The first time I heard reference made to the movie “The Assassination of Jesse James by the Coward Robert Ford,” which starred Brad Pitt in the title role, I thought to myself, “Why waste all the time and effort on an obviously overstated title? Why not just call the movie ‘Jesse James’?” The more I contemplated the title, the more I became aware that the title was perfect in that it not only told you “what and whom” the movie was about; it also set a perfect tone for letting the viewer know what to expect from the film.
Thus the Title of This Article
I had been practicing law about ten or twelve years—handling a few juvenile cases here and there—when it dawned on me one day there is some perception that because juvenile cases involved young people (whether small or large in stature), somehow they were easy (or less difficult) to handle. This cannot be further from the truth, especially when certification issues are involved. I watched as attorneys—many of them seasoned (and certainly including myself)—struggled and flew by the seat of their pants when called upon to attend detention hearings. This is especially true in court-appointed cases, which make up a high percentage of juvenile representation matters.
In adult matters, there is always plenty of time after arraignment and before plea negotiation (or whatever) to look over the discovery and other matters before making any decisions. If you are short on time, you simply ask for more—which is, without hesitation, always granted. From time to time you run into a judge who may “move you along”; however, most of these situations with adults are “do-able.” This is rarely the case with juveniles. Needs of the child and mandated timetables are far more relevant than in adult matters. You may have “some” limited time, but this is rarely the case when you are presented with a juvenile matter and a detention hearing (more on this later).
After much thought—and at the urging of fellow Lubbock attorney David Guinn—I decided to write this and try to offer some limited guidance on how to deal with these issues. They tend to cause an undue amount of stress on all parties involved—the attorney, the family, and, most importantly, the child you represent.
This is certainly not meant to be all inclusive. You, as defense counsel, may have your own ideas that fit your beliefs and style. This is simply my “Ten Step” approach to getting started. Hopefully it will provide some guidance to those of you who may be defending juveniles either occasionally or for the first time.
A. Juvenile Cases Are “Civil” Rather Than Criminal
Juvenile cases lie in a specialized area of law following different rules and procedure because the nature of the cases fall within family law and other civil areas. It is important to be able to explain to your client and his/her family that certain terms and rules may sound different than those to which they may be accustomed. For instance, juveniles are not found “guilty” of committing a crime. Rather, they are “adjudicated to have engaged in delinquent conduct” if they are ultimately held responsible for committing a crime. They are also sentenced differently.
In addition, in most instances a juvenile must be represented by counsel—hired or appointed. Also, most records are sealed, a trend we seem to be getting away from more and more. Ultimately, the decisions you and your client will make follow the “Best Interest of the Child” standard—if not formally, then certainly informally.
You should familiarize yourself with the law, and you should also familiarize yourself with the basic services available to your clients should they need them. Being able to discuss these matters with your client and his/her parents will instill a confidence in them that you know your job and how to do it, a trait that will aid you whether the child is detained or released.
B. Know Your Client: Know Your Goal
Without a doubt, the most difficult and important requirement an attorney faces in initial meetings with a juvenile client—especially when court-appointed and on short notice—is getting to know the client to a degree that allows for adequate representation. Certainly, learning the child’s name, age, and the charge(s) against him/her is important; however, good representation goes much further and, again, must be set in motion as quickly as possible. An attorney will have some amount of time to “visit” with a client, but normally only for a short period. Asking for additional time may or may not work out, however, so a good working relationship with your judge will be to your favor on this issue.
Nevertheless, it is very important that the attorney learns whatever possible about the child. Despite the fact that the client may be young, it is important you not underestimate his or her capabilities. These “capabilities” run the gamut from the client’s ability to understand the proceedings and charges (on one end) to a willingness to be involved in criminal acts on the other. Simply put, some clients are good, some are bad. Some are kind, some are mean. Most are troubled, and many come from difficult lives or situations. I am not advocating that we—as attorneys—do not feel for them nor work any more or less for any of them. I do believe that a good attorney learns as much as possible about the client and adjusts the representation accordingly. Do everything within your power to get the child to cooperate with you. This will go a long way in determining your success in representing the child.
It is not uncommon that the most stability a child may have seen in the time before you get the case is the night or two they spend in Juvenile Detention before your first meeting. This is a harsh fact, but true in many instances.
In addition, while most children are good, many are raised in environments that result in them viewing the world a little differently than the rest of us. An example of this is the child who will tell you “a crime is only wrong if you get caught” or a child who steals and is of the opinion that if an item is left in a place of vulnerability, then it is the owner’s fault his item was taken. Obviously, these are superficial examples, though I’ve heard them both. There are, most certainly, other, better examples—and far more serious crimes.
