Criminal Justice Section
Criminal Justice Magazine
Volume 18 Issue 1
Robert E. Shepherd, Jr.
Robert E. Shepherd, Jr. is an emeritus professor of law at the University of Richmond School of Law in Virginia. He is also a contributing editor to Criminal Justice magazine and former chair of the Section’s Juvenile Justice Committee.
Recapturing the Child in Adult Court
Recent columns have addressed the white paper— Youth in the Criminal Justice System: Guidelines for Policymakers and Practitioners—issued in spring 2001 by the Task Force on Youth in the Criminal Justice System. ( See Robert E. Shepherd, Jr., Juvenile Justice: Task Force Report for Practitioners, Policymakers and an ABA Task Force Report, Part II, 16 (Nos. 1 and 2) Crim. Just. (Spring and Summer 2001).) Those columns described the task force recommendations regarding the proper handling of juveniles being processed as adults in the criminal system rather than in juvenile or family courts, and the standards established for the way youths should be treated. This column focuses on how defense attorneys can function strategically and tactically in securing the best possible results for their youthful clients being tried as adults. Former Criminal Justice Section Chair Randolph Stone, a professor at the University of Chicago, has spoken of the transfer of a juvenile to the adult court as constituting the "death of childhood." What this column suggests is how lawyers can attempt to "recapture" as much of that childhood as possible, even in the criminal court. Paul Mones, a recipient of the Criminal Justice Section’s Livingston Hall Award and an authority on parricide by children, refers to this process as "humanizing the demonized juvenile."
Preparing for adult court
The lawyer should begin general preparation for handling juveniles’ cases in criminal courts by becoming familiar with the mythology about the "epidemic" of serious juvenile crime supposedly sweeping America, or that juvenile crime is anything new. Shakespeare wrote 400 years ago, "I would there were no age between ten and three-and-twenty, or that youth would sleep out the rest; for there is nothing in the between but getting wenches with child, wronging the ancientry, stealing, fighting." (William Shakespeare, The Winter’s Tale, act 3, sc. 3).) As a matter of fact, juvenile crime has dropped significantly over the past several years, despite the media references to "young thugs," "youthful predators," or "super-predators." From 1997 to 1999, arrests of juveniles for property crime index offenses declined by 23 percent, arrests for violent crime index offenses dropped 36 percent from 1994 to 1999, and even the highly publicized murder arrests dropped by 68 percent between 1993 and 1999. (Off. Juv. Just. & Delinq. Prevention, U.S. Dep’t Just., OJJDP Stat. Briefing Book, http://www.ojjdp.ncjrs.org/ojstabb (December, 2000).) However, most people who will serve on juries, and perhaps many judges, believe that there is a widespread epidemic of serious juvenile crime and that the young defendant is part of that epidemic. ( See Mike A. Males, The Scapegoat Generation: America’s War on Adolescents (1996); Franklin E. Zimring, American Youth Violence (1998).) Lawyers who represent a juvenile charged or tried as an adult should educate themselves about the realities of juvenile involvement in crime. Several websites can assist. (American Bar Association Juvenile Justice Center at www.abanet.org/crimjust/juvjus; Center on Juvenile and Criminal Justice at www.cjcj.org; Building Blocks for Youth at www.buildingblocksforyouth.org.) A newspaper column in August 2001 by Richard Cohen in the Washington Post articulates the issue quite well. (M. Richard Cohen, Kids Who Kill Are Still Kids, Wash. Post, Aug. 3, 2001, at A19, col. 2.)
Juvenile court, transfer proceeding, or adult court
The first line of defense for the attorney representing a juvenile is to try to get the case retained in the juvenile or family court, if such is an option in the jurisdiction where the case arises. If the case originates in the juvenile or family court and the decision about adult criminal proceedings is to be made in transfer or certification proceedings, the lawyer should make every effort to have the case kept and tried in the juvenile or family court. If it is the criminal court that makes a transfer decision, then the lawyer should seek to have the matter sent for juvenile handling. If the decision in the jurisdiction is the prosecutor’s through some bind-over process, then the defense lawyer should attempt to influence that decision through persuasion or plea bargaining. If the criminal court has exclusive jurisdiction, the lawyer should simply try to minimize the damage by following the steps discussed below.
Preliminary trial preparation
The defense lawyer should develop an extensive social history on the youthful client, especially such family factors as whether there is a history of abuse or neglect of the minor or broader family violence. ( See Dorothy Otnow Lewis, Guilty by Reason of Insanity: A Psychiatrist Explores the Minds of Killers (1998); Lewis, Shanok, Pincus & Glaser, Violent Juvenile Delinquents: Psychiatric, Neurological, Psychological, and Abuse Factors, 18 J. Am. Acad. Child Psychiatry 307 (1979); Lewis, Moy, Jackson, Aaronson, Restifo, Serra & Simos, Biopsychosocial Characteristics of Children Who Later Murder: A Prospective Study, 142 Am. J. Psychiatry 1161 (1985); Lewis, Pincus, Bard, Richardson, Prichep, Feldman & Yeager, Neuropsychiatric, Psychoeducational and Family Characteristics of 14 Juveniles Condemned to Death in the United States, 145 Am. J. Psychiatry 584 (1988).) A full medical and mental health history should be developed, and all existing health records examined, especially regarding any past head injuries, fetal drug exposure, fetal alcohol syndrome, lead exposure, the existence of a post-traumatic stress disorder, psychiatric disorders, etc. ( Ibid.) In serious cases, a complete physical examination and psychological workup may be helpful, including a neurological examination if there is any history of head trauma. A number of studies show a high incidence of mental health problems among adolescent offenders, and the existence of such problems should be explored thoroughly. (A.E. Kazdin, Adolescent Development, Mental Disorders, and Decision Making of Delinquent Youths, in T. Grisso & R. Schwartz, Youth on Trial: A Developmental Perspective on Juvenile Justice (2000).) The lawyer should also develop an extensive educational history, being especially conscious of the possibility of an attention deficit hyperactivity disorder (ADHD) or the presence of a learning disability. ( Ibid.) Any prior court history should be examined, both as victim (abuse, neglect, dependency) and as the possible subject of any petitions for delinquency or status offenses. If the youth has an institutional history—detention, youth corrections, foster care—that history should be examined and favorable witnesses from such settings sought.
