DETENTION ADVOCACY ETHICAL PRINCIPLES: EXPRESSED INTERESTS - PowerPoint Presentation

Slide1

DETENTION ADVOCACYSlide2

ETHICAL PRINCIPLES: EXPRESSED INTERESTS

The

JA/ABA

Juvenile Justice

Standards and RPC are

clear that defenders have an ethical obligation to

zealously

advocate for the expressed interests of each juvenile client, even when the client’s

expressed

legitimate interest conflicts with the defender’s sound legal advice or with the

defender’s

own personal judgment about what might be in the client’s best interests

.

These standards

apply regardless of the client’s age, education level, and perceived or measured

intelligence

level, so long as the client is “capable of considered judgment on his or her own

behalf

.”

In every case where there is conflict between a juvenile client accused of an offense and his

or her

parents, and, in particular, in cases where there is a possible conflict of interest between the

client

and his or her parents, as in cases in which either the parent or one of the client’s siblings is

a

complainant, counsel should inform all parties involved that counsel represents the expressed

legitimate

interests of the

client. Slide3

CONSULT EARLY WITH CLIENT BEFORE HEARING

Find

out the client’s expressed interests regarding detention and detention alternatives,

including

placement with family members or in a community-based program, as well as any

specific

reasons that mitigate against detention of the client, including age, special needs, special

strengths

and talents, health concerns, and mental health

issues.

The initial meeting with the client should also include discussion of: attorney-client confidentiality;

the

attorney’s ethical duty to zealously advocate for the child’s expressed interests; the client’s

right

to remain silent; and the client’s objectives for the case. Consultation with the client also

includes

explaining the roles of each of the courtroom players, the purpose of each part of the

initial

hearing, and preparing the child for the accusatory character of the hearing. If the child

is detained

counsel should inquire whether there is any evidence that the child has been harassed or

mistreated

by either staff or other inmates

. (Caution if there is reason to question capacity to proceed.)Slide4

Dealing With Parents and Staff

Although defenders cannot give the client’s parent or guardian legal advice, as part of their ethical

duty

to zealously represent their juvenile clients, defenders should be sure to prepare the client’s

parent

or guardian for the interview with the intake probation officer.

Defenders

should relate

to

the parent the purpose of the interview, warn the parent that everything the parent says will

likely

be recited in open court, inform the parent that the judge might solicit the parent’s opinion

about

the client’s behavior and appropriate placement options in open court, and tell the parent

the

importance of supporting release when speaking with the

court counselor.

Defenders should

also

cover the specific areas likely to be discussed at the hearing, including school attendance,

extracurricular

activities and hobbies, parental control, dangerousness, and risk of flight.Slide5

Preparation and Investigation

Defense counsel should conduct a complete investigation of the client’s history in preparation for

the

detention hearing. Counsel should make every effort to obtain the client’s

school/special ed., medical and treatment records

, and talk with the client’s parent or guardian, teachers, and any other adults to whom

the

client is close. The social history from the client should cover information about the client’s

strengths

and skills, and the client’s prior involvement in the system, as well as the client’s special

health

needs, mental health needs, and family history

.

Defense counsel should also investigate the allegations against the

client. Counsel

should request

discovery,

receive and review any existing prior

delinquency

, truancy, and dependency record, as well as the police reports in the case. Counsel

should

also talk with the client about potential exculpatory

information.

Defense counsel should advocate with the

court counselor

and the

prosecutor, as well as any involved providers,

before the hearing.

Counsel

should

request, receive,

and review any risk

assessment instrument

(RAI

) and detention reports

the

court counselor

intends to rely on in the detention hearing.

Question allegations of gang involvement. Demand to see placement and treatment paperwork. Don’t accept rejections at face value. Subpoena witnesses, if necessary.Slide6

Shackling and Hearing Conditions

Restraints-7B-2402.1

. Restraint of juveniles in courtroom.

O

nly

when the judge finds the restraint to be reasonably

necessary

to maintain order, prevent the juvenile's

escape

, or

provide

for the safety of the

courtroom

. Whenever practical, the judge shall provide the juvenile

and

the juvenile's attorney an

opportunity

to be heard to contest the use of restraints before the judge

orders

the use of

restraints

. If restraints are ordered,

the

judge shall make findings of fact in support of

the

order.

