November CBA Report

far too often, Ohio children forego their

right to counsel. In 2015, approximately

42 percent of youth facing delinquency

or unruly complaints did so without

an attorney. Further, in 20 counties

throughout Ohio, 60 percent or more

youths lacked legal representation. When

compared to the data gathered in 2004,

the 2012 amendments clearly made an

impact,

however there is still room for

improvement. As national trends continue

to lead to fairer outcomes for children in

the juvenile justice system, it is timely to

consider an amendment to Ohio Juvenile

Rule 3 to require that all children in juve-

nile court be required to consult with an

attorney prior to waiver, and be advised of

the dangers of self-representation. These

changes could better ensure that children

receive meaningful access to counsel and

are able to make fully informed deci-

sion regarding their legal representation,

thereby embodying the principles set forth

Gault

Juvenile Public Defense

Delivery in Ohio

In Ohio, children are presumed

indigent and only the child’s income is

considered when determining eligibility.

Thus, the majority of children in Ohio are

eligible to have court-appointed counsel.

Counsel is provided to indigent children

in Ohio through a county-based system,

which includes county public defender

offices, contracts with the Office of the

Ohio Defender, nonprofit corporations,

and private appointed counsel.

Given the specialized knowledge

required to best represent children in

delinquency court, the legislature has

acknowledged that it is crucial for juve-

nile public defenders and court-appointed

counsel to be adequately trained and expe-

rienced. To address this need, the Ohio

Public Defender Commission adopted

standards of practice to mirror national

best practice standards.

While training

and institutional knowledge is more

readily available in larger county public

defender offices and nonprofit corpo-

rations, the availability of resources,

support, and training for private

appointed counsel is more limited in

Ohio. This can result in a wide disparity

of representation and outcomes for chil-

dren in delinquency cases. Effective May

1, 2017, the Ohio Administrative Code was

revised to ensure that attorneys appointed

to represent children in juvenile cases

had sufficient experience and up-to-date

training specific to juvenile practice and

procedure.

Local Effor ts to Enhance

Juvenile Public Defense

The Hamilton County Public Defender

houses its own juvenile division, which

also manages the appointments of private

counsel for conflict cases. The juvenile

division also provides training opportuni-

ties for its attorneys and appointed counsel

each year. In 2017, the juvenile division

has provided two 6-hour CLE trainings

featuring the Juvenile Training Immersion

Program (JTIP) curriculum. Developed by

the National Juvenile Defender Center and

Models for Change, along with national

experts, JTIP is a highly specialized,

comprehensive, trial advocacy training

program for juvenile defense attorneys.

The trainings provided local private

counsel easily accessible continuing legal

education to meet the Public Defender

Commission requirements.

The Last Word

Since

Gault

, states across the country

have worked to improve access to counsel

and other juvenile defense related prob-

lems. Twenty-two states have voluntarily

participated in a statewide assessment of

juvenile indigent defense with support

from national juvenile defense experts.

The assessments, along with other juvenile

justice reformmovements, have resulted in

stronger due process protections for chil-

dren, including better access to counsel.

However, a survey of the country indicates

that there is still room for more reform.

In May 2017, National Juvenile Defender

Center (NJDC) released

Access Denied:

A National Snapshot of States’ Failure to

Protect Children’s Right to Counsel.

The

key findings of this report were:

• Only 11 states provide every child

accused of an offense with a lawyer,

regardless of financial status.

• No state guarantees lawyers for every

child during interrogation, and only

one state requires it under limited

circumstances.

• Thirty-six states allow children to be

charged fees for a “free” lawyer.

• Forty-three states allow children to

waive their right to a lawyer without

first consulting a lawyer.

• Only 11 states provide for meaningful

access to a lawyer after sentencing,

while every state keeps children

under its authority during this time.

The report highlights the serious

consequences of these findings with

stories of impacted children, and makes a

number of recommendations for reform.

The recommendations include deeming

children automatically eligible for publicly

funded counsel, early appointment of

counsel, prohibiting waiver of counsel

unless a child has consulted with quali-

fied counsel, and establishing an explicit

right to counsel for all post disposition

matters.

In Ohio, most children are presumed

competent to stand trial, but research

suggests that many are far from it.

Many

children who enter the juvenile justice

system have cognitive delays and mental

health diagnoses, compounding their

ability to make responsible decisions in

their cases.

Even without those impair-

ments, younger children demonstrate

lower ability to understand and appreciate

interrogation rights compared to older

adolescents and adults.

Having contact

with an attorney can enhance a juvenile’s

capacity to understand and appreciate

legal situations, such as police interro-

gation and legal adjudication.

Having

an attorney is key, as what children and

their parents often do not realize is the

long lasting impact judicial outcomes can

have on their lives. Despite being ‘only’ a

juvenile record, many adjudications can

cause serious collateral consequences for

youth later in life, impacting where they

can live or work as adults.

Given the

potential impact on a child’s life and the

cognitive limitations that children have,

all children should have the opportunity

to consult with competent counsel prior to

making decisions in their cases. Providing

qualified attorneys who can advocate for

the best possible outcomes for children

in delinquency courts capitalizes on the

crucial window of time where appropriate

interventions and treatment can have the

www.CincyBar.org

November 2017 CBA REPORT

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