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Criminal Justice Magazine
Spring 2000
Vol. 15, Issue 1

Representing a Child in Adult Criminal Court

By Malcolm C. Young

My first two visits with Latasha Armstead in the Juvenile Detention Center in Milwaukee, Wisconsin, were easy. I was there as a consultant brought in by Robin Shellow, a private practice lawyer who took the case pro bono. Shellow, who has represented more than 40 young homicide defendants in the past decade, was just what Latasha needed. The girl was charged with first degree intentional homicide in the strangulation death of her grandmother's care provider. Although it was Latasha's 17-year-old boyfriend who actually killed the caregiver, Latasha was in the car when it happened, drove the car afterwards, and stayed with her boyfriend until their arrest two days later. Under a 1996 revision to the homicide statute, Wisconsin can try children as young as 10 in adult court for first degree homicides. At 13, Latasha was the youngest child charged under this state law. After two years of unsuccessful appeals challenging the trial court's denial of her motion to dismiss, Latasha was now about to go to trial. Shellow, adept at dealing with child defendants, wanted a second opinion and asked my impressions of her client, including how I thought Latasha would appear to a jury and what I might suggest for her defense strategy. During the first visit, Latasha and I talked about her life and what she liked to do. Eventually, at Shellow's urging, the 15-year-old cautiously shared some of her writings with me and told me what she had read. It went well, and after the second interview, Shellow asked, "Why not leave the sidelines and come and try her case with me?" Although there were a lot of reasons not to-I hadn't been a trial counsel for 18 years-I decided this was the time to come back. Now, I was no longer the visiting consultant who could offer suggestions and walk out the door. I was second chair, responsible for the fate of a young girl charged with murder. I tried to recall during my six years as a criminal and juvenile defense lawyer in Chicago (during a time when there was no death penalty in Illinois) whether any of my clients or those of my colleagues had faced mandatory life. None had. Times have changed; the stakes are higher. With Shellow's encouragement and assurances I would not be left to handle anything beyond my scope, I began to feel comfortable in the courtroom again. My first motion hearings were exciting-a return to familiar ground where I felt I belonged. My confidence grew. But something felt "off." Maybe I belonged there, but Latasha didn't. It was not just the horrific penalty that she faced, but the fact that at every critical point she and her case showed how poorly equipped most children are to defend themselves or be defended in adult criminal court. Latasha taught a great lesson in awful detail: A child in adult criminal court is at a huge disadvantage, not just when compared to children in juvenile court, but against adults charged with similar crimes in the same court. Her trial demonstrated that the due process and fact-finding protections, the ingredients of fundamental fairness that can be made to work so well for adults, hardly work at all for kids tried as if they were adults. What follows is a step-by-step analysis, using Latasha's case for illustration, of how children prosecuted as if they were adults are deprived of their rights and penalized for being children in a grown-up court.

The commission of crime

Kids make sloppy criminals and bad defendants. Even if they manage to hide their actions in the first place, it's often just bad luck that their crimes aren't detected in the making, before anyone is hurt or anything stolen. Such was the case for Latasha, whose crime occurred in broad daylight inside a car in a residential neighborhood. Anyone could have driven by during the moments of violence or observed the 13-year-old driving for the first time on a snowy city street in rush hour traffic. The aftermath was even less planned. Other children witnessed incriminating activities, the stolen car was not hidden or disguised and police found it within two days, and the victim's personal effects were in plain view in Latasha's house when the police arrived. No one should make light of the terrible things children can do, but no lawyer can ignore that most children who commit a serious crime leave an incriminating trail like so many dirty dishes after a forbidden midnight snack. Arrests come quickly. And prosecuting children is like shooting ducks in a penny arcade. Strong, traditional defenses such as identification and alibi are rare. The defense is left with questions of state of mind or lack of intent to commit a specific crime, not the easiest defense to present for an adult, and far less so for a child.

