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Social Investigation Concerns

Cliff Nellis — Sun, 08 Aug 2010 20:37:50 -0600

I have a dispositional hearing on Wednesdsay, August 11, in juvenile court for a 15-year old who pled guilty to involuntary manslaughter for the
accidental shooting of his friend. In a 402 Conference, the judge offered
us 45 days in jail (bring back date) with 30 months probation. With respect to the Social Investigation mandated by statute, the probation officer said he's never heard of such an offer of 45 days in jail for such a serious offense and could object to the offer. I notified the probation officer and his supervisor that my client would not answer any questions regarding the events of the incident in question, but would be happy to answer any and all other questions about his family, childhood, school,
drug/alcohol, etc. I also requested to be present during the evaluation. The probation officer was upset and went to my judge ex parte and told him that I advised my client to not speak about the incident in question. I learned of this in a meeting with the supervisor of the probation department. It was a fairly cordial meeting, but characterized mostly by disagreement. She did not understand why I am objecting to that line of questioning, and I explained why I object. She even admitted that if incriminating evidence came out, the judge and the state would want to know and that they also have a duty to the victim's family. Anyway, my questions are as follows...I'm concerned the probation officer will object to the judge's 402 offer and/or that the judge will not like that I advised my client not to answer questions about that night. Was I right to advise my client so? Isn't this a violation of his right not to incriminate himself (even though he has already pled guilty, this could affect his sentence)? Are there any cases, arguments, or advice you have for me by way of preparing for the dispositional hearing on Wednesday? I want to make sure the judge does not change his mind at the ninth hour on the offer he gave us in the 402 conference.

Posted to: Social Investigation Concerns

Challenging Automatic Transfer

Cliff Nellis — Sun, 08 Aug 2010 20:30:05 -0600

I have a 15-year old on automatic transfer to adult court for aggravated battery with a firearm within 1,000 feet of a school. There is a chance he might get charged with attempted murder as well (allegedly shot another student three times). He has a substantial history of emotional and mental illness (bipolar, ADHD), alternative schools and special education classes since 1st or 2d grade. What does everyone think about having him evaluated by a psychologist and then arguing that the automatic transfer statute does not apply to him because mentally/emotionally he is under 15 years old (if in fact, the psychologist would agree with that statement, which I suspect would be the case from what I know already)? Also, please feel free to suggest any other creative objections to his automatic transfer.

Posted to: Challenging Automatic Transfer

Roll Call

Frank Johnston — Fri, 06 Aug 2010 14:33:20 -0600

I stumbled on to this site after I became the public defender in a juvenile courtroom. I noticed that the forum has not had any new posts in months. Just thought I would write a message to see if anyone still reads this forum.
A forum of this nature can be a valuable resource when it comes to representing juveniles and was wondering who else is out there.

Posted to: Roll Call

Funding Resources

Rhonda Blades — Fri, 18 Jun 2010 00:52:59 -0600

I have a juvenile that needs to go to residential placement and cannot locate funding. Currently attempting an Individualized Care Grant but this will take months. Any suggestions?

Posted to: Funding Resources

Re: Expunging after acquittal

Jacqueline Bullard — Wed, 02 Jun 2010 10:17:16 -0600

As a follow up, this was Josh Carter's (OSAD expungement) response to the post:

Jackie -
On the first one, I'm not aware of anyone challenging the juvenile expungement provisions on that basis. Given that Section 405/1-2 actually says that the procedural rights of a minor shall be those of an adult "unless specifically precluded by laws which enhance the protection of such minors," I don't think it is a very strong argument. While, in isolation, the one particular instance cited seems to be more beneficial to adults, the reality is the juvenile expungement provisions, in their entirety, are significantly more protective of minors than the adult provisions. Even in the scenario referenced, an adult who is acquitted may petition the court to expunge the record only if he/she has never been convicted of any other criminal offense in his/her lifetime (no such prohibition applies to juvenile acquittals), the adult's record is public infomation in the meantime (the juvenile's is maintained under seal by operation of law), and the court has greater discretion to deny the adult's request to expunge. It's an interesting argument, but I don't see it carrying the day.

