EFFECTIVE ASSISTANCE OF COUNSEL: QUALITY OF REPRESENTATION FOR JUVENILES IS STILL ILLUSORY

EFFECTIVE ASSISTANCE OF COUNSEL: QUALITY OF REPRESENTATION FOR JUVENILES IS STILL ILLUSORY 99 Jerry R. Foxhoven 1 It has now been over forty years since the United States Supreme Court rendered its decision of In re Gault. 2 In that decision, the Court likened a juvenile delinquency proceeding to a felony prosecution of an adult. 3 The Court held that the Due Process Clause of the United States Constitution required children in delinquency proceedings to be advised of their right to counsel as well as the right to court-appointed counsel if unable to afford retained counsel, and required a knowing and intentional waiver of that right before proceeding unrepresented. 4 The holding of the Gault decision should have been no surprise at the time. As far back as 1938, the United States Supreme Court had held that the Sixth Amendment required a right to counsel in federal criminal proceedings, 5 and the right was extended to the states through the Fourteenth Amendment four years before Gault. 6 The United States Supreme Court had already held that juveniles were entitled to counsel at waiver proceedings. 7 By the time of the Gault ruling, one-third of the states had statutes ensuring the right to counsel in juvenile proceedings, while other states provided such right by court rule. 8 In addition to the rights relative to counsel, the Gault decision also granted juveniles other constitutional rights, including: (1) the right to constitutionally adequate notice of the precise nature of the charges; 9 (2) the right to confront and cross-examine witnesses; 10 and (3) the privilege against self-incrimination, as well as the right to be informed of that right. 11 Once the Gault ruling was issued, a succession of cases continued to recognize basic rights for juveniles in delinquency proceedings. In 1970, the Court held that juveniles must be proven guilty beyond a reasonable doubt during the adjudicatory stage of delinquency cases. 12 A year later, in 1971, the Court retreated somewhat, and held that the right to a jury trial is not required by the Constitution in delinquency cases. 13 The Court later held that the Double Jeopardy Clause prevents a 1. Jerry R. Foxhoven is an Associate Professor and Director of the Joan and Lyle Middleton Center for Children s Rights at the Drake University Law School. 2. In re Gault, 387 U.S. 1 (1967). 3. Id. at 36. 4. Id. at 42. 5. Johnson v. Zerbst, 304 U.S. 458, 465 (1938). 6. Gideon v. Wainwright, 372 U.S. 335 (1963). 7. Kent v. U.S., 383 U.S. 541, 562 (1966). 8. Gault, 387 U.S. at 37-38. 9. Id. at 33-34. 10. Id. at 61. 11. Id. at 55. 12. In re Winship, 397 U.S. 358, 368 (1970). 13. McKeiver v. Pennsylvania, 403 U.S. 528, 545 (1971).

100 Barry Law Review Vol. 9 juvenile court from transferring a juvenile to the adult court after previously finding him or her delinquent. 14 By 1979, just twelve years after Gault, the United States Supreme Court made the importance of counsel clear: Whether it is a minor or an adult who stands accused, the lawyer is the one person to whom society as a whole looks as the protector of the legal rights of that person in his dealings with the police and the courts. 15 In the Gault decision, the United States Supreme Court rejected the extreme difference between the rights accorded an adult compared to those accorded to a child. 16 The Court found that the Constitution requires the guiding hand of counsel at every step in the proceedings against him. 17 Over the past several years, the National Juvenile Defender Center, together with other partners, has conducted extensive assessments of access to counsel, as well as quality of representation in juvenile proceedings in at least fourteen states. 18 This paper will examine whether or not the broad right to counsel delineated by the Gault decision has resulted in meaningful protections for youth charged with delinquent acts, or whether those rights remain illusory. ACCESS TO COUNSEL One of the most basic holdings established in the Gault decision was that children are constitutionally entitled to the assistance of counsel in delinquency proceedings. 19 Later, in an adult criminal context, the United States Supreme Court held that prejudice is presumed when the right to counsel is violated. 20 One commentator estimates that, prior to the Gault decision, only about 5% of children in delinquency cases were represented by counsel. 21 Twenty years after the Gault decision, an extensive study of data from six states led to the conclusion that some jurisdictions still failed to appoint counsel in a majority of juvenile delinquency cases. 22 In 1995, the first national examination of access to counsel and quality of representation in delinquency proceedings was released. 23 That study found that, in 22% of all cases, counsel was not appointed for youth until after the detention hear- 14. Breed v. Jones, 421 U.S. 519, 527 (1975). 15. Fare v. Michael C., 442 U.S. 707, 719 (1979). 16. So wide a gulf between the State s treatment of the adult and of the child requires a bridge sturdier than mere verbiage, and reasons more persuasive than cliché can provide. Gault, 387 U.S. at 29-30. 17. Gault, 387 U.S. at 36 (citing Powell v. State of Alabama, 287 U.S. 45, 69 (1932)). 18. Florida, Georgia, Indiana, Kentucky, Louisiana, Maine, Maryland, Montana, North Carolina, Ohio, Pennsylvania, Texas, Virginia, and Washington. 19. Gault, 387 U.S. at 36-37. 20. McKaskle v. Wiggins, 465 U.S. 168, 177, n.8 (1984). 21. Barry C. Feld, The Right to Counsel in Juvenile Court: An Empirical Study of When Lawyers Appear and the Difference They Make, 79 J. CRIM. L.& CRIMINOLOGY 1185, 1199, n. 54 (1989). 22. Barry C. Feld, In re Gault Revisited: A Cross-State Comparison of the Right to Counsel in Juvenile Court, 34 CRIME & DELINQ. 393, 416 (1988). 23. ABA JUVENILE JUSTICE CENTER, JUVENILE LAW CENTER & YOUTH LAW CENTER, A CALL FOR JUSTICE: AN ASSESSMENT OF ACCESS TO COUNSEL AND QUALITY OF REPRESENTATION IN DELINQUENCY PROCEEDINGS (1995), available at http://www.njdc.info/pdf/cfjfull.pdf [hereinafter A CALL FOR JUSTICE] (last visited Oct. 16, 2007).

