OJD Week in Review: Feb. 4 – 8

Salutations and thank you for joining us again!  This week, in addition to the invaluable Tip of the Week and necessary reminders, we’ve got a new job posting.  Also, please note that many deadlines job applications and event dates are approaching within the next week!

Tip of the Week – Calculations Matter

Make sure you calculate your client’s delinquency history correctly.  It is reversible error if you do not advise your client of the most serious disposition s/he is exposed to (even if everyone agrees to a lower dispositional level).  Feel free to use the disposition chart and prior record scoring sheet available here on our website.

delinquency calculation

From Around the Community

On Monday, Feb. 11, at 12:30 p.m., Duke Law School Professor Brandon L. Garrett and the Duke Criminal Law Society will be presenting and releasing their newest study, “Juvenile Life Without Parole in North Carolina”.  Garrett was awarded a grant from the Charles Koch Foundation to study evidence to inform criminal justice policy.  Through his research, Garrett prepared a report and will be sharing his findings with all attorneys working on juvenile cases at this event.  For further information, please direct questions to Callie Thomas.

Job Opportunities

National Center for State Courts (NCSC) is currently looking to fill a position for a Principal Court Management Consultant that would be based in one of NCSC’s offices (Denver, CO; Arlington, VA, or HQ in Williamsburg, VA), or possibly teleworking when not traveling.  NCSC is expanding its staff devoted to family and children’s issues and is hoping to get candidates with juvenile justice experience for this position.  To apply and see more details about this position, please check here.  The deadline for applications will be Friday, Feb. 15.

The deadline for electronic offers for the Office of Indigent Defense Services‘ Request for Proposals in Caswell, Person, Alamance, Orange, and Chatham counties will be Friday, Feb. 15.  The current contracts for adult noncapital criminal cases at the trial level and per session court cases in those districts will expire on May 31 and renew on June 1.  The RFP (RFP #16-0002R) seeks services for adult noncapital criminal cases at the trial level, juvenile delinquency, abuse/neglect/dependency and termination of parental rights, and treatment courts.  Please note that the RFP will not seek offers for potentially capital cases at the trial level, direct appeals or post-conviction cases.  Also, the juvenile delinquency RFP will only include Caswell, Alamance, and Person counties.  To access the RFP, please check here.

Training

On March 15, from 10:00 a.m. to 4:45 p.m., the UNC School of Government (SOG) will be hosting the first North Carolina Criminal Justice Summit in the the University of North Carolina at Chapel Hill’s Carolina Club.  The Summit will be lead by SOG’s own Professor of Public Law and Government Jessica Smith and will feature national and state experts with broad-ranging ideological perspectives who will discuss key issues capturing attention in North Carolina and around the nation, including bail reform, overcriminalization, and barriers to re-entry, such as fines and fees, the criminal record, and collateral consequences.  Join the conversation as they explore how these issues impact justice, public safety and economic prosperity in North Carolina, and whether there is common ground to address them.  This event will be free to attend, lunch will be provided, and it offers 5 hours of CJE and free CLE credit.  Attendees are responsible for their travel expenses, including a $14 event parking fee.  For those arriving the night before, state rate and discounted rooms at local hotels will be available.  To apply for this course and find more details, please visit here.  Applicants will be notified regarding acceptance no later than Friday, Feb. 15th.

The Office of the Juvenile Defender will be hosting a Juvenile Court Basics CLE on Feb. 27 from 1 to 4 p.m. at the Cumberland County Courthouse.  Assistant Juvenile Defender Kim Howes will be discussing the role of counsel, how to communicate with juvenile clients, dispositions, capacity, appeals, and so much more.  Questions and concerns are welcome.  Three general CLE credit hours are currently pending for this training.   Please contact Marcus Thompson by email or call 919-890-1650 if you have questions.

Save the date!  The 2019 Regional Training for Indigent Defense: Special Issues in Complex Felony Cases will be held on March 21 at the East Carolina Heart Institute at East Carolina University in Greenville, N.C.  The training will focus on topics relevant to criminal law practitioners and is open to IDS contract attorneys and privately assigned counsel.  Participants will receive three general CLE credit hours.  Registration should open later this month.

every-day-is-training-day

That wraps up this week.  There should be more to come next Friday, but in the meantime, check out OJD’s Twitter and Facebook for posts throughout the week.

OJD Week in Review: Jan. 21 – 25

Hello again and welcome to another Friday!  This week we’ve got a new tip, a new training announcement, some news from around the juvenile defense community that may be of interest, and some deadline reminders.

