They warned us about her at the Public Defender Service.

On the eve of her presentation at the Juvenile CJA Panel training, they suggested we spend some extra time with our reading that night because Kristin Henning not only knew her Family Court rules, she would expect us to know them as well.  And, having spent much of her career working on behalf of juveniles who have been charged with a crime in D.C. — first as a Stuart-Stiller Fellow in the Criminal and Juvenile Justice Clinics at the Georgetown Law Center, then as lead attorney for the Juvenile Unit at PDS, and then back at Georgetown — she takes these things kind of personally.

Henning did not disappoint.  Younger than you might have expected given her credentials, she came into the classroom with a burst of energy and a Socratic teaching style that made us feel as if we were 1Ls again.  Since that time, sitting in the back of the courtroom or out in the hallway of the JM-level to supervise Georgetown law students, she has also served as a valuable resource for those of us with a question.

And now she is gone.  Spending the spring semester at Yale University, where she received her own law degree, she will be supervising students at the juvenile justice clinic there while also teaching two courses:  “Advocacy for Children and Youth” and “Innovations in Policing.”

I complained, because nobody ever asks me for permission for anything.  She assures me she is still available by email and by phone.

A couple of years ago, a Court of Common Pleas judge in Philadelphia banned me from her courtroom for life.  Both the stenographer and her law clerk looked at me with sympathy when the judge issued the edict. Maybe they thought I would be upset.

In fact, running a list in this judge’s courtroom was viewed to be a tremendous hardship among us public defenders, and the first thing I did after she issued the order was to make sure that the stenographer had captured the exchange:  Did you get that?  All of my colleagues were extremely jealous of me when I returned to the office, and I had to remind my supervisors of the ban every time they drew up a new schedule.   Because they kept trying to send me back there.

My offense?  I asked the judge for a recusal on the morning of an aggravated assault bench trial.

The sheriff complained to the judge upon bringing my client into the courtroom that my client had been disruptive in the holding cell, and, as the sheriff unshackled my client and seated him next to me at the counsel table, the judge cautioned me to sit a good distance away from him.

The judge must have seen the look in my eyes and tried to head off my motion.  Mr. Koehler, she said. I have to warn you that if you are about to ask for a recusal, the first thing I will have to do is call your supervisors at the public defenders office to complain about you.  I will then ban you from ever appearing in front of me again.

I couldn’t resist the dare.  Nor did I have any choice.  Why I was doing a bench trial in front of this judge on this type of case will have to be the subject of a different blog entry (one that will not be very complimentary of the Philadelphia PD’s office).  But once the judge had expressed concern for my physical safety, I knew there was no way my client could ever receive a fair trial in front of this judge, even apart from all the other problems with this particular judge.  (Fortunately, she was later pushed off the bench, as I understand it, for substance abuse problems and multiple ethical violations.)

It is one of the law’s many fictions that a juror who has just heard a damaging and inadmissible piece of evidence can be successfully instructed to disregard it.  As one cliché puts it, you can’t unring the bell. Likewise, even assuming this particular Philadelphia judge had the wisdom of Solomon and the fairness of Mother Teressa  (she didn’t), it would be difficult to believe that she could put aside what she had just heard from the sheriff when deciding whether he had acted aggressively on the day in question.  As a result, asking a judge to recuse herself and to send the case to another judge for trial is often a difficult but necessary thing to do.

That’s why, however much I might prefer the D.C. court system to the one in Philadelphia, I was surprised to encounter the “one family, one court” juvenile system here.

I fully understand the rationale behind it.  A family court judge takes a much more holistic approach to dealing with the accused – the respondent — in a juvenile case.   He is interested not in meting out punishment but in rehabilitating the juvenile so that the juvenile can put his life back on track and get back into the community.  It therefore makes sense for the same judge to deal with the juvenile each time he returns to the system with a new charge.  It also makes sense for the same judge to deal with all the kids from the same household.  I was surprised recently when Judge Ross knew far more about a juvenile’s living conditions than I did as the juvenile’s lawyer.  It turns out that the judge had been dealing with the same family for years through an older child in the household.

And, in fact, based on my still limited experience, the system in D.C. does seem to work.  Judges take the bench on time.  They listen to you.  Applying the law, they throw out cases when they need to.  Most importantly, they appear to have genuine concern and affection for the young people who appear in front of them.