At arrest

From a child's perspective, it's natural to talk to authority figures, and when arrested they readily "confess" to the police. My colleagues who frequently represent children tell me kids never fail to spill their guts to cops. Of course, some would argue that true confessions only aid law enforcement, and if children readily confess, then justice is well served. But it isn't that simple. Kids who confess tend to overimplicate themselves. Shortly after her arrest, Latasha told police she obtained the cord used to strangle the victim from a room in her house. In his statement, Latasha's boyfriend and codefendant claimed credit for the same act, but said he got the cord from a different room. Only one could have been telling the truth. Latasha also told the police that she was responsible for ideas and actions to which her codefendant admitted. This is not unique. As Dewey Cornell, an associate professor of education at the University of Virginia and nationally recognized expert in juvenile homicide cases, reported to Latasha's judge at sentencing, "It is not unusual for adolescent codefendants to protect one another by assuming responsibility for a crime. Some adolescents will confess to crimes they did not commit, or make other statements that incriminate themselves and lessen the criminal responsibility of codefendants." We saw this in several instances in Latasha's case, and could do little about it. When the charge is murder and there is an issue of vicarious liability or conspiracy, overincrimination usually means a conviction on the most serious offense rather than a reduced verdict. The result is years added to an already long prison sentence. After Latasha's arrest, she over-incriminated herself in her statement to police. The reason would only become apparent to us much later. Once we correctly figured out why she was reluctant to admit to the whole truth of what she did that day, it became the centerpiece of our defense. As her boyfriend strangled the victim, Latasha slipped a knife under the cord, cutting the woman on the neck and the wrist. During a motion to transfer the case back to juvenile court, Shellow established that these wounds were superficial, breaking only the outer layer of skin, and occurred near the moment of death. (Unlike police reports and media stories, Latasha had not "slashed" the victim.) Yet, for months, Latasha insisted on a strange version of the truth. Although she readiliy admitted to police that she had held a knife to the victim's throat, she denied she cut her. As it turns out, we discovered that when Latasha saw blood on the car seat, she believed she had killed the caregiver. In her faulty, childish reasoning, she felt she was offering "helpful" information when she admitted to holding the knife, but chose to deny what she thought to be the most incriminating evidence-that she had cut the skin. As her lawyers, we spent months in patient and often difficult discussions with Latasha in order to work through her teenage fears and misperceptions of reality. Once we gained her trust, we learned the real facts about Latasha's handling of the knife. The police, meanwhile, let her denial stand. As long as she admitted to holding the knife and confessed her sense of guilt, Latasha's statement quickly brought the prosecutors, the media, and a jury very close to the point at which it seemed impossible not to conclude that the 13-year-old must have intended to take the victim's life. But police never asked her "Why?" The real explanation would have been offered by an adult at the very start of police questioning. Latasha's inability to see this clearly ended up hurting her case. There are other ways juveniles penalize themselves. During interrogation, they will easily agree to words the significance of which would scare an adult. In Latasha's case, the police littered her confession with "planning words" and words suggesting "agreement" between the codefendants. It allowed them to establish the premeditation and intent necessary for conviction on first degree murder. This common police practice is far too sophisticated for a kid to pick up as he or she readily initials each page of the confession, skipping over words that have no specific meaning to them. In the police station and then later at trial, Latasha could not convey the subtle distinction between "agreement" and "acquiescence." This distinction was of no interest to the police, and, by the time of trial, it was too late. This article does not touch on the question of coerced statements, such as in the Ryan Harris case in which a young Chicago girl was murdered and two boys, ages seven and eight, were arrested and charged following a police interrogation in which the parents were not present. The charges were later dropped when a known child molester was connected by DNA to the case. The public, however, was outraged by the police conduct in regards to the questioning of the young suspects. Nor is this an effort to suggest that Latasha's statement was a "false" confession. As a child facing first degree intentional homicide charges, with plenty of physical evidence, her problem was far more subtle: she participated in what the police characterized as "planning," but we argued, she later changed her mind. She was, after all, of an age when kids change the clothes they will wear three times before they go out the door. Did the child Latasha ever make up her mind to take a life, or did she do so and change her mind, or did her indecision reflect lack of understanding and/or intent throughout? Is a child required to be held to the same inferences about intent, as an adult who wakes up, figures out the day, listens to the weather report, and dresses accordingly? In the context of police interrogations and criminal court processes with adult rules and penalties, the whimsical changing mind of the child is all but obscured. No one will admit to it. From the police statement onward, the job of Latasha's counsel was to convince a jury that she was, very much, a child with nothing more than a child's mind at work. The police statement made this difficult to do.

