by Bryna G. Williams, with content and editorial assistance from Marlies Spanjaard
Representing juveniles in court cases, whether in Child Requiring Assistance (“CRA”), Care and Protection or Delinquency, is important and challenging work. The quality of representation for a young client can mean the difference between a single interaction with the court system and a lifetime of court involvement. As in all areas of practice, broad experience in the field, effective mentoring, and specialized knowledge are essential for effective representation.
Perhaps the most critical area of specialized knowledge required of attorneys working with juveniles is in the area of education. Children and youth spend (or should be spending) a majority of their waking hours in a school setting. As such, it is critical for attorneys to develop best practices for learning more about their clients’ educational situation. Information regarding school will provide invaluable insight into the client, offer context for specific situations, assist in developing a theory for a court case and, in some instances, can lead to opportunities for school-based advocacy that can strengthen an underlying case. Certainly, probation officers for delinquency and CRA clients and case workers from the Department of Children and Families will be actively seeking information from and about school regarding their clients. Attorneys representing juveniles must avoid any situation where other players know more about their client’s education than they know.
Of course, requesting documents through the school can be a relatively simple way to gather information and is a critical step to take at the beginning of the representation. Still, the client interview is the most effective way to learn more about a client’s school experience. The following outline of questions and sub-questions is recommended for attorneys to adapt into their client interviewing protocol. Ten main questions fall into two broad categories of school-based information and community-based information, all of which shed light on a student and his or her experience in school. Follow-up inquiries under each main question allow an interviewer to deepen the investigation and expand on each issue.
The obvious place to start a conversation about school is to ask “Where do you currently attend school?” and then follow up by asking “How long have you attended this school?”. This should be the start of creating a timeline of schools attended since entry into the public school system (which can be as early as age 3), learning whether the student has experienced more than the typical number of school transitions and documenting the reasons for such transitions (geographical move, discipline, special education, etc.). If the student has attended many different schools, ask how the current one compares to the others. What does he or she like or dislike about this school when compared to others? Finally, asking with which adults the client has good relationships or whom he/she trusts can give you an idea of the type of environment the student experiences in school. Additionally, this person can be a potential source of more information for your investigation and representation.
Critical to your assessment of a client’s education is to know the answer to “How are you doing in your classes?” Since students, especially teenagers, tend to answer briefly and obliquely, follow up questions are vital. Directly and succinctly ask clients what their grades were on their last report card and whether they have repeated any grades in the past. Follow up the reports of any poor grades (Ds or Fs) by asking clients why they are struggling in certain classes and whether they get along with their teachers in those classes or whether they struggle with any school personnel.
Attendance in school has a huge impact on a student’s success. Supplement the question “How is your attendance?” with probing questions asking: how many days he or she thinks she has missed in the last month, how many days a week the student does not make it to school, and if he or she is ever late to school or certain classes and the reasons for each. Take note of circumstances involving transportation problems or safety concerns. Reconcile student reports of attendance with the official school-based and class-based attendance records.
A disproportionate number of court-involved youth receive special education services, so attorneys are advised to ask “Do you have an Individualized Education Plan or IEP?” Because involvement with special education can be stigmatizing for students, follow up with less pointed questions about class size (small class size can indicate special services) and any instances when the student is pulled out of the main classroom setting. Request special education documents (IEP, evaluations, and progress reports) for any student who is currently in special education or reports receiving services in the past. The IEPs themselves should contain information about specific placement and services, status of review meetings (which are required to occur annually) and progress reports (which should be issued as frequently as reports cards). Additionally, if the student is frequently excluded from school under the auspices of discipline, ask whether the student or the student’s parents have ever attended a manifestation determination meeting, which can indicate a pattern of exclusion as well as trigger the need for educational services such as tutoring or functional behavior assessments.