Video hearings

“allows

the court and the juvenile to see and hear each other. If the

juvenile

has counsel, the juvenile may communicate fully and

confidentially with

the juvenile's

attorney

during the proceeding. Prior to the use of audio and video transmission, the procedures

and

type of equipment for audio and video transmission shall be submitted to the Administrative

Office

of the Courts by the chief

district court

judge and approved by the Administrative Office

of

the Courts.

7B-2402

. Open

hearings/MediaSlide7

Probable Cause

The probable cause standard, which is a very low evidentiary standard, is defined as 1) whether

there

is probable cause to believe that a crime was committed and 2) whether there is probable

cause

to believe that the child was

involved.

The State has the burden of proof.

C

arefully weigh

whether to waive a probable cause hearing. Even if there is no chance of

winning

the hearing, counsel can use the hearing as an opportunity for discovery, and for sworn

statements

to use at trial

. Use waiver as leverage. Weigh transfer threats.

Consider using experts to do evaluations.

Particularly if the client is detained, where counsel receives exculpatory information after the

probable

cause hearing, counsel should immediately file a motion to reopen the hearing. Slide8

Statutory Criteria

Defenders should go into detention hearings knowing the purpose clause of the

statutes and

, specifically, the statutory criteria necessary to imposing

detention

. Defenders should make an abbreviated and portable reference packet that includes

the statute(7B-1903)

and court rules, the statute’s legislative history, and synopses of recent and relevant case

law

.

Defenders

should argue from the position that detention is the last resort. Most statutes, as they

are

constructed, support this position, and typically, judges have a great deal of discretion. The

discretion

lies in the determination of two specific factors: a client’s potential dangerousness to

the

community and risk of flight

.

J

uveniles

should be held in the least restrictive conditions necessary to ensure the safety of the

community

and the return of the juvenile to court.Slide9

7B-1903

Reasonable factual basis that juvenile committed the offense AND

Best interests-

nonsecure

placement

Felony and DANGER to persons or property

Assault or Use of Weapon, DWI

WILLFUL failure to appear with proper NOTICE or reason to believe wont appear in court

Absconder

Fear of self-inflicted injury-ONLY for 24 hours to determine need for hospital commitment-continuous supervision and physician notified.

Undisciplined –only 24 hours to evaluateSlide10

Alternatives to Detention: Have a Plan

An alternative to detention is whatever creative plan a defender and community partners can

devise

that is responsive to the needs of the client and addresses the concerns of the court. To craft

individualized

detention plans using community-based resources, defenders must become familiar

with

the available detention alternatives.

Defenders

should compile a list of each community-based

program

, with contact names and phone numbers, addresses, target populations, and develop a

plan

to keep the list updated.

Defenders should visit community programs and aim to develop relationships with staff

members.

Defenders should challenge any decision to detain based on a lack of community resources. The

failure

of the community to provide suitable, evidence-based programs responsive to the client’s

needs

does not mean that the client should be

detained.Slide11

Research on Incarceration Impact

Defenders must be familiar with their local detention facilities to be able to argue convincingly

concerning

the harmful effects of detention. To that end, defenders should arrange tours of their

local

secure and non-secure detention facilities. They should request copies of each facility’s

standard

operating procedures, and rules regarding how staff should treat residents.

F

ile

Freedom of Information Act requests about criminal allegations, staff training guides,

discipline

guidelines, and statistics on the use of discipline.

Finally

, juvenile defenders should talk

with

their clients about their experiences with different staff members at different facilities.Slide12

Conditions in Detention Facilities

Defenders should be aware of and argue the detention facilities’ deficiencies, if they exist,

including

the limited or nonexistent access to special education, mental health treatment, and

adequate

medical care, increased chances of recidivism, and consequences of overcrowding and

harsh treatment

.

Defenders should also be aware of and argue the advantages of staying on release, including

continued

involvement in family, school, and positive peer

relationships.

