This article for the Virginia Association of Criminal Defense Lawyers newsletter provides advice on representing juvenile clients

McConnell, Julie Ellen

English

University of Richmond

University of RichmondUR Scholarship RepositoryLaw Faculty Publications School of Law201830 Tips for Excellence in Juvenile DefenseJulie Ellen McConnellUniversity of Richmond, jmcconne@richmond.eduFollow this and additional works at: https://scholarship.richmond.edu/law-faculty-publicationsPart of the Juvenile Law CommonsThis Article is brought to you for free and open access by the School of Law at UR Scholarship Repository. It has been accepted for inclusion in LawFaculty Publications by an authorized administrator of UR Scholarship Repository. For more information, please contactscholarshiprepository@richmond.edu.Recommended CitationJulie E. McConnell, 30 Tips for Excellence in Juvenile Defense, Virginia Champion, Winter 2018, at 12.Page 12 THE VIRGINIA CHAMPION 30 Tips for Excellence in Juvenile Defense By Julie E. McConnell Julie E. McConnell is a Clinical Law Professor and Direc-tor of the Children's Defense Clinic at the University of Richmond School of Law. Through the clinic, she and her students represent indigent children in delinquency cas-es and handle serious offender reviews. The clinic also represents adults seeking resentencing due to Miller v. Alabama on mandatory life sentences they received as minors. Additionally, the clinic represents guardians seeking custody of undocumented children in special immigrant juvenile status cases. 1. Remind clients about dressing appropriately for court, removing earrings, covering tattoos, standing or sitting still, etc. 2. Thoroughly and carefully explain options, collat-eral consequences, and trial/appellate rights, in age appropriate language. 3. Try to invest prosecutors in the rehabilitative goals of juvenile justice. 5. Avoid Probation. In 2016, only 37.3% of all new probation cases were for felony offenses, according to DJJ. Most misdemeanor cases don't need proba-tion supervision. 6. Ask for competency evaluations when appropri-ate. Many kids are not competent and cannot be restored to competency. •According to a UVA study, in 2009, out of 563 youth ordered into restoration services, only 72% were restored to competency, usually within 90-120 days and only about half of those with ID were able to be restored. 7. Prepare your clients (and their parents) to inter-act in a respectful and polite manner in court, say yes ma'am, no ma'am, etc. 8. File for discovery and Brady. Reach out to the prosecutor early and often to discuss the case so you know what Brady to demand. Do your own investiga-tion. Remind prosecutors of their duty to turn over exculpatory sentencing information. 4. Try to send cases back to diversion or get them Taken Un-der Advisement (TUA).* 80% of juve-nile cases are eligible for diversion. Diver-sion is often skipped or denied because of minor technical problems, e.g. a par-ent not following through. We should be trying to get the court to give it a sec-ond chance in these situations. :?:J[i'; rn igWlt.i.~~?!'(j:i~5-%> ~~·-·~iv~fi¢a,· .• ~d.····· 9. Understand grad-uated responses to delinquent behavior in your jurisdiction. Try to keep your cli-ent on the lowest rung of the ladder. It never hurts to argue that there are com-pelling reasons to take an additional offense under ad-visement, treat it as a CH I NS, or even send it back to diver-.•·.· .. ·:···•··-•·li•·trn•·.·•·•·§~~f~ij(11•·~6~.~~·~~91~··~ ... ijMot111~ed········. •· · -:· ·: .. :·::< .. -::.: ... :··:.· .. :.: .::: .. · ... : : ., ~Jt~~~~H..vi(!l ~t~Uta pet11:1~11>.s11~~ · •.~.~-·-·~~:~~~;,g~~ l~~~·-·~<>DJP:~~~t' may ~~v.e-~n t.five~~ .. resolx~d. ~nM.~fgfill~~i~1ID~Y~,~i~··~iV~i.<>~~~~1f7:.f>t.il~~·~~tllf<.e••·~i~p()$1tje>n~• m~~i.,fl~~ ~t.l)rn~-~JPr9~l!tie~•supetyi~iC>l\•re~rn~ ~o .• e>u~-:()f-:St.ate· . ~()~~~~~-~~~~~i~~,~~elt.erq.,! •• p~1t~ing.·co~11.summons, .acc:ept~ ··:~Y.J.~_19~~~g1~§Qm~¢:'t.fO.rJL1veoO~··@~.-•~dL1lt·c.:riminal~ . - :.·,,-'.:~- .. ~::.:: .: .. -.-. ·. -.·_: :_:_·::·:··.:":.: ·: ::.::~ /):/·-~ ;:-~ ~(~ ~:/; ~-;: ~-~; ;.