With some unfortunate exceptions, the same holds true for probation officers, social workers and shelter house staff. They return phone calls.  They come to court.  They are often aware of problems before you are and can often be convinced try to work something out with you before taking the matter to the court.  Finally, the more rabid law-and-order prosecutors don’t seem to end up at the Juvenile Division of the Attorney General’s Office.

Where the “one family, one court” approach becomes problematic is during the guilt-finding phase.  As it turns out, D.C. family court judges have very good memories that are aided, I assume, by the private notes that they take on each respondent. I appeared in front of Judge Lee the other day on behalf of a client who had just been arrested on a new charge, and was amazed that the judge not only remembered little things about my client (that he liked to play basketball, what he had said at the last listing on the other case), the judge also remembered details about the client’s mother.

Having the judge remember details like this can make the juvenile feel cared for and respected.  I was often struck by how many adult clients in Philadelphia seemed convinced that the judge took a personal interest in their affairs.  Only when this notion began to interfere with my representation would I disabuse them of this notion:  the judge really has no clue who you are.  But she will be plenty angry if you violate the terms of your probation.

This is not true in D.C. juvenile court. In fact, the judges there may sometimes remember clients all too well.  A Family Court judge recently found one of my clients guilty after trial of “carrying a dangerous weapon.”  You have got to stop carrying kitchen knives around in your pocket, the judge told the juvenile during the disposition hearing.  Heck, you should have learned that lesson two years ago when I convicted you of the exact same offense.

So what can you do as their lawyer to rectify this?  The question of recusals did not come up in our training for the panel; nor does it appear to be included in any of the voluminous materials we were given.  So I asked some of my colleagues who have been doing this a lot longer than I.  They laughed.  Good luck with that, they said.

For one thing, there are only four judges who currently hear juvenile cases in the District:  Judges Milton Lee, Maurice Ross, Maribeth Raffinan, and Robert Rigsby (who just replaced Judge Broderick).  With many kids picking up multiple cases, you would rapidly run out of judges to hear cases if each charge had to go in front of a different judge.

I suppose you could also run into a problem with “forum shopping”; that is, defense lawyers asking for a recusal in order to put the case in front of a different judge because, let’s face it, some judges are more defense-friendly than others.   And, of course, there is always the reluctance from a tactical standpoint to subject your client to an annoyed judge who has just denied your recusal motion.

We are thus left with the fiction that a judge can completely clear her mind of everything else she knows about your client when determining the client’s involvement in an offense. There is always the ideal of what we would hope to accomplish with the criminal justice system. And then there are the accommodations we make every day to reflect reality.  Sometimes the “good enough” will just have to do.  Except for those times, of course, when you are the defendant and it doesn’t.

My client’s mother is annoyed with me.   She disagrees with her 16-year-old son’s decision to take his case to trial, and she is convinced I am the one who talked him into it.  She’s partially right; in this particular case, I did recommend trial.  But it does not matter if the child is 16 years old or 11 years old, it is the juvenile himself who makes the decision – just as if he were an adult — whether or not to accept a plea offer.  My role as his lawyer is to make sure he understands the pros and cons of this decision, not to substitute my own judgment for his.

There are also a couple of other things that the client’s mother may not fully understand. First, she may not realize that, unlike an adult case, there are very few risks to taking a juvenile case to trial.  There is no “trial tax” in juvenile court, at least not in D.C.  In other words, with the judge more concerned about the child’s care and rehabilitation than any notion of retribution or punishment, a juvenile will not face a harsher sentence by exercising his constitutional right to trial.

As I often tell clients, the judge can find you guilty of a serious criminal offense and still dismiss the case if he truly believes that you do not pose a danger to either yourself or the community.  That is why it is so important for juveniles to fully comply with all pre-trial conditions.

Second, the client’s mother may not truly appreciate the nature of the defense lawyer’s role in a juvenile case.  I too am a parent, and I understand parents may not trust a child with a decision of this import, particularly when the child has just exercised the bad judgment that got him arrested in the first place. It may also be difficult to have some stranger come in and work with your child in making a decision over which you have no control.  At the same time, she needs to understand that she is not my client; her son is.  And while the child’s best interests will often coincide with the family’s best interests, this is not always the case.  It is up to the child to determine what his interests are.

One of the things I have always liked about criminal defense is the clarity in the defense lawyer’s role.  It is no different in a juvenile case.  If we can beat a case outright or mitigate the consequences of an adjudication, assuming that is consistent with the juvenile’s expressed wishes, that is precisely what we will attempt to do.  There is no moral ambiguity in any of this.  We leave it to the parents to worry about the child’s long-term moral development.  And we leave it to others – the judge, the prosecutor, and the probation officer – to concern themselves about such amorphous concepts as retribution or justice.