The disciplinary climate in school is much different than even ten years ago. Discipline practices are often inflexible, impersonal and, too often, punitive. Incidents in school can lead to school exclusion and court involvement (delinquency or CRA). Ask your client “Have you ever been suspended or expelled from school?” Do not limit this question to incidents in the last year as a history of disciplinary exclusions can be related to school failure and indicate unmet educational needs. Determine whether a specific pattern of behavior has led to repeated exclusions (always during a specific class or during transition). Track the number of days that your client has been out of school during the present school year and reconcile that with the official attendance records. Include days when your client was sent home for more than half of the school day as that should count as a day of suspension. Of note, most districts will count suspension days as being constructively present. If the client has already been excluded, it is important to probe further into the procedure or lack thereof that occurred prior to the exclusion. Any exclusion longer than ten days should be preceded by a hearing with the principal of the school or school committee, and a student should be afforded the right of an appeal to the district superintendent following such a decision. Finally, determine whether your client’s district provides alternative placement, tutoring, or the opportunity to keep up with schoolwork during the expulsion and whether you client has been afforded such opportunity.
Court cases, whether they are directly related to school or not, may have an impact (potentially severe) on a student’s education. If a client has pending delinquency charges ask, “Does anyone at the school know about your case?” Determine whether the underlying incident leading to the charges occurred in school. If it did, it can or may have already triggered a suspension or expulsion. Felony charges, even if they did not originate in school or were not school-related can still lead to indefinite suspension or even expulsion. See MGL c. 70 § 37 H ½. Discern whether the alleged crime involves a victim, witness, or co-defendant attending the same school as your client. Take note of whether your client has any other matters pending in juvenile court. Due to the court structure in the Commonwealth juveniles commonly have different attorneys for different matters pending in court. Take note of the different types of cases, whether they are school based, the attorney representing your client on each matter, and any assigned probation officer.
Finally, consider this trio of questions regarding life beyond school: “Are you or have you ever been on medication?” This will shed light on present or past medical or psychiatric diagnoses. Follow this up with questions about compliance and whether the school knows about the diagnosis and/or medication. Schools, at times, attempt to circumvent their responsibility for special education by recommending medical evaluations or additional medication. Determine whether this is the case with your client and also determine the family’s attitude about medication and other treatments. For example ask, “Do you receive any counseling?” If your client receives counseling, determine whether her or she receives it inside or outside of school. School-based counseling can be a service on an IEP, through a guidance counselor, adjustment counselor, or social worker or from a community based, fee-for-service individual. Long-term therapists, whether community-based or school based, can be invaluable sources of support for court cases. Finally, verify “Are you involved with a state agency” (Department of Children and Families, Department of Mental Health and or the Department of Development Disabilities) and determine the extent of the services the client receives.
Amassing a rich file of background information for your juvenile client is fundamental to effective representation. Information from and about school is an essential and large portion of any juvenile’s background. Requesting the student’s entire school record is an appropriate way to start, but integrating the Top Ten Questions into your client interview protocol will allow you to compile a more complete picture of your client’s educational experience and present you with opportunities to advocate on behalf of your client both inside and outside the classroom. The EdLaw Project aims to support and equip attorneys representing clients in juvenile court and EdLaw staff attorneys are obliged to provide technical assistance to attorneys on how to incorporate these questions into their practice and to address other concerns regarding the educational situation of juvenile clients. EdLaw’s offices are located on the second floor of the CPCS administrative building at 44 Bromfield Street in Boston, and its helpline number is 617-988-8460.
Bryna Williams is a Senior Staff Attorney with The EdLaw Project, an initiative of the Children’s Law Center of Massachusetts and The Committee for Public Counsel Services Youth Advocacy and Child and Family Law Divisions. EdLaw focuses on supporting attorneys practicing juvenile court to effectively advocate for the clients’ educational rights.
Not Just the Facts: Commonwealth v. Walczak Tells Prosecutors When to Instruct Grand Juries on the Law in Juvenile Murder CasesPosted: July 10, 2013
by Alex Philipson
In the mid-1920’s, in one of America’s most sensational cases of juvenile homicide, teenagers Nathan Leopold and Richard Loeb bludgeoned a neighbor to death in Chicago. At about the same time, a thousand miles away in Boston, the Supreme Judicial Court declared that a prosecutor seeking an indictment should, in appropriate instances, do more than present evidence to the grand jury; he should also give advice on the law. See Attorney Gen. v. Pelletier, 240 Mass. 264, 307 (1922). Nearly a century later, the concerns of these seemingly unrelated cases—juvenile murder and grand jury instructions—came together in ways never before seen in Massachusetts.