Fall 2007 Effective Assistance of Counsel 101 ing was held. 24 This appears to fall far short of the Gault holding that the child is entitled to counsel at every step in the proceedings against him. 25 The individual statewide assessments that have been completed in recent years seem to echo the concern of the national assessment that youth are not generally provided with appointed counsel until after the detention hearing is completed, and they have raised other concerns as well. In 2006, an assessment was conducted in the state of Florida concerning access to counsel in delinquency proceedings. 26 The assessment found that, in some parts of Florida, it is routine for defenders to be absent from detention hearings. 27 In other parts of the state, judges use their own subjective standard to determine whether a youth really needs counsel and use that standard to determine whether or how to explain the right to counsel to the youth. 28 Determination of indigence and fees for appointed attorneys appear to limit access to counsel in Florida. 29 Florida requires the payment of a fee of forty dollars to apply for court-appointed counsel, and this requirement may prohibit impoverished parents from applying for attorneys for their children. 30 The rules used to determine indigence are not applied uniformly: In at least two counties visited, it was reported that the clerk applied a rule amounting to if the parent has $5.00 in his bank account, he is not indigent. 31 The 2001 assessment of access to counsel in Georgia delinquency proceedings 32 provided a disheartening view of the application of Gault in that state. Juveniles in Georgia are rarely represented at detention hearings and frequently admit the allegations at that hearing before any attorney is ever involved. 33 Many Georgia courts fail to advise the juvenile of the right to counsel, relying instead on the probation officer to perform this function. 34 In some Georgia counties, a child who exercises the right to counsel may remain locked up several additional days while an attorney is found. 35 Georgia law allows a parent to represent a child in a delinquency proceeding, and the assessment in that state found such representation often has disastrous results. 36 All in all, the results of the Georgia assessment were bleak: 24. Id. at 49. 25. Gault, 387 U.S. at 36 (citing Powell, 287 U.S. at 69). 26. PATRICIA PURITZ & CATHRYN CRAWFORD, NATIONAL JUVENILE DEFENDER CENTER, FLORIDA: AN ASSESSMENT OF ACCESS TO COUNSEL & QUALITY OF REPRESENTATION IN DELINQUENCY PROCEEDINGS (Fall 2006), available at http://www.njdc.info/pdf/florida%20assessment.pdf [hereinafter FLORIDA ASSESSMENT] (last visited Oct. 16, 2007). 27. Id. at 27. 28. Id. 29. Id. at 33. 30. Id. 31. Id. 32. PATRICIA PURITZ & TAMMY SUN, ABA JUVENILE JUSTICE CENTER & SOUTHERN CENTER FOR HUMAN RIGHTS, GEORGIA: AN ASSESSMENT OF ACCESS TO COUNSEL & QUALITY OF REPRESENTATION IN DELINQUENCY PROCEEDINGS, (July 2001), available at http://www.njdc.info/pdf/georgia.pdf [hereinafter GEORGIA ASSESSMENT] (last visited Oct. 16, 2007). 33. Id. at 13. 34. Id. at 20. 35. Id. at 21. 36. Id. at 22.

102 Barry Law Review Vol. 9 Many of Georgia s indigent children facing charges in juvenile court are not provided opportunities for meaningful representation envisioned by the Court in Gault... Children in the juvenile courts are on their own, left to defend their interests with only the hope that the adults who hold their futures in their hands will not leave them utterly defenseless. 37 The assessment of counsel in the Indiana delinquency system was completed in 2006. 38 In Indiana, attorneys are rarely present for detention hearings. 39 This is especially troubling because 80% to 90% of youth involved in the delinquency proceedings in Indiana admit to the allegations at the delinquency hearing. 40 The Indiana assessment found that a lack of consistency in the eligibility requirements for appointed counsel prevents full exercise of the right to counsel by youth in that state. 41 One judge indicated that she would only appoint an attorney if the case was going to a fact finding hearing. 42 The conclusion of the Indiana assessment is clear: More than thirty-five years after the United States Supreme Court decided in In re Gault that children have a constitutional right to counsel, the spirit and promise of this decision have largely remained unfulfilled. 43 An initial assessment of access to counsel in Kentucky was conducted in 1996, and a reassessment was done in 2002. 44 Kentucky courts generally do not appoint a defender for a child in a delinquency matter until the detention hearing. 45 In the case of status offenses, 46 the Kentucky assessment also found a lack of advocacy for children. 47 In some counties, no counsel is appointed to represent children charged with status offenses. 48 In other counties, assigned counsel in status offense cases were appointed as guardian ad litem rather than attorney for the child. 49 Louisiana also has had several assessments of access to counsel and quality of representation in its delinquency court system. The initial assessment was com- 37. Id. at 45. 38. ELIZABETH GLADDEN KEHOE & KIM BROOKS TANDY, NATIONAL JUVENILE DEFENDER CENTER & CENTRAL JUVENILE DEFENDER CENTER, INDIANA: AN ASSESSMENT OF ACCESS TO COUNSEL & QUALITY OF REPRESENTATION IN DELINQUENCY PROCEEDINGS (2006), available at http://www.njdc.info/pdf/indiana%20assessment.pdf [hereinafter INDIANA ASSESSMENT] (last visited Oct. 16, 2007). 39. Id. at 34. 40. Id. at 42. 41. Id. at 41. 42. Id. 43. Id. at 7. 44. PATRICIA PURITZ & KIM BROOKS, ABA JUVENILE JUSTICE CENTER, NATIONAL JUVENILE DEFENDER CENTER & CENTRAL JUVENILE DEFENDER CENTER, KENTUCKY: ADVANCING JUSTICE: AN ASSESSMENT OF ACCESS TO COUNSEL & QUALITY OF REPRESENTATION IN DELINQUENCY PROCEEDINGS at 10 (September 2002), available at http://www.njdc.info/pdf/kentucky_assessment.pdf [hereinafter KENTUCKY ASSESSMENT] (last visited Oct. 16, 2007). 45. Id. at 29. 46. A status offense is an act that is only a violation of the law due to the fact that the offender is a minor and would not be an offense for an adult, e.g. possession of alcohol by a minor or truancy. 47. Id. at 32-33. 48. Id. at 33. 49. Id.

Fall 2007 Effective Assistance of Counsel 103 pleted in 2001. 50 An update was completed one year later, in 2002. 51 The Louisiana assessment found that in some parishes in the state, children are not represented at the continued custody hearing, although an attorney could be appointed at that hearing for subsequent hearings. 52 In at least one jurisdiction, investigators found that judges failed to give any explanation to a child of his right to an attorney or to make any inquiry as to the child s understanding of the right. 53 Some cases were found where children were unrepresented even after a parent repeatedly asked for an attorney to be appointed. 54 The updated assessment in Louisiana found that many children are left, literally, defenseless. 55 The 2003 assessment of the Maine delinquency system 56 provided a more favorable view of access to counsel for youth alleged to have committed a delinquent act. In Maine, all youth are provided with an attorney for the detention hearing. 57 If a youth appears at a detention hearing without counsel, the Maine courts appoint a lawyer of the day to represent the youth at that hearing. 58 If a parent or guardian refuses to retain a private attorney for the youth, Maine judges will make a referral for court-appointed counsel regardless of income. 59 Maine s primary deficiency in the access to counsel area is for post-dispositional matters, 60 primarily because juvenile defenders believe that they will not be compensated for postdisposition work. 61 This perception may be because the Maine statute does not require the appointment of an attorney for post-disposition review hearings, 62 or because there is a cap of $315 for attorney fees per case for all proceedings. 63 As a result, [p]ost-dispositional advocacy in Maine does not exist for all intents and purposes. 64 50. GABRIELLE CELESTE & PATRICIA PURITZ, ABA JUVENILE JUSTICE CENTER, THE CHILDREN LEFT BEHIND: AN ASSESSMENT OF ACCESS TO COUNSEL & QUALITY OF REPRESENTATION IN DELINQUENCY PROCEEDINGS IN LOUISIANA (June 2001), available at http://www.njdc.info/pdf/lareport.pdf [hereinafter LOUISIANA ASSESSMENT] (last visited Oct. 16, 2007). 51. ABA JUVENILE JUSTICE CENTER, THE CHILDREN LEFT BEHIND: A REVIEW OF THE STATUS OF DEFENSE FOR LOUISIANA S CHILDREN AND YOUTH IN DELINQUENCY PROCEEDINGS IN LOUISIANA (2002), available at http://www.njdc.info/pdf/louisianaupdate.pdf [hereinafter LOUISIANA REVIEW] (last visited Oct. 16, 2007). 52. LOUISIANA ASSESSMENT, supra note 50, at 61. 53. See id. 54. Id. 55. LOUISIANA REVIEW, supra note 51, at 15. 56. ABA JUVENILE JUSTICE CENTER & NEW ENGLAND JUVENILE DEFENDER CENTER, MAINE: AN ASSESSMENT OF ACCESS TO COUNSEL & QUALITY OF REPRESENTATION IN DELINQUENCY PROCEEDINGS (October 2003), available at http://www.njdc.info/pdf/mereport.pdf [hereinafter MAINE ASSESSMENT] (last visited Oct. 16, 2007). 57. Id. at 31. 58. Id. at 31-32. 59. Id. at 32-33. 60. Post-dispositional matters are any motions or hearings held after the dispositional phase (sentencing in adult court) has occurred and include post-trial motions, review hearings and appeals. 61. Id. at 37. 62. Id. at 23. 63. Id. at 17. 64. Id.

