South Carolina Criminal Defense Blog

Nothing gets to me quite like spending a morning in the juvenile court. My hat is off to the people that work in there every day. Or not, I haven't decided for sure.

It is difficult to watch children being punished for their parent's failings. Because more often than not, when a child is being sent to DJJ, or sent to alternative placement, that is what is happening. I understand the dilemma that DJJ and prosecutors and judges face - what can be done? A child does not stay in school, how do you force him to go to school? At some point, apparently, the answer is you remove him from his family and send him to live at a boy's home. A child commits crimes and will not stop, how do you change his behavior? You don't, you lock him up at DJJ's prison for kids.

I think that the good people who work in that system quickly become desensitized to the real and immediate pain that families are experiencing right there in front of them. Like the cliche about children becoming desensitized to violence due to the violence on the television, our lawyers and other professionals in the juvenile court become desensitized to the devastating effects that juvenile "justice" has on already devastated families that make their way through the system.

I've seen family court judges talk to children or their parents like they are scum of the earth. I've seen defense lawyers who are representing children in the juvenile court argue for detention when everyone else in the courtroom is asking the judge to release them. I've seen prosecutors verbally attack children with no hint of forgiveness or compassion as they ask a judge to tear them from their family and lock them away. I've seen lawyers plead children to serious crimes, an hour after being handed a file and first meeting with the child. At times there seems to be no rhyme or reason to what happens, and at others it feels as if everyone in the room has thrown up their hands and said "so what?"

I was in juvenile court with an appointed client this morning. She was in court this morning to be sentenced, after being sent to the Coastal Evaluation Center for 45 days. The Coastal Evaluation Center, by the way, is a small compound of grey concrete buildings, surrounded by tall fences with razor wire, located next door to Lieber Correctional which houses the state's death row inmates. This morning she returned to court with a recommendation of probation, which the judge accepted and released her to her mother.

Before she went in front of the judge however, her brother was taken in front of the judge for a probation violation. He would not go to school. DJJ recommended 5 days incarceration, as a wake up call, and recommended continued probation. The prosecutor asked the judge to remove him from his home and send him to DJJ until an alternative placement could be found. His lawyer says "as his lawyer," she has to ask the judge to accept DJJ's recommendation, but then gratuitously adds, "if I were his guardian," she would tell the judge to put him in alternative placement. Wonderful lawyering, that was.

The judge orders that my client's brother be taken from his family and put into an alternative placement. After her brother is taken away through the back door of the courtroom into a cage, my client and I sit at the table. She is sobbing quietly. She was taken through that same door less than two months ago.

The machine keeps moving, with no emotion from anyone in the room except my client whose brother was just taken from her. Until we stop, as I am trying to tell the judge how wonderfully my client adjusted and how well behaved she was at the Coastal Evaluation Center, in mid sentence, I am stopped so that the court reporter can go to the next courtroom and help to fix their recording equipment. My client sits at the table for 20 minutes until the gears begin to grind again. I tell the court again how wonderful she was at the evaluation center.

I tell the court how I felt her pain as she sat next to me after her brother was just taken from her. And how I am not sure if anyone else in this courtroom felt it or saw it, but I want them to know it. I pause, and look around the courtroom, and not a single person is looking at me. She went home on probation. She has the same life that she had before she was brought into the juvenile "justice" system, except with more rules and with the threat of incarceration if she screws up again. Same parents. Will watching her brother get taken away from his family motivate her to go to school? Will she be taken from her family when she does not attend school in the weeks or months to come?

I feel my client's pain when I am standing next to her in that courtroom. If I ever become desensitized to what these very real people are going through as their families are torn apart (or not, as the case may be), I think that I will need to leave and find a job welding on steel beams and trusses, rather than people's lives.

Is anyone's life better because I was there in the juvenile court this morning?

Yesterday I had the dubious pleasure of sitting through a hearing in the Horry County juvenile court in Conway, where the prosecutor sought to waive the child up to general sessions court for prosecution as an adult. Not my client, but it was related to one of my cases. In general, I have a hard time with juvenile court proceedings - although the professed standard in these cases is "the best interests of the child," almost without fail the child loses.

There is no right to a jury trial for juveniles in South Carolina, so if you test the state's case the judge alone decides the case. Often I am shocked at the condescending and angry manner in which some family court judges treat the troubled children who are in front of them. If the state is acting "in loco parentis," it is often an abusive and unforgiving parent. The actual parents often are the source of the child's problems, yet the child is punished for the parents' failings, and may be sent to a locked down facility for an "evaluation," (I've been to this facility - it is a small prison, built with cold gray bricks, with a barbed wire fence around the outside, situated next door to an adult prison where death row inmates are housed) sent to a group home, or sent to DJJ to be locked up for a period of time. Sometimes there is no other choice and the Court is at a loss for what to do.

