DOJ Files Statement of Interest in Kentucky School Handcuffing Case

From NJDC

The Department of Justice filed a Statement of Interest in S.R. & L.G. v. Kenton County, et al, in federal court in the Eastern District of Kentucky. The case may have implications in cases in which your juvenile clients have had contact with a School Resource Officer (SRO) that led to unreasonable seizure (i.e., handcuffing) and/or the use of excessive force. The plaintiffs in this case are two elementary school children – named in the complaint as eight-year-old third grader S.R. and nine-year-old fourth grader L.G. – who allege that an SRO violated their rights under the Fourth and 14th Amendment and Title II of the Americans with Disabilities Act (ADA) when the SRO handcuffed them in school, behind their backs, above their elbows, and at their biceps, after the children exhibited conduct arising out of their disabilities.  Beyond a discussion of the appropriateness of such a seizure, the SOI lays out the Department’s expectations of any student-SRO interaction and the legal reasoning behind them.

The Department’s SOI provides the court with a framework to assess the plaintiffs’ claim. The SOI is divided into three sections:

·         First, the Department calls for the need to appropriately delineate the roles and responsibilities of SROs and for specialized training. Specifically, the Department states that SROs should not enforce the school code of conduct or engage in routine discipline of students, but rather should only be focused on addressing and preventing serious, real, and immediate threats to the physical safety of the school and its community.

·         Second, the Department outlines the appropriate standard for evaluating the legality of the SRO’s seizure of the children under the Fourth Amendment: the court must consider whether an objectively reasonable officer would have seized the children by handcuffing them for their misbehavior, considering the totality of the circumstances.

·         Third, the Department argues that the ADA applies to interactions between SROs and children with disabilities. Accordingly, SROs must reasonably modify their practices when needed to interact with students disabilities to avoid disability-based discrimination.

The Statement of Interest is attached and the press release is available here: http://www.justice.gov/opa/pr/department-justice-files-statement-interest-kentucky-school-handcuffing-case.

COA Juvenile - D.B. - Incompetent Witness

D.B. v. Commonwealth, 2013-CA-000818 (unpublished): 

The Court of Appeals reversed a juvenile sex offense adjudication finding that the juvenile court improperly admitted the child-complainant’s statements to the Children’s Advocacy Center therapist.  The Court held that under B.B. v. Commonwealth, 226 S.W.3d 47 (Ky. 2007) the statements of an incompetent witness are inadmissible. It was uncontested in this case that the complainant (a toddler) was incompetent to testify. The juvenile court had admitted the statements under the hearsay exception for statements made for purposes of medical treatment.

Contributed by Renee VandenWallBake

COA Juvenile - A.G. - Valid Court Order

A.G. v. Commonwealth, 2014-CA-000935 (motion to publish pending): 

The Court of Appeals reversed an order committing juvenile to the Cabinet for contempt of court finding that the court order was not a “valid court order” under MAM and KRS 610.010(11) because it was issued pre-adjudication.  The underlying charge was habitual truancy.

Contributed by Renee VandenWallBake

Teen sex a crime? Ky high court to hear case: Louisville C-J

The eighth-grade boy and his seventh-grade girlfriend had been dating about 1½ years when they decided to have sex, which they did twice at her house when nobody was home.

The boy, 15, also texted two nude pictures of himself to the girl, 13, who sent him one back
.
When the girl's parents found the pictures on her phone, they took out a warrant in Woodford Circuit Court, and the boy was charged with sexual misconduct, a misdemeanor, and possessing matter portraying a sexual performance by a minor, a felony.

Even though "B.H," as the boy is identified in court records, was too young to consent to sex — the minimum age is 16 in Kentucky — he was charged with a crime for engaging in it. And even though the boy's parents could have gone to the county attorney's office and taken out charges against the girl — just as C.W.'s parents had done — only B.H. was charged.
....
"This case matters to any parent who has a teenage child, or will have a teenage child," B.H.'s lawyer, assistant public advocate John Wampler, said in an interview. "The simple fact is that unfortunately, many young teens under 16 are having sex with each other and engaging in sexting.

"If the Commonwealth's position is held to be correct, then approximately one third of all teenagers, according to recent statistics, could be charged with a felony sex offense," Wampler said. "That should strike fear in the hearts of every parent who has bought their child a smartphone.

Read the entire article on the Louisville Courier-Journal

Pew Article about Kentucky

In this summer's edition of Trust by The Pew Charitable Trust is an article about Kentucky's role Leading With Facts by Peter Perl.