What happens if I release him and he goes out and kills someone?  What happens if I release him and he goes out and gets himself killed?

You know these questions are going through the judge’s mind every time a defense attorney argues for a client’s release.  It is the great unspoken in the court room.  It is why the defense attorney spends a great deal of time trying to convince the judge that all the necessary safeguards are in place so that the judge’s worst nightmare won’t occur.

And then the judge’s worst nightmare does occur.  The judge releases a defendant over strenuous objections of the government and the defendant goes back into the community and gets himself killed.

Does the prosecutor lose any sleep over this?  No, he was the one who was arguing for continued detention.  He has the satisfaction of saying “I told you so.”

How about the defense attorney?  Does he feel guilty for his role in securing the defendant’s release?  Not at all.  Assuming he was representing the expressed wishes of the defendant himself, that is precisely what he was ethically obligated to do.

So it falls back on the judge, and in the case of Tyronn Vincent Garner, who was killed Halloween night in Georgetown after being released from custody, it falls back onto D.C. Superior Court Judge Milton Lee of the Juvenile Division.

Or does it?

I have to tell you, I like Judge Lee.  It is not only that he has the guts to grant a motion for judgment of acquittal when the government has failed to make out its case at trial.  It is not only that he takes the time to get to know – to connect with — every juvenile who comes in front of him when the inclination could be to rush through the docket.  It is also that he has the courage to make the type of decision that in some cases could lead to tragedy.

Judge Lee fully understood the risk when he decided to release Garner from custody.  “One day,” he told Garner’s mother, “there’s going to be a horrible end to all of this – and I don’t want anything to happen to your son but for him to get his service – but I can imagine . . . if something happened to him while he was at [the Department of Youth Rehabilitation Services] . . . as opposed to [the drug treatment center] where he was supposed to be, there’d be a headline out there somewhere and there would be, I’m sure, employment difficulties across the board.  It should never come to that.”

At the same time, Judge Lee is big on due process and accountability. And when he found out that the D.C. Department of Youth Rehabilitation Services (DYRS) had failed to get Garnner into a juvenile drug treatment facility in Pennsylvania as it had promised to do, he felt he had no choice but to release Garner from custody.  As the Washington Post reported it, the Judge did not believe that Garner’s continued confinement without drug treatment was appropriate.

The problem, according to a Post editorial, is that “the District has a system that gives judges no authority to determine the future treatment of youth committed to DYRS.  Says Chief Judge Lee Satterfield:  “There’s nothing we can do.  We have no authority; we can’t hold in contempt or force action.  We can only yell, and that is not good enough.”

During my first couple of weeks with the Juvenile Division at the Philadelphia Public Defender’s Office, I took what I believed to be a very strong case to trial. My client had been charged with aggravated assault against another young woman.  I had a couple of witnesses who testified that my client had actually intervened in order to break up the fight.  I had another girl who, waiving her Fifth Amendment rights, testified that she had been the one who had instigated the fight and who injured the complaining witness.  And I had a police officer who stated that, although he was the one who arrested my client, he now had serious doubts about her culpability.

The judge found my client guilty.

Outraged by the verdict, I marched over to the head of the Juvenile Division to complain.  He shook his head and sighed.  I suppose I should have warned you, he said.  It has been years since we last got a not guilty verdict out of this judge.  And no, he said, we would not be recommending an appeal. The judge stated on the record that she had made her determination on the basis of credibility, a finding an upper court would be very unlikely to overturn.

While I have not been doing juvenile work long enough in D.C. to make this determination, I can say that many judges in Philadelphia seemed to be primarily concerned with keeping the kids in the system so that they could get the help they deserved.  The government-funded supervision and assistance is terminated the moment the child is acquitted.  This means that the judges would sometimes look for any excuse to find the juvenile responsible for at least one of the offenses.  Occasionally I would even have parents, who recognized this fact, working against me.  I still remember one father who went up and hugged the school security officer whose testimony had just led to my client’s conviction.

This morning I am in the library of the D.C. Superior Court building awaiting the verdict in a juvenile case that finished yesterday.  It has taken me a while to re-familiarize myself with the terminology used in juvenile court; for example, how it is an “initial hearing” and not an arraignment, a “respondent” and not a defendant, and so on.  The irony is that, while adult and juvenile courts use the exact same term to describe the burden of proof needed to find a person culpable, “beyond a reasonable doubt” is clearly a lesser standard – in Philadelphia at least — when applied to juvenile cases.

