19 Dec

Rules panel votes to protect juveniles waiving right to counsel

first_imgRules panel votes to protect juveniles waiving right to counsel Rules panel votes to protect juveniles waiving right to counsel Associate EditorTestimony from researchers came as a shock to members of The Florida Bar Commission on the Legal Needs of Children: Juveniles entitled to representation in delinquency cases often waive that right, without really understanding what they are giving up, even as they are sent to adult court for prosecution.Many of the judges and lawyers on the commission wondered: How can that happen?Something had to be done, and the commission drafted a proposed amendment to Rule 8.165 that spells out waiver of counsel by a juvenile can only occur after the child has had a meaningful opportunity to confer with counsel.Armed with the commission’s report and support from the Nancy Daniels, president of the Florida Public Defender Association, Gerard Glynn, chair of the Public Interest Law Section, and Carlos Martinez, chair of the commission’s representation subcommittee, persuaded the Juvenile Rules Committee to amend Rule 8.165.The 25-5 vote took place at the Bar Midyear Meeting in Miami in January, and the matter next goes to the Bar Board of Governors and then to the Florida Supreme Court.“This is a big step. It was our third try. The most persuasive thing Gerry said is that there are 33 opinions in Florida where the cases were reversed where the judges did not do an appropriate job in explaining to the juvenile defendants what waiving their right to counsel meant,” said Martinez, an assistant public defender in the 11th Judicial Circuit.Glynn, a law professor at Barry University School of Law Clinical Programs, said PILS made a commitment to carry forward recommendations of the Bar’s Commission on the Legal Needs of Children, which completed its final report in June after three years of study (available on the Bar Web site at www.FLABAR.org).“One of the problems in previous discussions with the Juvenile Rules Committee is it was submitted without backup documentation and without explanation,” Glynn said. “This time, I could show that the commission spent a significant amount of time studying the issue.”University of Florida researchers Lonn Lanza-Kaduce, at the Center of Studies in Criminology and Law, and Jodi Lane, an assistant professor of criminology and sociology, shared with the commission their preliminary findings on juveniles transferred to adult court who have no lawyer because they waived their constitutional right to counsel.“About 5 percent of the transfers (to adult court) and about 23 percent of juvenile detainees with relatively serious offenses had no counsel of record,” Lanza-Kaduce said.“The preliminary results show that among the transfer to adult court who didn’t have counsel, 70 percent re-offended. And 44 percent of the juvenile justice retainees re-offended when they didn’t have counsel. In both instances, this is the highest instance of re-offense. Failure to have counsel or legal representation is linked, at least at this basic analysis, to higher rates of recidivism.”Children in juvenile court giving up their right to counsel is a national phenomenon, Glynn said, also documented by the American Bar Association Juvenile Justice Center, funded by the U.S. Department of Justice.As Glynn said, many juvenile defendants are foster children who have no parents and plead away their rights without discussing options with a caring adult.Even children appearing in court with their parents can be led astray.“Especially if it is their first time in the system, neither they nor their parent have any idea what the process is,” Daniels said. “With some parents, there is a lot of pressure on kids and they are mad at them for doing something wrong. Parents want them to fess up and take their licks.”But, as Glynn and Daniels agree, there is a way for children to own up to their wrongdoing, receive an appropriate punishment, and be helped at the same time.Another hurdle in getting this changed in the past, Glynn said, has been on “ongoing battle in the rules committee about the role of the rules committee” – whether it’s a substantive right the legislature should address or whether it’s a procedural issue for the rules committee and the Supreme Court.“My belief is right to counsel is not a substantive right, it’s a procedural right, it’s constitutional due process,” Glynn said. “My position is this is not only something the rules committee can do, but it is the exclusive jurisdiction of the Supreme Court, and the court has delegated the rules committee to give advice on this issue.”Daniels said she is “dismayed it had not been approved originally” and the board of the Florida Public Defender Association has supported it unanimously.In her letter to Judge John Alexander, chair of the Juvenile Rules Committee, Daniels wrote: “Even if our caseloads would increase, we believe the rule is sound as a matter of juvenile justice policy.. . . We respectfully recommend that your committee consider and support proposed Rule 8.165. By doing so, you will take a step toward improving the administration of justice for the children of our state.”How widespread is the problem of children waiving their right to counsel?“It’s strictly anecdotal, but in the experience we’ve had with various juvenile judges, it varies wildly,” Daniels said.“Some, in a heavy proportion of cases, are appointing the public defender. Other judges start out with taking pleas without counsel and think they can control their dockets that way. We tried to resist that and say, ‘No, judge, it’s very important that we represent these children and talk to them.’“It’s hard enough for an adult defendant to understand that if you enter a plea, you are giving up your right to a trial and an appeal and all of those things. Those are fairly formidable, abstract principles. And to expect someone under 18 to grasp that in a very frenetic court appearance is just not realistic.“Especially in these times when juvenile sanctions have been bumped up and their records stay with them if they re-offend,” Daniels said. “All that adds to our feeling that this is hyper-important.” February 15, 2003 Jan Pudlow Associate Editor Regular Newslast_img read more