DEFENDING A JUVENILE ABA

DEFENDING A JUVENILE DELIQUENCY CASE for ABA By: Kenneth A. Vercammen Handling juvenile delinquency cases is becoming a sub-specialty that requires special knowledge of the juvenile justice system. Juvenile cases are difficult to handle for different reasons: (1) The juveniles often refuse to admit to their attorney any participation in the offense despite clear guilt.

(2) The parents sometimes refuse to acknowledge their child's involvement.

(3) Different rules and court systems are involved.

When the client is first in the office, we have him fill out the Confidential New Criminal Case Interview Sheet. We obtain background information such as their name, address, the offenses charged, date of the person's arrest, other witnesses, statements given to them by the police, their occupation and information regarding prior criminal convictions. Our interview sheet also asks if there is anything else important. The extent to which the client fills out the form lets us know whether or not the client will follow instructions and cooperate with us.

After reviewing the complaint and the interview sheet, I ask a series of questions of the client. We request the client wait until the end of the interview before explaining their side of the story. We also ask them if there is anything else of importance in connection with the case that we should know. The client may have pending serious criminal charges in another state or county. I usually open up our statute book and show the clients the specific language of the offense they are charged with and explain to them the maximum penalties that could be imposed. By understanding the charges they are facing, my clients are more likely to realize the seriousness of the offense and pay our retainer. The ABA adopted Rules of Professional Conduct indicate a retainer letter or written statement of fees is required for new clients. I also provide all my clients with a brochure explaining how to appear in court, a brochure on surcharges, a brochure on points, and a brochure regarding alcohol counseling/substance abuse treatment, if applicable.

I recommend that my clients provide me with a list of between 10 to 15 reasons why they should not go to jail and why the court should impose the minimum license suspension. This provides us with information for mitigation and penalties and also provides information to be considered by the judge in sentencing.

I. WHO IS THE CLIENT? The client must be the juvenile charged. It is not the parent or grandmother who pays the bills. It is important to preserve the confidence of the client. I let the juvenile know that they can call us whenever they want, and we will not tell their parents anything told in confidence.

Discovery in non-motor vehicle cases is requested in writing to the County Prosecutor, not the town Municipal Prosecutor. Motor vehicle charges alone are heard by the Municipal Court Judge and handled by the Municipal Prosecutor.

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Trial Call is the next appearance and the defense counsel will receive discovery, if it has not previously been received. Applicable motions should be filed prior to the trial call: Motion to Suppress, Compel Additional Discovery, Dismiss Complaint, etc.

Juveniles have most of the same rights under the Constitution as adults: - 4th Amendment - No unreasonable searches - 5th Amendment - Right to Remain Silent - 6th Amendment - Right to Attorney - 6th Amendment - Right to Cross Examine Witnesses Unlike adults, juveniles do not have a right to a jury trial and do not have to post bail.

It is a popular misconception that juvenile arrests are automatically erased when the juvenile turns 18. The criminal "charge", even if later dismissed, stays on their record forever unless they have their attorney file a formal petition for Expungement.

Once we receive our retainer, we begin work right away. Usually while the client is still in the office, we prepare a discovery letter on the computer to the prosecutor and court and hand a copy to the client. We occasionally call the court to advise them that we will be handling the case.

Law is a business. I try to impress my clients and hope that they will send additional clients.

II. POST INTERVIEW PREPARATION We also make a Motion to Suppress where there is a question regarding the validity of a stop or search. New Jersey will also permit you to make a Motion to Dismiss on De Minimis Infractions for non-substantial offenses (i.e. shoplifting one candy bar). Any other Motions to Dismiss should be made in writing such as statute of limitations or lack of jurisdiction.

Oftentimes in cases that deal with just one triable issue such as the admissibility of a blood test result regarding alcohol or drugs, you can make a Motion in Limine or suggest a pre-trial conference. It is often a good idea to try to have the judge decide a crucial issue by motion in order to save you a six-hour trial.

III. ADDITIONAL DISCOVERY PHASE Upon receiving discovery, we forward a photocopy of all discovery to our client.

We then discuss with the client whether or not we have a reasonable prospect of winning.

In the case involving essential witnesses, we may write to the witnesses and ask them to call us so that we can find out what really happened. If possible I have a law clerk call up after we send the initial letter. The attorney could not testify if the witness provides an inconsistent statement but our law clerks could testify. I sometimes speak to the witness myself later to make a decision to determine whether or not the witnesses are credible. You must protect yourself from looking like a fool.