With Pew’s help, Kentucky lawmakers found agreement on divisive issues through research-based evidence that pointed to solid solutions. From controlling prison costs to rescuing its pension fund, the Bluegrass State has become a laboratory of ideas—and a story of accomplishment.

In his 38 years as a public defender in Kentucky, Edward Monahan observed
with growing alarm—and then anger—the irrationality of a juvenile
justice system that incarcerated tens of thousands of young people for offenses
that wouldn’t even be crimes if committed by an adult: running away
from home, alcohol or tobacco use, chronic truancy, persistent tardiness,
or disobeying a judge’s order to return to school and do their homework.

Read the complete article here

COA - AKM - Right against self-incrimination during school questioning

A.K.M. v. Commonwealth, 212-CA-1190 (not yet final)(not to be published): 

AKM was interrogated twice while at school regarding an alleged theft of $20-$40 from the teacher’s lounge.  The first interrogation was conducted by the school principal while an officer, who was at the school initially on an unrelated matter, was in the next room. After AKM admitted to taking the money to the Principal, he was brought to the police officer who informed him of his Miranda rights and questioned him again, yielding a second confession. During the second interrogation AKM repeatedly stated that he did not want to tell on himself.  

The Appellant raised several issues on appeal, including that the first interrogation violated Miranda under N.C. and Welch because the purpose of the questioning was to gather evidence for a criminal prosecution, that the second confession was tainted and coerced, and that the Appellant asserted his right to remain silent during the second interrogation.  The Court of Appeals found that Miranda warnings were not necessary for the first interrogation because, distinguishing from N.C., the principal was “acting only as a principal investigating a school disciplinary matter” and there was no evidence that the principal was acting in concert with the police officers.  As to the second interrogation, the Court found that AKM was in custody at the time of the police interrogation and had invoked his right to remain silent by stating, “I don’t want to tell on myself” and that continued questioning violated the 5^th amendment.  The Court found this statement to be a clear articulation of the desire to remain silent and reversed.  Judge Thompson wrote the opinion with Dixon concurring and Caperton dissented (no written dissenting opinion).

Contributed by Renee VandenWallBake

KYSC – R.S. v. Comm -- Juvenile Trial Practice Procedures and Juvenile Restitution

R.S. v. Commonwealth, 423 S.W.3d 178 (Ky. 2014) - R.S. was charged with complicity to second degree criminal mischief for allegedly participating in the vandalism of a car.  Though the evidence showed his involvement was minor, he was ordered to pay full restitution to the victim.

The case was appealed to the Kentucky Supreme Court upheld the trial court’s verdict.  However, in doing so the Court made several significant changes to juvenile law. 

First, the court eliminated the requirement of a motion for directed verdict in a juvenile adjudication, holding that at the close of the Commonwealth’s evidence, defense counsel should instead move for dismissal under CR 41.02(2).  The significance of the difference is that upon making such a motion the juvenile court is required to “‘weigh and evaluate the evidence,’” rather than “indulge every inference in the [Commonwealth’s] favor’” as required with a directed verdict.

Second, the court found that in juvenile cases where the court seeks to order restitution, the court must hold a restitution hearing, and make findings on the record as to why restitution is in the “best interests” of the child.  Restitution must be reasonable, balancing the interests of making the victim whole with the child’s ability to pay.  Factors to be considered include the child’s age, earning ability, employment status, the ability of parents to pay, and the existence of any legal remedies available to the victim other than restitution.

R.S. was represented at various stages of the appellate process by several former and current members of the Juvenile Post Disposition Branch, including Gail Robinson, Dawn Fesmier, and John Wampler. John Wampler argued the case before the Kentucky Supreme Court

Contributed by John Wampler

New KIDS COUNT County Level Rankings on Child Well-Being Reveal Need for Smart Investments in KY Kids

From Kentucky Youth Advocates Press Release: 

The 2013 Kentucky KIDS COUNT County Data Book, released today by Kentucky Youth Advocates highlights the need for smart investments to ensure kids in all counties have the best opportunity to thrive in childhood and succeed as adults.

This is the 23nd annual release of the Kentucky KIDS COUNT County Data Book, part of the Kentucky KIDS COUNT project. The KIDS COUNT project monitors progress for Kentucky’s one million children on over 100 indicators of child well-being. This year’s book introduces a new approach, ranking Kentucky counties on overall child well-being and on four domains critical to that well-being: economic security, education, health, and family and community strength. Each domain includes four indicators of well-being, for a total of 16 indicators.