104 Barry Law Review Vol. 9 The assessment of access to counsel in Maryland delinquency proceedings was completed in 2003. 65 Maryland law does not guarantee poor children access to counsel through the public defender s office until the adjudication hearing. 66 In 93% of the jurisdictions visited for the assessment, a public defender was not present until the adjudication hearing even when the parent qualified for representation at public expense. 67 If a child is detained, the public defender provides representation for the child at the detention hearing in only 40% of the jurisdictions visited for the assessment. 68 This lack of representation at detention hearings is believed to be the cause of the overuse of detention in Maryland delinquency cases. 69 Most Maryland public defenders close their case after disposition, and, as a result, most youth are unrepresented in review hearings and probation revocation proceedings. 70 Qualification for representation by the local public defender office, including the fees charged for representation, varies throughout the State of Maryland. 71 Some local public defender offices strictly enforce a ten-day rule, disqualifying many youth of their access to counsel solely on the basis of a late application. 72 Montana also conducted an assessment of access to counsel in delinquency proceedings in 2003. 73 Montana law provides a right to counsel in delinquency proceedings following the filing of a delinquency petition. 74 A preliminary inquiry hearing is held in Montana to determine if a petition should be filed, and the youth attends that hearing, normally signing a form waiving his rights at that time. 75 While youth able to retain counsel are sometimes represented at the preliminary inquiry hearing, public defenders are not appointed at this point, and, consequently, indigent youth are unrepresented. 76 North Carolina s assessment also occurred in 2003. 77 North Carolina statutes provide for appointment of counsel for juveniles at all stages of the delinquency proceedings. 78 The state statutes also provide a presumption of indigence, guaranteeing that all youth have counsel, although this presumption does not mean that 65. ELIZABETH CUMMING, MICHAEL FINLEY, SHANNON HALL, ALECIA HUMPHREY, ILONA PRIETO PICOU, ABA JUVENILE JUSTICE CENTER & MID-ATLANTIC JUVENILE DEFENDER CENTER, MARYLAND: AN ASSESSMENT OF ACCESS TO COUNSEL & QUALITY OF REPRESENTATION IN DELINQUENCY PROCEEDINGS (2003), available at http://www.njdc.info/pdf/mdreport.pdf [hereinafter MARYLAND ASSESSMENT] (last visited Oct. 16, 2007). 66. Id. at 2. 67. Id. at 29. 68. Id. 69. Id. at 43. 70. Id. at 29. 71. Id. at 26. 72. Id. at 27. 73. BROCK ALBIN, MARIA ALBIN, ELIZAEBTH GLADDEN, SARAH ROPELATO & GRANT STOLL, ABA JUVENILE JUSTICE CENTER, MONTANA: AN ASSESSMENT OF ACCESS TO COUNSEL & QUALITY OF REPRESENTATION IN DELINQUENCY PROCEEDINGS (October 2003), available at http://www.njdc.info/pdf/mtreport.pdf [hereinafter MONTANA ASSESSMENT] (last visited Oct. 16, 2007). 74. Id. at 27. 75. Id. 76. Id. 77. LYNN GRINDALL, ABA JUVENILE JUSTICE CENTER& SOUTHERN JUVENILE DEFENDER CENTER, NORTH CAROLINA: AN ASSESSMENT OF ACCESS TO COUNSEL & QUALITY OF REPRESENTATION IN DELINQUENCY PROCEEDINGS (October 2003), available at http://www.njdc.info/pdf/ncreport.pdf [hereinafter NORTH CAROLINA ASSESSMENT] (last visited Oct. 16, 2007). 78. Id. at 26

Fall 2007 Effective Assistance of Counsel 105 the parent will not be assessed the cost of counsel if the parent is ultimately determined not to be indigent. 79 In 2003, the assessment of access to counsel for juveniles was completed in Ohio. 80 The assessment found that, in some Ohio jurisdictions, neither defense counsel nor prosecutors took active roles in any but the serious or contested cases, leaving the legal proceedings up to the probation staff. 81 In fact, one investigator reported, our general theme for the jurisdiction is where are all the lawyers? 82 The Ohio assessment found that attorneys are rarely appointed prior to the detention hearings. 83 Ohio investigators saw instances where lawyers were literally taken from the courthouse hallways and appointed on the day of trial to represent youth in felony matters. 84 Pennsylvania s assessment of its delinquency system was also completed in 2003. 85 Pennsylvania has no uniform public defender system for youths, leaving the process entirely up to the various counties to develop their own systems. 86 Detained youth are typically appointed counsel at the detention hearing, depriving youth of representation at the intake interview and leaving counsel unprepared to actively participate in the detention hearing itself. 87 Absence of counsel at probation revocation hearings in Pennsylvania is so prevalent that even probation officers have expressed uneasiness with the lack of representation for the involved youth. 88 The 2000 assessment of access to counsel in delinquency matters in Texas 89 resulted in a shocking conclusion: Currently, an indigent child facing charges in a Texas juvenile court has little chance of receiving meaningful representation... Texas courts are selling justice short, leaving children utterly defenseless. 90 Attorneys and judges alike concede that attorneys wanting to receive court appointments are expected to make donations to the appointing judge s campaign fund. 91 Texas counties do not use a uniform approach in determining a child s access to appointed counsel, with some assuming that all children are indigent and others 79. Id. 80. KIM BROOKS & DARLENE KAMINE, ABA JUVENILE JUSTICE CENTER & CENTRAL JUVENILE DEFENDER CENTER, OHIO: JUSTICE CUT SHORT: AN ASSESSMENT OF ACCESS TO COUNSEL & QUALITY OF REPRESENTATION IN DELINQUENCY PROCEEDINGS IN OHIO (March 2003), available at http://www.njdc.info/pdf/ohio_assessment.pdf [hereinafter OHIO ASSESSMENT] (last visited Oct. 16, 2007). 81. Id. at 26. 82. Id. 83. Id. at 34. 84. Id. 85. LAVAL S. MILLER-WILSON, ABA JUVENILE JUSTICE CENTER & JUVENILE LAW CENTER, PENNSYLVANIA: AN ASSESSMENT OF ACCESS TO COUNSEL & QUALITY OF REPRESENTATION IN DELINQUENCY PROCEEDINGS (October 2003), available at http://www.njdc.info/pdf/pareport.pdf [hereinafter PENNSYLVANIA ASSESSMENT] (last visited Oct. 16, 2007). 86. Id. at 45. 87. Id. 88. Id. at 54. 89. TEXAS APPLESEED, ABA JUVENILE JUSTICE CENTER & JUVENILE LAW CENTER SELLING JUSTICE SHORT: JUVENILE INDIGENT DEFENSE IN TEXAS (October 2000), available at http://www.njdc.info/pdf/texasassess.pdf [hereinafter TEXAS] (last visited Oct. 16, 2007). 90. Id. at 30. 91. Id. at 16.

