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Improving a child's access to counsel

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Juvenile Justice

Wayne Superior Judge Darrin Dolehanty makes it a priority in every case to appoint an attorney for a juvenile as soon as the court learns a child has been detained.

He doesn’t give the parent or child a chance to waive that right to counsel before the proceedings begin.

“As soon as we get word about a detention or petition, an attorney is appointed,” the judge said. “I don’t know if you can do it more quickly than that, but unfortunately many counties don’t do that every time. That’s a shame, because this is something that has real meaning and we need to make sure children are represented.”
 

dolehanty-darrin-mug.jpg Dolehanty

Many counties throughout Indiana don’t operate the way Wayne Superior 3 does in appointing counsel or sidestepping waivers. A proposed draft rule from the Indiana State Bar Association is being submitted to the state judiciary’s rulemaking committee to address the right to counsel issue, putting in place a systematic requirement that youth have adequate attorney representation from the start of their experience in Indiana’s juvenile justice system.


JaeNue Hanger Hanger

“This is a very big deal for children in our juvenile system,” said Indianapolis civil rights attorney JauNae Hanger, who chairs the ISBA’s Civil Rights of Children Committee that has studied and created the proposed rule during the past year. “We’re trying to bring consistency so it doesn’t vary so much county by county. We’ve been on the road to getting here for a long time.”

The problem

Nationwide, the discussion has been ongoing since the landmark case In re Gault from the Supreme Court of the United States in 1967 that established the right to counsel for juveniles. The Indiana-specific discussion stretches back more than a decade, but evidence of the state system’s flaws came to light in April 2006. A study commissioned by the Indiana Juvenile Justice Task Force revealed the shocking depth of defects in the juvenile justice system and how many kids don’t have adequate access to an attorney.

Although Indiana Code 31-32-4-2 requires the appointment of counsel at the first detention or initial hearing, many courts forfeit that appointment using IC 31-32-5-1 that allows a parent to waive his or her child’s rights.

The report’s findings show about half of youth routinely waived their right to counsel and therefore didn’t have a sufficient understanding of their rights and the benefits of representation. More than a third of youth proceeded through court without counsel, and the rate was as high as 80 percent in two counties. The study found that when a juvenile consulted with a lawyer, nearly 90 percent never or rarely waived their right to counsel, but when a youth only consulted with a parent, about 75 percent waived the right.

After the report’s release, many responded that they’d heard anecdotal evidence of the problem but they didn’t truly understand the magnitude of the issues. The state vowed change, but systematic efforts to improve that attorney access have not happened in the past five years.

Some courts have strengthened and increased their appointment practices, and statewide training of judges and public defenders has occurred annually. But much remains the same and many say a child’s access to counsel continues to largely depend on what county and court system that child is in.


landis-larry-mug Landis

Larry Landis, executive director of the Indiana Public Defender Council, said counties that do appoint counsel in every case say it helps expedite dispositions and actually saves taxpayer money in the long run because the kids are less likely to get back into the system. Local counsel know service providers and out-of-state placement options better and help make the best decisions based on a child’s individualized needs, he said.

“Saying children have the right to a lawyer isn’t enough,” he said. “As of now, it’s a paper right in Indiana and we don’t go beyond that in actually making sure they have counsel when they need it. Those who need or want counsel must also have the ability to get an attorney across the board, not based on the location.”

The rule changeaccess-to-counsel.gif

With the ISBA’s proposal, the state’s juvenile justice community sees hope that Indiana is finally moving forward on addressing this issue.

In October, the state bar association’s governing board unanimously approved a draft rule requiring adequate counsel in juvenile proceedings. The draft says that an attorney would be appointed prior to the first-occurring detention or initial hearing and that no child or parent could waive his or her right to counsel without first “engaging in meaningful consultation” with an attorney. Specifically, it says any waiver would have to be made “knowingly and voluntarily” in open court.

“This doesn’t create anything new that’s not already in the constitution,” Hanger said. “It just provides safeguards to make sure that children get counsel.”


karozos-amy-mug.jpg Karozos

Amy Karozos, a staff attorney with the Youth Law T.E.A.M. of Indiana who chaired the ISBA committee when the 2006 report was released, said she’s pleased to finally see movement on this issue. She recalls her days as a state public defender when she observed so many children in the Department of Correction who hadn’t been represented at any stage of the legal process or had such inadequate representation that they didn’t recall if they’d consulted an attorney.

