DOJ Weighs in on Georgia Juvenile Indigent Defense Suit

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Juvenile defendantsFor the first time, the U.S. Department of Justice has intervened in a state lawsuit alleging juvenile defendants have been routinely denied adequate representation.

“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,” the DOJ said in its 22-page statement of 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.”

The DOJ’s statement of interest in the suit, filed in Georgia, invokes the 1967 landmark U.S. Supreme Court ruling In Re Gault. In Gault, the high court ruled that juveniles in delinquency proceedings are guaranteed many of the same due process rights as adults in criminal trials. Among them: the right to counsel, the right to confront witnesses, the right to appeal and the right to avoid self-incrimination.

The Justice Department did not take a legal stand on the merits of the Georgia case.

But if legal standards are not put in place to guarantee due process for juveniles in the four-county Cordele Judicial Circuit in south Georgia, the Justice Department told a Fulton County Superior Court judge that he should find the constitutional rights of juvenile defendants are being violated.

(The Georgia lawsuit, N.P. v. Georgia, alleges due process violations for juvenile and adult defendants. For adults, the suit cited the landmark 1963 Supreme Court ruling Gideon v. Wainwright, which established the right to counsel for adults who cannot afford a lawyer.)

The Justice Department’s statement of interest focuses only on juvenile defendants.

The Atlanta-based Southern Center for Human Rights and the Washington law firm Arnold & Porter filed the lawsuit last year, saying juvenile defendants had often appeared in court without a lawyer, while others met with a lawyer for just 10 or 15 minutes before their proceedings.

The suit claims the public defense system in the Cordele Judicial Circuit (Crisp, Ben Hill, Dooly and Wilcox counties, south of Macon) is so underfunded and poorly staffed that indigent juvenile defendants are routinely denied their right to legal representation.

Because of understaffed and underfunded public defense offices, children routinely waive their right to counsel without knowledge of the implications of doing so, the suit says.

In statements, Justice Department officials suggested the violations of juveniles’ right to due process guaranteed by Gault extend far beyond this judicial circuit that is the subject of the lawsuit.

The Justice Department did not immediately return requests for further comment.

The Cordele lawsuit listed among defendants the state of Georgia, second-term Republican Gov. Nathan Deal and the Georgia Public Defender Standards Council (GPDSC). The independent agency within the executive branch of Georgia’s government is charged with ensuring each case handled by a public defender receives “zealous, adequate, effective, timely and ethical legal representation,” consistent with requirements of the Georgia and U.S. constitutions.

Deal’s office and GPDSC officials did not return calls seeking comment, and a spokeswoman for Georgia Attorney General Sam Olens said he would have no comment.

“The most glaring thing about the children was hearing story upon story about young people appearing in court, and public defenders were not even present,” said Crystal Redd, a staff attorney at the Southern Center for Human Rights. “No one was there to represent them, and they were given the option of going forward without an attorney or having their cases extended to wait for an attorney to get there.”

Sometimes, Redd said, kids were told to talk to a parent if they had a question about the legal process in proceedings that can lead to serious “collateral consequences” for adjudication that could affect employment, education, housing and military service.

Without representation, she said, children are sentenced without having a public defender who can get key information about the defendants, including special education or mental health needs.

Attorney General Eric Holder said, “For too long, the Supreme Court’s promise of fairness for young people accused of delinquency has gone unfulfilled in courts across our country.”

“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.”

And Acting Assistant Attorney General Vanita Gupta of the Civil Rights Division said: “Every day, in communities across our country, under-resourced public defense systems fail to meet their constitutional obligation to provide effective representation for children.

“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.”

The four counties include many children living in poverty. Only a small fraction of juvenile defendants from those counties received representation from a public defender. For example, of 661 Cordele juvenile cases heard in 2013, only 26 were represented by public defenders.

Redd said the lack of adequate representation of juvenile offenders has continued, as ongoing monitoring of cases has shown.

The suit seeks to require the Cordele circuit to provide plaintiffs with their rights under the U.S. Constitution’s Sixth Amendment (right to counsel) and 14th Amendment (due process and equal protection clauses) and to rights under the Georgia constitution and other applicable law.

“Juveniles are entitled to effective attorneys who are skilled in defending children,” Redd said.  “That means they have a record of skill and experience in representing children, which is very different than representing adults. The [DOJ] statement also reaffirms that the Constitution requires nothing less, that they made crystal clear that it takes the unique training and the unique skill set to appear in juvenile court.”

In December, David Rigdon was named Cordele public defender to serve 30 hours a week until June 30, 2015, with a salary of $45,000 with no benefits.

A February filing in the lawsuit said Rigdon had no training in juvenile law or child and adolescent development; had not read the juvenile delinquency section of the Georgia Juvenile Code; had not visited a Cordele juvenile detention center where children are detained pending resolution of their cases; and had not advocated for some alternative sentences because he did not know about them.

Asked at a deposition about his knowledge of key Supreme Court cases, he was unaware of Gault as well as three high court cases that took into account unique aspects of adolescent brain development and adolescent behavior, Roper v. Simmons (2005), Graham v. Florida (2010) and Miller v. Alabama (2012).

Rigdon could not be reached Friday morning.

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