In Commonwealth v. Walczak, 463 Mass. 808 (2012), in a plurality opinion, the SJC held that a prosecutor must instruct the grand jury on the law in any case where he or she seeks to indict a juvenile for murder, and where there is substantial evidence of mitigating circumstances or defenses other than lack of criminal responsibility. Specifically, the prosecutor has a duty to inform the grand jury of the elements of murder and the significance of mitigating circumstances or defenses for reducing or eliminating the juvenile’s criminal liability—using the model homicide instructions, modified for grand jury proceedings. In no other case had the SJC ever held that a prosecutor was required to instruct the grand jury on the law absent a request from the grand jury. See Commonwealth v. Noble, 429 Mass. 44, 48 (1999).
Unlike Leopold and Loeb, who set out to commit a thrill killing, Walczak had no intention of killing anyone when, embroiled in a fight with two other teenagers, he allegedly stabbed one of them to death. One night in August, 2010, Walczak, then sixteen years old, agreed to meet the victim and another youth on a street corner to sell them marijuana. The purported buyers had actually planned to rob Walczak of his drugs. When the three met, the victim and his friend told Walczak they were going to take his marijuana, and one poked him in the head. Punches were thrown and Walczak stabbed the victim several times in the neck and torso with a knife, killing him.
The Commonwealth sought and obtained an indictment for murder in the second degree. Walczak moved successfully to dismiss the indictment on grounds of insufficient evidence. See Commonwealth v. McCarthy, 385 Mass. 160 (1982). The judge ruled that the Commonwealth had failed to disprove that Walczak acted on reasonable provocation or sudden combat—mitigating circumstances that negate malice and reduce a homicide from murder to voluntary manslaughter—and that, as a matter of law, the evidence supported at most an indictment for manslaughter.
On appeal by the Commonwealth, the SJC unanimously held that the judge erred: the evidence was sufficient to show probable cause for murder in the second degree; the Commonwealth bore no burden to disprove mitigation in the circumstances; and the grand jury was free to believe or disbelieve the evidence of mitigation. Nothing about those conclusions was particularly surprising. The excitement began when the justices considered an alternative ground for affirming the dismissal of the indictment: the Commonwealth’s failure to instruct the grand jury on the legal significance of the evidence of mitigation—i.e., that if someone kills another based on reasonable provocation or during sudden combat the offense would be manslaughter rather than murder. On the need for these instructions the justices differed markedly, but a plurality concluded that the Commonwealth should have given the instructions.
In dissent, Justice Spina, joined by Chief Justice Ireland and Justice Cordy, argued that, regardless whether mitigating circumstances surround a homicide, the Commonwealth has no obligation to instruct on mitigation absent a request from the grand jury. But according to the plurality opinion, at least where there is “substantial” evidence of mitigation—evidence “so strong” that “concealing it would impair the integrity of the grand jury” because the evidence concealed probably would have influenced the grand jury’s decision about what charge, if any, to indict—the legal significance of that mitigating evidence must be explained. Presumably a reviewing court would examine the facts de novo to decide whether the evidence of mitigation was substantial enough to require the instructions, but Walczak is silent on this point.
Justice Gants, in his concurrence, joined by Justices Botsford and Duffly, thought the instructions should be given in all murder cases, juvenile and adult. For him, what made the instructions necessary were “due process” interests not limited to juveniles.
By contrast, Justice Lenk, who wrote her own concurrence, did not speak in terms of due process. Rather, she thought that what necessitated the instructions were “prudential” concerns arising from the special status of adolescents. For example, unlike an adult, a juvenile indicted for manslaughter rather than murder faces trial in Juvenile Court, which affords special protections for adolescents. That difference, and the generally reduced culpability of minors as compared to adults, were the reasons Justice Lenk thought the instructions were required in juvenile murder cases. But the instructions that Justice Lenk thought essential were those concerning such traditional mitigating circumstances as reasonable provocation and sudden combat; she did not say that a grand jury should also be instructed that a juvenile’s youth itself constitutes a mitigating circumstance. (She did think that, in addition to instructions on mitigating circumstances, the grand jury should be told that a juvenile indicted for murder would be tried in Superior Court, but she was alone in that view.) For purposes of resolving Walczak’s case, Justice Lenk, unlike Justice Gants, thought it unnecessary to go so far as to require mitigation instructions (on reasonable provocation and sudden combat) not only for juveniles but for adults too. As the narrower view—requiring the instructions only in juvenile cases—hers prevailed in the plurality opinion.
