Using Special Education Using Special Education Law In Family Court Law In Family Court

CasesCases

Criminal Defense InstituteCriminal Defense Institute

June 2011June 2011Joe TulmanJoe Tulman

Professor of LawProfessor of LawJTulman@udc.eduJTulman@udc.edu

22

Delinquency – Reversing theDelinquency – Reversing theSchool-to-Prison PipelineSchool-to-Prison Pipeline

Special Education Advocacy to Special Education Advocacy to Defeat Delinquency Jurisdiction or Defeat Delinquency Jurisdiction or Enhance DefenseEnhance Defense

Keep a Child Out of, or Get a Child Out Keep a Child Out of, or Get a Child Out of, the Delinquency Systemof, the Delinquency System

If Not, Improve the Defense and the If Not, Improve the Defense and the OutcomeOutcome

33

Child Welfare – Stabilizing or Child Welfare – Stabilizing or Reunifying FamiliesReunifying Families

Special Education Advocacy to De-Special Education Advocacy to De-Rail Child Welfare Intervention or Rail Child Welfare Intervention or Improve OutcomesImprove Outcomes

Identifying and Obtaining ServicesIdentifying and Obtaining Services Help a Parent Gain Control of the Help a Parent Gain Control of the

SituationSituation Consider Innovative DefensesConsider Innovative Defenses

44

Case Aggregation and Attorney Case Aggregation and Attorney Mobilization for Systemic ChangeMobilization for Systemic Change

Defining “Case Aggregation”Defining “Case Aggregation” Advantages of Using Special Advantages of Using Special

Education as an Organizing StrategyEducation as an Organizing Strategy– Caseloads and Attorneys’ FeesCaseloads and Attorneys’ Fees– Conflict and Cost Conflict and Cost Pushing for Reliance Pushing for Reliance

on Prevention and Integrated System of on Prevention and Integrated System of CareCare

55

Special Education AdvocacySpecial Education AdvocacyTo Defeat Delinquency Jurisdiction or To Defeat Delinquency Jurisdiction or

Enhance DefenseEnhance Defense

Disability DisparityDisability Disparity Advantage of Using Disability RightsAdvantage of Using Disability Rights Special Education Law and Practice Special Education Law and Practice

(Quick Overview)(Quick Overview) Strategies for Delinquency DefenseStrategies for Delinquency Defense

66

The Current SituationThe Current Situation

From School System to Delinquency From School System to Delinquency (Rise of Zero Tolerance Policies)(Rise of Zero Tolerance Policies)

Neglect (Child Welfare) to DelinquencyNeglect (Child Welfare) to Delinquency

Delinquency to CriminalDelinquency to Criminal

77

Other Child-Caring Systems…Other Child-Caring Systems…

Ineffective in…Ineffective in…

Stabilizing or Reunifying Families or Stabilizing or Reunifying Families or Stabilizing Children in PlacementsStabilizing Children in Placements

Addressing Deviant Conduct by Addressing Deviant Conduct by ChildrenChildren

Reducing Drugs, Violence, Illiteracy, Reducing Drugs, Violence, Illiteracy, Poverty, Recidivism, etc.Poverty, Recidivism, etc.

Making Children ProductiveMaking Children Productive

88

Other Child-Caring Systems…Other Child-Caring Systems…

Mental Health, Recreation, Mental Health, Recreation, Drug Treatment, Drug Treatment, Vocational Rehab., Vocational Rehab., Probation, and School Probation, and School Systems = Ineffective or Systems = Ineffective or Subordinated Because of Subordinated Because of Cynicism or “Efficiency”Cynicism or “Efficiency”

99

Effectiveness of Providing an Effectiveness of Providing an Appropriate Education Appropriate Education

Developmental Imperatives for Developmental Imperatives for Adolescents… Adolescents… – Competency, Success, and Independence: Competency, Success, and Independence:

In School or On the Street?In School or On the Street?- Job Mentoring: Legitimate or Illegal - Job Mentoring: Legitimate or Illegal

Economic ActivityEconomic Activity– We Know What Makes Children SuccessfulWe Know What Makes Children Successful– Importance of MainstreamingImportance of Mainstreaming– Brain Science and Outgrowing DelinquencyBrain Science and Outgrowing Delinquency

1010

Providing Appropriate EducationProviding Appropriate Education

Evidence-Based PracticesEvidence-Based Practices– For Teaching IndividualsFor Teaching Individuals– PBISPBIS– For Diminishing Youth Violence For Diminishing Youth Violence

(e.g., Surgeon General’s Report on (e.g., Surgeon General’s Report on Youth Violence; Blueprints; Etc.)Youth Violence; Blueprints; Etc.)