106 Barry Law Review Vol. 9 denying court-appointed counsel if the parents do not meet indigence standards. 92 Timing of the appointment of counsel for children also varies considerably across Texas, with some children receiving counsel at the very first hearing and others waiting days or weeks for the appointment of an attorney. 93 Attorneys in Texas usually first appear in delinquency cases at the second hearing. 94 The assessment of access to counsel in delinquency cases in Virginia was completed in 2002. 95 Virginia does not provide counsel for youth at arrest, intake or initial detention hearings. 96 Therefore, only privately retained counsel in Virginia participate at those important stages of the proceedings. 97 The normal procedure in Virginia is that counsel is appointed for youth during the arraignment/advisement hearing, but appointed counsel is generally not present at that hearing. 98 In 2003, Washington s assessment of access to counsel in delinquency cases was released. 99 Children are represented by counsel in most juvenile proceedings in Washington. 100 However, in some Washington counties, counsel is never provided to youth at the First Appearance hearings. 101 In the interest of expediency, hearings sometimes occur without the youth having benefit of counsel and without even an attempt to procure a formal waiver of counsel. 102 WAIVER OF RIGHT TO COUNSEL Twenty-five years before the Gault decision, the United States Supreme Court held that an adult defendant could only waive his right to counsel if the court was assured that the defendant has the ability to properly represent himself and clearly understands the impact of the waiver of right to counsel. 103 The Gault decision 92. Id. at 17. 93. Id. at 18. 94. Id. 95. PATRICIA PURITZ, MARRY ANN SCALI & ILONA PICOU, ABA JUVENILE JUSTICE CENTER & MID- ATLANTIC JUVENILE DEFENDER CENTER, VIRGINIA: AN ASSESSMENT OF ACCESS TO COUNSEL & QUALITY OF REPRESENTATION IN DELINQUENCY PROCEEDINGS (September 2002), available at http://www.njdc.info/pdf/virginia%20assessment.pdf [hereinafter VIRGINIA ASSESSMENT] (last visited Oct. 16, 2007). 96. Id. at 21. 97. Id. at 22. 98. Id. 99. ELIZABETH M. CALVIN, ABA JUVENILE JUSTICE CENTER, NATIONAL JUVENILE DEFENDER CENTER & NORTHWEST JUVENILE DEFENDER CENTER, WASHINGTON: AN ASSESSMENT OF ACCESS TO COUNSEL & QUALITY OF REPRESENTATION IN JUVENILE DEFENDER MATTERS (October 2003), available at http://www.njdc.info/pdf/wareport.pdf [hereinafter WASHINGTON ASSESSMENT] (last visited Oct. 16, 2007). 100. Id. at 26. 101. Id. at 29. 102. Id. at 28. 103. Adams v. United States, 317 U.S. 269, 279 (1942). The right to assistance of counsel and the correlative right to dispense with a lawyer s help are not legal formalisms. They rest on considerations that go to the substance of an accused s position before the law. The public conscience must be satisfied that fairness dominates the administration of justice. An accused must have the means of presenting his best defense. He must have time and facilities for investigation and for the production of evidence. But evidence and truth are of no avail unless they can be adequately presented. Essential fairness is lacking if an accused cannot put his case effectively in court. But the

Fall 2007 Effective Assistance of Counsel 107 clearly established the possibility of waiver of counsel in delinquency proceedings and appeared to rule that any waiver must be by both the child and the parent. 104 Later, the United States Supreme Court held that, in adult criminal actions, the defendant has a constitutional right to proceed without counsel, as long as the election to do so was done knowingly and voluntarily. 105 While the United States Supreme Court has never ruled directly on the test for determining the validity of a minor s waiver of counsel in a delinquency proceeding, the Court did apply a totality of the circumstances test in upholding a youth s waiver of Miranda rights in the investigative stage. 106 States have used a variety of methods to determine the validity of a waiver of the right to counsel in delinquency proceedings. Some states have adopted the totality of the circumstances test used by the United States Supreme Court. 107 Several states only permit a waiver of counsel after consultation with a parent or guardian. 108 At least one state has held that the right to counsel for a child in a delinquency proceeding is unwaivable if the interests of the youth conflict with the interests of the parent. 109 Some states even hold that any decision to waive counsel is invalid unless made with the assistance of counsel. 110 The Standards for Juvenile Defense promulgated by the Institute for Law and Justice prohibit waiver of right to counsel by a juvenile except when the waiver occurs in the presence of and after consultation with counsel and after the juvenile has had an opportunity to consult with a parent. 111 The National Council of Juvenile and Family Court Judges has established standards that call for judges to be extremely reluctant to allow youth charged with delinquent acts to waive the right to counsel. 112 The 1995 national study conducted by the ABA Juvenile Justice Center found that many juveniles waive their right to counsel. 113 In examining the background Constitution does not force a lawyer upon a defendant. He may waive his Constitutional right to assistance of counsel if he knows what he is doing and his choice is made with eyes open. Id. 104. Gault, 387 U.S. at 42. They had a right expressly to be advised that they might retain counsel and to be confronted with the need for specific consideration of whether they did or did not choose to waive the right. If they were unable to afford to employ counsel, they were entitled in view of the seriousness of the charge and the potential commitment, to appointed counsel, unless they chose waiver. Id. 105. Faretta v. California, 422 U.S. 806 (1975). 106. Fare, 442 U.S. at 725-26. 107. McLemore v. Cubley, 569 F.2d 940 (5th Cir. 1978); Smith v. Crouse, 413 F.2d 979 (10th Cir. 1969); People v. Kitley, 59 Mich. App. 71 (1975). 108. In re Appeal of Navajo County Juvenile Action no. JV-94000086, 898 P.2d 517 (Ariz. Ct. App. 1993); Williams v. State, 433 N.E.2d 769 (Ind. 1982); State ex rel. of Jones, 372 So. 2d 779 (La. Ct. App. 1979); Edward C. v. Collings, 193 Mont. 426 (1981). 109. K. E. S. v. State, 134 Ga. App. 843, 847-48 (1975). 110. State ex rel. J. M. v. Taylor, 166 W. Va. 511 (1981). See also State v. Doe, 95 N.M. 302 (1980). 111. STANDARDS FOR JUVENILE JUSTICE DEFENSE, INSTITUTE FOR LAW AND JUSTICE, COMPENDIUM OF STANDARDS FOR INDIGENT DEFENSE SYSTEMS, STANDARD 6.2, VOLUME V (December 2000). 112. NATIONAL COUNCIL OF JUVENILE AND FAMILY COURT JUDGES, JUVENILE DELINQUENCY GUIDELINES: IMPROVING COURT PRACTICE IN JUVENILE DELINQUENCY CASES 25 (2005), available at http://www.ncjfcj.org/images/stories/dept/ppcd/pdf/jdg/juveniledelinquencyguidelinescompressed.pdf. (last visited Oct. 16, 2007). 113. A CALL FOR JUSTICE, supra note 23, at 44.