Separate from adultsSlide13

Written Findings of Fact and Court Orders

Counsel should ensure that, in as timely a manner as possible, counsel receives a clear, concise

written

order documenting the court’s findings with respect to the need for detention of the client.

If counsel believes any conditions are excessively punitive or unnecessary, counsel should state

that

position on the record. If the order is ambiguous, counsel should seek clarification

.

Defenders should work to ensure that detention orders specify any special conditions or needs of

the

client.

Both defense counsel and the client should receive copies of the order in a timely manner, and

counsel

should review the order with the client as soon as is practicable.

Defense counsel should advocate for juvenile detention hearings to be recorded and

transcribed, as needed.Slide14

Conditions of Release

Counsel should adequately explain the conditions of release to the client, and provide the client

with

the name and telephone number of the court

counselor or juvenile worker assigned

to monitor the client’s case.

Counsel should also contact the worker, provide counsel’s name, address, and phone number, and

let

the worker know that the worker should consider counsel another resource as the client’s case

progresses.

If a client is released, counsel should ensure that the client’s need for safety is met and that agencies

are

held responsible for the provision of any needed

services.Slide15

Waiving Rights and Additional Hearings

If the client is detained, defense counsel should create and seek out opportunities to win

release

. In particular, defense counsel should file motions to reconsider, review or modify the

detention

decision based on evidence showing, inter alia: that time in detention has changed the

circumstances

of the case such that the child can be released into the community; that new evidence

discovered

after the probable cause hearing casts doubt on the correctness of the probable cause

determination

; or that defense counsel has, since the detention decision, been able to create a

release

plan that addresses the specific reasons the court cited in support of detention

.

After the initial secure custody review hearing, further hearings may be waived by the

juvenile

through counsel.

Waiver of 10 day reviews

should occur only with the

consent

of the juvenile

and

may provide a

basis for

a concession by

the State

, such as an earlier date for

adjudication

or a plea agreement

.

If the client is detained, and counsel has exhausted the standard procedures available to obtain

the

client’s release, defense counsel

consider

filing a writ of habeas

corpus or mandamus or motions for review.Slide16

Initial Secure Custody Hearing/First Appearances

7B-1906: No

juvenile shall be held under a secure custody order for more than

five

calendar

days

or under a

nonsecure

custody order for more than seven calendar days without a hearing on

the

merits or an initial hearing to determine the need for continued

custody

. A hearing conducted

under

this subsection may not be continued or waived.

The State shall bear the burden at every stage of the proceedings to provide clear and

convincing evidence

that restraints on the juvenile's liberty are necessary and that no less intrusive

alternative

will suffice.

The

court shall not be bound by the usual rules of evidence at the

hearings

.Slide17

Predisposition Detention

7B-2506

Hearings every 10 days

Cannot waive more than 30 days and ONLY with consent of juvenile

Violation of probation, but only if damage to property or injury to persons alleged.Slide18

Post-Release Violation Detention

The court may not hold a juvenile under

N.C.G.S

.

7B-1903(b

) (4) (cause to believe that the juvenile will not appear in court)

because

it

only

applies to juveniles who have a delinquency charge pending against them, not to juveniles

who

have already been

adjudicated.For

several years, there was some

confusion

about whether judges should hold review

hearings

after the juvenile was

adjudicated

delinquent. Although G.S.

7B-1906(b

) stated that review hearings were

required as

long as the juvenile remains in secure or

nonsecure

custody.

S

ome

judges

declined

to hold review hearings. In 2009, the

court

of

appeals

held that juveniles are

entitled

to review hearings after adjudication.

In

re D.L.H

.,

198 N.C. App. 286, 294

(

2009),

overruled

on other

grounds, 364

N.C. 214

(20).

The General Assembly

amended

G.S.

7B-1903

in 2015 to codify the holding in

D.L.H.See

2015

N.C. Sess.

Laws

Ch. 58 (H

879)Under

current G.S.

7B-1903(c

), the court must hold review

hearings

every 10 calendar days for juveniles in secure custody after adjudication.

The juvenile

may waive further hearings for no more than 30 calendar days

.Slide19

Detention for Placement?