CDC Findings on Kids in Criminal CDC Findings on Kids in Criminal System & Adult PrisonsSystem & Adult Prisons

Our Clients Have Unmet Needs and Our Clients Have Unmet Needs and Unrecognized RightsUnrecognized Rights

1111

Disparities, Discrimination, and Disparities, Discrimination, and Efficacy of Legal ChallengesEfficacy of Legal Challenges

Disparity Based on Disparity Based on RaceRace– E.gE.g., McCleskey v. Kemp; ., McCleskey v. Kemp; but cfbut cf., Deliberate ., Deliberate

Indifference Rather than Just Disparate ImpactIndifference Rather than Just Disparate Impact

Disparity Based on Disparity Based on ClassClass– Not RecognizedNot Recognized

Disparity Based on Disparity Based on DisabilityDisability– More Effective Legally, Politically, Rhetorically, More Effective Legally, Politically, Rhetorically,

Psychologically, and Practically (For Solving Psychologically, and Practically (For Solving Problems)Problems)

1212

Children with Disabilities Children with Disabilities Disproportionately…Disproportionately…

Not successfully integrated in the Not successfully integrated in the mainstream at schoolmainstream at school

Excluded from school due to disciplineExcluded from school due to discipline

Subjects of child welfare petitionsSubjects of child welfare petitions

Facing delinquency chargesFacing delinquency charges

Detained and incarceratedDetained and incarcerated

Not successfully reintegrated following Not successfully reintegrated following incarcerationincarceration

1313

Substantive and Procedural Rights Substantive and Procedural Rights Under the IDEAUnder the IDEA

HANDOUTHANDOUT

1414

Individuals with Disabilities Individuals with Disabilities Education Act (I.D.E.A.)Education Act (I.D.E.A.)

20 U.S.C. §§ 1400 et seq.20 U.S.C. §§ 1400 et seq. 34 C.F.R. Part 300.34 C.F.R. Part 300. State and Local Statutes and State and Local Statutes and

RegulationsRegulations

1515

IDEA EligibilityIDEA Eligibility Disability CategoriesDisability Categories Substantial Impact on EducationSubstantial Impact on Education

From 0 to 3 and from 3 through 21From 0 to 3 and from 3 through 21 Twenty-Second Birthday (Plus)Twenty-Second Birthday (Plus)

– Effects of Diploma or G.E.D.Effects of Diploma or G.E.D.

““Compensatory Education”Compensatory Education”– Expanding Services Expanding Services – or Extending Eligibilityor Extending Eligibility

1616

Substantive and Procedural Rights Substantive and Procedural Rights Under the IDEAUnder the IDEA

FAPE (Free Appropriate Public Education)FAPE (Free Appropriate Public Education) LRE (Least Restrictive Environment)LRE (Least Restrictive Environment)

– Mainstreaming & InclusionMainstreaming & Inclusion– Continuum of Services, Including 24-Hour Continuum of Services, Including 24-Hour

IEP (Individualized Education Program)IEP (Individualized Education Program) Related ServicesRelated Services Transition ServicesTransition Services Assistive TechnologyAssistive Technology FBAs/BIPs (Functional Behavioral Assessments FBAs/BIPs (Functional Behavioral Assessments

and Behavioral Intervention Plans)and Behavioral Intervention Plans) PBISPBIS

1717

Substantive and Procedural Rights, Substantive and Procedural Rights, ContinuedContinued

Evaluation “in any area of suspected disability”Evaluation “in any area of suspected disability”– Psycho-educationalPsycho-educational– Clinical psychologicalClinical psychological– Speech/LanguageSpeech/Language– VocationalVocational– NeurologicalNeurological– Etc.Etc.

