocacy.”

Please take a moment to sign up for the toolkit. Click here to sign up for a Racial Justice Defender Toolkit account for access to member-only resources that may not be available to the public. In doing so, you are helping to continuously advocate for racial justice throughout a youth’s case and help fight systemic racism in our courts.

HAVE A SAFE AND FUN (SOCIALLY-DISTANCED) LABOR DAY WEEKEND!

From a Lawyer’s View: The Importance of Creativity in the Representation of Juveniles at Disposition

Happy Friday Readers! No Week in Review this week, but please keep reading for our 2nd installment in our new series: “A Lawyer’s View.”

The Importance of Creativity in the Representation of Juveniles at Disposition: Advocating for Alternative Dispositions

Dispositional hearings often feel a bit like the players are on the scene of the Bill Murray movie “Ground Hog Day.” The juvenile court counselor presents his or her recommendations to the court. The attorney has no questions but desires to be heard. The attorney says a few nice things about his or her client. The Court makes findings, and then adopts the recommendations of the court counselor. This scene is repeated regularly every day in delinquency court.

Although much of the time the recommendations of the juvenile court counselor are well-suited to address the juvenile’s rehabilitative and treatment needs, it is the duty of the juvenile’s attorney to make recommendations for alternative solutions when appropriate. Often, that necessitates a bit of creativity on the part of the attorney for the juvenile.

N.C.G.S. §7B-2506 provides a comprehensive list of dispositional alternatives available to the court for delinquent juveniles. These dispositional alternatives are affected by the dispositional limits for each class of offense and the delinquency history level of the juvenile. (See N.C.G.S. §7B-2506-2508)

The first step to making creative suggestions to the court regarding the dispositional alternatives is for a juvenile’s attorney to make themselves knowledgeable about the services available in their community. Attorneys who represent juveniles in delinquency cases should also get to know their clients, and the client’s parents in order to determine the juvenile’s rehabilitative and treatment needs.

Oftentimes, parents of the juvenile are well-equipped to ensure that the juvenile’s needs are being met. Attorneys should meet with their clients ahead of the scheduled court date and make inquiry of the parents regarding the needs of the juveniles, and what provisions can be made prior to the disposition to show the Court that the parents can meet these rehabilitative and treatment needs. Parents can arrange for therapy, substance abuse treatment, private community service, or any number of other services. Parents can implement in-home punishments such as a curfew, attend school regularly, remain on good behavior, not associate with anyone deemed inappropriate by the parent, or be at any place deemed inappropriate by the parent. These are typical conditions of a juvenile’s probation that do not necessarily require supervision by a juvenile court counselor. The juvenile’s attorney should prepare to inform the court regarding the conditions put in place by the juvenile’s parents, the parents’ plans for implementation, and provide examples of how the parents’ plans are being carried out in the home.

When an appropriate plan can be implemented by a juvenile’s parents, the juvenile’s attorney can ask the court to dismiss the disposition, or to place conditions on the juvenile under the parents’ supervision. Remember not all juveniles who are adjudicated delinquent require the supervision of a juvenile court counselor to address their rehabilitative and treatment needs. Attorneys should not rely on the juvenile court counselor’s court report to determine what those rehabilitative and treatment needs are. Attorneys should be prepared at disposition to advise the court regarding the needs of the juvenile and to make recommendations regarding the best way to address those needs.

Attorneys can get too comfortable with the “groundhog effect,” walking into court on the disposition court date, reading the recommendations of the juvenile court counselor, and not coming prepared to make their own recommendations. Oftentimes, this is because they assume that the judges are also on autopilot and reflexively adopt those recommendations. Judges look to the juvenile court counselor, the assistant district attorney, and the attorney for the juvenile to inform them of the juvenile’s rehabilitative and treatment needs and to make suggestions tailored to address these needs. Taking a little time to educate yourself about resources available in the community and to inform yourself about the needs of the client will assist you with becoming more creative in your suggestions to the court, and in achieving a better outcome for your client.

Written by: Honorable Christine Underwood. Judge Underwood presides over district court in Judicial District 22A, which includes Alexander and Iredell counties. She has been on the bench since January 2009. Before that, Judge Underwood was in private practice. She held a contract with the State of North Carolina to represent juveniles in delinquency court. Her other areas of practice included parent representation in Abuse/Neglect/Dependency court, criminal law, and family law. She graduated with a Bachelor of Science from Appalachian State University in 1994 and received her Juris Doctor from Campbell University’s Normal Adrian Wiggins School of Law in 2004.

Job Opportunity!

The Center for Death Penalty Litigation (CDPL) in Durham, North Carolina seeks to hire a new staff attorney to support its mission.

CDPL is a non-profit law firm and advocacy organization that works to provide the highest quality representation to people facing execution, and to end the death penalty in North Carolina. CDPL is seeking to hire an attorney with at least two years of relevant experience interested in working on post-conviction cases and, if desired, trial cases.

Applicants should send a cover letter by August 31, 2020, detailing interest, as well as a resume, the names of two professional references, and a writing sample of approximately 10 pages to Ms. Barrie Wallace at barrie@cdpl.org. For additional information, please contact Barrie Wallace at barrie@cdpl.org.

Please click here for more information and a list of responsibilities for this position.

Week in Review: May 4-8

Thanks for stopping by for another Week in Review! Plenty of meetings and calls this week as NC gears up to reopen our courts and we’re so ready to share new ways to pursue juvenile justice in this new time. Remember, if you have any questions or suggestions, we are more than willing to help.

Also! OJD is looking to develop and provide webinar training to our Juvenile Defenders throughout this pandemic. We are currently requesting topics and information you would like to have discussed. Please email Austine Long with your thoughts. Thank you.

TIP OF THE WEEK

Youth Development Center commitment

We are focusing our Tips of the Week on stages of juvenile proceedings that disproportionately impact youth of color. This week we are considering commitment to a youth development center (YDC):

  • Whenever disposition is being entered for your client, always argue for the lowest level of disposition.  A small number of points, or a violation of probation, can quickly send your client to YDC.
  • Consult with the court counselor and the ADA on their recommendations to the court.  If possible, negotiate a lesser disposition than YDC commitment before court.
  • Meet with your client before the dispositional hearing and provide the court with an alternative disposition plan that considers the safety of the community and your client’s needs.
  • Provide in court testimony from supportive community members.
  • Consider offering the court recent recidivism studies which indicate that commitment to YDC is factor for increased recidivism in juveniles. 

Resources

  • May 14, 2020 at 11 AM: NC CRED presents an interactive round-table webinar with leading experts in the North Carolina public health and criminal justice systems. The webinar will explore current conditions in North Carolina and discuss actionable steps to help mitigate the adverse effects on people in North Carolina who is a webinar about preparing and conducting video conference secure custody hearings. The speaker will discuss best practices, confidentiality and other important issues concerning video conferencing hearings.are involved with the criminal justice system. To register for this webinar, click HERE.
  • From the Coalition for Juvenile Justice and the National Juvenile Justice Network member call, “COVID-19: The Heightened Dangers of Confinement” here are some resources they discussed.
  1. Distinction between medical isolation and solitary (AMEND at UCSF)
  2. A list of disability specific issues/resources (NDRN)
  3. Center for Educational Excellence in Alternative Settings
  4. Council of Juvenile Justice Administrators
  5. National Commission on Correctional Healthcare
  6. National Partnership on Juvenile Service
  7. Stop Solitary for Kids
  8. Tolerance.org

Thanks for stopping by!