Department of Justice Issues Landmark Statement on the Right to Counsel of Children in GA case

The U. S. Department of Justice filed a Statement of Interest regarding the right to counsel children accused of delinquent acts on March 13, 2015, in the case of N.P. v. Georgia, a case that challenges the representation of children and adults in Georgia’s Cordele Judicial Circuit (made up on Crisp, Ben Hill, Dooly and Wilcox counties south of Macon).

In the Statement, the Department asserts that children are denied their right to counsel not only when an attorney is entirely absent, but also when an attorney is available in name only. As the Department summarized, “due process requires that every child who faces the loss of liberty should be represented from their first appearance through, at least, the disposition of their case by an attorney with the training, resources and time to effectively advocate the child’s interest.”

It is the first filing by the Department of Justice in a state court action to address the due process right to counsel for children established by the U.S. Supreme Court in In re Gault, 387 U.S. 1 (1967).  The way children are treated in the juvenile courts in the Cordele Circuit bears no resemblance to what the Department says is legally required.  There, children accused of delinquent acts are neglected and often receive only token representation or no representation at all.

Children in the juvenile courts in the Cordele Circuit are not represented by an attorney with the training, resources and time to effectively advocate the child’s interest.  The attorney who handles juvenile cases is a lawyer on contract with the public defender office to work 30 hours a week until June 30 for $45,000 with no benefits.

• He has no training in juvenile law.

• He has no training in child/adolescent development.

• He has not read the juvenile delinquency section of the Georgia Juvenile Code, which was substantially revised in 2013 and requires that children be represented in certain proceedings.

• He has not visited a Youth Detention Center – which is in the city of Cordele where his office is – where children are detained pending resolution of their cases.

• He has not advocated for some alternative sentences because was unaware of them.

• He testified in a deposition that he was unaware of In re Gault, 387 U.S. 1 (1967), the case holding that children have a right to counsel in delinquency proceedings, as well as a number of the Supreme Court’s recent decisions regarding the unique aspects of adolescent behavior and brain development (Roper v. Simmons (prohibiting the death penalty for juveniles because of their characteristics); Graham v. Florida (prohibiting life without parole for children in non-homicide cases); and Miller v. Alabama (holding that life without parole can be imposed upon a child in a homicide case only if the court examines the characteristics of youth, etc. before resorting to that sentence).

The contract lawyer, David Rigdon, has resolved many cases by meeting the children when they report to court for the first time, filling out the public defender application form regarding their financial eligibility for a public defender, and, after talking to the child for around 15 minutes, having the child admit the charges. A few examples:

T.K., 12 years old, charged with burglary
Dec. 9, 2014: Rigdon met T.K. in court, completed the application form, and, when the case was called, T.K. admitted to burglary.  On Dec. 23, 2014: T.K. was sentenced to 10 months probation, 40 hours community service, and restitution in the amount of $166.

N.K., 10, burglary
Dec. 9, 2014: Rigdon met with N.K. in court, completed the application, and N.K. admitted to burglary.  On Dec. 23, 2014, N.K. was sentenced to 10 months probation, 40 hours community service, restitution of $166.

K.W., 16, theft by shoplifting
Dec. 23, 2014: Rigdon met K.W. at court, completed the application, and, once the case was called, K.W. admitted to theft by shoplifting and was sentenced to 12 months probation.

W.M., 16, burglary & theft by taking
Jan. 27, 2015: Rigdon met W.M. at court, completed the application, and W.M. admitted to burglary and was sentenced to probation until his 17th birthday, 30 days suspended.

K.R., 13, aggravated assault
Jan. 27, 2015: Rigdon met K.R. at court, completed application, and K.R. admitted to the
charges and was sentenced to 12 months probation, with 30 days in a short-term program suspended.

K.A., 15, affray & disrupting a public school
Jan. 29, 2015: Rigdon met K.A. at court, completed the application, and K.A. admitted to
charges, and was sentenced to 12 months probation, 24 hours community service, a public defender fee of $50 and a supervision fee.

There is no way that any lawyer, even an experienced juvenile lawyer, could meet with a child, interview the child, investigate the case, determine the legal and factual issue, assess the case and provide a child with informed, professional advice about how to resolve the case in 15 minutes. That is not even token representation. The children are simply are not represented.

The public defender office in the Cordele Circuit, which is required by statute to represent children in juvenile court and to have a juvenile division that specializes in the representation of children, has represented less than 10% of the children in juvenile court since the counties in the Circuit eliminated funding for two positions in the public defender office in 2009. That reduced the number of public defenders from five to three to handle a caseload of 1700 (an average of 567 cases per attorney), which simply did not leave time for representing children. The office represented only 43 children in 2014 in a juvenile court that handles 500 to 600 cases a year.

The right to counsel is being asserted on behalf of children and adults in the lawsuit by attorneys from the Southern Center for Human Rights in Atlanta, and Arnold & Porter LLC in Washington, DC.  The Defendants include the State of Georgia, Governor Nathan Deal, the County Commissioners of Ben Hill, Crisp, Dooly, and Wilcox counties, the Circuit’s Superior Court and Juvenile Court Judges, the District Attorneys, and the Georgia Public Defender Standards Council (GPDSC) and the Cordele Circuit Public Defender.

The Department of Justice issued the following press release:

DEPARTMENT OF JUSTICE STATEMENT OF INTEREST SUPPORTS MEANINGFUL RIGHT TO COUNSEL IN JUVENILE PROSECUTIONS

FOR IMMEDIATE RELEASE CRT
FRIDAY, MARCH 13, 2015 (202) 514-2007
WWW.JUSTICE.GOV TTY (866) 544-5309

WASHINGTON – The Department of Justice today filed a statement of interest in the Superior Court of Fulton County, Georgia, in N.P. et al. v. The State of Georgia, et al. The class action asserts that the public defense system in the Cordele Judicial Circuit is so underfunded and poorly staffed that indigent adults and juveniles accused of committing criminal acts are routinely denied their right to legal representation.

