One final plea for folks to reach out to the Indiana Supreme Court with comments about the proposed early appointment of counsel rule. Anyone can send a comment. You do not need to be an attorney to raise your voice about Indiana children, nor do you have to be from Indiana. You just have to have an opinion.
It can be as easy as sending an email to RulesComments@courts.in.gov by June 5, 2013. The proposed rule text can be found here. A FAQ sheet and sample letters can be found at the top of this blog’s home page under the Early Appointment of Counsel tab/page.
Indiana has a long history of providing attorneys for the indigent, and children in Indiana are presumed to be indigent by case law. Currently, the right to counsel can be waived or declined by: (1) the child’s attorney, if the child knowingly and voluntarily agrees; (2) the child’s parent, guardian, or custodian, if the child knowingly and voluntarily agrees; or (3) by the child child alone if the child has been emancipated. IC 31-32-5-1. The parent alone cannot waive the right under current law.
The proposed rule would require that a child consult with an attorney at the detention hearing or initial hearing, whichever is first, before waiving the right to counsel. The child could still waive the right to counsel, but the hope is that the children will be better informed about what an attorney is and about the juvenile court process before making that decision. Many counties in Indiana currently appoint counsel is most or all cases before the waiver of counsel issue is addressed. This results in geographic disparity, where children in one county enjoy greater access to attorneys than children in other counties in Indiana.
Opponents of the proposed rule focus on three arguments: (1) the cost to the counties who are not currently appointing attorneys; (2) interference with the parens patriae juvenile court model where the judge acts in the role of a parent to the child because the presence of a child’s attorney makes the juvenile court more adversarial; and (3) difficulty ensuring that an attorney is available on short notice for detention hearings in rural counties. Proponents argue that these concerns have been addressed in the counties — both rural and urban — who are already ensuring access to counsel, and can be addressed in all Indiana counties through a phased-in implementation plan.
Please consider writing an email today. Apologies for being relentless on this topic, but two years of effort makes one focus during the final push!