You are upset when your child is arrested.  I understand you may also be angry, particularly when it is a second or third arrest.  What I can’t understand is when you go in front of a complete stranger – a social worker or a judge – and use them to vent your frustration with the child. He doesn’t listen to me, you say.  Or:  He needs to be taught a lesson.

No one should lie, and the court will appreciate your candor.  I don’t want to coach you.  But I do ask you to choose your words carefully.  Something said out of a momentary sense of frustration or anger can be taken out of context.  It can take on a life of its own. The judge will probably write down what you say.  The judge will then refer back to these notes every time your child comes before the court.

The question you need to ask yourself is this:  When this case is over, do you want your child to be coming home with you?

There are only a small number of criminal cases that all lawyers, even those who don’t practice criminal law, seem to know.  Although Miranda v. Arizona is probably the most famous, there is also Gideon v. Wainwright (right to counsel), Wong Sun v. United States (suppression of illegally obtained evidence), Crawford v. Washington (right to confrontation), and In Re Winship (burden of proof for criminal conviction).  Included on that small and exclusive list should be a case I had to re-read recently to prepare myself to take on juvenile cases:  In Re Gault, 387 U.S. 1 (1967).

Spelling out the constitutional due process rights of a juvenile who is arrested for a crime, In Re Gault is the first case any lawyer representing a juvenile defendant should read.  It also provides one of the best overviews of the due process guarantees generally I have ever seen.  As Justice Abe Fortas, writing on behalf of the majority, put it, “[p]rocedure is to law what scientific method is to science.”

Fifteen-year-old Gerald Gault was arrested in 1964 for making a lewd phone call.  That Fortas described the call as “of the irritatingly offensive, adolescent, sex variety” suggests that he didn’t think the call was anything more than a childish prank.  But the police officer, aware that Gault was already on probation in connection with another minor misdemeanor, apparently thought the boy posed a risk to society and took Gault into custody.  In so doing, he did not bother to inform Gault’s parents.  They simply came home to find their son gone.

The Arizona criminal system went on to violate almost every single right we would associate with the Due Process Clause.  First, apart from a “petition” filed by the police officer affirming the officer’s belief that Gault was a “delinquent minor” in need of the court’s supervision, Gault and his parents were not informed of the nature of the charges against Gault.  There was thus no way for Gault to prepare a defense.  And, because none of the proceedings against Gault were ever transcribed, it became very difficult for him to challenge the order that potentially committed him to a state institution until he turned 21.  Six years for a prank phone call!

Second, nobody ever informed Gault or his parents of his right to counsel.  As the Supreme Court of Arizona put it, the “parent and the probation officer may be relied on to protect the infant’s interests.”  This holding ignored the fact, as Fortas put it, that probation officers in Arizona “are also arresting officers.  They initiate proceedings and file petitions which they verify, as here, alleging the delinquency of the child; and they testify, as here, against the child.”  In other words, it would be difficult for the juvenile’s accuser to also act as his counsel.

Third, Gault was never advised of his right to remain silent. As the Arizona Supreme Court put it, “We think the necessary flexibility for individualized treatment will be enhanced by a rule which does not require the judge to advise the infant of a privilege against self-incrimination.” Fortas disagreed:  “It would indeed be surprising if the privilege against self-incrimination were available to hardened criminals but not to children.”

Finally, because the recipient of the alleged phone call was never called to testify, Gault did not have the opportunity to confront the witnesses against him.  In fact, Gault’s uncounseled admissions – both to the police officer and in court – served as the government’s only evidence against him.

Reversing the order that committed Gault to a juvenile detention facility for up to six years, the decision held that most of the constitutional due process rights that apply to adults who are charged with a criminal offense should also protect juveniles.  These rights include notice of the charges, an opportunity to present a defense, representation by counsel, an opportunity to confront and cross-examine witnesses, the privilege against self-incrimination, and the right to appellate review.  (A later U.S. Supreme Court decision – McKeiver v. Pennsylvania – held that juveniles do not have a right to a jury trial.)

In reaching its decision, the Court mocked the early conception of juvenile court as “one in which a fatherly judge touched the heart and conscience of the erring youth by talking over his problems, by paternal advice and admonition, and in which, in extreme situations, benevolent and wise institutions of the State provided guidance and help to save him from a downward career.”  The notion of parens patriae, Fortas wrote, “may have proved to be a great help to those who sought to rationalize the exclusion of juveniles from the constitutional scheme” but “its meaning is murky and its historic credentials are of dubious relevance.”  Furthermore, this case “has again demonstrated that unbridled discretion, however benevolently motivated is frequently a poor substitute for principle and procedure.”