But this reader, at least, sees no reason why the instructions should not be given in both juvenile and adult cases, as Justice Gants suggested. Although Justice Lenk wanted to ensure that a grand jury would take into account a juvenile’s youth, mitigation and self-defense are not concepts unique to adolescents. Adults can act out of reasonable provocation, sudden combat, or self-defense just as much as adolescents can. Thus, regardless whether the subject of a murder charge is a juvenile or an adult, it would seem fair in either case for the grand jury to be instructed on mitigating circumstances and self-defense, where the evidence warrants it. But the plurality concluded that the instructions are needed only in juvenile cases.
Besides instructions on mitigation and self-defense, Justice Gants suggested that the grand jury “may even be instructed that the prosecution is entitled to an indictment of the crime charged if it is supported by probable cause based on the credible evidence.” Walczak, 463 Mass. at 841. In this way, he agreed with Justice Spina that the grand jury is not permitted simply to choose between murder and manslaughter if credible evidence of the greater offense has been presented. But, as Justice Gants explained, even if the evidence of malice is legally sufficient, the grand jury is still free to decide that the evidence of mitigation is more reliable and return an indictment for the lesser offense.
Questioning the wisdom of the plurality’s view, Justice Spina pointed out that the decision did not address how one may pursue judicial review of a grand jury’s “gatekeeper” decision (i.e., whether the juvenile will be tried in Superior or Juvenile Court) or the applicable standard of review. More fundamentally, Justice Spina saw the plurality’s position as an “improper judicial exercise of the legislative function.” He believed that where the Legislature, in the 1996 Youthful Offender Act, removed power from Juvenile Court judges to determine in which court a juvenile would be tried, it was not up to the SJC to give similar power to the grand jury. Any legislative response to Walczak remains to be seen.
A postscript to this story is worth telling. After the SJC affirmed the dismissal of Walczak’s murder indictment, the Commonwealth returned to the grand jury to present the case again. This time, with the benefit of instructions on the legal significance of the mitigating circumstances, the grand jury indicted Walczak for voluntary manslaughter. As a result, Walczak will be treated as the juvenile he was in August, 2010, when that botched robbery turned tragically into a fatal fight.
Alex G. Philipson is founder of the appellate boutique Philipson Legal, providing appellate representation and consulting services in civil and criminal matters. He was Senior Staff Counsel to the Supreme Judicial Court from 2003 to 2011.
by Naoka Carey
Every year, Massachusetts sends thousands of high-school-aged kids into our adult criminal justice system. In contrast to most other laws about children in the Commonwealth, Massachusetts automatically treats all 17 year-olds accused of a crime as “adults.” Our outdated law – a relic of the Victorian era – is the subject of multiple bills before the Massachusetts legislature this session, each of which raises the upper age limit of juvenile court jurisdiction from 17 to 18 to allow the vast majority of cases involving 17 year-olds to be addressed in our juvenile system. In May, the House unanimously voted in favor of H.1432 (now joined with H.3229); the Senate is expected to vote on the bill soon. The proposal has broad support, including the Juvenile Courts, the Massachusetts Sheriffs’ Association, the Massachusetts Bar Association, and many other organizations and individuals; indeed, there has been no formal opposition to the reform to date.
For practitioners, the proposed changes are straightforward. The bills amend sections of Chapter 119 pertaining to delinquency and youthful offender cases to give the juvenile court jurisdiction over youth who commit their offenses before their 18th birthdays. Other than raising the upper age limit, the bills do not alter existing provisions for more serious “youthful offender” cases, meaning that judges will still have discretion in those cases to impose an adult sentence. The bills also leave intact provisions requiring murder cases involving persons 14 and over to be heard in adult court (other bills this session address this issue in response to the U.S. Supreme Court’s decision in Miller v. Alabama (567 U.S. (2012), which held that statutes that mandate life without parole sentences for youth under 18, such as the current law in Massachusetts, violate the 8th Amendment). The bills make minor changes to other provisions of the General Laws consistent with the changes to Chapter 119 by, for example, amending adult criminal history reporting provisions to reflect the fact that 17 year-olds will no longer be treated as adults in most cases.