....
 
Youth Incarcerated in the Juvenile Justice System

A notable indicator in the family and community domain is the number of youth incarcerated in Kentucky’s Juvenile Justice system. In 2010-2012, Kentucky incarcerated 51.9 young people ages 10-17 for every 1,000 children that age. County incarceration rates varied widely, with 38 counties exceeding the state rate. The data show that most Kentucky youth are incarcerated for offenses that do not threaten public safety and could better be treated in the community than in a juvenile jail. Incarcerated youth face a greater probability of poor education, less employment, and poor mental health outcomes, and they are at increased risk of being incarcerated again.

“The opportunity exists to make significant changes in the Juvenile Justice System during the 2014 Kentucky General Assembly. The Unified Juvenile Code Task Force led by Senator Whitney Westerfield and Representative John Tilley is making progress, and we expect strong recommendations to result from their work. Significant reforms could put Kentucky youth on a better track for success, while also improving public safety and using tax dollars efficiently on what works,” added Brooks.

Free from NJDC: Trial Manual for Defense Attorneys in Juvenile Delinquency Cases

An updated, 2013 edition of the Hertz, Guggenheim & Amsterdam Trial Manual for Defense Attorneys in Juvenile Delinquency Cases is now available, free of charge, on National Juvenile Defender Center website.  A complete how-to guidebook for handling juvenile court cases, the Manual covers every phase of the juvenile court process, from arrest and intake through appeals, with sound advice from distinguished experts.  This definitive hornbook will be extremely useful to both the new and veteran attorney, and incorporates scholarly writings, statutes, and cases from jurisdictions across the nation.  The Manual is an invaluable resource on the law as it is applied to youth at each stage of the delinquency process.

Please follow this link to view the new edition of this invaluable resource: http://njdc.info/pdf/2013_Juvenile_Trial_Manual-Updated_Full_Version.pdf (1041 pages)

FYI - DPA has also published the Kentucky Juvenile Advocacy Manual (72 pages)

KY COA - M.A.M - Juvenile, Boykin, Pre-Adjudication Contempt

M.A.M. v. Commonwealth: ___, S.W.3d ____, 2013WL1488509 (Ky. App. 2013)(Motion to Publish pending, not yet final):

Finding there was a Boykin violation even though counsel present when M.A.M not informed of what rights would be waived or the consequences of an admission to the charges. “the family court made no inquiry during the November 15, 2011 adjudication hearing as to the veracity of the charges or of the child's stipulation, and no inquiry was made as to whether M.A. M.'s stipulation was voluntary or coerced. Nor did the court inform the child during that hearing and before accepting his plea of what the possible consequences, in terms of the range of punishments, would be if he admitted his guilt.”  

The court also held that children cannot be held in contempt for pre-adjudication orders because have not received their full due process rights! Specifically the court held, “In the present case, the JSOO was entered based solely on the allegations against the child. M.A.M. did not receive his full due process rights before the order was entered. Consequently, the (court order) was not a valid court order, and the child could not be held in contempt for violating it.”

Practice Tip: Always object to the entering of pre-adjudication orders, but if they get entered you can argue against any pick-up orders or contempt hearings based on violations of these pre-adjudication orders on due process grounds.

Contributed by La Mer Kyle-Griffiths

KY SC - Edwards - Youthful Offenders and Violent Offender Statute

Edwards v. Harrod, 361 S.W.3d 755 (Ky. 2013)

The Kentucky Supreme Court decided a question that has created much confusion in youthful offender cases: does the violent offender statute apply to youthful offenders in the area of parole?  The court answered with a clear YES.  “(U)nder our holding today, the parole board cannot grant parole to youthful offenders who are ineligible under the Violent Offender Statute.” The Court’s rationale was that “. . . contrary to the probation-eligibility restriction of the Violent Offender Statute, the parole-eligibility limitation on violent offenders does not conflict with the youthful offender statutory scheme.”  The Court held that the differences between probation and parole justified the prohibitions in KRS 439.3401 as there was no statute within the juvenile code that specifically exempted juveniles. All youthful offenders convicted of a violent offense must serve 85% of their sentence before they can be considered for parole.  DOC is also applying the good time and meritorious credit restrictions of KRS 439.3401 to youthful offenders.  

Contributed by Renee VandenWallBake and La Mer Kyle-Griffiths