Discussion! This is the perception of a young man in Prison. Does anyone have any thoughts about what we see in the mind of this young kid? Please care! Tell your clients that you care! CROSSROADS by Ras Mosi (Matthew Williams), Evans Correctional Institution, South Carolina. He said, “Nowhere on earth is it harder to find privacy than in prison. Be it for meditation, prayer, or just thinking, it’s practically impossible. . . Not only is it crowded, it’s loud. Doing art helps me get away from all that so I can keep my sanity until I’m released.”
Want to tell about the L.M. case and hopefully inspire you to go back to your jurisdiction with some FIRE in your bones, want to inspire you to CHANGE something and set a GOAL to change something.
OBSTACLES. Discuss the problems associated with getting to L.M. The L.M. case was probably only one of at least 30 tries, meaning at least 30 motions for trial by jury were filed, and all of them were either pled out, or the kid ran away, or the kid got certified, or even worse I WON! I never thought I would get frustrated about winning a case, but winning a case on the facts meant that the issue wouldn’t go any farther. Have to remember that while litigating the big issues I have outlined here I was doing them all at the same time. The judge’s knew that when they saw me that it was going to be one of the three. Another issue out there was bills of particular. . . It is hard work. The nice thing is after about the third or fourth motion it gets easier. Create the right atmosphere in your organization. Complex litigation panels, open discussion for new fresh ideas, thinking outside of the box. . . Etc.
I had a boiler plate motion to start with. It all fit on a single page. Describe it. I remember filing the first few motions and I noticed something very interesting. . . Other attorneys were doing too. I saw other lawyers in the bar following the lead, especially with regard to interrogation and jury trials. Wayne Westblade did it, especially in a case involving interrogation . . . I was worried that he was going to beat me to it. . . Because I was certain I had a great issue.
Went through many motions and many great cases until the stars aligned and I got what was needed to get the issue reviewed by the appellate courts. Tell the Guerro war story. . . Share some war stories. I first had to explain to every client what their options were. Some were willing and others were not. Mention the ethical rules and how difficult it is to have the client make the determination as to how to proceed. I also had to tell EVERY CLIENT that chose to ask for a jury that I was going to ask for something that I knew they were not going to get. Interestingly enough, after the L.M. case was argued and I was still making the motions for jury trial I told one magistrate judge, in so many words, “your honor, arent’ you sick and tired of me asking for this? Just give me one and I won’t appeal it and you won’t have to hear me rant about it.” In complete shock to me he granted it! That case then later pled out. WOW. But you must assume you are going to lose, and the whole time you know that you are going to lose you have work as hard as you can to win. In the jury trial case I knew that I not only had to file the motion I also had to object before the beginning of every trial so that my objection was contemporaneous with the actual trial. In cases where you have a constitutional issue, like Miranda or a Search or Seizure question you have to make your objection contemporaneous to the issue as it is brought up during trial.
Making these objections are sometimes viewed as annoying, but it must be done. DO IT! The objection must be made during the trial so as to preserve the issue. If you have done a motion to suppress you must renew that motion during the trial in the case. In the L.M. case it was necessary to renew the motion just prior to trial (the day of trial) so that issue was appropriately preserved. If you have moved to suppress evidence (whether it is tangible or intangible), when that evidence is offered you must object to its admission.
After educating myself about the history I had to get started. What did I learn.
I thought the charge was a bit of an overreaction. Also, the background of the situation was that I totally disagreed with the position of the court and the prosecutor is so many cases that I just couldn’t take it any longer. It really was nuts that the state was doing things like charging kids with battery, criminal threat, solicitation of a minor for things like fighting at football practice, saying “shut up or I’m gonna get you!” or telling a fellow student to suck my dick, and that the judge could potentially convict a kid for such behavior. So I made a determination that I was going to do something about changing the way things are run around here. I had some very pointed issues that I was, and still am, upset about (interrogation, jury trials, and fairness in sex cases); those were the big three.
Discuss the reasoning behind the decision.
