Delinquency Defense Law Forum

by Brandi Clemmons, Assistant Juvenile Defender, Office of the Juvenile Defender, Durham, NC.

There was a great deal of legislation passed this session affecting juveniles adjudicated delinquent. You should be aware that two of the bills provide greater access to juvenile records: (1) Session Law 2009-545/Senate Bill 984, Access to Juvenile Records/Violent Offenders, and (2) Session Law 2009-372/Senate Bill 920, Probation Reform.

Session Law 2009-545/Senate Bill 984, Access to Juvenile Records/Violent Offenders: This bill makes two changes that should be helpful to defense counsel. First, the juvenile’s attorney is explicitly listed as a person authorized to examine juvenile records and obtain copies without a court order. Although this was implicit under the statutory definition of “juvenile,” it will make it easier for attorneys to access juvenile records in jurisdictions where there may have been reluctance to provide such records. Second, the bill mandates that all adjudication orders be in writing similar to disposition orders.

There are also some changes that could adversely affect your clients in some cases. For instance, the bill provides greater access to juvenile records by allowing prosecutors to share information in the records with magistrates; however, the prosecutor cannot give the magistrate a copy of the file or copies of any portion of the file. In addition, the bill allows the courts to use a juvenile’s adjudication records for pretrial release, plea negotiation decisions, and plea acceptance decisions when the adjudication was for a felony or an A1 misdemeanor and the juvenile was under 21 at the time of the adjudication and the adjudication was within 18 months before the juvenile’s 16th birthday or after his 16th birthday.

Session Law 2009-372/Senate Bill 920, Probation Reform: This bill affects clients if they are later charged as an adult and put on probation. You need to be aware of these changes so that you can explain them to your client in the juvenile proceedings. For the purposes of assessing risk related to supervision, probation officers (POs) at the Department of Correction can access an offender’s juvenile record. Without getting a court order, the PO can get copies of the file if the adjudication was for a felony. Given this, it is critical that you provide information to your clients regarding expunction. (If he or she was adjudicated for a Class F or lower felony, he or she can have the charges expunged from her record by filing a petition with the clerk 18 months after being out of juvenile court, so long as he or she has not been adjudicated or found guilty of any other crime.)

Ultimately, because these bills provide greater access to juvenile records, it is essential that juvenile defense attorneys understand how they affect juvenile clients. If you also represent adult clients, be aware that both laws allow access to “records of adjudication,” i.e., any information that describes the offense adjudicated, such as the transcript of admission or adjudication order. The law does not give unfettered access, however, to the juvenile file and its contents.

NOTE: A synopsis of legislation pertaining to juvenile delinquency was printed in the August edition of the Office of the Juvenile Defender and North Carolina Advocates for Justice Juvenile Defense Newsletter, located on our website (http://www.ncids.org/Juvenile%20Defender/JuvDef%20HomePage.htm). You may also view the summary of legislation prepared by Professor Janet Mason of the UNC School of Government, at http://www.sog.unc.edu/pubs/electronicversions/pdfs/jvlb0901.pdf.

Guest blogger Barbara Fedders is a clinical assistant professor of law at the University of North Carolina School of Law, where she teaches in the juvenile justice clinic.

Educators’ reliance on police and courts to handle minor infractions of school rules is a disturbing trend affecting the work of public defenders and the lives of children across the state. Recently released statistics from the North Carolina Department of Public Instruction reveal an increase in the percentage of minor school-based incidents reported to the police-even while the overall rate of crime and violence in schools has remained unchanged.

Schools are required by state law and State Board of Education policy to report to the police 17 separate serious crimes, ranging from possession of a weapon to rape. They are not required to involve the police in more minor crimes like trespass or larceny. Yet, increasingly, they do. This reliance on law enforcement and courts to handle school-based problems is part of a national trend that has drawn attention from civil rights organizations around the country. (You can find more information about what the NAACP Legal Defense and Educational Fund has characterized as the “school to prison pipeline,” here.) The reasons for the increased use of courts to handle low-level misdemeanors are many, but likely include that more and more schools employ police officers, known as School Resource Officers, to handle in-school disciplinary problems. SROs are trained not in adolescent development but in investigating and solving crimes, so it should come as no surprise that they gravitate toward law enforcement techniques rather than educational ones to handle disciplinary infractions.

In April, the North Carolina Court of Appeals politely but unmistakably expressed its displeasure at this trend. In re S.M.S. is a case that considered a fifteen-year-old Pitt County boy’s appeal from a trespass adjudication. The boy had been found delinquent based on evidence that he had run through the girls’ locker room at his school, encountered girls in the process of changing clothes, and immediately run back out when a coach blew his whistle. Because the locker room had been posted with a sign that read “Girls’ Locker Room,” the Court upheld the adjudication of second-degree trespass, which criminalizes “enter [ing]or remain[ing] on the premises of another … posted … with notice not to enter the premise.” The panel commented, tersely, that they did not understand “why our Courts were involved in this matter when the school, in its administrative capacity, was fully capable of dealing with [SMS's] conduct and disciplining him appropriately.”