We also released our 2018 Year in Review earlier this week.  Please take a moment to check it out here if you haven’t had a chance to read about some of our accomplishments from this past year and plans going forward into 2019.

Tip of the Week – Immigration Consultations

Did you know that IDS has made immigration consultants available to all defenders who have been appointed indigent clients?  That means all of your juvenile clients!  This may be especially helpful to determine if your client may be eligible for some type of immigration relief since s/he is a juvenile.  Simply go to the IDS website to access the form here.  You may want to print out the printable version and put it in your case file to fill out when you meet your client and then upload the information when you get back to the office.

From Around the Community

On teh Civil SideFrom the On the Civil Side blog, Jacqui Greene has posted a new piece titled “Mental Health Evaluations Required Prior to Delinquency Dispositions“.  In this blog post, Greene examines In re E.M., the recent case from the Court of Appeals which applies an old statute that requires district courts to refer juveniles who have been adjudicated delinquent prior to disposition to the area mental health, developmental disabilities, and substance abuse services director for interdisciplinary evaluation if any evidence of mental illness is presented.  Greene explores how much evidence of mental health issues is needed, how to locate the local management entity who would need to provide the evaluation, what happens if a juvenile has already received a mental health evaluation, and the implications of the Court’s decision.  You can read the full post here.

On Feb. 11 at 12:30 p.m., Duke Law School Professor Brandon L. Garrett and the Duke Criminal Law Society will be presenting and releasing their newest study, “Juvenile Life Without Parole in North Carolina”.  Garrett was awarded a grant from the Charles Koch Foundation to study evidence to inform criminal justice policy.  Through his research, Garrett prepared a report and will be sharing his findings with all attorneys working on juvenile cases at this event.  For further information, please direct questions to Callie Thomas.

Job Opportunities

The deadline for applications for the Office of Indigent Defense Services (IDS)‘ Regional Defender position is Sunday, Jan. 27.  The ideal candidate will have the ability to provide oversight to professionals, have knowledge of General Statutes, case law and responsibilities of contractors, and have skills in representing indigent defendants, problem solving, and relationship building.   IDS prefers applicants with some teaching/supervisory experience and a minimum of five years of experience with criminal defense work representing indigent clients.  You can apply and see more on this opportunity here.

On Dec. 1, Indigent Defense Services issued a Request for Proposals (RFP) in Caswell, Person, Alamance, Orange, and Chatham counties.  The current contracts for adult noncapital criminal cases at the trial level and per session court cases in those districts will expire on May 31 and renew on June 1.  The RFP (RFP #16-0002R) seeks services for adult noncapital criminal cases at the trial level, juvenile delinquency, abuse/neglect/dependency and termination of parental rights, and treatment courts.  Please note that the RFP will not seek offers for potentially capital cases at the trial level, direct appeals or post-conviction cases.  Also, the juvenile delinquency RFP will only include Caswell, Alamance, and Person counties.  The deadline for electronic offers is Feb. 15.  To access the RFP, please check here.

Training

The Office of the Juvenile Defender will be hosting a Juvenile Court Basics CLE on Feb. 27 from 1 to 4 p.m. at the Cumberland County Courthouse.  Assistant Juvenile Defender Kim Howes will be discussing the role of counsel, how to communicate with juvenile clients, dispositions, capacity, appeals, and so much more.  Questions and concerns are welcome.  Three general CLE credit hours are currently pending for this training.   Please contact Marcus Thompson by email or call 919-890-1650 if you have questions.

Save the date!  The 2019 Regional Training for Indigent Defense: Special Issues in Complex Felony Cases will be held on March 21 at the East Carolina Heart Institute at East Carolina University in Greenville, N.C.  The training will focus on topics relevant to criminal law practitioners and is open to IDS contract attorneys and privately assigned counsel.  Participants will receive three general CLE credit hours.  Registration should open later this month.

training toy story

That wraps it up for now.  Check out OJD’s Twitter and Facebook for posts throughout the week and we will share more here on next Friday.

OJD Week in Review: May 7 – 11

Hello, juvenile justice warriors.  This week we’ve got a new job opportunity and a new webinar added to the list of reminders for upcoming event and application deadlines.