Explain the background history of parens patriae and how the original juvenile courts were not criminal courts, but were there to act as a parent would act. I had never been a juvenile court litigator. Describe you background in personal injury/plaintiff’s work and how you came on the scene with a fresh look and how the system felt nothing like parental care at all. Visiting kids in detention was depressing! (Strip searches after meeting with the attorney, etc.).
The history of juvenile court system illustrated that attorneys implemented an all out attack on parens patraie and that the concept was slowly eroding aways taught me very quickly the reason juveniles did not have jury trials was because EVERYONE thought that juvenile cases were not criminal cases. Explain how you remember telling a prosecutor who took issue with you about the CIVIL NATURE of the cases and telling her that you were going use a civil discovery (nonesense) to conduct the casework. There wasn’t anything CIVIL about it.
The history of the juvenile court revealed an all out attack on the concept of parens patriae. in the beginning the standard of proof was preponderance but then moved to beyond a reasonable doubt to enter a finding of delinquency. Then delinquency changed entirely and the legislature altered the term delinguincy, entirely and the state had to prove NOT DELINQUENCY but guilt.
In the early 1980’s Kansas attorneys began to question whether kids were being treated fairly, but the courts continued to find as it had in the past and used the doctrine of parens patraie to deny the fully penolopy of rights to juveniles. Findlay case was about terroristic threat! Who hasn’t heard a juvenile say something like, I am gonna kill you or I am gonna F you up or something like that. I had a bench trial, where I had asked for a jury and was denied. It was a high school fight kind of thing where teens were just talking trash over the phone. . . That was it. . . No jury would have ever convicted this kid. . . Maybe Finday was a lot like that. . . In the L.A. case the court was addressing the factual situation of a drug charge. . . Not certain a jury would have made much difference. In the In Re ACW case it revolved around a 12 year old boy playing doctor with his little sister in the front yard. The attorney that litigated that case also asked for a jury. . . And it is possible it would have made some difference. It was/is frustrating to see that during the pendency of all the above cases the Kansas Courts were clearly changing. Later the adult sentencing guidelines would be modified and HITT and LAMUNYON would come along. I am still dumbfounded how the KCDAA argued in its brief that Stare Decisis controlled and that no real change had occurred since the advent of McKeiver!!! The Supreme Court disagreed!
Remember this slide? The question framed was “Is the juvenile court now acting like a parent or like the police?”
The net result is that EVERY CASE YOU HAVE READ in juvenile court has now been questioned in some respect as a result of In Re L.M. EVERY TIME the court has used the excuse of parens patraie to trample on the rights of the child is now been declared unacceptable.
This is the quote from the case that impressed me.
Here is a brief video that outlines the media reaction to the decision. What are you thoughts on it?
Discuss the issue of challenging the constitutionality of certification proceedings in Kansas.
Discuss the statistics and what you have learned about other counties, Sedgwick, Shawnee, Finney, Ford, Geary, etc.
Mention In Re E.R. and encourage others to look for the decision when it comes out.
Discuss the facts of the case. What makes the case interesting is how it unfolded. In adult court defendants can petition the court using a 60-1507 motion, and this is a case that is something like that. Explain how the kid went through two attorneys and how now the court ultimately reversed the guilty plea because the court failed to follow the strictures of K.S.A. 38-2344.
It is interesting to note that the court actually uses the term, “Speedy Trial,” however a juvenile is not entitled to a speedy trial, but is only entitled to a trial without unnecessary delay.
Go over the facts in more detail. Go over the arguments as well. This is a concept that may be useful in cases where you have overzealous prosecutors mutually charging children where there is no clear victim.
“Do any other constitutional or statutory rules of adult criminal procedure also now apply in juvenile cases? If so, which rules?” was the question of the State’s Solicitor general. Keep in mind that the criminal code and the code of criminal procedure is to be judged against the constitution. I would submit that if the Kansas Courts have ruled that certain criminal procedures are constitutionally required that those same procedures are now required in juvenile court, and so ask for them.