“This would make a big difference in helping kids understand their rights,” Karozos said about the rule change. “All children would be treated the same, no matter where they’re from. This would be significant, so you don’t have justice by jurisdiction.”

Those who’ve helped nurture the proposal during the past five years anticipate a potential decision could come by 2013 – if the Indiana Supreme Court agrees a rule change is needed and this is the best way to go about improving the system. Once the proposal goes to the Supreme Court’s Committee on Rules of Practice and Procedure there is no set timeline on a decision as to whether the rule revision is warranted or how that public comment and revision process would happen.

Kim Brooks Tandy, a lawyer who leads the Kentucky-based Children’s Law Center and principal author of the Indiana access to counsel assessment in 2006, said about 20 states have had similar assessments done. Some places, such as Illinois, Kentucky and Texas, have court rules or statutes that don’t permit waivers at any stage of the juvenile delinquent process, while other jurisdictions, such as North Carolina, have created state-level offices to ensure more appellate review and public defense for juveniles. Ohio is in the middle of a five-year rule-change process with the public comment period closing on a proposal to restrict waivers, similar to what Indiana is considering.

Although Indiana has moved more slowly than she expected, Tandy is encouraged by the ISBA and overall legal community support here.

“Sometimes, you have to build an infrastructure,” she said. “This has happened slowly, but you can’t rush these things. I’m encouraged that it’s picking up momentum now. The next challenge after this, if it’s passed, would be implementation. This can be a part of the culture of a particular county, and it’s important to make sure that becomes the state’s culture on appointing counsel. We don’t want to wait until the point of a child being committed to the DOC, and someone looks at a file and sees that child has never been represented. That’s a failure for our system.”•

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  1. I have been on this program while on parole from 2011-2013. No person should be forced mentally to share private details of their personal life with total strangers. Also giving permission for a mental therapist to report to your parole agent that your not participating in group therapy because you don't have the financial mean to be in the group therapy. I was personally singled out and sent back three times for not having money and also sent back within the six month when you aren't to be sent according to state law. I will work to het this INSOMM's removed from this state. I also had twelve or thirteen parole agents with a fifteen month period. Thanks for your time.

  2. Our nation produces very few jurists of the caliber of Justice DOUGLAS and his peers these days. Here is that great civil libertarian, who recognized government as both a blessing and, when corrupted by ideological interests, a curse: "Once the investigator has only the conscience of government as a guide, the conscience can become ‘ravenous,’ as Cromwell, bent on destroying Thomas More, said in Bolt, A Man For All Seasons (1960), p. 120. The First Amendment mirrors many episodes where men, harried and harassed by government, sought refuge in their conscience, as these lines of Thomas More show: ‘MORE: And when we stand before God, and you are sent to Paradise for doing according to your conscience, *575 and I am damned for not doing according to mine, will you come with me, for fellowship? ‘CRANMER: So those of us whose names are there are damned, Sir Thomas? ‘MORE: I don't know, Your Grace. I have no window to look into another man's conscience. I condemn no one. ‘CRANMER: Then the matter is capable of question? ‘MORE: Certainly. ‘CRANMER: But that you owe obedience to your King is not capable of question. So weigh a doubt against a certainty—and sign. ‘MORE: Some men think the Earth is round, others think it flat; it is a matter capable of question. But if it is flat, will the King's command make it round? And if it is round, will the King's command flatten it? No, I will not sign.’ Id., pp. 132—133. DOUGLAS THEN WROTE: Where government is the Big Brother,11 privacy gives way to surveillance. **909 But our commitment is otherwise. *576 By the First Amendment we have staked our security on freedom to promote a multiplicity of ideas, to associate at will with kindred spirits, and to defy governmental intrusion into these precincts" Gibson v. Florida Legislative Investigation Comm., 372 U.S. 539, 574-76, 83 S. Ct. 889, 908-09, 9 L. Ed. 2d 929 (1963) Mr. Justice DOUGLAS, concurring. I write: Happy Memorial Day to all -- God please bless our fallen who lived and died to preserve constitutional governance in our wonderful series of Republics. And God open the eyes of those government officials who denounce the constitutions of these Republics by arbitrary actions arising out capricious motives.