Training

Registration is still open for the 2018 Southern Juvenile Defender Center Regional Summit.  Today will be the last day the hotel room block for this event will remain open.  The event will take place on June 8 and 9 at the University of South Carolina School of Law.  For further details and to register for the event, please check the Eventbrite page here.

training toy story

The 2018 Defender Trial School, cosponsored by the School of Government and the North Carolina Office of Indigent Defense Services, will be held Monday, July 9, through Friday, July 13, at the School of Government on the UNC-Chapel Hill campus.  The online registration deadline will be at 5 p.m. on Monday, June 25, and interested parties may register here.  Defender Trial School participants will use their own cases to develop a cohesive theory of defense at trial and apply that theory through all stages of trial, including voir dire, opening and closing arguments, and direct and cross-examination.  The program will offer approximately 30 hours of general CLE credit and qualifies for NC State Bar criminal law specialization credit, but attendees must attend all sessions.  The Defender Trial School is open to public defenders and a limited number of private attorneys who perform a significant amount of appointed work.  The registration fee for privately assigned counsel will be $700, which includes materials, breaks, lunches and parking, however Valerie Pearce and Tucker Charns can provide info for those interested in fellowships.  For additional info, please check out the program webpage.

Registration is open for the N.C. Bar Association’s annual meeting, this year titled “The Future of Law”.   This event will be hosted at the Wilmington Convention Center from June 21 – 24.  Topics covered will include artificial intelligence, virtual reality, design thinking in the law, and the future of legal service delivery.  For further info and to register please check out the NCBA website and the event brochure.

New Resource

Earlier this week we added the Miller Strategy Handout to the “Trial Motions and Forms Index” section of our website’s “Materials for Defenders” tab.  We hope that this handout will provide additional info to benefit defenders representing juvenile clients in first-degree murder cases and any case transferred to superior court.

giphy-1

From Around the Community

You’re invited to join the National Juvenile Defender Center (NJDC) as we celebrate the transformational power of stories; a power that honors the dignity and humanity of every child.  On Tuesday, May 15 (OJD Note: the 51st anniversary of the Gault decision), we’ll gather at the historic National Museum of Women in the Arts for The Story of Justice.  It is our great pleasure to announce that NJDC is recognizing both Carrie Johnson, justice correspondent at NPR, and DLA Piper LLP (US), with the inaugural Norman Dorsen Award, dedicated to the late professor and civil rights attorney who forever changed the landscape of children’s rights in the United States.  This award celebrates those like Mr. Dorsen who work outside of the children’s defense community and yet contribute so much to the fulfillment of equal protections for young people.  If you’re interested in supporting The Story of Justice as a sponsor, learn more here.

Also on May 15 at 1 p.m., the Council of Juvenile Correctional Administrators will host “LGBTQI Youth in Juvenile Justice Settings: Closing the Gap between Recommended Practice and Reality.”  In this webinar presenters will discuss improving the the safety of and reducing violence against LGBTQI youth in corrections and helping this population develop prosocial skills.  To register for this webinar, please check the link here.

The Center for Juvenile Justice Reform and the Council of State Governments Justice Center will host the 2018 Janet Reno Forum on May 21 at  Georgetown University in Washington, D.C.  The forum will highlight strategies for restructuring juvenile justice systems to more effectively enhance public safety and improve outcomes for youth.  The event will include the presentation of the second annual Janet Reno Endowment Women’s Leadership Award, and attendees will receive a publication featuring the highlighted strategies.  Policymakers, practitioners, researchers, advocates, and other stakeholders are invited to attend.  Please register here.

The National Juvenile Justice Network will be hosting its 2018 Forum in Durham, N.C. from July 16 – 18 at the Duke University School of Law (210 Science Dr, Durham, NC 27708).  This event, co-hosted by the Youth Justice Project of the Southern Coalition for Social Justice and Duke Children’s Law Clinic, is meant to be a fun networking and training setting for juvenile justice advocates.  July 16 and 17 will be open to NJJN members only, and the final day will be open to the public.  For details on travel assistance, the current agenda, and lodging, please visit their site here.

Registration is now open for the 81st Annual National Council of Juvenile and Family Court Judges Conference.  The event this year will take place at the Hyatt Regency Denver at the Colorado Convention Center from July 22 – 25.  The conference will offer presentations/training tracks on  topics such as family law, juvenile justice, child welfare, and family violence.  This conference is judicially-focused and open to all those interested in the improvement of juvenile and family justice.  For registration and further info, please visit the NCJFCJ website here.  The early bird deadline to register ends on June 1.

81st Annual Conference

Job Opportunities

The Michigan State Appellate Defender Office (SADO) is seeking an Assistant Defender for its Juvenile Lifer Unit.  The Unit is composed of seven attorneys and four mitigation specialists representing over a hundred clients where prosecutors are again seeking life without parole sentences.  The ideal candidate will have experience in death penalty phase or juvenile lifer resentencing hearings, experience in both trial and appellate courts, and experience negotiating with prosecutors, preparing mitigation for clients, and working with expert witnesses.  The project is funded through October 2019 for now, but funding will likely continue as the work will not be complete by then.  To view the full job description and see how to apply please review the complete job posting here.

