Ensuring Justice for Children: Strategies this Baby Lawyer Learned the Hard Way
Everything I have learned so far was (i) the hard way and (ii) by stealing ideas from far more experienced, talented lawyers. I must preface this by noting that I am unable to remember all of the wonderful juvenile defenders I have stolen from, but please know that you are inspirational and I want to be just like you when I grow up.When I first started representing juveniles, I found myself coming back to the office defeated. I felt like I was failing my clients. Juvenile court remains this strange land where “caring” about accused children and “understanding” their traumatic histories means placing them on probation with absurd conditions or shipping them off to a program.
Unlike in adult court, the parties in juvenile court have bought into the notion that accused children suffer from a great deal of trauma themselves. Florida statutes, for example, are very clear that the purpose of juvenile sentencing is rehabilitation while the purpose of its adult counterpart is punishment. However, this does not translate into careful consideration and reasonable filing decisions by prosecutors. Once a case is filed, the default narrative in juvenile court is “what can we do to fix this troubled kid?” That question guides all juvenile proceedings. The result is that services are available, but as conditions of a sentence.
Why should my clients – the vast majority of whom are the survivors of some form of abuse – have to eat a conviction and sit on probation or go to a commitment program when it is so obvious that their behavior is the result of past trauma? As I say to my colleagues regarding almost every case that hits my desk: is this seriously a thing?
I quickly realized that I had to change my strategy. Whatever I was doing was not working; it didn't feel right. By the time a case goes to trial, a judge has often made his mind up about a given child. My goal is not to change the judge's mind – we all know how difficult that can be – but to take control of the narrative from the first court date. I need provide everyone with a different lens with which to understand my client and her case(s).
Everything I have learned so far was (i) the hard way and (ii) by stealing ideas from far more experienced, talented lawyers. I must preface this by noting that I am unable to remember all of the wonderful juvenile defenders I have stolen from, but please know that you are inspirational and I want to be just like you when I grow up.
To a great extent, I am stating the obvious. Experienced defenders – those who I steal ideas from – are undoubtedly employing the strategies I have listed below. However, in my experience, many juvenile defenders are young lawyers who, like me, are still navigating the wide world of public defense. Even as a very high energy and optimistic defender, I find that it is easy to slip into a defeatist mentality in juvenile court. It is difficult to remain positive when you see children who you know to be immensely dynamic and creative completely shut down in the intimidating atmosphere of court. It is difficult to muster up creative energy when you know that a case is being litigated in front a judge that has presided over your client's cases since she was 12 years old.
I grew to love representing juveniles more than I ever expected I would, in no small part because of the absolutely wonderful, energetic, creative clientele. Kids are just hella great. Additionally, I started using the strategies below to give my cases substance beyond the mere facts. I want what I litigate to reflect the complexity of my clients' lives.
Put everything in writing.
One of my mentors, Jennifer Marshall, taught me the art of the sentencing memorandum (sentencing, in her case, as she litigates all of the Graham/Miller resentencing hearings at our office). In her [paraphrased] words: there are a lot of things I need the judge to understand in the way I want it to be understood. Simply, there is no better way to control the narrative than to write it yourself.
Moreover, the standard these-facts-apply-to-this-law just does not cut it for some cases. Criminal justice and the criminalization of adolescence is a sexy topic. Researchers and journalists have done our work for us. The sheer volume of studies, op-eds, and books about the justice system is overwhelming. It is our responsibility to use that data and wonderful language in a pointed manner.
Here are a few resources that I have recently used to educate myself and incorporated in motions and memos:
- Between the World and Me, Ta-Nehisi Coates
- The American Psychological Association's amicus brief in support of Graham
- “Girls in Juvenile Justice: Treating the victim as a criminal”
- This amazing quote from Haley v. Ohio: “Neither man nor child can be allowed to stand condemned by methods which flout constitutional requirements of due process of law…But we are told this boy was advised of his constitutional rights before he signed the confession and that, knowing them, he nevertheless confessed. That assumes, however, that a boy of fifteen, without aid of counsel, would have full appreciation of that advice and that on the facts of this record he had a freedom of choice. We cannot indulge those assumptions. Moreover, we cannot give weight to recitals which merely formalize constitutional requirements. Formulas of respect for constitutional safeguards cannot prevail over the facts of life which contradict them. They may not become a cloak for inquisitorial practices and make an empty form of the due process of law for which free men fought and died to obtain.”
My office recently had a training about juvenile competency and I realized that I was not challenging competency as much as I should have been. It is not easy to assess whether a child is truly not competent to proceed or is just a kid that needs additional explanation. Moreover, so many teenagers have survived without the proper educational services in place that they present as incredibly functional when, in fact, there are longstanding learning disabilities that may affect their competency.
I cannot possibly describe anything competency related as well as Jennifer Marshall but I will note a few important points that she taught me.
- The science is clear. Children who grow in poverty have less gray matter in their brain, are more likely to have ADHD, etc.
- Don't be a bump on a log – be proactive. Get school records, speak with your client's parents, find out how she is doing in school from guidance counselors and make sure the appointed experts utilize this information.
- Go to the competency evaluations and ask for a hearing. Competency cases can often be litigated, even if both doctors find your client to be competent.
- Just because a child is found competent to proceed, does not mean a child is competent to waive her Miranda rights or give a voluntary confession.
Our juvenile clients are the survivors of poverty, sexual abuse, physical abuse, neglect, racial discrimination, and violence. Though I am the first person to jump up and down and scream “But judge! They stopped him because he's black!” I have accepted that my rants are persuasive only to me and not evidence in a court of law.
Juvenile court opened up this wonderful word of “There's An Expert for That!” that I did not explore when I was an attorney misdemeanor court, likely due to my own ignorance about the law. Psychological and sociological experts are great allies in juvenile cases not only for their testimony and affidavits but also as teachers. I always ask an appointed expert for required reading in a given subject so I can incorporate scientific studies into my motions and memos.
As juvenile defenders, we have the privilege of having science on our side. If we don't bring experts into our cases, all of that persuasive information that demonstrates how trauma informs behavior, poverty affects development, and brain development informs maturity, simply will not be evidence.
To my fellow baby lawyers – I know it is tough out there! You are tired, there's only so much caffeine you can consume, you have run out of money to dry clean your suits for this month, prosecutors refuse to drop garbage cases that you could totally win in front of a jury but this judge is so hit-or-miss, and you so desperately don't want to fail these kids.
Between running from court to the jail to the field with our investigators to our offices to prepare cases, it is easy to forget that we are obligated to be creative on behalf of our clients. Every case may not be a groundbreaking opportunity to shed light on new, exciting issues in juvenile jurisprudence, but every juvenile case is ripe for litigation due to the mere fact that the client is a child. We cannot allow our frustrations with the fundamental unfairness of non-jury trials and the feeling that we are, indeed, in “kangaroo courts” contrary to the call of In Re Gault, stagnate our spirits or our advocacy. Often times, we are our clients only allies in court. If we do not fight and litigate and get creative, no one will.
Happy Public Defense Week. You're awesome.