Competency Issue(s) In Juvenile Offender Court

Speakers: Trevor Patton, Ph.D.; Paul Shipp, J.D.

The child’s voice is one in a sea of competing voices advocating for the child to undergo certain courses of action. While the child’s voice should be a significant factor in making these determinations, it is often silenced and overshadowed by the voice of a prosecutor, defense attorney, parent, social worker, educator, and/or other adult or professional.

This seminar explores best practices for attorneys and other professionals who represent, or serve children, to ensure that the voices of children are fully heard by those making decisions and plans for their future, by raising awareness of current research and practices in the realm of competency.

This seminar is seeking to examine the best practices to ensure that the child’s voice is heard and the child’s rights are protected. This seminar examines more than just the concept of adjudicatory competency, but the concept of competency generally. Competency, as a concept, should pervade the proceedings.

Charles Schultz was right!

… Competency …

… Competency …

ISSUE: Competency To Stand Trial (Juvenile)

The statute in located in the Revised Kansas Juvenile Justice Code at K.S.A. 38-2348, and the proper inquiry is whether the juvenile…

is able to: (1) Understand the nature and purpose of the proceedings; or (2) make or assist in making a defense.

If you feel the need to question your client’s ability to “Stand Trial” file a request for competency… The procedure is simple.

FILE A MOTION

• K.S.A. 38-2348 – any party may file motion to determine competency, even the court may file motion, sua sponte.

AFTER MOTION FILED• A Competency evaluation is ordered• All Proceedings are suspended during evaluation process • Later, a competency hearing is held• If the juvenile is found to be incompetent then treatment is

ordered, If found competent then the proceedings continue…

Duh…..

Procedure

K.S.A. 38-2349 (Incompetent)38-2349. Same; commitment of incompetent. (a) A juvenile who is found to be incompetent pursuant to K.S.A. 2009 Supp. 38-2348, and amendments thereto, shall be committed for evaluation and treatment to any appropriate public or private institution for a period not to exceed 90 days. Within 90 days of the juvenile's commitment to the institution, the chief medical officer of the institution shall certify to the court whether the juvenile has a substantial probability of attaining competency for hearing in the foreseeable future. (b) If the chief medical officer of the institution certifies that a probability of attaining competency does exist, the court shall order the juvenile to remain in an appropriate public or private institution until the juvenile attains competency or for a period of six months from the date of the original commitment, whichever occurs first. If the juvenile does not attain competency within six months from the date of the original commitment, the court shall order the county or district attorney to commence proceedings pursuant to article 29 of chapter 59 of the Kansas Statutes Annotated, and amendments thereto. If the juvenile appears to have attained competency, the institution shall promptly notify the court in which the case is pending. Upon notice the court shall hold a hearing to determine competency pursuant to subsection (e) of K.S.A. 2009 Supp. 38-2348, and amendments thereto. (c) If the chief medical officer of the institution certifies that a probability of attaining competency does not exist, the court shall order the county or district attorney to commence proceedings pursuant to article 29 of chapter 59 of the Kansas Statutes Annotated, and amendments thereto. History: L. 1982, ch. 182, § 91; L. 1983, ch. 140, § 39; L. 1986, ch. 299, § 5; L. 1992, ch. 312, § 20; L. 1996, ch. 229, §68, July 1, 1997. L. 2006, ch. 169, § 49; Jan. 1, 2007.

Procedure

Historical Background of Competency In Juvenile Cases

Constitutional Considerations

The United States Supreme Court holds that, “The conviction of a legally incompetent defendant violates due process. Bishop v. United States, 350 U.S. 961 . P. 378. [383 U.S. 375, 376].”

The U.S. Constitution requires that defendants in criminal proceedings be competent to stand trial. This rule originates with the sixth amendment right to the assistance counsel. If one is not competent then he/she cannot take advantage of that right. It was in Gault and Kent that the right to counsel crystallized, but that right is not actually realized just because a kid is given a lawyer, especially if they are incompetent.

Competency In Juvenile CasesAn After-Thought

Constitutional Considerations

The requirement that criminal defendants be competent to stand trial had no place in original delinquency proceedings, because “delinquency proceedings” were not viewed as “criminal proceedings,” until recently.

Originally the system was designed to rehabilitate and to help youth. Anything that was done in the delinquency was not viewed as a “criminal prosecution,” and so procedural protections (including the necessity to be competent) were not accorded to youth in the system.

In other words, constitutional due process, including the necessity to be competent, has been, and remains, an after thought! [cite In Re L.M.]

(i) “Juvenile” means a person to whom one ormore of the following applies, the person: (1) Is 10or more years of age but less than 18 years of age;(2) is alleged to be a juvenile offender; or (3) hasbeen adjudicated as a juvenile offender andcontinues to be subject to the jurisdiction of thecourt.