Expert evaluations and developmental assessments
With an extensive history developed on the youth, the lawyer should consider consulting with experts on adolescence and having a developmental assessment prepared. ( See Dr. Marty Beyer, Juvenile Justice Update: Expert Evaluations of Juveniles at Risk of Adult Sentences, 18 ABA Child Law Practice, No. 2 (April 1999); Dr. Marty Beyer, Recognizing the Child in the Delinquent, Kentucky Children’s Rights J. (Spring 1999). Patricia Puritz, Alycia Capozello & Wendy Shang, More Than Meets the Eye: Rethinking Assessment, Competency and Sentencing for a Harsher Era of Juvenile Justice (1997).) The attorney with the youthful client should also consider the possibility of raising competency issues, especially if there are any developmental problems or mental retardation. ( See Dr. Thomas Grisso & Robert G. Schwartz, ed., Youth on Trial: A Developmental Perspective on Juvenile Justice (2000).) If the juvenile client is under the age of 14 and the facts are favorable, the lawyer should consider raising the common law infancy defense in the case. ( See Robert E. Shepherd, Jr., Rebirth of the Infancy Defense, 12 (No. 2) Crim. Just. 45 (Summer 1997).) The expert should be viewed as an essential team member in preparing and trying the case. It is important to find a competent mental health expert, one who understands child and adolescent mental health, competency, and developmental issues. Experts who regularly do evaluations in child abuse cases are often better than others for youth homicide cases.
Counsel for the young defendant should be prepared early to negotiate with the prosecuting attorney over the preliminary issue of charges and juvenile versus adult handling, especially with a history in hand and the assessment and advice of the consulting expert. At the very least, the lawyer should negotiate over the sentence to be imposed in the event of a guilty plea, including advocating a juvenile or youthful offender sentence if such is available.
Detention and jailing decisions
Decisions about pretrial detention may be significant, if for no other reason than that placement in detention makes incarceration more likely as a sentencing option. The task force report urges that juveniles and adults be detained in separate institutions. If a juvenile is placed in an adult jail awaiting trial, serious problems can develop, including a high risk of suicide or assault. If the juvenile is placed in jail, he or she is frequently segregated from the adult population. But they are frequently segregated along with adults who are charged with molestation or are other types of sex offenders, because both groups are viewed as being at risk in the general population.
Serious cases involving juveniles are often high-profile matters and elicit unusual media attention. The lawyer should try to cultivate the media to change the characterization of the case. It is sometimes better to talk with the reporter who covers juvenile or children’s issues rather than a normal criminal court reporter. Good media relations may change the coverage of the case from an initial characterization that "the youth killed his father over an argument about drying the dishes" to "Bobby allegedly killed his father after years of serious abuse of the boy and his brothers and sisters."
Pretrial motions and jury selection
The lawyer should be prepared to pursue pretrial motions, such as motions to suppress confessions or evidence seized in a search where youth-focused issues are presented. A motion to prevent references to school shootings or other high-profile juvenile cases, such as the Jonesboro or Columbine school shootings, should also be considered. If a jury trial is in the offing, the lawyer should be prepared to use a tailored jury questionnaire or particular voir dire questions that address the issue of juvenile offenders and the jury’s preconceptions of the violent behaviors of juveniles.
The lawyer should be conscious of the importance of the juvenile client’s appearance and of the visible interaction between the child and the lawyer. The youth should not be dressed in a coat and tie but in jeans or slacks with a polo shirt. In other words, dressed like a child and not like an adult. Considerable effort should be invested in the pretrial preparation of the client, including courtroom demeanor. The opening statement should address some of the youth-related issues presented in the case. References to the client should use the child’s nickname, not a proper name or a neutral term like "defendant." Refer to him as "Bobby," not "Robert" or as this "ninth grader" or "the child." If there is a self-defense argument in a case involving the homicide of a parent, look at the "parricide" literature. (Paul Mones, When a Child Kills: Abused Children Who Kill Their Parents (1991); Kathleen M. Heide, Why Kids Kill Parents (1995); Paul Mones, Parricide: Opening a Window Through the Defense of Teens Who Kill, 7 Stan. L. & Pol’y Rev. 61 (1996); State v. Junes, 212 Wash.2d 220, 850 P.2d 495 (1993).) If the case is gang-related, consider expert or other evidence about whether the youth may "unreasonably" have feared an attack by the victim or his associates. The lawyer should also consider requesting the appointment of a guardian ad litem for young clients, especially those with retardation or mental health issues. The lawyer should also advise the impressionable child client to be careful about talking about the case with others. In the Nathaniel Brazill case in Florida, prosecutors introduced statements the boy made to bailiffs taking him back and forth from detention to the courtroom.
During the sentencing stage of the case, the lawyer should be prepared to cross-examine prosecution witnesses and present extensive mitigation evidence, including both lay and expert witnesses. The social, medical, and developmental histories will be very useful at this stage. Don’t forget schoolteachers, guidance counselors, coaches, priests, rabbis and pastors, and community youth workers as helpful witnesses.