Delinquency Defense Law Forum

By Eric J. Zogry, Juvenile Defender, Office of the Juvenile Defender, Durham NC

Recent case reviews and consultations by the Office of the Juvenile Defender have revealed certain procedural errors when the Department of Juvenile Justice and Delinquency Prevention (the Department) seeks to extend the commitment of juveniles committed to youth development centers (YDC). Though trial counsel is not usually involved in these proceedings until a hearing is requested, juvenile defenders should consider becoming more informed about the extension process. This blog post provides a basic overview of the process and suggests simple strategies to protect your client’s rights when the Department seeks to extend a juvenile’s commitment.

A juvenile may be committed to a YDC for a minimum of six months. G.S. 7B-2513(a). The maximum term of commitment is determined by the underlying criminal offense, but in no event may the term of the commitment exceed the juvenile’s eighteenth, nineteenth, or twenty-first birthday. However a juvenile’s commitment may be “continued for an additional period of time to continue care or treatment” if the Department determines that extension of the commitment will protect the public and that continued placement will likely lead to further rehabilitation. G.S. 7B-2515(a). The juvenile or the juvenile’s parent, guardian, or custodian may request review of the Department’s decision to extend, and the court may modify the Department’s decision and the maximum commitment period. G.S. 7B-2515(a).

There are four main legal issues involving the commitment extension process, which can be found in G.S. 7B-2515. First, the juvenile and the parent, guardian, or custodian must be notified in writing at least 30 days prior to the juvenile’s eighteenth birthday or the end of his maximum commitment period. Second, the Department must propose the additional specific commitment period. Third, the Department must have a basis for extending the commitment period—presumably the protection of the public and the likelihood that continued placement would lead to further rehabilitation. Fourth, the Department must provide a plan for the juvenile’s future care or treatment.

Get Yourself Notified and Your Client Prepared

Juvenile defenders have no statutory right to notice when the Department seeks extension. Furthermore, juvenile defenders are only appointed after the juvenile or parent requests review of the Department’s decision and a review hearing is scheduled. Although G.S. 7B-2515(c) does not state that an attorney be appointed when a review is requested, G.S. 7B-2000(a) provides that a juvenile has a right to be represented by counsel “in all proceedings.” Therefore, you should consider asking the court to order that the Department notify you whenever it seeks an extension. If any resistance arises, cite G.S. 7B-1501(17) which states that wherever the term “juvenile” is used with reference to rights and privileges, it encompasses the juvenile’s attorney. Knowing when the Department intends to extend will give you more time to gather information and prepare a defense.

You should also inform any client who is committed that the Department may try to extend commitment. Calculate the maximum term of commitment and communicate to the juvenile, both orally and in writing, the projected dates of release, and when the Department must send extension notification. Also, make a note in your file to follow up with the court counselor about whether extension is being sought.

Pre-Hearing Preparation

Once you have been notified that the Department intends to extend, you should contact the juvenile and his or her parent to determine if the notification of extension was timely. You should also contact the juvenile’s YDC social worker or case worker and gather any information regarding the Department’s decision. Also you should consult with the juvenile’s court counselor, who should have been part of the decision making team. Any information about the juvenile during his or her commitment and relevant to the Department’s decision to extend should be made available to the juvenile’s attorney. See G.S. 7B-3001. If information pertinent to the case is not provided, you should consider subpoenaing the YDC director and any documents that may be relevant to the hearing.

Hearing Tips

According to the statute, the Department bears the burden of showing the need for extension. It is unclear what, if any, role the prosecutor would play in this context. Whoever argues the issue, extension should only be granted if it is shown that it would protect the public and likely lead to further rehabilitation. You should be prepared to provide information showing that the juvenile can be adequately supervised in the community without extension. Note that although the question before the court is extension of commitment, you may argue that the juvenile is ready to be placed on post-release supervision, which both ensures protection of the public and provides the juvenile with a plan of re-entry into the community.

You should also be aware of potential underlying issues with arguing for release. First, the court may view this process as a mere continuation of treatment and rehabilitation. Be prepared to argue that the client is still being confined and deprived of liberty and that community resources are available without that deprivation. The unfortunate recidivism rates of committed juveniles also provides support for providing treatment through community resources. You may be able to find useful data about recidivism in the most recent Juvenile Recidivism Study, which can be found here. A possible equity argument to the court is that no juvenile may be held in YDC longer than an adult can be held in confinement. G.S. 7B-2513(a).

Another issue arises when the juvenile has committed adult offenses while committed and is now an adult defendant in a criminal proceeding. The juvenile court may want to place a “hold” on the juvenile, using extension as a tool to keep the juvenile secure pending appearance in adult court. You should be sure to contest this situation and attempt to convince the court that delinquency court should not be utilized as a holding station for juveniles who have allegedly committed criminal offenses.

Relief Requested

If the Department fails give the juvenile notice of the decision to extend in a timely manner, you should consider arguing that extension should not be granted and that the juvenile should be released on post-release supervision. Similarly, if the Department does not meet the statutory criteria either for the basis to extend—to protect the public or for a plan of further care or treatment—you should ask for release on post-release supervision. It is less likely that this relief will be granted if the Department fails only to request a specific period of extension because the court will probably accept a proposal of a specific period at the hearing. However, you may have an opportunity to argue for a shorter term of extension if the court refuses to release the juvenile.

Appellate Issues

If the court authorizes extension over the juvenile’s objection, you should counsel the juvenile about his or her right to appeal the matter. Although the appeal process can take some time, it is possible that the issue will remain viable upon hearing in the Court of Appeals, especially if the extension is until the juvenile’s nineteenth or twenty-first birthday.

This entry originally was posted on Friday, May 7th, 2010 at 9:27 am

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.

Originally posted Tuesday, September 29th, 2009

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.