Independent Educational EvaluationsIndependent Educational Evaluations Initial, Triennial -- and More OftenInitial, Triennial -- and More Often

– Control by Defense AttorneyControl by Defense Attorney– Contrast with Criminal or Delinquency EvaluationsContrast with Criminal or Delinquency Evaluations

Response to InterventionResponse to Intervention

1818

Substantive and Procedural Rights, Substantive and Procedural Rights, ContinuedContinued

Child FindChild Find Right to a Due Process, Right to a Due Process,

Administrative HearingAdministrative Hearing

1919

Rights Under the IDEARights Under the IDEA School System – School System – Block Disciplinary Exclusion and Zero Tolerance Block Disciplinary Exclusion and Zero Tolerance Neglect System – Neglect System – Must EducateMust Educate Delinquency System – Delinquency System – Must EducateMust Educate Adult Criminal System – Adult Criminal System – Must EducateMust Educate

– Exception: Over 18; Not ID’d; SentencedException: Over 18; Not ID’d; Sentenced

IncarcerationIncarceration

– Before, During, and After... Before, During, and After... Must EducateMust Educate

– Substitute Special Education for InstitutionalizationSubstitute Special Education for Institutionalization

2020

Remedies Under the IDEARemedies Under the IDEA Burlington Burlington and and Carter & Carter & 34 C.F.R. § 300.148(c)34 C.F.R. § 300.148(c)

Compensatory Education Compensatory Education – Educational EnhancementEducational Enhancement– Extended EligibilityExtended Eligibility

Attorneys’ Fees at Market Rate for Prevailing ParentsAttorneys’ Fees at Market Rate for Prevailing Parents– Defining “Prevailing” Post Defining “Prevailing” Post BuckhannonBuckhannon– Settlement vs. Consent OrderSettlement vs. Consent Order– Expert Costs (Expert Costs (MurphyMurphy))

2121

Special Education Advocacy: Special Education Advocacy: Stages of the ProcessStages of the Process

Identification & Identification & EvaluationEvaluation

EligibilityEligibility IEPIEP PlacementPlacement Providing ServicesProviding Services Annual Assessment & Annual Assessment &

IEPIEP Triennial EvaluationTriennial Evaluation

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DISABILITYDISABILITYANDAND

DELINQUENCY DEFENSE:DELINQUENCY DEFENSE:

Basic Strategies Basic Strategies

REVERSING THE REVERSING THE SCHOOL-TO-PRISONSCHOOL-TO-PRISON

PIPELINEPIPELINE(Individual Case Advocacy)(Individual Case Advocacy)

-or--or-How to Put aHow to Put a

Monkey Wrench into theMonkey Wrench into theConveyor Belt of InjusticeConveyor Belt of Injustice

In Order to Take a Child OffIn Order to Take a Child Off

2424

Transforming Defendants Transforming Defendants into Plaintiffsinto Plaintiffs

Turning Cases into Kids –Turning Cases into Kids –Continue the RepresentationContinue the Representation

2525

Basic Spec Ed ApplicationBasic Spec Ed Applicationto Delinquency Caseto Delinquency Case

1.1. List All the Services (Etc.) That a Child NeedsList All the Services (Etc.) That a Child Needs2.2. Categorize Under Evaluations, Specialized Instruction, Categorize Under Evaluations, Specialized Instruction,

“Related Services”, “Transition Services”, A.T., and “FBA-BIP”“Related Services”, “Transition Services”, A.T., and “FBA-BIP”3.3. Justify as “Appropriate” Under the Justify as “Appropriate” Under the Rowley Rowley StandardStandard4.4. Compare with What is Available Within the Delinquency, Compare with What is Available Within the Delinquency,

Criminal, or Neglect SystemCriminal, or Neglect System5.5. Consider Advantages of Each SystemConsider Advantages of Each System6.6. Devise Negotiation/Litigation Strategy (with Focus on Comp. Devise Negotiation/Litigation Strategy (with Focus on Comp.

Ed.)Ed.)

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Services AvailableServices Available Delinquency and status offense system(s)Delinquency and status offense system(s) Special education system (related services Special education system (related services

& transition services)& transition services)– Parent trainingParent training– FBA/BIPFBA/BIP– Social work servicesSocial work services– CounselingCounseling– Therapeutic recreationTherapeutic recreation– Continuum of placementsContinuum of placements– Private services (Private services (BurlingtonBurlington))– Vocational trainingVocational training– Compensatory EducationCompensatory Education

2727

ChartingCharting

Excavating and Charting School Excavating and Charting School RecordsRecords– Child Find ViolationsChild Find Violations– Denials of FAPE (including failure to do Denials of FAPE (including failure to do

triennials, illegal exclusions)triennials, illegal exclusions)– School Failures; TruancySchool Failures; Truancy