Unfortunately, some placements can take a long time, even months, to materialize, while the juvenile

remains

in detention with no services or treatment. Juvenile defense counsel should always consider

arguing

that a juvenile pending placement is also entitled to

10-day review

hearings.

Demand to see placement and treatment paperwork and rejection letters, as well as review of any evaluations.

Issue subpoenas and hold providers and MCO accountable to meet needs of client.Slide20

Intermittent Confinement

D

ispositional alternatives

provided under N.C.G.S.

-2506 (12) and (20) amended in 2015 revision of juvenile code,

In

the Matter of Jessica

Renea

Hartsock

,

158 N.C. App. 287, 580 S.E.2d 395 (2003). Counsel should be aware that in some

jurisdictions

, the court will order that the juvenile be placed in detention “at the discretion of the

court counselor

.”

Under

Hartsock

,

the court may not delegate

its

authority to impose intermittent confinement. When you are at disposition for a child and the judge indicates she will include stayed intermittent confinement days as part of the order, ask for there to be language that specifies that the days cannot be imposed unless the child is brought back in front of the judge on an MFR. Cite

Hartsock

when making this request.Slide21

Credit for Time Served?

When

a juvenile is ordered days in detention as part of disposition,

and

has already spent time in detention

pre-adjudication

or

post-disposition.

When

a juvenile is committed to a youth development center and has spent time in detention prior

to commitment

. If an attorney requests credit for time served on a commitment, the attorney should

request

that the judge specify the amount of detention time served in the dispositional order so that

the administrators

at the youth development center are fully knowledgeable about the juvenile’s prior

confinement

when determining a date of a release for

the

juvenile.

W

hen

a juvenile is transferred to superior court. If

requested

, superior court judges typically grant the time spent in detention towards an active

sentenced in the

Department of Corrections.

In

2010, the Supreme Court of North Carolina held

that

juveniles

are

not entitled to credit for time served in secure custody.

In

re D.L.H

.,

364 N.C. 214,

216

(2010). The decision overruled older decisions issued by

the court

of

appeals

, such as

In

re R.T.L.

Although

juveniles are no longer entitled to credit for time spent in

secure custody,

there is no bar to the court

taking such

time

into

account at the

dispositional

hearing. The court has a great deal of latitude at the dispositional hearing.

See G.S

.

7B-2501

(granting the court authority to select the “most appropriate

disposition

” for the juvenile).

Under G.S

.

7B-2500

, a dispositional

order should promote

public safety, emphasize accountability and responsibility, and

provide

the appropriate consequences, treatment, training, and rehabilitation to assist the

juvenile

toward becoming a responsible

and

productive member of the community. If the

juvenile

has spent a significant amount of time in secure custody or received services

while

in secure custody, counsel should argue that many of the purposes of disposition

have

already been met.Slide22

Confinement Pending Appeal?

If

the juvenile appeals the

case,the

court must release the

juvenile with

or without conditions, unless

it enters

a temporary order affecting custody or placement. Such an order must be in writing and must state “compelling reasons” that the placement or custody is in the best interests of the juvenile or the State. G.S. 7B-2605;In re J.J., Jr.216 N.C. App. 366, 376 (2011). The court of appeals has held that findings included in a dispositional order can support a custody order under G.S. 7B-2506. In re R.A.S., 166 N.C. App. 515(2004) (unpublished). However, a finding that no placement is available for the juvenile during the appeal is “clearly insufficient.”

In re W.G.C.166 N.C. App. 516(2004) (unpublished).If counsel gives oral notice of appeal from a dispositional order imposing a period of confinement, counsel should ask the court to release the juvenile pursuant to G.S. 7B-2605. If counsel gives written notice of appeal after the dispositional hearing, counsel should include a request for release under G.S. 7B-2605 in the notice of appeal or in a separate motion

. A

sample notice of appeal and a sample motion for release pending appeal are available on the Juvenile Defender

website

.Slide23

Motions and Remedies

OBJECT, APPEAL, WRITS

Written Motion for Review

Contact the Office of the

Juvenile Defender

OTHER?