ABA Urges Increased Access to Appellate Counsel in JD Cases

At the 2014 midyear meeting of the American Bar Association House of Delegates, a resolution concerning appellate counsel in juvenile delinquency cases was adopted.  It reads:

“RESOLVED, That the American Bar Association urges federal, state, local, tribal, and territorial governments to ensure that juveniles are provided effective appellate representation and have access to appeals consistent with state statutes and/or state constitutional provisions by:

  1. Providing training for judges and attorneys in juvenile court to recognize that in the representation of the juvenile, the control and direction of the case is the same as in the representation of a criminal defendant;
  2. Providing adequate resources so that juveniles, including those qualifying for public defender services, have access to effective appellate representation;
  3. Providing timely appellate review, expedited when necessary, within the timeframe that the juvenile is completing his court-ordered disposition, particularly in cases where the youth is confined; and
  4. Collecting data on the rate of juvenile delinquency appeals to identify institutional barriers to appellate representation and possible internal geographical disparities in state juvenile appellate practice.”

Item 1 has to do with the tension between express interest representation and best interest representation.  Indiana is an express interest model state.  Therefore, what the child wishes to do in terms of admitting or denying the allegations and the proposed disposition is the controlling opinion in the case.  However, some court participants around the state mistakenly practice the best interest model.

Item 2 ties to the ongoing early appointment of counsel issue.  If the child does not have counsel at the trial-level of the case, there will likely be knowledge gaps about the appellate process and procedure.  The probable result is a decision not to pursue an appeal.  It would be helpful if the Judicial Center benchbook had a suggested colloquy describing the appellate process to pro se children, in addition to providing a consultation about the risks of proceeding pro se — or provide counsel for every child.

Items 3 addresses an issue noted in this previous post.  Juvenile delinquency appeals are the only appeals involving children’s issues that are not automatically entitled to an expedited appeal pursuant to Indiana Appellate Procedure Rule 21.  The result too often is that the child is released from a detention center or the Indiana Department of Correction upon completion of the disposition order before the appellate process has been finalized.  This timing issue alone may be enough for many children to forego the appellate process when fully advised by counsel of the appellate process.  If the appeal will not result in a shorter period away from home, why bother?

Finally, inadequacies with juvenile delinquency appeals have not improved significantly since the National Juvenile Defender Center (NJDC) assessment that was completed in Indiana in 2006.  As noted on page 38 of the assessment, “[a]ppellate practice by local offices is nearly non-existent, and the process by which appeals are handled is unclear….Nearly half (43.2% of defenders surveyed indicted that they were not authorized to pursue juvenile appeals.”  Certainly, the rate of juvenile appeals remains anemic.  Upon review of the published appellate opinions in 2014, there has been one opinion from the Indiana Supreme Court and four from the Indiana Court of Appeals — for the entire State of Indiana. For a review of how Indiana reacted to the NJDC assessment compared to other states, see this State Slow to Achieve Juvenile Justice Reforms by Michael W. Hoskins (April 30, 2008).  Continuing to collect detailed data about juvenile cases would assist the Indiana Judicial Center, the Indiana Prosecuting Attorneys Council, and the Indiana Public Defender Council to create internal trainings, and advocate for legislative and administrative rule changes.

We can do better.

The post ABA Urges Increased Access to Appellate Counsel in JD Cases first appeared on the Indiana Juvenile Justice Blog.


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