~: :.: :.:;:: :.···: :· sion . THE VIRGINIA CHAMPION Page 13 10. Understand DJJ's Decision-Making Tools to try to reduce disparity in treatment that is currently resulting in the overrepresentation of minorities and children with disabilities throughout the sys-tem: •DAl--The Detention Assessment Instrument is designed to enhance consistency and equity in the decision to detain and to ensure that only those juveniles who represent a serious threat to public safety are held. •YASl--The Youth Assessment and Screening In-strument includes information on the juvenile's contacts with the criminal justice system. •Length of Stay-The Guidelines seek to promote accountability and rehabilitation by using data driven decision-making to support a juvenile's successful re-entry from commitment to the community. The LOS Guidelines were recently amended because they were the longest in the country. •Structured Decision Making-DJJ is currently preparing a structured decision making matrix that should be available statewide. •Understand the Length of Stay guidelines for indeterminately committed youth. See http:// www.djLvirginia.gov/pdf/residential/Guidelines-for-Length-of-Stay.pdf 11. Go to the clerk's office and review the file. •Reviewing custody and/or abuse and neglect pa-perwork can help you more fully understand your client's history. •Review subpoena requests and returns in the court file to get a handle on the witnesses the Commonwealth may call. •There may be enlightening prior psychological reports for our clients or members of their family. •There may be letters from pretrial, diversion, probation, or other agencies of which you will want to be aware. 12. Use §16.1-266.1 to get school, mental health, medical and other records. Tell prosecutor when school has already punished your client. They often don't know. Try to get your client back in school. •§16.1-266.1. Any state or local agency, depart-ment, authority or institution and any school, hospital, physician or other health or mental health care provider shall permit a guardian ad litem or counsel for the child appointed pursuant to this section to inspect and copy, without the consent of the child or his parents, any records relating to the child whom the guardian or coun-sel represents upon presentation by him of a copy of the court order appointing him or a court order specifically allowing him such access. 11•atr4r41i :::~:::::f~'.:f:·~: :'::: :::·; ~·~: ::~::::: 13. Use §16.1-274.2. This code section allows for the use of educational records in the guilt phase of school-based cases when relevant to intent. § 16.1-27 4.2. Certain education records as evidence. A. In any proceeding where (i) a juvenile is alleged to have committed a delinquent act that would be a misdemeanor if com-mitted by an adult and whether such act was committed intentionally or willfully by the juvenile is an element of the delin-quent act and (ii) such act Cont'd on page 14 Page 14 THE VIRGINIA CHAMPION was committed (a) during school hours, and during school-related or school-sponsored activities upon the property of a public or private elementary or secondary school or child day center; (b) on any school bus as defined in§ 46.2-100; or (c) upon any property, public or private, during hours when such property is solely being used by a public or private elementary or secondary school for a school-related or school-sponsored activity, the juvenile shall be permitted to introduce into evi-dence as relevant to whether he acted in-tentionally or willfully any document creat-ed prior to the commission of the alleged delinquent act that relates to (a) an Individ-ualized Education Program developed pur-suant to the federal Individuals with Disa-bilities Education Act, 20 U.S.C. § 1400 et seq.; (b) a Section 504 Plan prepared pur-suant to § 504 of the federal Rehabilitation Act of 1973, 29 U.S.C. § 794; (c) a behav-ioral intervention plan as defined in 8VAC20-81-10; or (d) a functional behav-ioral assessment as defined in 8VAC20-81 -10. 14. Request psychological evaluations and/or social histories when you believe they would be miti-gating. 