Charting (Lack of) Academic ProgressCharting (Lack of) Academic Progress

2828

Strategic Timing & Strategic Timing & Juxtaposing SystemsJuxtaposing Systems

The importance of winning special The importance of winning special education hearingseducation hearings– Discretion of the court vs. impact of a Discretion of the court vs. impact of a

hearing officer’s determinationhearing officer’s determination Timing of the delinquency and Timing of the delinquency and

special education matters special education matters – Negotiating a continuanceNegotiating a continuance– Spec ed advocacy for the long haulSpec ed advocacy for the long haul

2929

Representation IssuesRepresentation Issues

Delinquency: Child = ClientDelinquency: Child = Client– Strategy DiscussionStrategy Discussion– Add Parent as Client, tooAdd Parent as Client, too

Retainer AgreementRetainer Agreement– Conflict PotentialConflict Potential– Transfer of Rights to the ChildTransfer of Rights to the Child

3030

Fairness of the ProcessFairness of the Process

Compare Families Compare Families with Resources and with Resources and Those WithoutThose Without– What Happens to What Happens to

Non-Minority, Non-Non-Minority, Non-Poor Kids? Poor Kids?

– Special Education Special Education Services as Services as Equivalent of Equivalent of Private ServicesPrivate Services

– Accommodations Accommodations During Intake?During Intake?

Using Special Education Using Special Education Advocacy to Enhance Advocacy to Enhance Delinquency DefenseDelinquency Defense

3232

Incidents at SchoolIncidents at School

Disciplinary HearingsDisciplinary HearingsGoss v. Lopez Goss v. Lopez Discovery Opportunity (e.g., School Fight Discovery Opportunity (e.g., School Fight

Case)Case) IDEA Disciplinary ProtectionsIDEA Disciplinary Protections IEP & BIP Agreement Not to Go to IEP & BIP Agreement Not to Go to

Delinquency CourtDelinquency CourtT.L.O. + T.L.O. + Exclusionary Rule at SchoolExclusionary Rule at School Individualized Decision-Making (Not Zero Individualized Decision-Making (Not Zero

Tolerance)Tolerance)

3333

Incidents at SchoolIncidents at School

Mediation – Who is the AggressorMediation – Who is the Aggressor

Manifestation Determination + Mens Manifestation Determination + Mens Rea; Culpability Rea; Culpability

Discriminatory Decision-Making Discriminatory Decision-Making Regarding Whom to Refer to CourtRegarding Whom to Refer to Court

The Win-Win of PBIS + BIPs & FBAsThe Win-Win of PBIS + BIPs & FBAs

3434

Incidents at SchoolIncidents at School

Derrick and Todd’s CasesDerrick and Todd’s Cases

Steven’s CaseSteven’s Case

3535

Challenging the Intake ProcessChallenging the Intake Process Decisions not to prosecute “deserving” Decisions not to prosecute “deserving”

childrenchildren– How? Why? By whom?How? Why? By whom?– Investigation requirementInvestigation requirement– Diversion or no case?Diversion or no case?

Statutory basisStatutory basis– Interest of justiceInterest of justice– Social reasonsSocial reasons– Purposes provisionPurposes provision– Definition of “delinquent child”Definition of “delinquent child”– School service requirements (e.g., prior to School service requirements (e.g., prior to

truancy case)truancy case)

3636

Falling Between the CracksFalling Between the Cracks Delinquency judges generally do not have Delinquency judges generally do not have

jurisdiction over special education issuesjurisdiction over special education issues– Challenges to denial of special education rights Challenges to denial of special education rights

in administrative due process hearingin administrative due process hearing– Administrative exhaustion requirementAdministrative exhaustion requirement

Special education hearing officers Special education hearing officers generally do not have jurisdiction over generally do not have jurisdiction over delinquency issuesdelinquency issues– Exception (change of placement):Exception (change of placement): Morgan v. Morgan v.

Chris L.,Chris L., 927 F. Supp. 267 (E.D. Tenn. 1994), 927 F. Supp. 267 (E.D. Tenn. 1994), aff'daff'd, 106 F.3d 401 (6th Cir. 1997), 106 F.3d 401 (6th Cir. 1997)

3737

Congressional Purpose in theCongressional Purpose in theI.D.E.A.I.D.E.A.