Bail or bond hearings

Because of the charge against her, bond was impossible for Latasha. But I have seen bond set for many children in adult court, and a child like Latasha would have failed the tests. With only an alcoholic, substance-abusing, and absent mother, and a disabled grandmother, Latasha would have had no adult to sponsor or house her. She was not in school, she had no job, and she had no money. She lived without social services or family support. The agencies that help children like her are almost unknown to criminal court probation officers, most criminal defense lawyers, and criminal courts. They are based in juvenile court, and therefore unavailable to the children who are initially charged in adult criminal court. The questions asked by a judge setting bond in adult court do not work for children, who are almost never employed, seldom own property, and frequently lack "ties to the community" that are factors judges are supposed to consider. Knowing this, some criminal court judges do set bail that would be low for an adult with the expectation that the child will be released. But even low bail for an adult is often unattainable for a child whose family is poor or nonexistent, and children remain in jail while adults in similar situations would be released.

Probable cause and preliminary hearings

Under the new Wisconsin law that resulted in her being charged as if she were an adult, Latasha faced a combined probable cause and "reverse waiver" hearing to see if she would be transferred from criminal to juvenile court. Due to her constitutional challenge to the newly revised Wisconsin homicide statute, she was afforded nearly four months to meet with her lawyers before the first substantive hearing-time to investigate and obtain discovery. When Latasha suggested that she had been coerced into committing a crime, Shellow knew there was minimal evidence to support the claim. Eventually, Shellow determined that Latasha was following a train of thought she picked up from one of the mental health professionals who had seen her early on. She was able to avoid following Latasha's false leads and pursued issues at the probable cause hearing for which there was an inherent evidentiary integrity rather than be stuck with an ill-conceived defense adopted by a child who didn't have the capacity to understand that the truth was more helpful than the lie. It is not this way for most children in criminal court. The challenges to new laws that slowed down the proceedings in cases such as Latasha's are now settled in many jurisdictions. Most criminal courts are crowded, especially at the preliminary hearing stage. The public defenders or assigned counsel who represent poor people in those courts have many clients and little time. First interviews often last a few minutes in a crowded lockup or holding area. There is no time for the lawyer to pursue issues or explore answers. This puts children, who are poorly equipped to sort out facts and information according to what is important, at a sharp disadvantage to most adults who can usually tell their lawyers what they need to know at that first hearing. It probably would have been impossible to determine the truth of Latasha's case under those circumstances.

Preparing for trial

Latasha, like most children, didn't know that details were helpful and generalities were hurtful to her defense. She would try to filter information according to her perceptions, which were inevitably flawed. In the face of repeated inquiries, she would become frustrated, assert "I told you that already," or "I ain't talking no more if you ain't listening." Interviews became strained and stressful. It was not just the painful subject matter, but the necessity of shaping it into the context demanded for a criminal jury trial-bringing the child to the point of being able to talk about a horrendous situation as if she had the insight, maturity, and years of experience of a normal life. Latasha didn't want to deal with it. She would mope. She would shrug. She would grow silent for long periods of time. In short, she never became an adult defendant and remained the obstinate child. No legislation or order of court could change that. Ours was not a unique experience for lawyers working for children. Kids seldom remember addresses, full names, or descriptions, and they are terrible at sorting out facts that are important to their defense. They protect parents or elders, as Latasha did when she minimized her mother's drug problems and postcrime participation. Children tend to idealize roles and tell stories designed to picture the world as they wish it would be. Latasha idealized her description of life at her grandmother's house. She left out that by age 12 she was the oldest able-bodied person in the apartment and did all the cooking, shopping, and cleaning. She never told me, until I asked, that she washed the feet of her invalid grandmother, and helped her in the bathroom. She never complained about a childhood stolen from her; we had to pull the details out. It took Shellow and her team of experts two years of hard work to get all the background facts. Many lawyers-particularly public defenders-do not have the time or the staff to conduct daily interviews, build trust, and explore the child's mind.