The point here is “Listen to your clients.” It will help you get to know them. Observe them and do not be afraid to ask tough questions. Demand legitimate answers, all the while doing your best to maintain a good relationship.
C. Learn What You Can From—and About—Parents
Simply put, parents of the juveniles you are called upon to represent can be your best friend or your worst enemy. Most of them truly care about their children and will put faith in you if they believe you have the best interests of their child in mind. They will have questions, most of which are legitimate. Some are unanswerable at your first meeting. Some you may never be able to answer, but do the best you can without lying to or misleading them. The fact their child is in trouble is a serious matter to most parents; give them serious and straightforward answers.
They will have questions about the charges, police interrogations, Miranda warnings (although they will not call them by their correct name), expenses, detention, and—with few exceptions—whether or not “this will be on Johnny’s permanent record.” You will want to be as honest and open as possible, but be careful not to promise anything to the parents (or your client) you cannot deliver.
In the time following the initial hearing, be sure you talk to them by phone if they call—but certainly, make sure you do so according to the rules of ethics and disclosure. Return calls when you can, even if you cannot disclose certain aspects. Just hearing from you will help them, especially if their child is detained. It will also help keep their faith in you as their child’s advocate.
One last thing: Keep in mind you represent the child, not the parents. Your advice must be with the child’s best interest in mind. Help them make good, sound decisions.
D. Learn What You Can From the Probation Officer
In most counties, the child you represent will have met with the probation officer prior to your meeting and before the detention hearing. This is almost always true in court-appointed cases, though not always true when you are retained. Probation officers will have interviewed the child and parents. Usually they limit their conversation to interview-type questions, but this is not always the case. As in the case of parents, it has been my experience that probation officers can also be your best friend or worst enemy.
They have reviewed the police reports—if they are available—before you get them. They will have a basic understanding of the case and they may have had prior dealings with your client. These facts—coupled with your knowledge of the particular probation officer—should give you a good idea of the initial direction your case may go.
I have found that most probation officers possess good intentions. Keep in mind, however, that when push comes to shove, they will protect themselves at your client’s expense. This seems to present itself when the client is either a repeat offender or when the crime is assaultive or sexual in nature. It is important to know when probation officers are doing their job or when they are crossing the line. The more experience you have with a particular probation officer, the easier it will be to work—or not work—with him or her, whatever the case may be.
E. The Detention Hearing
In most instances, your first contact with your client—whether you’re appointed or hired—will be at your county’s Detention Center. This is designed to ensure the child’s initial appearance in court. When they present a danger, they may or may not be with other child offenders.
As you know, the detention hearing is the equivalent of a bond hearing for an adult. I believe it is the most important aspect of your representation, at least in your initial relationship with your client.
An attorney should be very familiar with the five factors the judge or magistrate will consider. More importantly, the attorney must know how they apply to the client’s case as well as the client. A good attorney—keeping in mind the best interest of the child—will look at these factors and answer them honestly, then discuss those answers with the child before deciding whether to have a hearing or to waive that hearing. Many times a discussion with the prosecutor will result in an agreement to release the child (more on that later).
The five factors are relatively simple in nature, though they are sometimes more difficult to answer open and honestly. However, the child’s decision on whether to request a hearing or to waive (if the state is requesting detention) must be an “informed” decision—based on these factors. The factors are considered by the judge in making his/her determination. The factors are as follows (paraphrased):
1. Is the child likely to abscond or be removed from the jurisdiction?
2. Can the parents take care of him/her—and will they? Does the child accept parental guidance or control?
3. Will the parent bring the child to court?
4. Is the child a danger to himself/herself or others?
5. Has the child previously been found delinquent, and is he/she likely to commit another crime?
While all are considered and (in my humble opinion) up for broad interpretation, it is usually factors four and five that receive the most attention from prosecutors and judges. Nevertheless, a meaningful discussion with the child and the parents (if appropriate) will usually lead to a correct decision on whether to challenge detention.
F. Will the Child Cooperate?
This aspect of this list is rather straightforward. Short of confessing to the crime or incident, the child should cooperate while in detention. Encourage them to do so if you have a belief they may want to cooperate. Children who are on their best behavior will reap the benefits, as the discipline reports are almost always reviewed by judges when determining extended or subsequent detentions. Advise your client to stay away from befriending or antagonizing guards or other detainees. These attempted “relationships” almost always result in problems that can make their way back to the prosecution and, ultimately, the judge.
If the child is “dressed” for court, make sure the clothes are appropriate. Have your client be respectful to the judge, prosecutors, deputies, and court personnel. Make sure he/she is attentive, listening carefully and addressing the court in a proper manner.