The reasons to change the law now are plentiful:
Keep Kids Safe and Save Money: Although the vast majority of 17 year-olds are charged with minor, non-violent offenses, they are held with older criminal offenders in adult jails and prisons. According to the Department of Justice, inmates under 18 were eight times more likely to be victims of sexual assault than adult inmates. Research has also found that teens held in adult facilities are 36 times more likely to commit suicide than those held in juvenile facilities.
As a result of these disturbing statistics, the Department of Justice recently issued new regulations under the Prison Rape Elimination Act (PREA) for youth under 18 held in adult facilities. Under these requirements, “youthful inmates” in prisons, jails and Houses of Corrections must be housed separately from adults, and separated by sight and sound or directly supervised by staff when they are mixed with adults in other settings. Facilities are generally prohibited from using isolation, or “protective custody,” to achieve compliance. “Youthful detainees” in court and police lock-ups also need to be separated from adults. Because a separate federal law, the Juvenile Justice and Delinquency Prevention Act (JJDPA), prohibits intermingling individuals who are defined under state law as “adults” with “juveniles,” Massachusetts cannot simply place 17 year-olds in the juvenile system in order to comply with PREA. The only way to comply with both PREA and JJDPA without incurring substantial costs to reconfigure facilities and hire new staff is to raise the age of juvenile court jurisdiction. The PREA regulations become fully operational in August, adding extra urgency to the need to address this issue.
Lower Recidivism and Increase Public Safety: Studies conducted at Northeastern University and elsewhere have shown that when youth are sent to the adult system they are more likely to reoffend, to reoffend more quickly and to escalate into committing serious and violent crimes. This is true even when comparing youth who are the same age, and who have the same offense and offense history.
Ensure that Youth Receive Educational and other Age-Appropriate Services: The juvenile system is designed to rehabilitate and, unlike the adult system, requires children to attend school and ensures that they receive special educational or other needed services, including age-appropriate substance abuse and behavioral health treatment.
Preserve and Support Family Involvement in Kids’ Lives: Because current law treats 17 year-olds as adults, parents need not be notified of their arrest, may not be present at interrogations and have no role in court proceedings, including plea bargains. By contrast, the juvenile system requires that parents be notified when their child is arrested and involved in the investigation and court process and sentencing.
Bring Our Criminal Law into Alignment with Our Other Laws About Children: The age of adult jurisdiction is inconsistent with other Massachusetts laws, laws in other states, international law and recent Supreme Court rulings. The federal government and 39 states use 18 as the age of adult criminal jurisdiction; nearly every other state with a lower age is considering a change to their statute as well (Illinois changed its law in May of this year). The current age of adult criminal jurisdiction is also inconsistent with most of our other laws about children, which set 18 as the minimum age for such matters as voting, entering into a contract and serving on a jury.
For Juvenile Court practitioners, particularly those who handle both delinquency and care and protection cases, these reforms should allow for a more coordinated, rational approach to cases. For example, child welfare clients who are under 18 but commit an offense will no longer be pulled into adult court proceedings and adult jails or prisons which effectively terminate the ability of the child welfare system to serve them.
Given the dramatic reductions in juvenile court caseloads over the last decade (50% in the last five years), the system has the capacity to handle these cases. At the same time, the short- and long-term savings that will be realized by reducing future crime and improving the educational and employment prospects for youth are significant.
Massachusetts established the age of adult criminal jurisdiction at 17 in 1846, back when children could legally toil in mills all day. It is time to bring our law into the 21st century and align it with what most state, federal and other laws and our common sense tell us is true: 17-year-olds are not adults.
Naoka Carey is the Executive Director of Citizens for Juvenile Justice, a statewide non-profit working to improve the juvenile justice system in Massachusetts.