The truth at last

It was only at the end of this long period of trust-building that Shellow figured out why Latasha had so much difficulty describing how she cut the victim's neck. Despite expert medical testimony that the victim died from strangulation, which Latasha heard at the preliminary hearing, she held on to the belief that the superficial knife wounds she inflicted caused the victim's death. By refusing to admit she had cut the victim, Latasha felt she was protecting a terrible secret, when, in fact, she was concealing a fact that supported her best defense. As Shellow and her staff pored over photographs, physical evidence, mock-ups of the scene, and recently received transcripts of testimony of the codefendant from his trial, it became apparent that the transcript would be critical to the teenager's defense. The codefendant described Latasha's actions with the knife: "She was trying to cut her neck under the cord," he said, as if he meant below the cord, lower down on the neck. Rereading it, Shellow interpreted it to mean Latasha had inserted the knife underneath the cord, against the neck. Then she recognized the significance of the codefendant's description of Latasha "pulling at the knife." In this case, pulling away from the victim, against the cord. Carefully, Shellow merged the physical evidence with the information gained from Latasha to form a picture of what actually happened in the car. Her eventual hypothesis-the only one into which all the pieces seemed to fit-was that Latasha had attempted to rescue the victim. We framed a new set of questions and went to talk to Latasha. Surprised and losing her fear of admitting to cutting the victim with the knife, Latasha slowly and for the first time filled in details that convinced us that she had a defense to the most serious charge against her. What had been characterized as "slashing" could now be seen as evidence of lack of intent to kill. Because she could barely carry the weight of discussing the knife, we spent hours with Latasha going over the episode. By the time she was able to give a clear account, it was the eve of trial.