This is going to be especially true in cases where the juvenile has no prior record. Discuss the criminal threat case where the kid made a dumb comment at school, yet he remained in jail for at least 10 days while the judge decided whether she would let the kid. All he had was an accusation. If you are a child and are accused you just might find yourself in jail with NO RIGHT TO BE SET FREE! This is not right.
A cop saying this to an adult doesn’t mean much. What does it mean to a kid who is very young and inexperienced, yet this is what is regularly done. . . How often are we as attorneys filing motions to suppress in child cases? The issue needs to be revisited. The last really good case on this issue was In Re Gault.
First of all we need to bring up suppression motions, second of all we need to get some good case law on this issue. I have never gotten this issue clarified in my mind. I am all for additional protections of the child. . . I think it means that if the kid is under age 14 the cops cannot talk to the kid until the kid has discussed whether he/she will talk to the police with his/her parents; meaning the cops have to give the child an opportunity to do this after they have explained this to the child and the child’s parents. I also take the statute to mean that this includes ANY INTERROGATION! The statute differentiates between arrest and “in custody” (which is broad). It does not mean that the parent decides. . . It means the kid decides after talking to his/her parents. Thoughts?
As an attorney we need to take special care in scrutinizing the record. Bring up the issue of coersion, the mother/father forcing a confession.
I am sorry but judges do not get this. They think the standard is just as it is in adult cases, meaning the same level of proof is required. It is not the case. The state has the burden to prove that “under the totality of the circumstances, the juvenile’s confession/admission were voluntary. It is not defense counsel’s burden. Good questions to ask during suppression hearings revolve around how things look and feel. Look at the big picture, everthing from heights, weights, voice tone, voice inflection, the way someone looks, the side of their hands, whether they had a gun, handcuffs, were in a police car, whether they were in plain clothes, whether the door was open or closed, whether people were sitting or standing and who was doing what, what grade the kid is in, how well the kid reads, the vocabulary level, how long conversation lasted (it doesn’t have to be long), was the kid crying, what happened right before the incident (context); was the kid thinking clearly, were any promises made (even minor comments like, everything will be okay, you won’t be arrested (doesn’t mean they won’t be charged, but the kid doesn’t get that).
Comment on the appellate defender recently doing a petition for cert questioning using juvenile adjudications against adults, especially when no constitutional rights were given. Unfortunately I don’t think it will be successful because of the last paragraph of the L.M. opinion.
Juvenile Case Law Update
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Juvenile Offender Case Law Update
With 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.
The right case. . .
A willing client!
Optimism. Unfortunately, I
also knew that I had to lose
in order to appeal and
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
that was logically
False Starts and Frustrations
It became important to keep in mind where it was
that I was ultimately going to end up.
I also had to lose before any change would occur.
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
thieves. She had
broken no laws! It
wasn’t even illegal for a
15 year old to drink
A Brief History of the Jury Trial
Issue In Kansas
Brown vs Hall (1930)
A Kansas Case, 129 Kan. 859
This 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 RESPONDED
This 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
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. Pennsylvania
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 McKeiver
In 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.
In 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
It’s not just a civil proceeding to find a kid to be a juvenile delinquent. . .
The Kansas Supreme Court Was
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.”
EDundaunted - courageously resolute
especially in the face of danger or
difficulty : not discouraged. Not
discouraged or disheartened;
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”
• Kids are able to prevent getting the worst of both
Immediate Effects of L.M.
Has anyone experienced any immediate effects of
the L.M. decision?
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.
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
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
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
• The right to subpoena witnesses (to defend)
• The right to confront his accuser(s)
• The right against self incrimination (Miranda, 5th
• The right to competent counsel
• The right to be left alone and not subject to
unreasonable searches and seizures (4th Amendment)
Preliminary Hearings &
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 Bond
Does 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?
Special Rules Regarding
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
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,
More Special Rules Regarding
“. . . 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
The 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
The 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
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?