As juvenile defenders, we have little impact on trends in education. Yet we should develop creative ways to defend against allegations of school-based crimes. For a client being interrogated or searched in school, that means being aware of the relevant case law. Safford v. Redding, 557 U.S. ____(June 25, 2009) (using Fourth Amendment reasonableness standard, facts did not warrant school administrator’s extension of otherwise reasonable search to juvenile’s underclothing) ; In re W.R., 363 N.C. 244 (2009) (no plain error review where juvenile failed to move to suppress or object to juvenile’s admission); In re J.D.B., ___ N.C. App. ___(April 7, 2009) (interrogation of 14 year old special education student by uniformed school resource officer and school administrators was not custodial). It also means knowing how to argue that evidence seized or confessions obtained are subject to the provisions of the Fourth Amendment. School can be a custodial environment; creative defenders can argue, for example, that a student would not feel “free to leave” a principal’s office if doing so meant ignoring a direct order from an SRO or other school official. Most schools have codes of conduct requiring that students follow all orders of school officials. As an example, the Smith Middle School Code of Conduct can be found here. Defenders can use them in cross-examination during hearings on motions to suppress to argue that their clients wouldn’t have felt free to leave when being questioned or searched. Additionally, many of our clients have cognitive and emotional disabilities. Confessions obtained from such students may in certain circumstances not be voluntary under the 14th Amendment. In order to be able to make such arguments effectively, we should always obtain school and mental health records of our clients, and also consider obtaining funds to hire independent experts to show that our clients are particularly vulnerable to authority figures.

While we may not be able to reverse the trend of using the courts for allegations of school-based crime, we should do all we can to defend our clients once those allegations become cases in court.

By now, most of you have heard of Melendez-Diaz v. Massachusetts, 557 U.S. ___(June 24, 2009), the United State Supreme Court’s (USSC) most recent Confrontation Clause decision, in which it held that lab reports prepared for the purposes of criminal prosecution are “testimonial.” (If you haven’t, it has been reported on by the NY Times here; analyzed by Professor Jessica Smith of the School of Government here; and blogged about on the North Carolina Criminal Law blog here and here,  and on the SCOTUS blog here.) I found myself pondering whether the Melendez-Diaz decision would have any impact on procedures currently being used in juvenile delinquency adjudications. I think it might.

Why? First, as a legal matter, the Confrontation Clause applies in juvenile proceedings and has since the USSC decided In re Gault, 387 U.S. 1 (1967), over 40 years ago. Thus, Crawford v. Washington, 541 U.S. 36 (2004), and other Confrontation Clause decisions are also applicable. In the post-Crawford litigation frenzy several state courts explicitly held that Crawford applies in juvenile adjudicatory proceedings. In re J.A., 949 A.2d 790 (N.J. 2008); In re N.D.C., 229 S.W.3d 602 (Mo. 2007); In re R.A.S., 111 P.3d 487 (Colo. Ct. App. 2004). In North Carolina, the unpublished Court of Appeals decision In re A.L applied a Crawford analysis to statements made by a victim to a police officer shortly after the delinquent act occurred. 175 N.C. App. 419, 623 S.E.2d 368, COA04-1452 (N.C. App. Jan. 3, 2006).

Second, as a practical matter, forensic reports are being used in juvenile delinquency adjudications—and we may see more after the North Carolina Supreme Court decision State v. Llamas Hernandez, 363 N.C. 8 (2009), in which the court precluded a law enforcement officer from giving his lay opinion, without laboratory analysis, that the substance he saw was cocaine. (You can find an interesting post on Llamas-Hernandez by my colleague Alyson Grine here.) Forensic reports are being used in drug cases, assault cases, robbery cases, driving while impaired cases—the list could go on and on.

The impact of Melendez-Diaz may be limited depending on the type of case the report is being offered in. Others, such as Professor Smith, have commented that North Carolina’s notice and demand statutes, such as 90-95(g), providing for chemical reports in drug cases, and 8-58.20, providing for forensic reports generally, probably survive Melendez-Diaz. As far as 90-95(g) is concerned, little should change in the juvenile division, since that statute specifically provides that it’s applicable in juvenile delinquency adjudication proceedings. And while 8-58.20 does not specifically provide for its applicability in the juvenile division, I can think of no reason why it wouldn’t be.

The implication for 20-139.1(c1), which provides for the admissibility of the results of a chemical analysis of blood or urine in driving while impaired (DWI) cases, is slightly less clear. It works much like 90-95(g) and 8-58.20—and like 90-95(g) it contains language that specifically separates superior court and juvenile adjudications from district court—but rather than notice and demand 20-139.1(c1) requires only demand.  In other words, the respondent’s attorney must assume that the state will seek to introduce the analysis without the analyst being present in court. Respondent’s attorneythe bears the burden to object at least five days before the adjudication. I’m not sure how many kids are racking up DWIs, but it’s always good to keep the procedure in mind and, as long as the law is unsettled, keep playing it safe by filing written demands in a timely fashion.

Another provision that may be affected by Melendez-Diaz is 20-139.1(e1), which provides for the admissibility of a chemical analyst’s affidavit in DWI cases in district court. The way I read it, 20-139.1(e1) simply doesn’t apply in juvenile court. The procedure for use of the results of a chemical analysis in juvenile adjudication procedures is provided for in 20-139.1(c1) only. The legal analysis stops there.

In any event, any argument that the Confrontation Clause and major Confrontation Clause decisions such as Crawford and Melendez-Diaz don’t apply in district court and, therefore, don’t apply in juvenile court proceedings is, in my humble opinion, misplaced. First, Gault says that the Confrontation Clause applies. Second, that argument hinges upon the notion that the defendant gets a second bite at the apple vis-à-vis a de novo appeal to the superior court. That is a right juveniles don’t have. Third, I believe Crawford and Melendez-Diaz apply in adult criminal district court anyway, notwithstanding the right to a trial de novo. But that’s the subject of another post for another blog.

Welcome to the Delinquency Defense Law Forum, a blog. This blog serves as a forum for the discussion of North Carolina juvenile delinquency law and defense. It is administered by Whitney Fairbanks, the Civil Defender Educator at the School of Government at UNC.