“ “Congress very much meant to strip Congress very much meant to strip schools of the unilateral authority schools of the unilateral authority they had traditionally employed to they had traditionally employed to exclude disabled students, exclude disabled students, particularly emotionally disturbed particularly emotionally disturbed students, from school.” students, from school.”

-- -- Honig v. Doe, 484 U.S. 305, 323 (1988).Honig v. Doe, 484 U.S. 305, 323 (1988).

3838

The Worst of Both WorldsThe Worst of Both Worlds

Minority youth (particularly boys) with Minority youth (particularly boys) with education-related disabilities most likely to education-related disabilities most likely to be kicked out and pushed out…be kicked out and pushed out…

No representation in discipline; no No representation in discipline; no representation in special educationrepresentation in special education

No one in delinquency raises illegality No one in delinquency raises illegality – Failing to identifyFailing to identify– Failing to provide spec ed and related servicesFailing to provide spec ed and related services– DUMPING & CRIMINALIZING THE KIDDUMPING & CRIMINALIZING THE KID

Exhaustion barrierExhaustion barrier

3939

Compelling Equities &Compelling Equities &Formulating Legal TheoriesFormulating Legal Theories

Analogy to Analogy to Kent v. United States, Kent v. United States, 383 383 U.S. 541 (1966)U.S. 541 (1966)

Flooding the school-to-prison Flooding the school-to-prison pipeline; no shut-off valvepipeline; no shut-off valve

Arguing school administrators did an Arguing school administrators did an “end run” – circumventing spec ed “end run” – circumventing spec ed obligationsobligations

Arguing dismissal in the interest of Arguing dismissal in the interest of justicejustice

4040

Best Kind of CaseBest Kind of Case

Minor delinquencyMinor delinquency Truancy or other status offenseTruancy or other status offense School personnel ignoring legal School personnel ignoring legal

obligationsobligations Zero tolerance run amuckZero tolerance run amuck Diversion kids facing new school Diversion kids facing new school

discipline chargesdiscipline charges

4141

The Best Argument:The Best Argument:Violation of Intake ProcessViolation of Intake Process

““Powers of the probation officer” include Powers of the probation officer” include “mak[ing] investigations, reports, and “mak[ing] investigations, reports, and recommendations to the juvenile court; recommendations to the juvenile court; receiv[ing] and examin[ing] complaints and receiv[ing] and examin[ing] complaints and charges of delinquency, unruly conduct or charges of delinquency, unruly conduct or deprivation of a child for the purpose of deprivation of a child for the purpose of considering the commencement of considering the commencement of proceedings. . . . [and] mak[ing] appropriate proceedings. . . . [and] mak[ing] appropriate referrals to other private or public agencies of the referrals to other private or public agencies of the community if their assistance appears to be community if their assistance appears to be needed or desirable…” needed or desirable…”

– Model Juv. Ct. Act § 6 (1968) Model Juv. Ct. Act § 6 (1968)

4242

20 U.S.C. § 1415(k)(6) 20 U.S.C. § 1415(k)(6)

Rule of construction: IDEA doesn’t Rule of construction: IDEA doesn’t constrain school officials from constrain school officials from reporting alleged criminal behaviorreporting alleged criminal behavior

Requirement to provide school Requirement to provide school records to the court (intake) records to the court (intake) assuming FERPA permissionassuming FERPA permission

4343

Case SupportCase Support

Whether school administrators are Whether school administrators are attempting an end run of special education attempting an end run of special education responsibilities should be considered at responsibilities should be considered at the “investigative and referral levels” of the “investigative and referral levels” of the juvenile court process at which the juvenile court process at which decisions are made regarding “whether decisions are made regarding “whether the case belongs in the juvenile system in the case belongs in the juvenile system in the first instance...”the first instance...”

In reIn re Trent M., 569 N.W.2d 719, 724 (Wis. Ct. App. 1997). Trent M., 569 N.W.2d 719, 724 (Wis. Ct. App. 1997).