108 Barry Law Review Vol. 9 of these waivers, the study concluded that [t]hese circumstances raise the possibility perhaps the likelihood that a substantial number of juvenile waivers are not knowing and intelligent. 114 The study found that waivers of counsel are often induced by either the judge or the parents of the child, 115 and that these waivers occur after a colloquy in the presence of the judge only about half (54%) of the time. 116 The statewide assessments that were completed subsequent to the national assessment confirmed problems with juvenile waiver of the right to counsel. The 2006 assessment conducted in the state of Florida specifically addressed the issue of waiver of counsel by juveniles. 117 While Florida has a procedural rule that requires a youth to consult with an adult concerning the decision to waive counsel, this rule is routinely flouted, 118 and is only followed in some Florida courts. 119 In some Florida courts, written waiver of counsel forms are distributed to all parents before court, and in at least one court, the bailiff routinely advises parents that the youth does not need an attorney if the intent is to plead guilty. 120 In many Florida counties, one-half or more of the youth in delinquency matters waive the right to counsel, and in some counties the number is as high as three-quarters. 121 In most Florida counties, youth do not have the benefit of counsel when making a decision to waive the right to counsel. 122 Many Florida youths who waive counsel in delinquency matters do not fully understand the nature or implications of that waiver. 123 Florida judges often substitute the written waiver of counsel form for an individual colloquy to determine whether the youth s waiver is knowing and voluntary. 124 The waiver of right to counsel issue was also examined in the 2001 assessment of access to counsel in Georgia delinquency proceedings. 125 Georgia law allows a youth to waive counsel without the benefit of advice from a lawyer or other interested adult. 126 In several Georgia counties, an estimated 90% of youth waive the right to counsel in delinquency proceedings. 127 This is significant because over 90% of delinquency cases in Georgia are resolved with guilty pleas, often without counsel and without a plea colloquy informing the youth of his or her rights. 128 Many courts rely on the probation officer to inform the youth of the right to counsel, and those probation officers frequently render an opinion to the youth as to whether or not an attorney should be requested. 129 Many people involved in the 114. Id. at 45. 115. Id. 116. Id. at 44. 117. FLORIDA ASSESSMENT, supra note 26, at 2. 118. Id. 119. Id. at 30. 120. Id. 121. Id. at 28. 122. Id. at 31. 123. Id. at 29. 124. Id. at 30. 125. GEORGIA ASSESSMENT, supra note 32. 126. Id. at 13. 127. Id. at 20. 128. Id. at 31. 129. Id. at 20.

Fall 2007 Effective Assistance of Counsel 109 Georgia juvenile court system view obtaining waivers of counsel as a critical tool for clearing a congested docket. 130 The assessment of counsel in the Indiana delinquency system was completed in 2006. 131 In Indiana, 40% to 50% of youth waive the right to counsel in delinquency proceedings. 132 Indiana youth rarely have the chance to consult with an attorney before deciding whether or not to waive the right to counsel. 133 The assessment found that there is a pervasive belief by judges and magistrates that counsel for youth is unnecessary. 134 In fact, one juvenile defender explained, kids are coerced into waiving counsel all the time in this court. Judges bend over backwards to obtain waivers. 135 It is common for Indiana courts to accept a youth s waiver of counsel without adequate colloquies. 136 In some areas of Indiana, a video is used to advise youth of their rights, but the assessment found the video to be inadequate and confusing. 137 An initial assessment of access to counsel in Kentucky was conducted in 1996, and a reassessment was done in 2002. 138 In Kentucky, waiver of the right to counsel appears to be relatively uncommon for youths who are detained. 139 However, among non-detained youths in Kentucky, waiver of the right to counsel is much more common. 140 While some youths appear to waive counsel because of intimidation or lack of understanding of their rights, most waivers in Kentucky are the result of the belief by the youth that the charges would not carry any serious consequences and that there was no counsel available at the time. 141 Louisiana s initial assessment of access to counsel and quality of representation in its delinquency court system was completed in 2001. 142 An update was completed one year later, in 2002. 143 In some jurisdictions in Louisiana, youths waive the right to counsel in 90% to 95% of delinquency cases, often without ever having talked to a juvenile defender. 144 Louisiana judges not only permit youth to waive counsel, but appear to encourage waiver. 145 Waivers of counsel are accepted in Louisiana even where the youth is obviously low functioning or exhibits a mental deficiency. 146 130. Id. at 19. 131. INDIANA ASSESSMENT, supra note 38. 132. Id. at 31. 133. Id. at 32. 134. Id. at 33. 135. Id. 136. Id. at 32. 137. Id. at 33. 138. KENTUCKY ASSESSMENT, supra note 44. 139. Id. at 28. 140. Id. at 29. 141. Id. 142. LOUISIANA ASSESSMENT, supra note 50. 143. LOUISIANA REVIEW, supra note 51. 144. LOUISIANA ASSESSMENT, supra note 50, at 4-5. 145. Id. at 60. 146. Id. at 62.