This is a BRIGHT line rule! Why is this rule significant? What makes a 9.99 year old different from a 10 year old? Can’t some nine year old children be

more mature than ten-eleven year olds?

Lionel Tate

Age of Juvenile Offender Clients? Why is this significant

Assumptions, Juvenile’s Need Assistance at all stages

•K.S.A. 38-2306. Right to an Attorney.

•K.S.A. 38-2307. Children can also have a CASA if the Court deems it appropriate.

•K.S.A. 38-2365(e) also allows for a juvenile offender to have a guardian ad litem appointed to represent the juvenile in instances where the juvenile is removed from the home. This is in addition to a lawyer.

The ResearchMacArthur Foundation Study Calls Competency into Question

The results of the study strongly suggest that about one-third of 11 to 13 year olds and one-fifth of 14 and 15 year olds probably are not competent to stand trial. (Generally).

The study included children between the ages of 11 and 17 and young adults between the ages of 18 and 24.

Often younger children did not know the difference between the defense and prosecuting attorneys. Children are less likely to recognize their rights under the law, even when those rights are explained to them. Many children 15 and younger are not able to put facts together and draw logical conclusions, and are less able than adults to think about the future consequences.

The ResearchMacArthur Foundation Study Calls Competency into Question

The study found that in matters regarding trial-related understanding, and reasoning about important information, 30 percent of those 11 to 13 years old, and 19 percent of those ages 14 and 15, performed at

the level of mentally ill adults who have been found NOT competent to stand trial. For older adolescents and young adults, the

figure is 12 percent.

The results of the MacArthur Juvenile Competence Study are consistent with what developmental psychologists have long known, that children reach an important juncture in development around the age of 16. Before that point, many adolescents lack the capacities that are needed to be a “competent defendant.”

Ethical Obligations

Ethical Dilemmas

Because current research clearly indicates that children do NOT have the capacity to deal with LAWYERS,

JUDGES, SOCIAL WORKERS, PROBATION OFFICERS, and the MANY other professionals they

WILL ENCOUNTER in the Court system, lawyers need to find appropriate ways to respond.

Ethical Obligations, Rule 1.21.2 Client-Lawyer Relationship: Scope of Representation

(a) A lawyer shall abide by a client's decisions concerning the lawful objectives of representation… and shall consult with the client as to the means which the lawyer shall choose to pursue… In a criminal case, the lawyer shall abide by the client's decision, after consultation with the lawyer, as to a plea to be entered, whether to waive jury trial and whether the client will testify.

Comment [2]. In a case in which the client appears to be suffering diminished capacity, the lawyer's duty to abide by the client's decisions is to be guided by reference to Rule 1.14.

Ethical Obligations, Rule 1.141.14 Client-Lawyer Relationship: Client with diminished capacity.

(a) When a client's capacity to make adequately considered decisions in connection with a representation is diminished, whether because of minority, mental impairment or for some other reason, the lawyer shall, as far as reasonably possible, maintain a normal client-lawyer relationship with the client.

(b) When the lawyer reasonably believes that the client has diminished capacity, is at risk of substantial physical, financial or other harm unless action is taken and cannot adequately act in the client's own interest, the lawyer may take reasonably necessary protective action, including consulting with individuals or entities that have the ability to take action to protect the client and, in appropriate cases, seeking the appointment of a guardian ad litem, conservator or guardian.

More Practical ResponsesThe burden is on defense attorneys to make sure their clients understand. This requires the attorney to have a more sophisticated understanding of adolescent development. The MacArthur study underlines the need for defense lawyers not only to raise the issue of competence more often, but also to find appropriate professionals to conduct the appropriate evaluations. Discuss K.S.A. 38-2360 (Next slide).

Prosecutors also have a difficult task, including what defense attorneys need to do, but also they must balance a concern for public safety with the desire to be fair by following constitutional restrictions against prosecuting an incompetent defendant.

K.S.A. 38-236038-2360. Post adjudication orders and hearings. (a) At any time after the juvenile has

been adjudicated to be a juvenile offender, the court shall order one or more of the tools described in this subsection to be submitted to assist the court unless the court finds that adequate and current information is available from a previous investigation, report or other sources:

(1) An evaluation and written report by a mental health or a qualified professional stating the psychological or emotional development or needs of the juvenile. The court also may order a report from any mental health or qualified professional who has previously evaluated the juvenile stating the psychological or emotional development needs of the juvenile. If the court orders an evaluation as provided in this section, a parent of the juvenile shall have the right to obtain an independent evaluation at the expense of the parent.

…

(3) An educational needs assessment of the juvenile from the chief administrative officer of the school which the juvenile attends or attended to provide to the court information that is readily available which the school officials feel would properly indicate the educational needs of the juvenile.