Sometimes the child is released to his family and connected to services such as counseling, and we hope that they live happily ever after.

Anyway, back to the topic. Under certain circumstances a juvenile can be "waived up" to general sessions court and prosecuted as an adult, when a serious crime has been committed. In this case, a 14 year old juvenile was accused of kidnapping, assault and battery with intent to kill, and armed robbery, and the allegations are that his mother and another adult encouraged his participation.

This case fell under a provision of S.C. law that says a juvenile who is 14 years of age or older can be tried in adult court if he is charged with "a Class A, B, C, or D felony as defined in Section 16-1-20 or a felony which provides for a maximum term of imprisonment of fifteen years or more, the court, after full investigation and hearing, may determine it contrary to the best interest of the child or of the public to retain jurisdiction."

I'm not sure when it could be in the best interest of the child or the public to send a 14 year old child to be prosecuted as an adult and subjected to a 30 year prison sentence. In this case a DJJ psychologist testified that the child would receive treatment and rehabilitation if he stayed in the juvenile system, but not in the adult system, and testified that it was in the best interest of the child and the public to keep him in the juvenile system.

The prosecutor's arguments as I heard them went something like this: 1) This child has never had a significant adult in his life, he was abused as a small child, he suffers from various mental and emotional disorders, he has no family who cares about him, and therefore we should punish him more severely.

2) If the child is kept in the juvenile court he would receive mental health treatment (he would be "sub-classed" under a federal court order as a result of a class-action lawsuit that was brought against the DJJ for their treatment of mentally ill juveniles), and therefore we should send him to the adult court.

3) At 17 years of age he would be transferred to a YOA facility, where he would receive treatment. If he is tried as an adult he would no longer receive treatment therefore we should send him to adult court.

As usual when I leave juvenile court proceedings, I wish that I missed something, that someone in there is actually trying to help children, but I am afraid that I missed nothing. The judge has not ruled in that particular case, but I suspect that the juvenile will be tried as an adult.

In In re Walter M., decided December 17th, the S.C. Court of Appeals affirmed a juvenile's conviction for the killing of another child in Georgetown County, finding that there was sufficient evidence to prove malice aforethought where the child "retrieved a deadly weapon from his brother's closet, walked to another room, opened a window, and pointed the gun," and there was testimony that it took "six pounds of pressure to fire the gun and the recoil on the specific firearm in question was 'negligible.'"

The Court states that "the family court could infer malice from a defendant's use of a deadly weapon," holding that the S.C. Supreme Court's recent decision in Belcher was not applicable. I don't see how Belcher is not applicable, and the Court of Appeals does not explain its reasoning other than a footnote which notes that they have read Belcher and do not think it is controlling. The Court in Belcher said that a jury instruction that malice may be inferred from the use of a deadly weapon is not proper "where evidence is presented that would reduce, mitigate, excuse or justify the homicide." According to the Court of Appeals in this case, the juvenile presented testimony that the shooting was accidental - so is the Court of Appeals saying that it believes the state's evidence over the juveniles, or is the Court of Appeals saying that it does not matter because the case was presented to a judge and not a jury (in South Carolina, children are denied the right to a trial by jury)?

The Court of Appeals also holds that the juvenile's argument that the State failed to prove beyond a reasonable doubt he killed Victim with malice aforethought was not preserved for appeal - noting that, although the Court of Appeals believes that juvenile cases should be exempt from strict rules of issue preservation, the S.C. Supreme Court has never addressed the issue and so the Court of Appeals declines to address it as well.

Luzerne County Judges Mark Ciavarella and Michael Conahan, who allegedly took millions of dollars in pay-offs for jailing juvenile offenders, have been indicted by a federal grand jury in Pennsylvania.

A federal grand jury has handed down a 48-count indictment against two former Luzerne County, Pa., judges, alleging the men engaged in racketeering and related charges, the U.S. Attorney's Office for the Middle District of Pennsylvania announced Wednesday.

The indictment, a copy of which was not available at press time Wednesday, comes about 5 1/2 weeks after a federal judge rejected the conditional plea agreements of Michael T. Conahan and Mark A. Ciavarella Jr. and nearly two weeks after the men withdrew their conditional guilty pleas in the matter.

The indictment charges Conahan and Ciavarella with fraud, money laundering, extortion, bribery and federal tax violations while alleging they received "millions of dollars in illegal payments," according to Dennis C. Pfannenschmidt, U.S. Attorney for the Middle District of Pennsylvania.