110 Barry Law Review Vol. 9 The 2003 assessment of the Maine delinquency system 147 provides a more favorable view of waiver of counsel by youth alleged to have committed a delinquent act. It appears that waiver of counsel by youth is not an issue in Maine. 148 If a parent refuses to retain the services of counsel for the child, Maine judges will order a court-appointed attorney regardless of the parent s income. 149 Maine judges normally will refuse to accept pleas from youths who have not had the benefit of consulting with an attorney. 150 The assessment of access to counsel in Maryland delinquency proceedings was completed in 2003. 151 Waiver of counsel by Maryland youth ranges from 33% 152 to 58% 153 of all cases. The Maryland assessment attributes the high rates of waiver of counsel to many factors, including poor advisement of the right to counsel and the unavailability of counsel through the Office of the Public Defender, an inability to consult with counsel prior to waiving counsel, parental unwillingness, and eligibility requirements for public defender services that prevent children and youth from accessing counsel. 154 Montana also conducted an assessment of access to counsel in delinquency proceedings in 2003. 155 Montana law prohibits a youth or his parents from waiving counsel if the adjudication could result in a commitment for a period of more than six months, 156 and therefore, waiver of the right to counsel is not a routine event in Montana. North Carolina s assessment was completed in 2003. 157 North Carolina law provides that counsel shall be appointed in all delinquency cases, and includes a presumption that all youth are indigent. 158 North Carolina law also prohibits the waiver of counsel by a youth. 159 These statutes protecting the right to counsel for youth are applied consistently throughout the state of North Carolina. 160 In 2003, the assessment of access to counsel for juveniles was completed in Ohio. 161 Waiver of counsel by youth is a common practice in the Ohio delinquency courts, with rates as high as 80% of youth waiving the right to counsel. 162 The Ohio assessment found that youth often feel pressured to waive their right to counsel and plea in order to conclude the matter quickly or to be released from detention. 163 Parents in Ohio also feel pressured to advise their child to waive the right 147. MAINE ASSESSMENT, supra note 56. 148. Id. at 32. 149. Id. at 32-33. 150. Id. at 32. 151. MARYLAND ASSESSMENT, supra note 65. 152. Id. at 26. 153. Id. at 25. 154. Id. at 2. 155. MONTANA ASSESSMENT, supra note 73. 156. Id. at 27. 157. NORTH CAROLINA ASSESSMENT, supra note 77. 158. Id. at 25-26. 159. Id. at 26. 160. Id. 161. OHIO ASSESSMENT, supra note 80. 162. Id. at 25. 163. Id. at 28.

Fall 2007 Effective Assistance of Counsel 111 to counsel in order to avoid the necessity of returning to court on another day. 164 The quality of the colloquy conducted between the judge and the youth upon a waiver of the right to counsel varies considerably across Ohio, and in some cases the colloquy is lacking in both form and substance, leaving the youth and the parent confused. 165 Pennsylvania s assessment of its delinquency system was also completed in 2003. 166 That assessment found a high incidence of youth waiving the right to counsel. 167 In fact, in one year alone (2001), youth waived their right to counsel in over three thousand cases in Pennsylvania. 168 Counsel is waived in 11% of all Pennsylvania delinquency dispositions involving hearings. 169 Counsel is waived by Pennsylvania youths in all types of hearings, including hearings to transfer to adult court. 170 The 2000 assessment of access to counsel in delinquency matters in Texas contains no discussion of waiver of counsel in that state. However, the Texas assessment does contain an extensive review of the adequacy of the counsel provided. 171 The assessment of access to counsel in delinquency cases in Virginia was completed in 2002. 172 The Virginia assessment found that as many as half of all youth waive counsel regardless of the seriousness of the offense. 173 Virginia youth often waive counsel without consulting with an attorney and without a colloquy with the court. 174 Investigators for the Virginia assessment found instances where youth waived counsel and entered a guilty plea at the arraignment, leaving confused about what had just happened. 175 In 2003, Washington s assessment of access to counsel in delinquency cases was released. 176 In over 40% of Washington counties, juvenile defenders indicate that youth waive their right to counsel. 177 Well over one-third of attorneys indicate that Washington youth are allowed to waive the right to counsel without having a chance to consult with an attorney about the decision. 178 The assessment concluded that Washington judges often fail to advise the youth of important rights when a waiver of counsel is made by a youth, including failing to advise the youth of the voluntary nature of the waiver 69% of the time and failing to advise the youth of the right to counsel regardless of ability to pay 72% of the time. 179 164. Id. 165. Id. at 27. 166. PENNSYLVANIA ASSESSMENT, supra note 85. 167. Id. at 44. 168. Id. app. A, illus. 5, at 75. 169. Id. at 44. 170. Id. 171. TEXAS, supra note 89. 172. VIRGINIA ASSESSMENT, note 95. 173. Id. at 23-24. 174. Id. at 24. 175. Id. at 23. 176. WASHINGTON ASSESSMENT, supra note 99. 177. Id. at 28. 178. Id. 179. Id.

112 Barry Law Review Vol. 9 EFFECTIVE ASSISTANCE OF COUNSEL It is axiomatic that the constitutional right to counsel carries with it an implication that the counsel be effective. 180 The conclusions of the 1995 national study concerning the quality of representation were disheartening: While some juveniles receive high quality representation from public and private defenders, many do not have access to counsel or effective representation from arrest through disposition and post-disposition. 181 The national study went on to find that there are serious concerns that the interests of many young people in juvenile court are significantly compromised, and that many children may literally be left defenseless. 182 In 2006, an assessment was conducted in the state of Florida concerning access to and quality of counsel in delinquency proceedings. 183 While the assessment found instances where juvenile defenders provide excellent representation, it also found that such representation is not the norm. 184 In Florida, juvenile court serves as a training ground for new attorneys, and these attorneys usually are transferred out of the juvenile division as soon as they acquire good legal and advocacy skills. 185 Attorney caseloads for Florida juvenile defenders are extremely high, and many of these defenders believe that these high caseloads prevent the provision of competent counsel for Florida youth. 186 Florida juvenile defenders rarely engage in meaningful consultation with the youth, often meeting the youth for the first time in the hallway or in the courtroom at the time of the hearing. 187 Public defenders in Florida rarely visit their clients in detention centers. 188 It is even less common for Florida juvenile public defenders to meet their non-detained clients outside of the courthouse. 189 Attorneys in Florida are not appointed until after the detention hearing, leaving the youth unrepresented at that hearing. 190 Little investigation is done in preparation for an adjudication hearing in Florida, and at least 90% of cases are disposed of by way of a guilty plea before adjudication. 191 Advocacy by Florida juvenile defenders is weak and inadequate at dispositional hearings. 192 Postdispositional advocacy is rare in Florida s delinquency proceedings, as most attorneys and public defenders close their files after disposition. 193 180. Powell, 287 U.S. at 76. 181. A CALL FOR JUSTICE, supra note 23, at 67. 182. Id. at 41-42. 183. FLORIDA ASSESSMENT, supra note 26. 184. Id. at 3. 185. Id. at 53. 186. Id. at 55. 187. Id. at 34. 188. Id. at 37. 189. Id. at 38. 190. Id. at 39. 191. FLORIDA ASSESSMENT, supra note 26, at 43. 192. Id. at 45. 193. Id. at 47.

