Need Right to Counsel Letters, Please!

The Indiana Supreme Court Committee on Rules of Practice and Procedure has published the juvenile waiver of counsel rule for comment.  Sample letters and other information can be found in the bottom right corner here.  Letters/comments should be sent to RulesComments@courts.in.gov or Lila G. Judson, Executive Director, Indiana Supreme Court, Division of State Court Administration, 30 South Meridian Street, Suite 500, Indianapolis, Indiana  46204.  The deadline for submitting comments is June 5, 2013.

Proposed rule: Right to Counsel in Juvenile Court Delinquency Proceedings 

(A) Right to Counsel. A child charged with a delinquent act is entitled to the representation of counsel at all stages of proceedings.

(B) Appointment of Counsel. Counsel must be appointed prior to the detention hearing or initial hearing, whichever occurs first.

(C) Waiver. Any waiver of the right to counsel must be made in open court, on the record and confirmed in writing, and in the presence of the child’s attorney.

(D) Withdrawing Waiver. Waiver of the right to counsel may be withdrawn at any stage of a proceeding, in which event the court must appoint counsel for the juvenile if otherwise required by statute.

In Indiana, every child alleged to be a delinquent child in juvenile court currently has a right to counsel.  The proposed rule would ensure that a child meets with an attorney prior to the judge advising the juvenile of his/her rights and the decision whether to go forward with counsel or waive counsel.

In terms of economic impact, every child is presumed indigent by case law.  Therefore, a public defender would be appointed in each case, unless the child is found to have the means to hire a private attorney, or someone retains an attorney on the child’s behalf.  Many counties currently appoint public defenders in 100% of the juvenile delinquency cases, and there would be no economic impact of implementing the rule in those counties.  Other counties rarely appoint counsel and the child appears before the judge and faces the assigned prosecutor or deputy prosecutor during all hearings.  The self-reported statistics on appointment of counsel can be found here (the last year available is 2011).  Obviously for those counties that have a low public defender appointment rate, there would be a financial impact, especially for counties who use the appointed counsel public defender model.

At the beginning of any child’s case when the waiver of counsel decision is usually made, it is hard to predict the outcome — the disposition.  Children are removed from their home and placed in detention or residential treatment facilities without an attorney to advise and assist.  There are dozens of girls and boys placed at the Indiana Department of Correction Division of Youth Services (DOC) who were committed to DOC without ever having had an attorney.  Placements in residential treatment facilities and DOC usually have no determinate sentence — the child does not know when they will come home, and have to earn release through good behavior.

An attorney plays a crucial role in advising and teaching the child about the juvenile court process, and ensures that the child’s right to due process of law is upheld.  Every child, every time.  They have the right.  They need to fully understand the right before making a decision to waive the right to counsel.

Please write an email or letter concerning this important rule, and spread the word to family, friends, coworkers… anyone!

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