The department’s statement of interest focuses solely on the due process rights of children accused of delinquency. It is the first department filing in a state court action to address the due process right to counsel for children established by the U.S. Supreme Court in In re Gault. In Gault the court recognized the critical needs of children for guidance and advocacy and the vital role counsel plays in ensuring fairness in delinquency proceedings. More recent Supreme Court decisions have emphasized the differences between adults and children in the criminal justice system. Applying this case law, the department’s filing identifies procedural safeguards that must be provided to children who appear before the court.

“For too long, the Supreme Court’s promise of fairness for young people accused of delinquency has gone unfulfilled in courts across our country,” said Attorney General Eric Holder. “Every child has the right to a competent attorney who will provide the highest level of professional guidance and advocacy. It is time for courts to adequately fund indigent defense systems for children and meet their constitutional responsibilities.”

“Every day, in communities across our country, under-resourced public defense systems fail to meet their constitutional obligation to provide effective representation for children,” said Acting Assistant Attorney General Vanita Gupta of the Civil Rights Division. “Children who depend on these failing systems often get the poorest representation, relegating them to second-class status in our courts. The systemic deprivation of counsel for children cannot be tolerated.”

In N.P., the plaintiffs allege that children in juvenile delinquency proceedings in the Cordele Judicial Circuit are denied their right to meaningful representation and are, at best, provided with “assembly-line justice.” They assert that because public defense counsel are understaffed and under-resourced, they often are not appointed on behalf of children, and that children routinely waive their right to counsel without the waiver being knowing, intelligent and voluntary. The plaintiffs claim that the denial is so total that it amounts to a systemic violation of the juveniles’ due process right to counsel, as required by Gault and the U.S. Constitution.

In its statement of interest, the department asserts that children are denied their right to counsel not only when an attorney is entirely absent, but also when an attorney is available in name only. It provides the court with a framework to assess the plaintiffs’ claim that the defendants are depriving young people accused of delinquency of their right to counsel. As the department summarized in the statement of interest, “due process requires that every child who faces the loss of liberty should be represented from their first appearance through, at least, the disposition of their case by an attorney with the training, resources and time to effectively advocate the child’s interest. If a child decides to waive the right to an attorney, courts must ensure that the waiver is knowing, intelligent, and voluntary by requiring consultation with counsel before the court accepts the waiver.”

N.P. et al. v. The State of Georgia et al. was filed in January 2014 and brought by adult defendants and juveniles accused of delinquency in the Cordele Judicial Circuit. The plaintiffs seek reform to prevent future due process and right to counsel violations.

#  #  #

The National Juvenile Defense Center issued the following statement:

DOJ Files Landmark Statement of Interest on Juvenile Access to Counsel

NJDC applauds the Federal Government’s filing today of a landmark Statement of Interest (SOI) in an ongoing Georgia case that takes a strong stance on the right to effective access to counsel for juveniles and the need for procedural safeguards against an uninformed waiver of that right.

In the SOI filed in N.P. et al., v. Georgia, the Department of Justice articulates with clarity that “due process requires that every child who faces the loss of liberty should be represented from their first appearance through, at least, the disposition of their case by an attorney with the training, resources and time to effectively advocate the child’s interests. If a child decides to waive the right to an attorney, courts must ensure that the waiver is knowing, intelligent, and voluntary by requiring consultation with counsel before the court accepts the waiver.” (p 1)

While the SOI takes no position on the factual merits of the Georgia case, it urges that “should the Court determine that children are indeed regularly waiving counsel without first consulting with an attorney, the Court can and should find that the resulting waivers amount to a system-wide denial of the right to counsel.” (p. 19)

In assessing whether access to counsel has been provided, the DOJ filing acknowledges that the “unique qualities of youth demand special training, experience, and skill for their advocates” and that “developing the necessary trust-based relationship differs when the client is a child.” Citing the National Juvenile Defense Standards, the Department of Justice wrote, “Attorneys representing children must receive the training necessary to communicate effectively with their young client and build a trust-based attorney-client relationship.” (pp. 11-12).

The Department of Justice maintains that effective juvenile defense divisions “should have the resources to monitor workloads so that attorneys are available to advocate for clients at intake and during detention and probable cause hearings. Outside of court, they need adequate time to meet with clients, investigate the prosecution’s factual allegations, engage in a robust motions practice, devote time to preparing for trial and the disposition process, and to monitor and advocate for the needs of post-disposition clients who are still within the court’s jurisdiction” (pp. 13-14).

“In justice systems where lawyers regularly fail to advocate for clients in a manner traditionally expected of effective counsel and/or where lawyers lack the structural support necessary to do their jobs, it is tantamount to the system’s failure to appoint counsel.” (p. 15)

Recognizing that the juvenile system is adversarial and that children need advice from someone dedicated to their stated interests, the filing provides that “In order to properly fulfill this ‘serious and weighty’ responsibility [that the waiver is intelligent and competent] without abandoning its own judicial role in juvenile delinquency proceedings where a child faces a loss of liberty, a court should appoint an attorney who will explain the importance of counsel before the court accepts a waiver.” (p. 18)

Juvenile defenders and advocates across this country can now cite to this SOI as they battle depravation of counsel issues in their jurisdictions, both in individual cases and in systemic reform efforts. Please share this important tool widely.

National Juvenile Defender Center
1350 Connecticut Avenue, Suite 304
Washington, DC 20036
202-452-0010
inquiries@njdc.info

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