Oftentimes the clients are not telling the truth and the witnesses are not telling the truth.

IV. PREPARING FOR TRIAL

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If it is a drug case, we may make an objection to the entry of the lab certificate as evidence at trial. We are also under a responsibility to provide any reciprocal discovery to the prosecutor. Occasionally, we will call the prosecutor ahead of time to see if a matter can be worked out or plea bargained.

THE OFFENSE AND ARREST Police are permitted to arrest if they see a crime or are provided with information that a juvenile committed a crime. The police then sign a Complaint Form, which later is forwarded to the Superior Court, Family Part, in the county where the juvenile lives. Generally, the juvenile will be released to the custody of parents or guardians. Rule 5:21-5. A person is a juvenile for delinquency purposes until his/her 18th birthday. For serious crimes, if the juvenile is a threat to themselves or the community, or if the juvenile is a habitual offender, they can be brought to the County Juvenile Detention Center. They will remain in detention until released by the Superior Court Judge at a recall hearing, after a probable cause hearing or at the conclusion of the case. It is rare and serious when a juvenile is held at the Detention Center.

MIRANDA WARNING AND CONFESSIONS Police must provide Miranda Warning to juveniles. Parents/guardians do not have to be present for police questioning. If a confession is sought and you need to try and preclude the admission of a confession, the issue will be whether the waiver of Miranda Warning was "knowing and voluntary" by the juvenile.

Caselaw indicates both juveniles and even retarded citizens can waive their right to remain silent.

DIVERSION OF CRIMINAL CHARGES In many counties, the County Prosecutor's office screens each complaint initially, but staff within the Family Court can make the decision to divert the case or not. Diversion for many cases means removing them from court altogether and sending them for total handling to a Juvenile Conference Committee (J.C.C.) or intake service conference. See the Criminal Justice System, "Guide for School Personnel," Middlesex County Prosecutor's Office, p. 20 (1996).

The first rung on the diversion ladder is the Juvenile Conference Committee (J.C.C.), which is a town-based group of citizens who work with the juvenile offender to devise an appropriate resolution of the case. Rule 5:25-1.

Citizen members are appointed to recommend to the court how to handle selected juvenile cases.

Members meet with the juveniles and make recommendations, which may include restitution, participation in a job placement or community service program, counseling, or other conditions.

For juveniles with prior charges or more serious charges, the case is put on the formal trial calendar. These proceedings resemble adult criminal proceedings. The

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juvenile must be represented by an attorney and the state is represented by an Assistant Prosecutor.

In a "deferred adjudication" the judge may direct the juvenile to perform a job, write an essay, be on unsupervised probation, or direct other requirements. The juvenile must earn dismissal by fulfilling conditions such as restitution, community service, counseling, or school attendance.

FORMAL TRIAL If the case goes to trial, the judge serves as the fact-finder and makes all decisions, unlike adult court where those charged can have a jury trial. The trial is held before a Superior Court Judge in the county where the juvenile resides. Rule 5:19-1.

Another major difference in juvenile cases is that the prosecutor does not make binding sentencing recommendations as part of a plea bargain. The judge has total discretion regarding the sentence imposed. If the juvenile pleads guilty or is found delinquent (guilty), the judge has the discretion on sentence - deferred adjudication, probation, incarceration, residential placement, restitution, fine, etc. Criminal Justice System, supra at 21.

Relatively few juveniles are currently incarcerated but the number may increase as legislative changes require jail terms for juveniles who commit certain offenses such as auto thefts and for juveniles who continue to commit more and more heinous offenses.

For the most serious crimes, the County Prosecutor can make a motion to remove to the Adult Criminal Court. Rule 5:22-1, Rule 5:22-2.

FIRST APPEARANCE IN FORMAL TRIAL CASES The Court itself will send a copy of the Complaint to the juvenile's parents and a Mandatory Notice to Appear for an Interview for Public Defender Eligibility. The Public Defender handles only indigent cases, juveniles whose parents are on welfare, unemployed, and have no assets.

This mandatory appearance is unnecessary once the client retains an attorney and the attorney sends in a Notice of Appearance.

THE TRIAL Interview witnesses to determine if they will be credible and help your client.

Serve your subpoenas on witnesses in sufficient time prior to trial. Have your legal research done prior to trial, such as on constructive possession of drugs or stolen property.