4444

Motion to Dismiss Based Upon Motion to Dismiss Based Upon Violation of Intake ProcessViolation of Intake Process

Experiences with these motionsExperiences with these motions

The Role of the Probation Officer in The Role of the Probation Officer in Intake: Stories from Before During Intake: Stories from Before During and After the Delinquency Initial and After the Delinquency Initial HearingHearing

3 D.C. L. Rev. 235, 235-50 (1995)3 D.C. L. Rev. 235, 235-50 (1995)

4545

Selective Prosecution (and “End Selective Prosecution (and “End Running”) = Discrimination Running”) = Discrimination

““Of course, it would be a violation of Of course, it would be a violation of Section 504 of the Rehabilitation Act of Section 504 of the Rehabilitation Act of 1973 if a school were discriminating 1973 if a school were discriminating against children with disabilities in how against children with disabilities in how they were acting under this authority (e.g., they were acting under this authority (e.g., if they were only reporting crimes if they were only reporting crimes committed by children with disabilities and committed by children with disabilities and not [those] committed by nondisabled not [those] committed by nondisabled students).” students).” – 64 Fed. Reg. 12631 (March 12, 1999). 64 Fed. Reg. 12631 (March 12, 1999).

4646

De-Contaminating DetentionDe-Contaminating Detention

One-Way ValveOne-Way Valve– Use RAI & Limit RAI OverridesUse RAI & Limit RAI Overrides– Use Continuum of Placements as Alternative to Use Continuum of Placements as Alternative to

Secure DetentionSecure Detention– Use Interlocutory AppealUse Interlocutory Appeal– End Detention for Social Reasons (incl. “danger End Detention for Social Reasons (incl. “danger

to self”)to self”)– End Reconsideration of Release and Contempt End Reconsideration of Release and Contempt

of Court of Court

The Timing: Having IDEA Services Ready The Timing: Having IDEA Services Ready for Possibility of Re-Arrest for Possibility of Re-Arrest

4747

De-Contaminating DetentionDe-Contaminating Detention

Releasing the DetainableReleasing the Detainable– School (IDEA) Services as Alternative to School (IDEA) Services as Alternative to

DetentionDetention– Inappropriateness of Proposed Detention Site Inappropriateness of Proposed Detention Site

(Can’t Implement IEP; No Spec Ed Services)(Can’t Implement IEP; No Spec Ed Services)

School Attendance as a Condition of School Attendance as a Condition of ReleaseRelease– ExhaustionExhaustion– AccommodationsAccommodations– Third-Party ContemptThird-Party Contempt

4848

Evaluation StrategiesEvaluation Strategies

Evaluations Evaluations – by courtby court– ex parte (ex parte (Ake v. OklahomaAke v. Oklahoma))– by school systemby school system– independent ed eval independent ed eval – through medical insurancethrough medical insurance– through Medicaidthrough Medicaid

4949

Evaluation StrategiesEvaluation Strategies Use evaluations and evaluators to supportUse evaluations and evaluators to support

– MirandaMiranda challenge challenge– competencycompetency– mens reamens rea– lack of understanding of circumstances of lack of understanding of circumstances of

alleged events (e.g., import of what named co-alleged events (e.g., import of what named co-respondent said)respondent said)

– limitations as a witness; need for limitations as a witness; need for accommodations during trial, on probation, etc.accommodations during trial, on probation, etc.

– need for services (e.g., family counseling; need for services (e.g., family counseling; parent training; FBA-BIP) that are not available parent training; FBA-BIP) that are not available in juvenile jail or prison settingin juvenile jail or prison setting

5050

Fact Investigation & Trial PrepFact Investigation & Trial Prep

Example: Child with Receptive/Expressive Example: Child with Receptive/Expressive Language DisorderLanguage Disorder

Challenging InferencesChallenging Inferences– What Child Purportedly Says to Alleged Victim What Child Purportedly Says to Alleged Victim – What Child Allegedly Hears and Presumably What Child Allegedly Hears and Presumably

ComprehendsComprehends Demonstrate that changed statement Demonstrate that changed statement

during interrogation not significant (e.g., during interrogation not significant (e.g., cop getting child to drop claim of cop getting child to drop claim of innocence)innocence)

5151

Fact Investigation & Trial PrepFact Investigation & Trial Prep

Child’s (and Other Witnesses’) Ability Child’s (and Other Witnesses’) Ability to Remember Facts and Statements to Remember Facts and Statements Relevant to Suppression and DefenseRelevant to Suppression and Defense

– counter to cross attacking credibility counter to cross attacking credibility based on inconsistencybased on inconsistency

5252

DiscoveryDiscovery

Brady v. Maryland Brady v. Maryland Exculpatory or Mitigating Exculpatory or Mitigating

Information (e.g., Information (e.g., Amenability to Treatment)Amenability to Treatment)

* * ** * *

Prosecutor Responsible for Prosecutor Responsible for Providing Information from Providing Information from

Other Public Agencies?Other Public Agencies?

