Defenseless children Young defendants often lack legal counsel

Waiting for justice: A male inmate sits in a holding cell in the juvenile detention center's Receiving Screening Release Unit. Juveniles can't be detained for more than 24 hours for offenses that aren't considered crimes if committed by an adult. / Kelly Wilkinson / 2005 Star file photo

The case of a child known as J is a sobering reminder of the problems juveniles face in getting a fair hearing in Marion County's courts.

J was originally convicted on charges of disorderly conduct and resisting arrest after a "fight'' at Northwest High School. (The Star generally does not identify juvenile defendants.) The state Court of Appeals, in a unanimous decision, overturned the conviction in March.

The only witness against the teen was Indianapolis Public Schools Police Officer Antonio Hairston, who admitted under cross-examination that he couldn't tell whether the 16-year-old girl was actually involved in the fight because the hallway where it occurred was crowded. Other witnesses said J, a 21st Century Scholar who also has earned a scholarship from Purdue University, and a boy were involved in horseplay but were not fighting.

No proof beyond a reasonable doubt, no conviction. Right? Not in the juvenile justice system.

Then-Magistrate Julie Cartmel found J guilty of disorderly conduct and resisting arrest, sentencing her to probation.

"There was scant evidence in the record that J's actions were hostile," wrote Appeals Court Judge Patrick Sullivan in tossing out the conviction. "[Cartmel] appeared to find that the mere act of hitting constitutes 'fighting' per se."

Sadly, J isn't alone. Juveniles in Marion County and the rest of Indiana routinely have their rights to legal representation waived before consulting with a public defender or private lawyer. Parents are allowed to waive their children's rights to a lawyer -- even when they are the ones pressing charges.

Yet, even with an attorney, a juvenile isn't guaranteed a fair hearing.

"In the juvenile system, you are at the mercy of the prosecutor and the judge," says Larry Landis, executive director of the Indiana Public Defender Council. "You don't have any checks and balances."

Judge Marilyn Moores, who took over supervision of Marion County's juvenile court last year, is blunt in her assessment of past practices, both by the court and attorneys there. "One of the things they did not do here was practice law," she says.

A Star Editorial Board review of appellate court rulings reveals a troubling pattern of magistrates in Marion County's juvenile court not following the intent of the law:

In May, a three-judge panel of the Court of Appeals found that Magistrate Scott Stowers "abused (his) discretion" in tacking on informal home detention to a plea agreement involving a juvenile named Santana. Judges have little latitude in changing plea agreements once they are accepted.

In a 2004 ruling, appellate court judges unanimously found that Magistrate Geoffrey Gaither based his decision to revoke the probation of a child named Cory on hearsay. Although probation hearings require a lower standard of evidence than trials, the prosecution "produced no evidence" of a drug test that Cory allegedly failed, how long the drug was in his system or prior drug screenings before he was placed on probation. Results of the drug screenings couldn't be produced because none were taken.

Another Appeals Court panel ruled unanimously in 2004 that Magistrate Beth Jansen violated state law by holding a juvenile known as William in the Marion County Detention Center for three months before initially hearing allegations that he violated his truancy probation. Under state law, juveniles can't be detained for more than 24 hours for offenses that aren't considered crimes if committed by an adult.

A three-judge panel in 2003 found that the Marion County Juvenile Court "abused its discretion" in the case of Ebonie, a Pike High School student who had served time at the state Girls School. The court's policy at the time was to automatically send juveniles back to the state prison system for any future offense.

Ebonie was returned to prison for disorderly conduct despite overwhelming evidence she had turned her life around. The appeals court ruled that Marion County's one-size-fits-all rule "conflicted with the rehabilitative goals of the juvenile justice system."

At initial hearings, children and their parents frequently find themselves making important legal decisions without the help of an attorney. The National Juvenile Defender Center and the Indiana Juvenile Task Force have found that 40 percent of juvenile cases in Indiana are handled without a defense attorney involved.

The results can be disastrous for children and teens, who can be imprisoned by the state until age 18 or in some cases 21. Judges, legal analysts argue, are apt to impose harsher sentences without defense attorneys arguing for alternatives.

The inadequacy of legal counsel came to a head in Marion County in 2004 when Chief Public Defender David Cook temporarily refused to take on new juvenile cases. Cook argued that it was unethical for him to continue accepting cases given his department's lack of resources. His office has since added 12 full-time public defenders.

Private attorneys remain something of a rarity in juvenile court. Few have expertise in juvenile law and most are unwilling to endure the long waits or the arbitrary policies associated with Marion County's court.

"There's no question, by any definition, that defense lawyers were viewed as second-class citizens in that process," says attorney Robert Hammerle, who occasionally represents juveniles. "So many of my colleagues refused to go."

The Marion County Superior Court is responsible for operation of the juvenile system. But for two decades, Judge James Payne was given wide latitude to run the juvenile court, the detention center and the juvenile probation agency as he saw fit. Payne even reviewed and signed off on all rulings by magistrates under his supervision.

"I'm not saying Judge Payne said 'Keep your nose out of my business.' He wasn't like that," says Presiding Judge Cale Bradford. "But he had always run -- he had always run -- juvenile court and there really hadn't been a clamoring from the Downtown courts or local government to have more involvement out in juvenile."

Now, serious problems in the system are beginning to emerge. Prosecutors have charged 10 detention center employees, including the director, with either sexually abusing teen inmates or helping to cover it up. The abuse is believed to have occurred over at least a six-year span. One national organization recently declared the center unsafe for inmates and staff.

In addition, Marion County has for years operated a juvenile system in which children are frequently sent to prison based on little evidence and without legal representation.

A system supposedly defined by justice has too often failed to deliver.

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Why you should care

The confidential nature of juvenile cases means there are few checks and balances to assure that children get a fair hearing in court. Marion County has a long history of funneling many juveniles into the state corrections system. Local taxpayers now owe $60 million to the state to pay for juvenile offenders.

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