Fall 2007 Effective Assistance of Counsel 113 The 2001 assessment of access to counsel in Georgia delinquency proceedings directly addressed the quality of counsel provided to Georgia youth. 194 The sad state of representation in Georgia juvenile courts was clearly stated by the assessment: A further perception exists in the courthouse that having an appointed lawyer makes no discernible difference to the outcome of a child s case because they are so ill-prepared, and therefore children can do no worse by handling their own representation. A probation officer shared, I tell the kids to waive counsel. What s the point? Look who s representing them [referring to the public defenders]? 195 Georgia defense attorneys confirm that they rarely conduct any pretrial investigation or interviews. 196 Most Georgia youth in detention have never met with their lawyers while in detention. 197 The common practice in Georgia juvenile courts is that attorneys meet the youth at the courthouse on the day of the hearing and do not meet with them earlier. 198 Representation is so substandard in Georgia delinquency cases that assessment investigators observed adjudicatory hearings where attorneys had difficulty remembering clients and witnesses names, were unfamiliar with the facts of the case at trial, and elicited damaging testimony from their own clients. 199 Several systemic problems appear to be at the root of the poor representation accorded to youth in the Georgia delinquency court system. First, Georgia juvenile defense attorneys are faced with extremely high caseloads, handling as many as nine hundred cases per year. 200 Second, Georgia juvenile defense attorneys receive extremely low pay, and have few available resources for support such as investigation and clerical support. 201 Finally, Georgia juvenile courts have such a nonadversarial atmosphere that juvenile defenders often feel they are unable to engage in zealous advocacy. 202 The assessment of counsel in the Indiana delinquency system was completed in 2006. 203 The Indiana assessment found a broad range in the quality of representation from experienced trial attorneys to attorneys with little or no experience or training. 204 Ninety percent of delinquency cases in Indiana are resolved by way of a guilty plea, even though investigators for the state assessment witnessed pleas in cases with questionable factual or legal bases. 205 The Indiana assessment found 194. GEORGIA ASSESSMENT, supra note 32. 195. Id. at 22. 196. Id. at 23. 197. Id. at 26. 198. Id. at 25. 199. Id. at 24. 200. Id. at 25. 201. Id. at 28. 202. Id. at 31. 203. INDIANA ASSESSMENT, supra note 38. 204. Id. at 43. 205. Id. at 37.

114 Barry Law Review Vol. 9 that the existence of extremely high caseloads for juvenile defenders constitutes a significant barrier to effective representation. 206 This problem is exacerbated by the lack of sufficient resources for clerical assistance, technology, and investigation services. 207 Another barrier to effective representation for Indiana youth in delinquency proceedings is the fact that many juvenile defenders see their role as guardians for the youth rather than advocates for the stated wishes of the client. 208 An initial assessment of access to counsel and the quality of counsel in Kentucky was conducted in 1996, and a reassessment was done in 2002. 209 Most juvenile defenders in Kentucky conduct their first client meeting at the courthouse when the youth appears for a hearing. 210 Only 20% of Kentucky youth meet with their counsel between the date of their first court appearance and the adjudication date. 211 Kentucky dispositional hearings rarely include any significant advocacy for the youth involved and usually amount to nothing more than a rubberstamping of the probation report. 212 Louisiana also has had several assessments of access to counsel and quality of representation in its delinquency court system. The initial assessment was completed in 2001. 213 An update was completed one year later, in 2002. 214 Louisiana public defenders miss so many opportunities for advocacy for their juvenile clients that one judge sarcastically stated: We should call them public pretenders, not public defenders. 215 Louisiana public defenders rarely meet with their young clients prior to hearings, 216 almost never file discovery motions or conduct investigations, 217 and almost never take a case to trial. 218 Pleas are often made with no effort by the public defender to assess the facts of the case, 219 resulting in pleas where issues are still open to dispute at the time of the plea. 220 Louisiana public defenders have such high caseloads that they are simply unable to take the time to meet with their clients before court. 221 Juvenile public defenders in Louisiana often do not even have their own client files, using the files of the prosecutor or the court file instead. 222 While there are some exceptions, most juveniles in Louisiana delinquency proceedings receive, at best, minimal representation. 223 One Louisiana supervising probation officer frankly stated that the Louisiana public defenders 206. Id. at 40. 207. Id. at 41. 208. Id. at 40. 209. KENTUCKY ASSESSMENT, supra note 44. 210. Id. at 29. 211. Id. 212. Id. at 30. 213. LOUISIANA ASSESSMENT, supra note 50. 214. LOUISIANA REVIEW, supra note 51. 215. LOUISIANA ASSESSMENT, supra note 50, at 65. 216. Id. at 64. 217. Id. at 66. 218. Id. at 67. 219. Id. 220. Id. at 68. 221. Id. at 63. 222. Id. at 66. 223. Id. at 70.

Fall 2007 Effective Assistance of Counsel 115 don t want to buck the system, don t give a damn and don t know how to be a lawyer. 224 The updated Louisiana assessment found that... the interests of many young people in the juvenile justice system are being significantly compromised, and that many children are left, literally, defenseless. 225 The 2003 assessment of the Maine delinquency system reviewed the quality of counsel for youths alleged to have committed a delinquent act. 226 The quality of counsel for Maine youth in delinquency cases ranges from those who provide excellent representation to those that do not zealously advocate for their clients. 227 More than half of the Maine youth interviewed for that state s assessment did not even know their lawyer s name, did not understand the proceedings in which they participated, nor understand the nature of the disposition of their case. 228 The bulk of the Maine juvenile defense bar is made up of new lawyers who lack the training and experience to provide competent representation to their clients. 229 The Maine assessment also found that the state s juvenile judges strongly imply that the juvenile defense attorney is expected to serve the best interests of the youth rather than to serve as a zealous advocate. 230 The assessment of access to counsel and quality of counsel in Maryland delinquency proceedings was completed in 2003. 231 The assessment found that the quality of representation of youth in Maryland is so poor that it is almost meaningless: The refusal to acknowledge the importance of adhering to due process and the role of defense counsel results in a culture that relegates defense counsel to little more than a decorative ornament in a process that often results in unfair outcomes. 232 While there are some outstanding lawyers representing Maryland youths in juvenile justice cases, the majority of Maryland public defenders are unprepared and provide poor representation to their clients. 233 Juvenile defenders provide virtually no advocacy for their clients at detention hearings in Maryland, 234 usually conduct no investigation of the facts of the case, 235 and rarely meet with their client before the adjudicatory hearing. 236 Most Maryland juvenile public defenders are unprepared for waiver or reverse waiver cases, 237 having done no investigation or preparation and rarely procuring the services of an expert. 238 The few public defenders who routinely prepare for and contest waiver and file reverse 224. Id. 225. LOUISIANA REVIEW, supra note 51, at 15. 226. MAINE ASSESSMENT, supra note 56. 227. Id. at 33. 228. Id. at 35. 229. Id. at 31. 230. Id. at 28. 231. MARYLAND ASSESSMENT, supra note 65. 232. Id. at 38. 233. Id. at 29. 234. Id. at 43. 235. Id. at 31. 236. Id. at 30. 237. A waiver hearing is one where the juvenile court is being asked to waive jurisdiction to adult court. A reverse waiver hearing is one where the adult criminal court is being asked to send the case back to juvenile court. 238. Id. at 63.