5353

Pre-Trial (Status Hearings)Pre-Trial (Status Hearings)

Agreement Agreement Between Defense Between Defense and Prosecution and Prosecution to Continue Trial to Continue Trial

or Order or Order Probation Before Probation Before

Judgment to Judgment to Allow Special Allow Special

Education Education Services to Take Services to Take

EffectEffect

5454

Transfer MotionTransfer Motion

StandardStandard– Amenability to TreatmentAmenability to Treatment– Different Standard?Different Standard?

Unclean Hands (child had a right to Unclean Hands (child had a right to services that government failed to services that government failed to provide)provide)

Availability of Services in Juvenile Availability of Services in Juvenile System/Placement but Not in CriminalSystem/Placement but Not in Criminal

5555

Suppressing StatementsSuppressing Statements Miranda Miranda and Other Waiversand Other Waivers

– Expert witnesses on Reading and Auditory ComprehensionExpert witnesses on Reading and Auditory Comprehension– Colorado v. Connelly Colorado v. Connelly andand Moran v. Burbine Moran v. Burbine

Unreliability of Admission/Confession (Rules of Evidence Unreliability of Admission/Confession (Rules of Evidence and Due Process)and Due Process)– Child with MR or expressive/receptive language disorderChild with MR or expressive/receptive language disorder– Other disabilities (e.g., depression/SED, PTSD)?Other disabilities (e.g., depression/SED, PTSD)?

Privilege Against Self-IncriminationPrivilege Against Self-Incrimination– Coercion and Totality of CircumstancesCoercion and Totality of Circumstances– ADA and Ethics: Affirmative Duty by Police and Prosecutors and ADA and Ethics: Affirmative Duty by Police and Prosecutors and

Judges?Judges?

5656

Excluding StatementsExcluding Statements

Motions Based on Due Process or Rules of Motions Based on Due Process or Rules of Evidence Evidence – ReliabilityReliability– Probativity vs. Prejudicial ImpactProbativity vs. Prejudicial Impact– Expert Testimony Regarding Significance of Expert Testimony Regarding Significance of

Accused’s Words or UnderstandingsAccused’s Words or Understandings

Statements Made During Interrogation Statements Made During Interrogation – Impeachment ValueImpeachment Value– Substantive Value (as to Guilt or Innocence)Substantive Value (as to Guilt or Innocence)

5757

Taking a Plea BargainTaking a Plea Bargain

Oh, Pleas!Oh, Pleas!

The Child’s The Child’s Understanding of Understanding of

the Plea Bargain and the Plea Bargain and the Need to the Need to

Accommodate in the Accommodate in the Rule 11 ColloquyRule 11 Colloquy

&&

Challenges to PleasChallenges to Pleas

5858

DefensesDefenses ““No Show” Violation (Bail No Show” Violation (Bail

Reform Act) or Failure to Reform Act) or Failure to Inform (Accommodate)?Inform (Accommodate)?

Truancy or “Constructive Truancy or “Constructive Eviction” (Failure to Provide Eviction” (Failure to Provide Spec Ed)?Spec Ed)?

Behavior = Manifestation of Behavior = Manifestation of Disability: Not Culpable or Disability: Not Culpable or Mitigation?Mitigation?

Aider & Abettor or Aider & Abettor or Bystander/Witness?Bystander/Witness?

Drug Use (Possession) as Drug Use (Possession) as Manifestation of DisabilityManifestation of Disability

ProvocationProvocation

5959

Disposition:Disposition:Special Education ServicesSpecial Education Services

As Alternative to IncarcerationAs Alternative to Incarceration

– Use the Continuum of Care in Special EducationUse the Continuum of Care in Special Education– Creative Use of Related Services, Transition Services, and Creative Use of Related Services, Transition Services, and

““BurlingtonBurlington” Remedy” Remedy– LRE and Treatment as Precepts in Delinquency and Disability LawLRE and Treatment as Precepts in Delinquency and Disability Law– Best Interest of Child as Precept in Delinquency LawBest Interest of Child as Precept in Delinquency Law– Child Welfare System Placement as AlternativeChild Welfare System Placement as Alternative