G. Maintain Your Credibility
As an attorney, maintaining your credibility with the judge is very important—to both you and your client. This is true with prosecutors as well, although in my opinion to a lesser extent. Maintaining a level of credibility will not only benefit your client in the present case; it will go a long way in future dealings with other clients as well. Simply stated, judges and prosecutors have a big part in deciding your client’s future. A little “kindness” on the attorney’s part—and good representation—can go a long way.
Ultimately, both the judge and prosecutor will know if you are aiding the children in such a way as to help them make decisions in their best interests. While not all judges and/or prosecutors act in good faith 100 percent of the time, most are doing what they believe is correct. If you do not agree—and it is fine not to agree—make sure you listen to their reasoning, then make your arguments in a quiet controlled manner.
I will also submit that on occasion, some of these children need to be detained, for a varying number of reasons. These reasons are certainly not limited to whether or not there is any real proof they committed a delinquent act. For instance, they may need drug screening or psychological assessment. In some cases, the child’s safety may need to be ensured. While we, as defense attorneys, never want to see a child detained, we must admit it can be a “good thing” in some cases, especially once we have explored alternative placements without luck.
The bottom line is as follows: If an attorney and/or the clients request a hearing on every case, there is a high probability the individual child is not making an “informed” decision. Then an attorney begins to run the risk that the judge, the prosecutor, or both will not listen when you have a legitimate concern on a detention matter. Granted, there is a very fine line. The attorney will have to use good common sense when making these decisions. Experience plays a vital role here.
Be sure to look at the facts of the case, at least as you are able. Look at the five factors for detention. Definitely look at those services available that might provide for an early release once they are utilized. Finally, don’t be afraid to ask questions of the judge or prosecutor. They may agree to release your client after the services are provided if you agree to waive initially. You can get agreements on the record.
H. Drug Usage
This area is relatively simple. It there is any indication of drug or alcohol use and it is anything other than beer or marijuana, a red flag is present and you should be concerned. If your client is in possession of or admits to using cocaine, methamphetamine, prescription drugs, “bath salts,” or whatever, treat this as an indication of a possible serious problem.
Be careful with these cases. Make sure you discuss it with the client and encourage the child to let you help deal with these issues by talking to others. Use phrases such as “we need to get you well” or similar thoughts, assuring the child you are there to help. As I stated your approach should be simple but forthright. The matter may be far more complicated than you might expect.
I could write a 20-page paper on the definitions relevant to child cases. For purposes of this article, I decided to include a few you may likely to run into initially and how they do or do not apply to juvenile matters. This list is certainly not inclusive, but parents ask about these more often than others.
Bail: Children are not subject to bail. We use detention hearings.
Child: 10–17 (17–18) if conduct occurred before birthday.
Deferred Prosecution: Formal proceedings put off during this period. If completed successfully, the case is dismissed.
Delinquent: Child has been found guilty.
Determinate Sentence: A sentence for a set number of years. It requires approval of a grand jury and can be up to 40 years. The child goes to T.Y.C. and is transferred to T.D.C. at age 18.
Indeterminate Sentence: Child is committed to T.Y.C. for undetermined amount of time, and the T.Y.C. determines release date (usually about nine months).
Law of Parties: Whether a child is legally involved with other children when a crime is committed. The level of participation determines responsibility. Can be very helpful in defending juveniles as, many times, crimes are committed with a group of children around.
Fitness to Proceed: This includes mental or other issues and whether a child understands what is going on around him or her while involved in the crime or in the juvenile system.
Modifications: Involved modifying previous dispositions when a child is already on probation.
J. Ask Others
Never be afraid to involve other attorneys if you run across situations to which you have not been previously exposed. This is especially true of certifications of children to stand trial as adults. These matters usually surface in murders, aggravated assaults, and/or sex cases. Even after several years of practicing in the juvenile law area, I am not hesitant to “run something by” another attorney on some matters. Most will be glad to help and will no doubt call on you when needed.
This article is by no means conclusive nor do I pretend to have even a fraction of the answers for those of you who practice juvenile law. I wrote it in hopes of giving attorneys—those new to the practice of juvenile law—some limited guidance on handling cases in this specialized area of civil/criminal law—the hybrid, if you will.
I do not pretend to know what is right all the time nor what is wrong. The truth is, there are no absolutes. There is only good, hard work by attorneys who truly care about their craft. You will come to know what works for you in your particular county, and what gives you the proper level of confidence in dealing with the matters. Good attorneys are critical to this area of criminal defense. Experience counts most of all. I hope this gets you started!