15. Understand the impact of childhood trauma on future criminal involvement and the ways in which protective factors and resiliency reduce delinquen-cy. Then advocate for dispositions that are trauma-informed. 16. Make sure to remind your clients that they may be drug tested anytime they come to court. 17. Familiarize yourself with evidence-based re-sponses to trauma in your community. For example: •Multi-Systemic Therapy-home-based intervention that focuses on improving the home environment and providing structure. •Family Functional Therapy--The FFT clinical mod-el concentrates on decreasing risk factors and on increasing protective factors that directly affect adolescents, with a particular emphasis on famili-al factors. •Aggression Replacement Therapy-focuses on teaching adolescents to replace aggressive behav-iors with pro-social ones. •Trauma-focused Cognitive Behavioral Therapy-Teaches new skills to process thoughts and feel-ings regarding trauma. O See Transformation through Accommodation: Reforming Juvenile Justice By Recognizing and Responding to Trauma. Eduardo Ferrer 18. Prepare your client for the plea colloquy. •They should be able to explain to the judge what the terms of the plea will be. •What will they have to do? •Will they have to report to probation? •Will they be on the sex offender registry? •Will they be drug tested? •Do they have suspended time, and if so, for how long? •Send them a letter after court explaining again what happened, what they have to do, and when, if necessary, they have to return to court. Send them a copy of the Order. 19. File motions to suppress when appropriate. •Read J.D.B. v. North Carolina and consider argu-ing that the case created a Reasonable Child Standard in custody analysis for purposes of Mi-randa warnings. See THE UNITED STATES SU-PREME COURT ADOPTS A REASONABLE JUVE-NILE STANDARD IN J.D.B. V NORTH CAROLINA FOR PURPOSES OF THE MIRANDA CUSTODY ANALYSIS: CAN A MORE REASONED JUSTICE SYS-TEM FOR JUVENILES BE FAR BEHIND? Marsha L. Levick and Elizabeth-Ann Tierney http://njdc.info/ wp-content/up/oads/2014/10/Levick-Tierney-J.D. B.-and-the-Reasonab/e-Juvenile-Standardl.pdf •Challenge identification when at issue. There is strong science undermining the accuracy of wit-ness identification, especially cross-cultural IDs. •Challenge evidence obtained in violation of your client's rights. Many police officers don't believe that kids have Fourth Amendment rights. THE VIRGINIA CHAMPION Page 15 20. Change the narrative about your client. •Be prepared to share mitigating information that might help in negotiations with prosecutors and others. •Request a Social History as well as a PSR in Circuit Court when appropriate and helpful and meet with the individual who prepares it to familiarize yourself with the services available in the juvenile system. Prepare them to testify. •Consider family members, clergy, teachers, coaches, and others who might be good witness-es for your client. •Obtain supportive letters from employers, teach-ers, counselors, coaches, ministers, etc. 21. Make sure to remind your clients about court dates (Give them one of those free calendars chari-ties send in the mail) and follow-up to remind them to complete dispositional requirements for court. 22. Remind clients to bring documentation to court of completion of community service, Anger Regres-sion Therapy, etc. •Understand the transformation that has occurred at DJJ system. •Avoid mandatory time because it usually can not be suspended in SORs. Can ask use of firearm charges to run concurrently. •Don't let prosecutors convince you a plea agree-ment nullifies SORs. SORs are implicit in any plea agreement involving a serious offender commit-ment. Esparza v. Commonwealth. •To serve time in DJJ, must be either a direct or indirect commitment. Make sure that a commit-ment is included in the sentencing if that is what juvenile client wants or they will go straight to DOC. Oln 2016, DJJ spent $171,588 a year per kid in direct care. <>Argue that it is counterproductive to hold young people beyond the point at which they have been rehabilitated. See Lambie, I., & Ran-dell, I. (2013 ). The impact of incarceration on ju-venile offenders. Clinical Psychology Review, 33, 448-459. See also http://www.djj.virginia.gov/ pdf/residential/Guidelines-for-Length-of-Stay.pdf 23. Make sure your clients know their appellate rights. 