OJD Week in Review: Oct. 2-6

This week we want to remind everyone of some upcoming events/deadlines, an update to a Court of Appeals decision and an old-but-new addition to our materials for defenders.

LeandroOn Oct. 13, from 9:30 to 1 p.m., the the UNC Center for Civil Rights and the UNC Education Law & Policy Society, Black Law Students Association, and National Lawyers Guild are sponsoring “Leandro at 20: Two Decades in Pursuit of a Sound Basic Education.”  This event commemorates the 20th anniversary of Leandro v. State.  Registration is free, but space is limited, so be sure to sign up now!

Also, a brief reminder to recent law school grads (Class of 2017 or 2018), that applications for the NJDC Gault Fellowship are due by Oct. 30.  You can find further details about this opportunity and how to apply in our previous post from last month.  njdc logo

The Wake Forest University School of Law has just announced that registration is now open for their upcoming symposium.  This event, titled “The New Law and Order: Working Toward Equitable Community-Centered Policing in North Carolina”, will be hosted by the WFU School of Law Criminal Justice Program, NCCRED, and the Wake Forest Journal of Law & Policy on Nov. 3, from 9 a.m. to 4:30 p.m.  Four hours of CLE credit will be offered for attending.  You can register on their website here, and for further info on the symposium please check here.

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We also need to thank Assistant Appellate Defender David Andrews for reminding us that the Court of Appeals vacated the adjudication in In re T.K. on Sept. 29.  Andrews writes: “The basis of the opinion was that the juvenile petition was defective because the court counselor did not sign the petition and check the box on the petition indicating that it had been approved for filing.

“After the Court of Appeals issued its opinion, the State filed a petition for discretionary review in the Supreme Court of North Carolina.  [Last Friday], the Supreme Court issued an order denying the petition, which means that the Court of Appeals opinion in In re T.K. stands and will remain undisturbed.  So . . . keep scrutinizing petitions to make sure that they are proper!”

We would also like to bring it to everyone’s attention that we have the materials from this year’s Juvenile Defender Conference now available on our website.  Apologies for not having it added sooner, and big thanks to Austine Long for notifying us.  If you need a refresher or if you just happened to miss the conference and would like to see what was covered, the electronic copy of the materials are now ready and waiting for you in the “School of Government” section under the “Materials for Defenders” tab.

Juvenile defenders and others are still encouraged to share if there is anything you wish to discuss on our blog or our new podcast!  We are expecting more updates for other events in the coming months and we will also have other activities to share from our office as well, so be sure to check back frequently!

In re T.K. Show Court’s Indecision on Importance of Statutory Requirements by Jonathon Woodruff

Last month, the NC Court of Appeals in In the Matter of T.K. declined to extend the holding from In re D.S., 364 N.C. 184 (2010), in favor of a new holding placing some jurisdictional responsibility on Juvenile Court Counselors.

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The principal issue in In re D.S. was the timing with which a delinquency petition was filed. An SRO filed two separate complaints based on the same set of facts. The first petition charged the juvenile’s conduct as a simple assault and was filed on the same day that the event occurred. The second petition charged the juvenile with sexual battery and was filed approximately 26 days later, 11 days beyond statutory requirements. The Juvenile Code requires that Juvenile Court Counselors shall complete the evaluation of a complaint within 15 days of receipt of the complaint, with a 15 day extension at the discretion of the Chief Juvenile Court Counselor (see N.C. Gen. Stat. 7B-1703(a)). On appeal, it was argued that it was error for the court to have adjudicated the juvenile for the second petition, because it arose from the same set of facts as the first and therefore was in essence the same petition. The fact that the second petition was filed beyond the statutory limit meant that the court lacked subject matter jurisdiction. The juvenile claimed that the Juvenile Court Counselor should have investigated the initial complaint further and included sexual battery if it was appropriate.