Lawyer Robert J. Powell, who partially owned the detention facilities that the children were sent to, admitted earlier this year to paying cash to Conahan and to falsifying records to help the judges hide their income. A plea deal with the two judges fell through, however, resulting in the current indictments.

According to law.com, more indictments against the judges may be in the works:

While the government's press release made no mention of any charges beyond those related to the juvenile detention center, several sources said they expected the government to come back at some point with a superseding indictment seeking additional charges against Conahan and Ciavarella.

While the federal government's case against the former judges centers on their roles in taking money from attorney Robert Powell, the owner, and Robert Mericle, the builder, of a juvenile detention facility and the judges' alleged abuse of the rights of juveniles sentenced to the facility, sources close to the investigation and inside Luzerne County say the scam some in the media have labeled "kids for cash" was just the tip of the iceberg and only the most blatant example of the corruption allegedly overseen by the two judges.

SeattlePI.com has posted a video of Kings County Deputy Paul Schene and friend busting a 15 year old girl's head in a holding cell. (H/T a public defender) The girl had been arrested for taking her mother's car without permission:

Too often in juvenile court I see kids whose parents can't or won't raise their children, who think calling the police on their child is the answer. I can't say that is or isn't how this teenager ended up in the jail, but it raises the issue in my mind. I have had parents stand up and tell the court "I need you to discipline my child for me, she needs to be taught a lesson," and I've had parents whose child would have gone home on probation except the parent refused to take them home. I've stood up in court and said that the parent needs to be locked up, not the child, knowing full well that cannot and will not happen but just fed up and determined to speak the truth as I see it. The child gets sent to DJJ or to an evaluation center because there is nothing else that the judge can do. DSS is ordered to do a home study before the child returns to court, but nothing comes of it.

Any parent who thinks the juvenile justice system is better equipped than they are to discipline their child should take a look at the video above. They should also take a tour of the DJJ facility where their child will be locked up, or the Coastal Evaluation Center - which is located next door to Lieber Correctional Facility (which also houses South Carolina's Death Row) and is surrounded by barbed wire and concrete.

There are situations where the juvenile justice system is necessary, but there is something terribly wrong when a parent has to call the police every time their child does not listen to them or when they act out, and when a parent thinks that a night in jail (or 45) is appropriate discipline for a child. Back to the video above - children are especially vulnerable to abuse; because they are small, because they don't know how to protect themselves, and because no one listens to them. The officers above should never be allowed to wear a uniform again, and, like these judges in Pennsylvania, should answer for their crimes in court.

Two judges in Pennsylvania are set to plead in federal court today on charges of accepting kickbacks in exchange for sending juveniles to privately run detention centers.

In one of the most shocking cases of courtroom graft on record, two Pennsylvania judges have been charged with taking millions of dollars in kickbacks to send teenagers to two privately run youth detention centers.

"I've never encountered, and I don't think that we will in our lifetimes, a case where literally thousands of kids' lives were just tossed aside in order for a couple of judges to make some money," said Marsha Levick, an attorney with the Philadelphia-based Juvenile Law Center, which is representing hundreds of youths sentenced in Wilkes-Barre.

Prosecutors say Luzerne County Judges Mark Ciavarella and Michael Conahan took $2.6 million in payoffs to put juvenile offenders in lockups run by PA Child Care LLC and a sister company, Western PA Child Care LLC. The judges were charged on Jan. 26 and removed from the bench by the Pennsylvania Supreme Court shortly afterward.

No company officials have been charged, but the investigation is still going on.

The high court, meanwhile, is looking into whether hundreds or even thousands of sentences should be overturned and the juveniles' records expunged.

Among the offenders were teenagers who were locked up for months for stealing loose change from cars, writing a prank note and possessing drug paraphernalia. Many had never been in trouble before. Some were imprisoned even after probation officers recommended against it.

Many appeared without lawyers, despite the U.S. Supreme Court's landmark 1967 ruling that children have a constitutional right to counsel.

It is always tough working in the juvenile court - the court's decisions are to be guided by the rule of what is best for the child, as opposed to the harsher punishments doled out in adult court. Often what happens in juvenile court is devastating, as judges try to sort out not only what the child did but why he or she did it, and what sentence will most likely result in added stability for the child and his or her family.

To imagine a judge abdicating that responsibility in exchange for money, or to imagine the persons at the company who arranged for the kickbacks so that they could make more money themselves off of locking up children, just defies emotion. What a betrayal to all of the people who work in and around that courthouse, striving to help troubled children and their families day in and day out.