Putting children on the witness stand

Defense lawyers are always of two minds regarding whether their clients should testify on their own behalf. Adults find it a fearful opportunity to be confused, contradicted by prior statements, or to make an unintended admission. For a child, the risks are greater, yet Latasha, now 15, had to testify. No one else could explain why she had done what she'd done or why she denied to police she had cut the victim. It was particularly necessary for Latasha to testify because, until November 1999, Wisconsin barred expert testimony on any issues surrounding state of mind in the case in chief. The load this teenager carried was enormous. She alone could describe for a jury the subtle influence her boyfriend had over her, the sense of protection he offered a girl who had been raped at the age of 12, and the power of her fear of abandonment. Although the medical examiner could hypothesize about what made various wounds, Latasha alone could describe her actions with the knife, including not only the effort to cut the cord, which left the superficial cuts on the victim's neck, but a slip that we believed had cut the victim's wrist. Shellow had professional drawings and a computer-animated video prepared, but the court denied their use as demonstrative evidence. Admittedly, it might have been hard for Latasha to qualify the evidence. Although an adult defendant would be better able to understand and "teach" a jury using visual aids, a child is simply not used to a graphic artist's conventions, the orientation of the drawn figures, and the use of teaching aids generally. But we would have liked to have had the chance. I was left wondering about the fairness of rules of evidence under which the state can obtain permission for a child sex abuse victim to use anatomical dolls to help illustrate embarrassing testimony, but defense lawyers cannot make use of standard trial aids to help explain what a child did during a traumatic crime. Preparing to take Latasha's testimony was a nightmare. She could not talk with her lawyers about the facts of her case for more than 20 minutes at a time without closing down in fear. She was easily confused. I've seen adults of all abilities do better than did this 15-year-old. At times she simply couldn't understand what to expect, how the prosecutor might question her, how she would have to talk into a microphone, and why it was important she wear a dress, not jeans. At trial, Latasha testified for more than two hours under my direct, telling as much as the court would allow. I was ecstatic and proud of her. She had risen to the occasion in ways I hadn't thought possible. The audience, however, had a different reaction. They saw only the girl who appeared on the stand or sat at counsel table, deathly afraid of the camera crew that covered her case for C-Span. They hadn't seen how far she had come. To them she appeared reluctant and detached. The next morning the newspaper reported that Latasha spoke in a "flat monotone," and that she "showed no emotion as she recounted [the victim's] slaying." As her lawyers, we knew differently, but feared this was bad news for a jury. It was hard to face Latasha. She had tried so hard, come so far, and felt so much pain in doing the best she could. It hadn't been enough. By adult standards, Latasha did poorly under cross-examination. Shellow had warned me; I was more confident. But a child's desire to please overcame Latasha, who did not want to make the district attorney or the court angry. The prosecutor was gentle and children want to believe that an adult who is nice will not hurt them. It is not difficult to lead them into giving answers that hurt them at trial. A child like Latasha falls easily to a clever cross-examination that takes advantage of classic evidentiary tactics such as prior inconsistent statements. On cross-examination, Latasha compounded the damage done in her statement to police. The prosecutor got Latasha to say again and again that she did not remember the damaging statements-that she had "planned" the crime and that she had left her house "knowing" there was an agreement to kill the victim. Latasha spoke honestly when she said she did not remember all that she might have said to the police. We did not allow her to study her statements to the police, fearing that it would confuse her testimony in a way it would not an adult. Despite rehabilitation on redirect, explaining why she had made some of the damaging statements to the police was mostly beyond her. She would have had to reconstruct and credibly explain the sequence of events and her thought process at the time of the crime. This would be a challenge for many adults; children simply lack the language and the insight.

Plea bargaining, instructions, decisions

Children have marginal competency to understand many aspects of the court system, but they suffer most in being asked to accept or reject plea offers designed for adults who have some life experience behind them. Observing other cases, I have seen that children in court and in custody are eager to accept any arrangement that gets them "out" or home. At Latasha's age, they don't grasp the significance of long-term consequences, such as those that apply for failure to comply with terms of probation. They barely grasp the significance of a sentence of the months or years of incarceration, and are incapable of weighing the strength of a case against their desire to go home "right away!" Plea bargaining is just another negotiation for lawyers in adult court. When the prosecution has a weak case, or if they want your client's information or as a witness against another defendant, they will offer a good deal to get it. Children tend to receive worse offers than a similarly situated adult, in part because they perform poorly in the witness stand. In fact, the state had successfully prosecuted Latasha's codefendant without her testimony. Latasha's case was unlikely to have been pled in any event. The state made an offer that gave the judge the discretion to sentence Latasha to 40 years in an adult prison, and so the issues were fairly straightforward. But issues similarly complex to those posed by plea negotiations emerge in cases that go to trial. In Wisconsin and other states, the defendant has the right to ask that the jury consider a lesser degree of homicide if there is evidence to support that lesser-included offense. This decision is uniquely the defendant's to make. It requires a complex weighing of factors and as much rational thought as possible. We requested the lesser-included offense of felony murder, arguing that Latasha's efforts to cut the cord from the victim's neck demonstrated a lack of intent to kill, leaving her guilty of felony murder because she had joined the enterprise to steal the victim's car. Under a new Wisconsin statute, a conviction for felony murder would have resulted in a mandatory return to the jurisdiction of the juvenile court where she would be released at the age of 18. The judge denied our request. Had we won with the court, Latasha would have had to weigh the factors that go into electing whether or not to allow the jury to consider a lesser-included offense. It would have been her choice, but as a witness to her immaturity, it seems sheer fiction to pretend that any child would have adequately understood and been able to balance the information upon which such a decision should be based.

