United Way Helps Here!

Kansas Legal Services is a statewide legal services

organization that seeks to help the impoverished with

legal problems. KLS provides an array of unique

services, including employment training. KLS

makes a difference by providing quality legal

representation. Areas of practice include Domestic &

Family Law, Landlord Tenant, Consumer

Protection, Elder Law, Juvenile Law, Education Law,

Disability, etc. If you, or someone you know needs help, please call

800-723-6953800-723-6953

Juvenile Offender Case Law UpdateWith discussions regarding future constitutional issues in juvenile court. . .

Changing Juvenile Courts, Expanding Constitutional Rights of Children.

In Re L.M., 186 P.3d 164 (Kan. 2008)• Explain how the case got started• Outline the case itself• Outline the decision of the Kansas Supreme

Court, and its reasoning in its ruling (History)• Outline the obstacles in setting this precedent

and in setting similar, future precedents• Discuss the case’s implication, and how it can

influence your practice

Setting Up the Litigation!Identifying the issue, and

mapping out a plan.Good organization.The right case. . . A willing client! Optimism. Unfortunately, I

also knew that I had to lose in order to appeal and make change!

Jousting the Windmill

Once I had a grasp of the issue I was then

able to begin the process of litigating

the case. It required a clear methodical plan that was logically

implemented.

False Starts and Frustrations

It became important to keep in mind where it was that I was ultimately going to end up.

UNFORTUNATELY

I also had to lose before any change would occur.

Contemporaneous Objections

The general rule in Kansas is that a contemporaneous objection must be

made, and it should be specific enough that the trial judge can rule intelligently

upon the objection, and the specific contemporaneous objection must be made known to the opposing counsel

when the objection is lodged.

Preparing for the L.M. Case

It all started with Parens Patriae

What was In Re L.M. about anyway? (THE FACTS)

L.M. is a juvenile offender case out of Finney County Kansas. The kid was charged with Aggravated Sexual Battery, a violation of K.S.A. 21-3518, a level five person felony and minor in consumption of alcohol. He requested a jury trial. It was denied. The facts of the case can be summarized as an incident involving a midnight encounter with a female neighbor. She was 27 and he was 16. L.M. asked the female for a cigarette and she gave him one. L.M. grabbed or hugged the neighbor requesting a kiss. When the neighbor refused L.M. allegedly licked and kissed her on the cheek and held on to her as she attempted to walk away. L.M. asked her if she “liked to fuck” and the encounter ended with no injury to anyone and L.M. stating, “bye baby.” L.M. stumbled home drunk.

Brown vs Hall (1930)FACTS OF THE CASE

15 Year old girl was out late, drinking, hanging out at poolrooms and with vicious immoral

people, including thieves. She had

broken no laws! It wasn’t even illegal for a

15 year old to drink beer then.

A Brief History of the Jury Trial Issue In Kansas

Brown vs Hall (1930)A Kansas Case, 129 Kan. 859

ATTORNEY’s ARGUMENTThis is a “Quasi Criminal”

matter and her liberty is at stake! She

deserves a jury trial.THIS ISN’t FAIR!

Brown vs Hall (1930)A Kansas Case, 129 Kan. 859

THE COURT RESPONDEDThis is not a criminal matter,

it is a civil matter, and the child’s future is at stake because the child needs

proper parental care!

The Brown Court’s Holding

A proceeding against a delinquent and neglected child is not a criminal one. It is an inquiry to ascertain whether the child shall be placed under the direct and immediate control of the state for the good of the child, in securing for it proper nurture, training and education, not for the purpose of punishing it for any acts that it ought not to have committed. (State v. Dunn, 75 Kan. 799, 90 P. 231; State v. Dubray, 121 Kan. 886, 250 P. 316.) The judgment of the district court is not a punishment for crime committed; it is a finding of fact on which action for the good of the child is based. (In re Turner, 94 Kan. 115, 116, 145 P. 871.). Emphasis added.

Kansas Legislature Codified the Court’s Holding; see GS 1949, 38-415

This act shall be liberally construed, to the end that its purposes may be carried out, to wit, that the care,

custody and discipline of a child shall approximate, as nearly as may be, proper parental care; and in all cases where the same can be properly done, that a child may

be placed in an approved family home, by legal adoption or otherwise. And in no case shall any proceedings, order

or judgment of the juvenile court, in cases coming within the purview of this act, be deemed or held to import a criminal act on the part of any child but all

proceedings, orders and judgments shall be deemed to have been taken and done in the exercise of the parental power of the state. G.S. 1949, 38-415. (Emphasis added).

Parental Power Police Power

Orders and judgments shall be deemed to have been taken and done in the exercise of the parental power of the state.

Constitutional Challenges Laid to Rest!