The Court disagreed, explaining that the language of the statute intended for each separate complaint, as in the actual document that is alleging delinquency, to be considered by itself without reference to earlier complaints. The second petition was therefore filed within the statutory limit and was adjudicated properly. The Court went on to say that it is not the role of the Juvenile Court Counselor to conduct extensive investigations of the like which were suggested by the juvenile on appeal. Specifically, a Juvenile Court Counselor’s primary responsibility upon receiving a complaint is to determine whether they are strictly required to or prohibited from filing a petition based on the complaint. If neither of those apply, the Counselor is then to conduct an evaluation to decide whether or not a petition should be filed. The Court stated that the Counselor is neither expressly permitted nor obligated to investigate anything beyond the allegations in the complaint to find any and every offense that may apply. Additionally, the Counselor is expressly forbidden from conducting field investigations for the purpose of substantiating claims and providing supplementary evidence during the intake process. Therefore, the Court concludes, the Juvenile Court Counselor in this case did exactly what was supposed to be done. The Court also states that there is no basis for a finding that the statutory time limits have any bearing on jurisdiction anyway.

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This holding would seem to be in contrast with the more recent holding of In the Matter of T.K. Here the court held that a Juvenile Court Counselor’s failure to sign a petition and to mark it “Approved for Filing,” as required by N.C. Gen. Stat. 7B-1703(b), was an error that cost the court any jurisdiction over the matter. Due to a lack of precedent on this issue, the court looked at Abuse/Neglect/Dependency cases to determine the matter. There is a consistent line of cases on this issue; the lack of signatures and verification on petitions in Abuse, Neglect, and Dependency court will result in a lack of subject matter jurisdiction. The Court of Appeals ruled accordingly in T.K. and held that the court lacked subject matter jurisdiction in the case due to the lack of a Juvenile Court Counselor’s signature.

The difference between these two cases seems trivial. In one the court held that a statutory requirement had nothing to do with jurisdiction, and in the second the court held that jurisdiction turned on compliance with a different statutory requirement. For practitioners, it would be wise to always make sure that the statutory requirements are followed to the letter, and to preserve such issues for appeal if they are not. Do not let a lengthy amount of practice in this area blind you to discrepancies that can result in overturned adjudications.

New Updates: Case Summaries and “The Kavanaugh Review”

We have recently added the latest published opinion from the N.C. Court of Appeals, In re T.K.  This opinion can be located in our “Case Summaries” file on the “Materials for Defenders” page.  The information from this published opinion pertains to the use of petitions and disorderly conduct.

We would also like to note that Dr. Antoinette Kavanaugh, a veteran forensic clinical psychologist who has specialized in juvenile justice among other things, has published two new articles.  One article titled “The Prospects for Developing Expert Evidence in Juvenile Montgomery Resentencing Cases“, written in collaboration with Dr. Thomas Grisso, is meant to “help juvenile defense counsel understand the types of developmental evidence that can be used in juvenile Montgomery re-sentencing cases, explain the benefits and limitations of retaining an expert trained in developmental, psychological or clinical sciences to assist counsel in defense of their clients and what those experts can be expected to provide.”  The second article is called “When Are We Going to Launch Gault 2.0“and discusses the necessary evolution of the laws established by Gault based on empirical evidence in the last fifty years.  These two articles have been published by the Pennsylvania Association of Criminal Defense Lawyers in their online quarterly, For the Defense, and The Champion magazine, a publication by the National Association of Criminal Defense Lawyers, respectively.

 

Hey, Where’s My Discovery?

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What’s the Issue?

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

What’s the Law?

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

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

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

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

Best Practice?

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

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

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“The Magistrate’s Role in Filing Juvenile Delinquency and Undisciplined Petitions” by Professor LaToya Powell

From the “On the Civil Side” blog, please read this insightful post written by Professor LaToya Powell.  Professor Powell breaks down what authority magistrates have in juvenile cases and filing juvenile petitions and custody orders after-hours.

The Magistrate’s Role in Filing Juvenile Delinquency and Undisciplined Petitions