  3. From back in the day before secularism got a stranglehold on Hoosier jurists comes this great excerpt via Indiana federal court judge Allan Sharp, dedicated to those many Indiana government attorneys (with whom I have dealt) who count the law as a mere tool, an optional tool that is not to be used when political correctness compels a more acceptable result than merely following the path that the law directs: ALLEN SHARP, District Judge. I. In a scene following a visit by Henry VIII to the home of Sir Thomas More, playwriter Robert Bolt puts the following words into the mouths of his characters: Margaret: Father, that man's bad. MORE: There is no law against that. ROPER: There is! God's law! MORE: Then God can arrest him. ROPER: Sophistication upon sophistication! MORE: No, sheer simplicity. The law, Roper, the law. I know what's legal not what's right. And I'll stick to what's legal. ROPER: Then you set man's law above God's! MORE: No, far below; but let me draw your attention to a fact I'm not God. The currents and eddies of right and wrong, which you find such plain sailing, I can't navigate. I'm no voyager. But in the thickets of law, oh, there I'm a forester. I doubt if there's a man alive who could follow me there, thank God... ALICE: (Exasperated, pointing after Rich) While you talk, he's gone! MORE: And go he should, if he was the Devil himself, until he broke the law! ROPER: So now you'd give the Devil benefit of law! MORE: Yes. What would you do? Cut a great road through the law to get after the Devil? ROPER: I'd cut down every law in England to do that! MORE: (Roused and excited) Oh? (Advances on Roper) And when the last law was down, and the Devil turned round on you where would you hide, Roper, the laws being flat? (He leaves *1257 him) This country's planted thick with laws from coast to coast man's laws, not God's and if you cut them down and you're just the man to do it d'you really think you would stand upright in the winds that would blow then? (Quietly) Yes, I'd give the Devil benefit of law, for my own safety's sake. ROPER: I have long suspected this; this is the golden calf; the law's your god. MORE: (Wearily) Oh, Roper, you're a fool, God's my god... (Rather bitterly) But I find him rather too (Very bitterly) subtle... I don't know where he is nor what he wants. ROPER: My God wants service, to the end and unremitting; nothing else! MORE: (Dryly) Are you sure that's God! He sounds like Moloch. But indeed it may be God And whoever hunts for me, Roper, God or Devil, will find me hiding in the thickets of the law! And I'll hide my daughter with me! Not hoist her up the mainmast of your seagoing principles! They put about too nimbly! (Exit More. They all look after him). Pgs. 65-67, A MAN FOR ALL SEASONS A Play in Two Acts, Robert Bolt, Random House, New York, 1960. Linley E. Pearson, Atty. Gen. of Indiana, Indianapolis, for defendants. Childs v. Duckworth, 509 F. Supp. 1254, 1256 (N.D. Ind. 1981) aff'd, 705 F.2d 915 (7th Cir. 1983)

  4. "Meanwhile small- and mid-size firms are getting squeezed and likely will not survive unless they become a boutique firm." I've been a business attorney in small, and now mid-size firm for over 30 years, and for over 30 years legal consultants have been preaching this exact same mantra of impending doom for small and mid-sized firms -- verbatim. This claim apparently helps them gin up merger opportunities from smaller firms who become convinced that they need to become larger overnight. The claim that large corporations are interested in cost-saving and efficiency has likewise been preached for decades, and is likewise bunk. If large corporations had any real interest in saving money they wouldn't use large law firms whose rates are substantially higher than those of high-quality mid-sized firms.

  5. The family is the foundation of all human government. That is the Grand Design. Modern governments throw off this Design and make bureaucratic war against the family, as does Hollywood and cultural elitists such as third wave feminists. Since WWII we have been on a ship of fools that way, with both the elite and government and their social engineering hacks relentlessly attacking the very foundation of social order. And their success? See it in the streets of Fergusson, on the food stamp doles (mostly broken families)and in the above article. Reject the Grand Design for true social function, enter the Glorious State to manage social dysfunction. Our Brave New World will be a prison camp, and we will welcome it as the only way to manage given the anarchy without it.

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