Criminal procedures were deemed entirely

inappropriate. The framework for juvenile

court was idealic and the State did all it could to be a good parent. Good parents don’t have to give children

constitutional rights and neither does the State!

McKeiver v. Pennsylvania1971

The last time the right to jury trial was addressed in the U.S. Supreme Court was in McKeiver. The Supreme

Court found in a plurality opinion that if it were to grant jury trial in juvenile proceedings that it would be

essentially disrupting what it termed the “prospect of an intimate, informal, protective proceeding.” The court

was concerned that it would cause the death of parens patriae, and so the court ruled that it could not go that

far unless the juvenile system became essentially a criminal system and at that time (1971) it had not gone that far. The U.S. Supreme Court has not addressed the

issue, but some states have done so.

Kansas After McKeiverIn the early 1980’s the systems were split so that children charged with crimes could have an attorney and not a GAL,

and the legislature sought to distinguish the approach taken. Since then have been only a few challenges to get a right to

trial by jury for juveniles, all unsuccessful.

Later, in 1996 the entire concept of parens patriae was entirely removed from the statute and then in 1996 the Court ruled

that juvenile “Convictions” could be used against an adult and that was solidified in State v. Hitt in 2002.

Kansas CasesIn Re Findlay (1984)In Re A.C.W. (1999)

In Re L.A. (2001)

Were these cases good law, and had Kansas come full circle? Was Kansas more punitive than rehabilitative?

The arguments crafted in the L.M. case centered around the McKeiver case and around the changes made in the Kansas

Juvenile Justice System .

Parental Power Police Power

Orders and judgments shall be deemed to have been taken and done in the exercise of the parental power of the state.

Police Power is Police Power

Orders and judgments shall be deemed to be criminal convictions and can be used against them. When a child is accused he/she is labeled as a criminal and can face incarceration (Liberty Interests are certainly at stake).

Juvenile Offender Court is a Criminal Prosecution!

It’s not just a civil proceeding to find a kid to be a juvenile delinquent. . .

The Kansas Supreme Court Was Brave!

Juveniles charged with crime.

Kansas Supreme Court!

“. . . we are undaunted in our belief that juveniles are entitled to the right to a jury trial guaranteed to all citizens under the Sixth and Fourteenth Amendments to the United States Constitution. . . we conclude that the proceedings under the KJJC fit within the meaning of the phrase ‘all prosecutions’ as set forth in §10 [of the Kansas Constitution], and juveniles have a right to a jury trial under the Kansas Constitution.”

UNDAUNTED

undaunted - courageously resolute especially in the face of danger or difficulty : not discouraged. Not discouraged or disheartened; resolutely courageous.

In Re L.M., 186 P.3d 164 (Kan. 2008)

Problems With L.M. Case!• It is BROAD and gives little guidance.• It has revolutionized the juvenile system and set in

motion an overwhelming task for prosecutors, judges and defense attorneys.

• May require juvenile courts to be redesigned.• May make juvenile courts more penal in nature.• May create backlash with overzealous P-O-ed

prosecutors (more certifications). • May raise taxes, potentially VERY COSTLY!

Good things about L.M. Case

• Juvenile offenders now have additional protections as a tool.

• May curb prosecutors from overcharging kids.• Gives children charged with crime more leverage in

working out plea deals. • Gives children a buffer from “quick to convict”

judges.• Kids are able to prevent getting the worst of both

worlds.

Immediate Effects of L.M.

Has anyone experienced any immediate effects of the L.M. decision?

http://inrelm.blogspot.com

In Re J.R.A., 38 Kan.App.2d 86 (2007)

This is a case about statutory construction. As a result of the case the legislature has already reacted. Legislation has been enacted to fix the hole that allowed the juvenile to get through it. Even though this is the case it is still a useful case because it shows how strict the courts are on statutory construction, especially in juvenile cases.

In Re P.L.B.,190 P.3d 274 (2008)

The elements of a knowing, voluntary, and intelligent plea

are outlined. The Court got very technical in its analysis of

a plea in a juvenile case and required a reversal because

the district court did not follow the requirements of

K.S.A 38-2344.

K.S.A. 38-2344

The statute requires that the trial court inform the juvenile of the following: (1) the nature of the charge; (2) the presumption of innocence; (3) the right to a speedy trial; (4) the right to subpoena witnesses; (5) the right to testify or not to testify, and (6) the sentencing alternatives the trial court may impose. Failure to do what is required in K.S.A. 38-2344 basically opens the door for the juvenile to challenge the validity of the plea.

Failure to follow the statute will require reversal

In Re Z.C., 2007 Utah 54 (2007)

This is not a Kansas Case, but it is important to note because it calls into question the charging of children under fourteen with statutory rape, especially when the other child is also subject to prosecution under the law. The Court articulates a rarely used doctrine, ridiculous and absurd results.