6060

IDEA Eligibility for Young People in IDEA Eligibility for Young People in Adult (Criminal) SystemAdult (Criminal) System

Evaluation Before Sentencing &Evaluation Before Sentencing &

Establish EligibilityEstablish EligibilityCompensatory Education to Extend EligibilityCompensatory Education to Extend EligibilityHybrid Sentencing OpportunitiesHybrid Sentencing Opportunities

– Youth ActYouth Act– Probation in Criminal Case with Probation in Criminal Case with

Treatment in Juvenile + Spec Ed Treatment in Juvenile + Spec Ed (Continuum)(Continuum)

6161

Post-Disposition:Post-Disposition:Examples of ArgumentsExamples of Arguments

Can’t Execute BIP in Violent Environment of Can’t Execute BIP in Violent Environment of Juvenile PrisonJuvenile Prison

Train and Enlist Juvenile Prison Personnel to Help Train and Enlist Juvenile Prison Personnel to Help with IEP’s (Re-Integration Strategy)with IEP’s (Re-Integration Strategy)

Residential Treatment Center vs. IncarcerationResidential Treatment Center vs. Incarceration Not Fulfilling Treatment Order; Modify; Civil Not Fulfilling Treatment Order; Modify; Civil

ContemptContempt Third-Party Contempt (To Block Revocation)Third-Party Contempt (To Block Revocation)

– School System’s Unlawful Exclusion of Child or Failure to School System’s Unlawful Exclusion of Child or Failure to Provide FAPE Precludes Child’s Compliance with School Provide FAPE Precludes Child’s Compliance with School Attendance or Related Condition of Probation or ParoleAttendance or Related Condition of Probation or Parole

6262

Direct IDEA-Based ChallengesDirect IDEA-Based Challenges Failure to Provide Failure to Provide

Special Education Special Education ServicesServices– In Juvenile Incarceration In Juvenile Incarceration

FacilityFacility– State Prison or JailState Prison or Jail– Federal Bureau of Federal Bureau of

PrisonsPrisons– Immigration Detention Immigration Detention

CentersCenters

Chicken Bone or Case Chicken Bone or Case Aggregation (or Class Aggregation (or Class Action)Action)

6363

Probation or Parole RevocationProbation or Parole Revocation

Protect and Defend Protect and Defend Against RevocationAgainst Revocation– Written Request for Written Request for

Accommodation (or in Accommodation (or in Disposition Order) Disposition Order)

– Failure to Accommodate Failure to Accommodate (e.g., PO Trained to (e.g., PO Trained to Communicate)Communicate)

6464

Case Aggregation &Case Aggregation &Attorney MobilizationAttorney Mobilization

How Case Aggregation Has Worked in How Case Aggregation Has Worked in D.C.D.C.– Training Attorneys (Attorneys’ Fees & Training Attorneys (Attorneys’ Fees &

Self-Interest)Self-Interest)– Lots of Spec Ed Hearings Lots of Spec Ed Hearings – Lots of Private PlacementsLots of Private Placements– PDS Spec Ed UnitPDS Spec Ed Unit– Attorneys’ Fees: BacklashAttorneys’ Fees: Backlash

6565

Case Aggregation &Case Aggregation &Attorney MobilizationAttorney Mobilization

Training of Probation and Aftercare WorkersTraining of Probation and Aftercare Workers

Training of Mental Health, Teachers, and Training of Mental Health, Teachers, and “Counselors” at Juvenile Incarceration “Counselors” at Juvenile Incarceration FacilityFacility

Training of JudgesTraining of Judges– Judges Appointing Spec Ed AttorneysJudges Appointing Spec Ed Attorneys

Panel & StandardsPanel & Standards– Judges Paying Spec Ed AttorneysJudges Paying Spec Ed Attorneys

6666

Case Aggregation &Case Aggregation &Attorney MobilizationAttorney Mobilization

– Expanded Budget, Poorly Allocated; Expanded Budget, Poorly Allocated; Studies; Emerging Consensus?Studies; Emerging Consensus?

– Training to Change the AttitudesTraining to Change the Attitudes– Class ActionsClass Actions– Re-Claiming Neighborhood Schools Re-Claiming Neighborhood Schools

(SAM, FSS, etc.)(SAM, FSS, etc.)