Buried within the lengthy Gault decision is an interesting phrase:  “constitutional domestication.”  Fortas uses this term to point out how you can still achieve many of the advantages of a separate system for dealing with juveniles – for example, greater protection of the accused’s privacy – without requiring the juvenile to forego basic constitutional rights.  “The commendable principles,” Fortas writes, “relating to the processing and treatment of juveniles separately from adults are in no way involved or affected by the procedural issues under discussion.”

Fortas concluded:  “Due process of law is the primary and indispensable foundation of individual freedom.  It is the basic and essential term in the social compact which defines the rights of the individual and delimits the powers which the state may exercise.”

I wish I knew how to say things like that.

One of the major differences I have found between representing a juvenile and representing an adult is that, in juvenile cases, there is usually a much greater similarity between what you read in the police report and what the client tells you.

A number of people have asked me recently about the Youth Rehabilitation Act (YRA) in D.C., which gives the court greater flexibility when sentencing a person who was under the age of 22 at the time of conviction.

Enacted in 1985, the purpose of the YRA is to “separate youth offenders from more mature, experienced offenders” and to provide an “opportunity for a deserving youth offender to start anew through expungement of his criminal record.”   The Act applies to all crimes except for murder and convictions for a second crime of violence while armed.  The court must find before imposing a YRA sentence that the defendant is a “youth offender” who “will derive benefit” from the special treatment.

One of the major benefits of YRA treatment is that it “clears” or “sets aside” the conviction from the criminal record of the person who was sentenced.  However, because the records are not “obliterated” but remain available to law enforcement personnel and court officials for “legitimate purposes,” a set-aside is not the same thing as an expungement.

The conviction is automatically set aside for defendants who are “unconditionally discharged” by the court (in cases of probation) or holding institution (in cases of commitment) prior to the expiry of the term.  If the maximum term of probation or imprisonment expires without early termination, the defendant needs to file a motion to have the conviction set aside nunc pro tunc.  (From the Latin for “now for then,” a court order that is signed nunc pro tunc means that the order will have retroactive legal effect.)

One of the major things to keep in mind about the YRA is that it only applies to sentencing after a person has pled guilty or been convicted of a crime.  As a result, there are often better alternatives for first-time offenders who seek to avoid a conviction altogether.  D.C. Code §§ 24-901 to 906.

As a public defender in Philadelphia, I did a brief stint in the Juvenile Division representing young people accused of committing a crime. People told me before I started the rotation that I would either love working with juveniles or hate it; there didn’t seem to be any in-between. I found myself in the “love-it” category. Although I would have preferred to have done a tad bit more lawyering and a tad less social work, I very much enjoyed interacting with and representing the children.

Having just been accepted onto the Criminal Justice Act (CJA) panel for Juveniles in D.C., with formal training to begin next month, I have begun reading up on the juvenile system in D.C.  Like Philadelphia, the District of Columbia maintains the fiction that we treat juveniles differently in our criminal justice system than adults. While we may treat adults who have been found guilty of a crime as criminals, so this fiction goes, a juvenile who commits the same offense is in need of our care and attention.

Like something out of George Orwell’s 1984, an important part of maintaining this fiction is the development of separate terms to deal with the same concepts.  A juvenile charged with an offense, for example, is not a defendant but a “respondent.”  The formal process begins with a “petition” as opposed to a criminal complaint or information, and the juvenile appears for the first time in court for an “initial hearing” as opposed to an arraignment.

First-time and lesser offenders may be eligible for a “consent decree” as opposed to a deferred prosecution agreement or other type of diversion program.  Whether the juvenile is ultimately found to be “involved,” as opposed to guilty, is determined by an “adjudicatory or fact-finding” hearing, not a trial. After a finding of involvement, the juvenile is “adjudicated,” not convicted, and the court then holds a hearing on “disposition” as opposed to sentencing.

Juveniles are not accorded many of the same constitutional rights as adults. The juvenile has no right, for example, to a trial by jury. The juvenile also has very little expectation of privacy. But the really scary thing about the system is the indeterminate nature of the “disposition” ordered by the court (a juvenile can be held until his/her 21^st birthday) and the extraordinary discretion accorded to probation officers and other non-judicial officials in determining this period of time. More to come.