The Georgetown Juvenile Justice Clinic and Initiative (GJJI) is currently accepting applications for a Race and Justice Fellow, who will work with GJJI staff to improve the systems youth encounter through policy reform, and to develop resources to raise the level of practice among juvenile defenders across the county.  Applications will be accepted until May 14.  Please find the complete job description and application info here.

The UNC School of Government is seeking a tenure-track full-time permanent assistant professor of juvenile justice and criminal law.  The selected candidate for this position will be expected “to write for, advise, plan courses for, and teach” public officials, including judges, magistrates, law enforcement, prosecutors and defenders.  Applications will remain open until the position is filled.  The expected starting date for the new hire will be July 1.  Please find the full details for the position and how to apply here.

That is all for now.  Feel free to reach out to us via phone, the listserv, or email if you ever need assistance, and follow us on Twitter or even share on the NCOJD Facebook page if you feel so inclined.  Until next time, we bid everyone a safe and happy weekend!

From a Non-Lawyer Perspective: 2017 Juvenile Defender Conference Review by Marcus Thompson

On Friday, Aug. 11, juvenile defenders from across N.C. united at the U.N.C. School of Government for the 2017 Juvenile Defender Conference — and I had the honor of being among the 50+ attendees!  Only approaching my first full year as a part of the Juvenile Defender family, I was pretty excited to be able to attend this annual conference and observe juvenile defenders from various districts interact and share ideas and experiences from their time in juvenile court.  In my short time with the Office of the Juvenile Defender, I have  had the opportunity to learn about case law, the “lawyer lingo”, and other things, but this training was a great experience to not only refresh my memory of materials I’ve encountered before, but to also gain further insight into the juvenile justice system.

Program Attorney Austine Long started the event, welcoming everyone and encouraging defenders to offer suggestions for future training courses before introducing Martin Moore, assistant public defender of Buncombe County.

Moore discussed detention hearings, going over the types and culture of detention, secure custody and strategies for preparing for hearings.  Moore acknowledged that some areas of the state do not always follow their own guidelines for detention hearings.  “No one is in a better position to help the juvenile than themselves,” Moore said, emphasizing to attendees the importance of listening to the client and knowing as much as possible about their history, mental health state, and relationships when preparing for hearings.  When he posed a question to the audience about juveniles being placed in adult facilities for pre-adjudication secure custody (which violates G.S. 7B-1905), some defenders stated that this is often a result of juveniles having lied about their age, which initially surprised me.  I would have assumed in some cases it may have been the error of the police.  One participant also stated that juvenile defenders should ensure that juveniles’ info is redacted if they are placed in an adult facility for any reason.  On the topic of shackling during secure custody hearings, Moore also stated that it was “generally something we should argue against” and others concurred, pointing out the most effective argument with judges was that shackling a child would require more paperwork.  Towards the end of his presentation, Moore gave attendees a couple of hypothetical scenarios and allowed them to role play to demonstrate how they argue on behalf of a client in a detention hearing.

Following Moore, Mary Stansell, assistant public defender of Wake County, and Assistant Juvenile Defender Kim Howes presented on motions to suppress.  The pair addressed In re Gault, what qualifies as custodial interrogation, children’s understanding of their rights, and violations of 4th amendment rights.  Stansell and Howes stressed that a statement can’t be used against a child in custody unless a parent is there, but children believe that the “right to remain silent” means “until a cop asks a question”, most likely due to being naturally submissive to adults and intimidated by authority figures.  The cases of Saldierna and J.D.B. were also addressed while discussing juveniles’ voluntary waiver of rights.  Identification of juveniles in court and search and seizure were also brought up before attendees were broken out into groups to work on a case study.

After lunch was provided, Terri Johnson, an attorney from Statesville, took the lead to discuss capacity, covering statutes, cases, and how to handle evaluations and issues.  Johnson emphasized looking for indicators of capacity such as age, nature and location of the offense, language barriers and a history of social, mental, or physical health issues.  She also talked about finding experts to evaluate a client’s capacity to proceed in court and common arguments made by assistant district attorneys and juvenile court counselors.  One common argument was that juveniles were manipulative and would lie simply to avoid getting into trouble.  Johnson also said that sometimes judges will commit juveniles due to lack of options or because they believe that just putting juveniles on probation will get them the mental health treatment that they need.  Having no interactions with the legal system in my teenage years beyond a couple of traffic violations, it was kind of disheartening to hear that this was the way people, especially kids with various problems, were perceived and treated in the courts.