At sentencing

In many less serious cases, children in adult court are penalized because the officials in charge of recommending alternatives to incarceration do not know the needs of children or the programs available. Judges, prosecutors, and defense attorneys in criminal court are in a similar situation. They are unfamiliar with the resources for children or the symptoms of learning disabilities, mental illness, or physical shortcomings such as asthma, lead poisoning or head injuries that affect children and should be considered in their sentencing. Adults have medical histories that they can articulate; children are often uninformed about their medical conditions. Children can also fail miserably at meeting the adult test of "showing remorse." And, kids in trouble often have poor school records and pessimistic psychiatric summaries for references. Certainly this would have been true for Latasha, who with her grandmother's consent dropped out of school nearly a year before her arrest. Latasha never had the option of a community-based sentence. Having lost at trial, in part because we were unable to establish without expert witnesses that she was a severely damaged and limited child who had abandoned her intent to kill, she faced a life sentence where the judge has the authority to set a parole eligibility date. Latasha suffered in comparison to an adult sentenced for the same crime: "life" is a longer sentence for a child than for an adult. Moreover, children who have gone into the adult prison system do not adjust well to the adult rules: they often end up with disciplinary actions against them that result in denial of parole for years after they have served the minimum time. In some sense, though, and perhaps for the first time in the legal process, Latasha did not completely lose at sentencing. Her case attracted national and international attention and coverage in the press, leading to statements of support and a sense that people outside the courtroom were paying attention to what happened to this child. Norval Morris, a prominent legal scholar and criminologist, spoke on her behalf. Human Rights Watch, Amnesty International, and other children's activists groups sent letters eloquently pleading the case for leniency. At her sentencing hearing, the court ordered that Latasha be eligible for parole in 17 years, 42 months more than the minimum, but far less than the 100 years assigned to her codefendant. In the context of the trial, we considered this a victory. As one of Latasha's attorneys, I would like to think that at last the court heard in Latasha her voice as a child and felt constrained against denying her any hope for a life as a full-formed person. Some children lose their entire lives when tried as adults, but at least this court only forfeited the remains of Latasha's childhood and her 20s. Even if unsuccessful in her appeals, she may still have a chance to live the prime of her life outside the prison walls. Latasha's trial was excruciating. Neither Shellow nor I ever lost sight of the tragedy of the death that had occurred, but we hoped for a better verdict and lesser sentence for a girl who was just 13 at the time of the offense. For the first time in my trial career, I now had a client serving life-life at 15. She joins hundereds of children currently doing life sentences. And with the laws now in place, she will be joined by hundreds more. For my part, it was sad to realize that the only victory we may have won for Latasha was a belated recognition that she was a child, a reality the state had denied in bringing her to adult court in the first place. If so, victory came too late to correct for the many disadvantages she suffered compared to an adult defendant. And her case is not unique. The same injustices will fall upon all children put to trial as if, by fiat, new "get tough" laws can suddenly make them into adults. n

Malcolm C. Young is the founder and executive director of The Sentencing Project in Washington, D.C. Established in 1986, it is a private, nonprofit corporation that promotes less use of jails and prisons and advocates for criminal justice reforms. He also helped establish and serves as executive director of the National Association of Sentencing Advocates and the Campaign for an Effective Crime Policy, which are sponsored by The Sentencing Project. Recently, he served as a technical assistance provider to the Annie E. Casey Foundation's Juvenile Detention Alternatives Initiative, where he participated in juvenile justice detention and sentencing program reform. He currently directs a project designed to improve advocacy on behalf of juveniles prosecuted in adult criminal court.

 

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