In Re Z.C., 2007 Utah 54 (2007)Quoting the U.S. Supreme Court the Utah court articulated the absurd results doctrine as follows: The absurd results canon of statutory construction recognizes that although “the plain language interpretation of a statute enjoys a robust presumption in its favor, it is also true that [a legislative body] cannot, in every instance, be counted on to have said what it meant or to have meant what it said." FBI v. Abramson, 456 U.S. 615, 638 (1982) (O'Connor, J., dissenting).

The Court, even though concise in its reasoning, narrowly confined the ruling to only apply to situations where no true victim or perpetrator is identifiable.

More Constitutional Issues in Juvenile Court

Paul Shipp

The Most Notable Rights!The juvenile-defendant has the right. . .• To a trial by jury in criminal prosecutions• To know the nature of the charge• To the presumption of innocence, State’s burden (BRD)• The right to a speedy public trial (without unnecessary

delay)• The right to subpoena witnesses (to defend)• The right to confront his accuser(s)• The right against self incrimination (Miranda, 5th Amend)• The right to competent counsel• The right to be left alone and not subject to

unreasonable searches and seizures (4th Amendment)

Preliminary Hearings & Probable Cause

The interesting question in juvenile court is why it is okay for a prosecutor to just file a complaint in juvenile court, without any judicial oversight. The fourth amendment requires that, “no warrants shall issue, but upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized. ” In spite of the warrant requirement the Juvenile Court procedure requires no judicial review before the case can proceed. This is an interesting question that should be raised. It is possible that it has already been raised. . .

Right to BondDoes a juvenile have the right to be presumed to be innocent until proven guilty? In juvenile courts it is not unusual to have a younger child involved with young adults, 18 and over, where the adult is able to bond out of jail and be free, where the juvenile is detained, or placed into the immediate custody of the Juvenile Justice Authority for placement outside of the home. Does this make any sense?

5th Amendment, Miranda Rights

Special Rules RegardingInterrogating Children

K.S.A. 38-2333 is effective when a child is less than 14 years of age. No admission or confession resulting from interrogation while in custody or under arrest may be admitted into evidence unless the confession or admission was made following a consultation between the juvenile’s parent or attorney as to whether the juvenile will waive the right to an attorney and the right against self-incrimination. It shall be the duty of the facility where the juvenile has been delivered to make a reasonable effort to contact the parent immediately upon the juvenile’s arrival.

Cop’s actual statements

You don’t get to decide if you talk to me. Your mom does is the gist of it, and this is exactly what the cop said:

And before I ask you specific questions, Okay, let me tell you a thing or two, you know your Miranda rights, I take it, Okay,. . . I am going to go ahead and review the same thing, your moms already told me I can talk to you, I just want to go ahead and let you know. You have the right to remain silent, anything you say can an will be used against you you have the right to an attorney, and ya' have the right to have an attorney present with you an you also have the right to stop any questioning , Okay, alright, now…

More Special Rules RegardingInterrogating Children

“. . . when, as here, a mere child – an easy victim of the law – is before us, special care in scrutinizing the record must be used. Age 15 is a tender and difficult age for a boy of any race. He cannot be judged by the more exacting standards of maturity. That which would leave a man cold and unimpressed can overawe and overwhelm a lad in his early teens.”

The U.S. Supreme Court

Donesay/Young FilterThe courts in Kansas require the following factors are to

be considered when determining whether the confession of a juvenile is voluntary:

(1)the age of the minor, (2)the length of the questioning, (3)the minor’s education, (4)the minor’s prior experience with the police,(5)the minor’s mental state. The state must show that under the totality of the

circumstances, the juvenile ’s confession/admissions were voluntary.

4th AmendmentThe best case to read on this issue is In Re L.A., 270 Kan. 879 ; 21 P.3d 952 (2001). The last section of the case that deals with the juvenile ’ s right to jury trial is now bad law, but the rest of the case is full of excellent analysis. There are so many treatises out there on the Fourth Amendment that an analysis of those issues is not going to be attempted here. The most important issue here is whether the attorneys representing children are actually analyzing cases and apply this most important constitutional principle.

Use of Juvenile Adjudications to Enhance Adult Sentences

Use of Juvenile Adjudications to enhance adult sentences. The Kansas Supreme Court has held in the past that juvenile adjudications can now be used to enhance sentences in adult criminal cases, even though such adjudications were obtained without the full panoply of due process rights provided to adults in criminal cases. K.S.A. 21-4710; State v. LaMunyon, 259 Kan. 54, 911 P.2d 44 (1996). In State v. Hitt , 273 Kan. 224, 42 P.3d 732 (2002) the Kansas Supreme Court seemingly solidified the constitutionality of allowing this to occur, but now that we have L.M. should the court revisit the question?

The End