V. PLEA TO A LESSER DEFENSE If the client is going to enter a guilty plea to any offense, it is important that they

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understand what the offense is and put a factual basis on the record. You will be embarrassed if your client is pleading guilty to a drunk driving case and the judge asked your client what he had to drink, the client insists he only had one beer. The judge will send you back to your seat and must refuse to take the guilty plea unless an adequate factual basis is put on the record. Having previously obtained for my client their favorable background, I usually put on the record reasons why the judge should give them the minimum penalties.

Most states, such as New Jersey have a conditional discharge, pre-trial intervention, or other programs that are available to clients charged with drug offenses who have never previously been arrested or previously been convicted of the drug offense. Again, to avoid embarrassment, it is a good idea to speak with the prosecutor and the police officer because they may have a criminal abstract to indicate that the client is not eligible for a conditional discharge type program. Letters of reference and character reference letters are helpful in cases where the judge has wide discretion in his sentencing. After the client pleads guilty, it is a good idea to also ask the client on the record if he has any questions of myself or of the court.

IMPORTANT LAWS MOST JUVENILES DON'T KNOW ABOUT Assault: Any assault committed against any teacher, school board employee, school board member, or school administrator is an aggravated assault. NJSA 2C:12-1 et seq.

Graffiti: Penalties were increased for graffiti, and include driver's license loss for juveniles, P.L. 1995 c. 251. Amends NJSA 2C:17-3 (Criminal mischief and other statutes). In the case of a person who at the time of the imposition of sentence is less than 17 years of age, the period of the suspension of driving privileges authorized herein, including a suspension of the privilege of operating a motorized bicycle, shall commence on the day the sentence is imposed and shall run for a period of one year after the day the person reaches the age of 17 years. If the driving privilege of any person is under revocation, suspension, or postponement for a violation of any provision of this Title or Title 39 of the Revised Statutes at the time of any conviction or adjudication of delinquency for a violation of any offense defined in this section, the revocation, suspension, or postponement period imposed herein shall commence as of the date of termination of the existing revocation, suspension, or postponement.

Any person convicted of criminal mischief involving graffiti may be required to pay to the owner monetary restitution and perform community service and remove graffiti.

Drugs: Sample Mandatory Penalties for Juvenile - Possession of Small Amounts of Marijuana: -Suspension of Driver's License: 2C:35-16 Six months to two years from date of sentence.

-DEDR Penalty $500 required under NJSA 2C:35-15a. This $500 penalty is required even in juvenile cases, as required by statute. State in Intent of LM 22 NJ Super 88, (App. Div. 88) court denied 114 NJ 485

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(1989) -Drug Lab Fee $50 2C:35-20a -VCCB $50 according to 2C:43-3.1a(2)(o) -Safe Streets - Fee due upon conviction, PTI or CD $75 About the Author: Kenneth A. Vercammen is a trial attorney in Metuchen, Middlesex County, New Jersey. Kenneth Vercammen was selected one of only three attorneys as a Super Lawyer 2007-2008 in NJ Monthly in the Criminal - DWI. Kenneth Vercammen was the NJ State Bar Municipal Court Attorney of the Year and past president of the Middlesex County Municipal Prosecutor's Association. He is the past chair of the NJ State Bar Association Municipal Court Section. He is the Deputy chair of the ABA Criminal Law committee, GP Division.

KENNETH VERCAMMEN ATTORNEY AT LAW 2053 Woodbridge Ave. Edison, NJ 08817 732-572-0500 NJ LAWS LEGAL WEBSITE: www.njlaws.com Criminal website www.BeNotGuilty.com He has lectured on traffic and criminal law for the New Jersey State Bar Association, New Jersey Institute for Continuing Legal Education and Middlesex County College. He often lectures for the New Jersey State Bar Association on personal injury, criminal /municipal court law and drunk driving. He has published 125 articles in national and New Jersey publications on municipal court and litigation topics. He has served as a Special Acting Prosecutor in seven different cities and towns in New Jersey and also successfully defended hundreds of individuals facing Municipal Court and Criminal Court charges.

In his private practice, he has devoted a substantial portion of his professional time to the preparation and trial of litigated matters. He has appeared in Courts throughout New Jersey several times each week on many personal injury matters, Municipal Court trials, matrimonial hearings and contested administrative law hearings.

Since 1985, his primary concentration has been on litigation matters.

Mr. Vercammen gained other legal experiences as the Confidential Law Clerk to the Court of Appeals of Maryland (Supreme Court),with the Delaware County, PA District Attorney Office handling Probable Cause Hearings, Middlesex County Probation Dept as a Probation Officer, and an Executive Assistant to Scranton District Magistrate, Thomas Hart, in Scranton, PA.

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