116 Barry Law Review Vol. 9 waiver motions are often successful in keeping the case in juvenile court. 239 Excessive caseloads for Maryland juvenile public defenders are viewed as a barrier to providing effective representation to Maryland youth. 240 Another barrier to effective advocacy is that public defenders who zealously advocate for their clients are seen as interfering with the best interests model 241 of Maryland s juvenile courts. 242 Montana also conducted an assessment of access to counsel and quality of representation in delinquency proceedings in 2003. 243 Attorneys representing youth in Montana rarely meet with their clients other than for a few minutes in the hallways of the courthouse immediately before hearings. 244 Most juvenile cases in Montana conclude with a guilty plea, with one juvenile defender admitting that in three years he had never taken a case to trial. 245 It appears that many Montana youth depend on the probation officer, rather than their attorney, to discuss the disposition of charges, the rights of the youth, and to work out a plea arrangement. 246 Montana judges, prosecutors, probation officers and even the public defenders themselves, often view the role of the juvenile defender to be to protect the best interests of the youth rather than to advocate for the youth s stated wishes. 247 In fact, zealous advocacy for youth is viewed negatively and with hostility by Montana judges, probation officers, and prosecutors. 248 North Carolina s assessment also occurred in 2003. 249 That assessment painted a picture of extremes in relation to the quality of representation for youth: The picture of juvenile defense representation in North Carolina is one of extremes and contradictions. Zealous, well-prepared advocacy exists side-by-side, sometimes in the same courtroom, with seriously deficient, pro forma, representation. 250 Almost half (44%) of all juvenile defense attorneys in North Carolina report that they never or rarely see a police report or any other investigative records before their first meeting with the client, and 89% admit that they meet their clients for the first time at the courthouse on the day of the hearing. 251 Well over half (59%) of all juvenile delinquency cases in North Carolina result in a guilty plea, 252 and most cases (up to 70%) proceed directly to disposition, leaving defense counsel with no time to develop an alternate disposition plan. 253 239. MARYLAND ASSESSMENT, supra note 65, at 64-65. 240. Id. at 35. 241. In a best interests model, the attorney is serving as a guardian ad litem rather than an attorney. Under this model, the attorney advocates for what he or she perceives to be in the child s best interest rather than represent the stated wishes of the child. 242. Id. at 4. 243. MONTANA ASSESSMENT, supra note 73. 244. Id. at 29. 245. Id. at 30-31. 246. Id. at 42. 247. Id. at 40. 248. Id. at 41. 249. NORTH CAROLINA ASSESSMENT, supra note 77. 250. Id. at 27. 251. Id. at 29. 252. Id. at 32. 253. Id. at 33.

Fall 2007 Effective Assistance of Counsel 117 In 2003, the assessment of access to counsel and of the quality of counsel for juveniles was completed in Ohio. 254 The Ohio assessment found that youth with appointed counsel received poor representation at detention hearings, with attorneys having very little information about the case and performing almost no role in the hearing. 255 Except in very serious cases, Ohio public defenders do not normally meet with the youth in advance of a hearing or conduct any investigation, assuming that the youth will plead guilty and be given probation. 256 It is rare for adjudication to be contested in Ohio, with defense attorneys admitting that they have not tried a case in years despite having a substantial juvenile caseload. 257 While many Ohio juvenile attorneys are dedicated and well-meaning, many simply do not have the basic trial skills to provide competent representation to youth. 258 Zealous advocacy is also seriously lacking in Ohio dispositional hearings. 259 Over 40% of Ohio juvenile defense attorneys view their role as representing the best interests of the youth rather than serving as the youth s advocate. 260 Pennsylvania s assessment of its delinquency system was also completed in 2003. 261 The Pennsylvania assessment found that, while some attorneys representing youth in delinquency hearings provide effective representation to their client, many do not. 262 In fact, the assessment found that most attorneys representing juveniles charged with delinquent acts do not meet either state or federal constitutional requirements for adequacy of counsel. 263 The Pennsylvania assessment found that most defense lawyers in delinquency cases do not confer with their clients in a meaningful way, research the law, review files, conduct pre-trial investigations or prepare adequately for hearings. 264 Advocacy for youth at pre-trial, disposition and on appeals was found to be non-existent in many Pennsylvania jurisdictions. 265 Attorneys for youth are not only unprepared for review hearings, but often do not attend these hearings. 266 Pennsylvania defense attorneys often do not insist on adherence to the rules of evidence or even the standard of proof of beyond a reasonable doubt, and defense counsel do not intervene to prevent ex parte communications with the judge from prejudicing the youth. 267 As a result, youth often fail to receive meaningful hearings and are denied fair trials. 268 The problem in Pennsylvania is exacerbated by several systemic barriers. First, high caseloads 254. OHIO ASSESSMENT, supra note 80. 255. Id. at 29. 256. Id. at 30. 257. Id. at 31. 258. Id. 259. Id. 260. Id. at 26. 261. PENNSYLVANIA ASSESSMENT, supra note 85. 262. Id. at 48. 263. In Pennsylvania, most attorneys who defend children accused of criminal acts do not engage in the type of advocacy required by the United States or Pennsylvania Constitutions and by the codes of professional responsibility governing the conduct of lawyers. Id. at 35. 264. Id. at 36. 265. Id. at 49. 266. Id. at 6. 267. Id. at 58. 268. Id.

118 Barry Law Review Vol. 9 for attorneys representing youth in Pennsylvania s delinquency proceedings prevent the attorneys from sufficient contact with the represented youth. 269 Second, the juvenile defender offices do not have written policies concerning conflicts of interest, and as a result, the same office occasionally represents co-defenders in the same case. 270 In some cases where public defender offices do recognize a conflict and ask for the appointment of counsel, youth often do not meet them until the day of trial. 271 The 2000 assessment of access to and quality of counsel in delinquency matters in Texas 272 deals extensively with the quality of counsel issue. One of the primary barriers to quality representation is the payment procedure for appointed counsel, resulting in defense attorneys being forced to choose between failing to provide even the most basic representation and subsidizing the system. 273 Because some areas have a flat-fee system of payment for defense attorneys, there is a disincentive to perform more than a minimal amount of work on a case. 274 Even where an hourly rate is used, Texas judges often reduce hours for payment without explanation, resulting in a chilling effect on out-of-court preparation in delinquency cases. 275 The result is that some attorneys openly admit that they provide better representation to retained clients than in court-appointed cases. 276 For instance, in Texas retained counsel visit with the detained clients, while court appointed lawyers do not. 277 The Texas assessment directly relates the poor payment for attorneys in delinquency cases to the high percentage of cases resulting in guilty pleas, often at the first court appearance when the attorney first meets the youth. 278 Approximately 95% of delinquency cases in Texas conclude with a guilty plea, with 75% of those pleas occurring at the first court appearance. 279 In Texas, defense attorneys who perform zealous advocacy in delinquency cases are sometimes punished with a reduction in court appointments for that advocacy. 280 In one Texas county, the assessment found that judges will change an appointment from appointed counsel to the public defender simply because the appointed counsel intends to take a case to trial, with the understanding that the public defender will conclude the case without a trial. 281 Some attorneys do not exercise their client s right to a jury trial, fearing that doing so will prevent the attorney from receiving further court appointments. 282 Such a disincentive for zealous advocacy is inconsistent with representation in adult cases, where courts discipline attorneys for 269. Id. at 42. 270. Id. at 46-47. 271. Id. at 47. 272. TEXAS, supra note 89. 273. Id. at 19. 274. Id. 275. Id. at 20. 276. Id. 277. Id. at 25. 278. Id. at 22. 279. Id. at 23. 280. TEXAS, supra note 89, at 20. 281. Id. 282. Id. at 21.