Once Johnson finished her segment, LaToya Powell, assistant professor of public law and government for the U.N.C. School of Government, arrived to discuss updates to juvenile law in the past year.   I was very familiar with all of the cases that Powell discussed, having read her opinions and writing case summaries for our office, but the review of these cases was welcomed.  Powell succinctly summarized many of the most impactful cases, including Saldierna, T.K.D.E.P.  and the recent Raise the Age legislation.  While addressing Saldierna, Powell stated that a juvenile cannot waive the right to have a parent or attorney present during questioning due to special protections provided under General Statute 7B-2101.  After reviewing the whole series of decisions from SaldiernaPowell also noted that as of Aug. 3rd, the State had filed a motion for temporary stay on the case.  Once she summarized some of the other recent appellate court decisions, Powell went on to discuss the Juvenile Justice Reinvestment Act, pointing out the benefits to everyone involved in the juvenile justice system, but also addressing some potential issues with the new laws, such as conflicting terms in the new gang suppression section with current criminal gang suppression rules.

Finally, James Drennan, adjunct and former Albert Coates professor for the U.N.C. School of Government, took the podium to lead the ethics portion of the training.  This part of the training was more like the psychology/philosophy class I wish I had during my college years and was applicable not only to juvenile defense, but all professions.  Drennan discussed implicit biases, which he said exists “in all of us.  No one is immune to it.”

“There is an elemental, primal need to feel like you are being treated fairly,” Drennan said after showing a video of two monkeys being rewarded, one with grapes and the other with cucumbers (resulting in its frustration) for performing the same task.  He shared statistics and reports that showed fairness is what is most desired in our court system by people, but more people from various backgrounds perceive the justice system as unfair to minorities.

Drennan also engaged attendees in several exercises to test their perception, demonstrating our fast-thinking and slow-thinking processes and how our intuitive feelings and programming from a young age affects our judgment.   Drennan spoke about how his own southern upbringing taught him to accept racial disparities as a norm and certain behaviors were maligned by the society he grew up in, and despite his life experiences, these ideas instilled in him from his youth still linger, unable to be unlearned.  He also said that controlling our fast-thinking processes when interacting with new groups or individuals and observing the patterns in our decision-making processes are important to help us to avoid our own prejudices.

Every presentation was engaging and surprisingly easy to follow, even for someone like myself, without a background in law.  While I’ve only observed a few juvenile court cases, it was good to know how other defenders prepare to present their juveniles’ cases and what must be considered prior to going in front of the judge.  It also provided clarity for me about the challenges from all sides that juvenile defenders must deal with inside and outside the courtroom.  It was also great being able to put more faces to the names I’ve seen in the past few months.  After this first year, I look forward to the 2018 Juvenile Defender Conference, and I hope to hear from and see more of the front line defenders.

If you missed the conference or would just like to review the presentations, you can find a copy of the course materials with additional references here.

“In the Matter of T.K.: Does a Student’s Use of Profanity in the Hallway Constitute Disorderly Conduct at School” by Professor LaToya Powell

Yesterday, Professor LaToya Powell  posted a new entry on the UNC School of Government’s “On the Civil Side” blog further detailing In the Matter of T.K. and what elements are needed to determine disorderly conduct.  Professor Powell evaluates how disorderly conduct is defined by the law and how previous case law relates to the situation described in T.K.  Please take a moment to read this informative piece.

Two weeks ago we also updated our “Case Summaries” section with the latest opinion from the Court of Appeals, summarizing In re T.K.  Please find this information on our site here.

disoderly dunham

A Review of Saldierna by Guest Blogger Martin Moore

Martin Moore

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.

Saldierna Review

Facts

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?

Example/Hypothetical:

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.

Advising Juveniles

“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:

  1. 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.

  1. 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.

  1. 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.

  1. 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.

  1. 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.

 

 

Case Summaries Update: In re D.E.P.

Please see the latest update to our “Case Summaries” list on the “Materials for Defenders” page.  The latest entry to the list, located in the”Dispositions: Appeals” and “Dispositions: Sentencing” sections, is the published opinion In re D.E.P. which established that:

The trial court is not required by G.S. 7B-2512 to make findings of fact that address each of the G.S. 7B-2501(c) factors and did not abuse its discretion in ordering a Level 3 commitment based on the juvenile’s repeated violations of probation.