27. Familiarize yourself with important juvenile-24. File motions for reconsideration when appropri- focused SCOTUS cases: ate. 25. Educate clients in general about their constitu-tional rights for future police encounters. Give them a "Know Your Rights" document. 26. Adequately prepare for Serious Offender Re-views. •Thoroughly familiarize yourself with the statute's nuances. •Visit clients at DJJ early to prepare and review allocution or testimony. •Many judges and prosecutors do not understand SORs and that the entire sentence can be modi-fied if not mandatory. •Get to know the staff at DJJ and have them testi-fy. •Roper v. Simmons (2005}-Death Penalty is un-constitutional for minors. •Graham v. Florida (2010)-No LWOP for non-homicide offenses for minors. Individualized sen-tencing. •J.D.B. v. North Carolina {2011)-Have to consid-er age in custody analysis for minors. •Miller v. Alabama (2012)-No mandatory LWOP for homicide offenses for minors. Life is for the rare offender who is permanently incorrigible. •Montgomety v. Louisiana (2016)-Mi//er is retro-active and there must be a meaningful sentenc-ing hearing. Cont'd on page 19 THE VIRGINIA CHAMPION Page 19 not intend to increase the punishment in Code§ 18.2-53.1. Also, one would expect the imposition of a po-tential maximum life sentence on so common an offense to generate a heated debate-this bill passed unanimously in both the House and Senate. When the General Assembly wishes to impose a life sen-tence, it knows how to make its intent manifest. The majority further rejected drawing a judicial inference of a legislative intent to impose life in prison as incon-sistent with longstanding Virginia practice. Commonwealth v. Botkin. Rec. No. 0458-17-3 {October 24, 2017) Facts: Appellee pied guilty to two counts of possession of a firearm by a convicted nonviolent fel-on. The trial court sentenced appellee to 5 years with 3 years suspended for each conviction. The trial court ran these sentences concurrently. The Common-wealth appealed. 30 juvenile Defense Tips, Cont'd from page 15 28. If you are representing a young person on a case in which they are facing significant time, use the lan-guage of Montgomery and Miller to demand the re-sources necessary to present a capital-like sentenc-ing hearing. 29. Consider victim outreach through an expert or at a minimum through sentencing experts in your office. 30. Ask for experts using the language of Miller and Montgomery as justification: •Ask for a forensic psychologist to explain adoles-cent development, family history, remorse, prior delinquent behavior, mitigation, school records, etc. •Ask for the appointment of a mitigation expert to investigate your client's background and gather all the necessary records to develop a mitigation Holding: The trial court erred in ordering that the sentences for appellee's two convictions under Code§ 18.2-308.2 run concurrently. The language of Code§ 18.2-308.2 is clear and unambiguous: "The mandatory minimum terms of imprisonment pre-scribed for violations of this section shall be served consecutively with any other sentence." The word "any" in the statute unambiguously includes any oth-er sentence, including another sentence under the same code section. case. •If there is gang involvement, consider a gang ex-pert. •Consider a reentry expert to explain how your client can be stabilized in the community if he is allowed a shorter sentence. Julie E. McConnell Director, Children's Defense Clinic Clinical Professor of Law 28 Westhampton Way Richmond, VA 23173 Jmcconne@richmond.edu Phone: (804) 289-8921 Twitter: @JMcConnelllaw 

30 Tips for Excellence in Juvenile Defense

https://scholarship.richmond.edu/cgi/viewcontent.cgi?article=2448&amp;context=law-faculty-publications

30 Tips for Excellence in Juvenile Defense

Abstract

Similar works

Full text

Available Versions

University of Richmond