As to the second item, there is no clear answer to the question. P.A. 95-1031 did little other than raise the age for misdemeanors. It made no attempt to reconcile that change with the rest of the Act. However, in essence, this is the same situation where a juvenile is charged under the transfer provisions in criminal court but later sentenced under the juvenile provisions. There is no clear road map for expungement in those instances. I am aware of one case in Cook County under the transfer provisions where Judge Biebel ordered the case remanded to the juvenile court and ordered the original felony case file sealed, largely relying on equitable principles rather than the statutory provisions. That case was somewhat complicated by the petitioner's other records (there was at least one criminal conviction on the record, making expungement a non-option). If there is no criminal conviction on the person's record, I think there is at least an argument that the adult charges are immediately expungable under the "released without conviction" language in 20 ILCS 2630/5.2, and then the actual adjudication of delinquency would eventually be eligible later on under the Juvenile Court Act provisions in Section 5-915. As with many things in this area of the law, it may take some creative lawyering to craft a remedy based on the specific scenario involved because the law doesn't clearly address what is supposed to happen.
Thanks,
JC

Posted to: Expunging after acquittal

Re: Expunging after acquittal

Jacqueline Bullard — Wed, 02 Jun 2010 07:50:27 -0600

I've recently used the comparable provision in the delinquency section of the Act (705 ILCS 405/5-101(3) -- added when the Act was adultified in 1999) to argue that courts may no longer consider mere police contacts and arrests at dispo since they can't consider such evidence in adult sentencing. I've also relied upon it for the proposition that kids are entitled to defense attorneys rather GALs or hybrid representation. (No result yet in either case.) I like this notion of relying on these two statutes to craft quasi-equal protection arguments (since traditional EP arguments have not always met with success for delinquent minors.)
I think your biggest hurdle may be the notion that more specific statutory provisions generally control over more general provisions. (Although, on the flip side, conflicting statutes are generally construed in favor of the accused.) I hope you're able to make this argument. Keep us posted.
(Also, I've forwarded these posts on to Josh Carter, OSAD's expungement guru for his thoughts, and I'll forward them on. Maybe there's a legislative fix for this discrepancy.)
Jackie Bullard
4th District OSAD

Posted to: Expunging after acquittal

Retail theft cases

Scott Wineberg — Fri, 21 May 2010 12:07:33 -0600

[Equally applicable to criminal defendants, too.]
I saw a post by an attorney (neither a juvenile defender nor a criminal defense attorney) indicating that there are retailers taking their civil recovery rights to the next level after sending out their demand letters and courts are carving out time to deal specifically with such cases. Anyone have any awareness of this becoming the norm and, if so, in which counties?

Posted to: Retail theft cases

17 year old's felony records

Scott Wineberg — Sat, 27 Mar 2010 18:17:17 -0600

17 & charged with a felony = criminal court and dispo. But found guilty of only a misdemeanor = sentencing under the JCA.

PA 95-1031 doesn't address the treatment of the criminal court records in this instance. Should a defendant, who is now regarded as a juvenile, have to pay and petition to expunge or at least seal the records? Does the minor have to wait 2 years (certain offenses), 5 years (certain offenses), or until his 21st birthday; or can he petition immediately?

Posted to: 17 year old's felony records

Expunging after acquittal

Scott Wineberg — Sat, 27 Mar 2010 18:06:28 -0600

705 ILCS 405/1-2 says that all minors shall enjoy the same procedural protections as adults unless specifically more expansive.

20 ILCS 2630/5 allows adults to file a petition to expunge an acquittal immediately after the judgment.

705 ILCS 405/5-915 makes a minor wait until his/her 17th birthday after an NG.

Has anyone ever challenged this discrepancy?

Posted to: Expunging after acquittal

IL Juvenile Defender Resource Center website

Marjorie Moss — Wed, 20 Jan 2010 18:26:11 -0700

is a very useful website

Posted to: IL Juvenile Defender Resource Center website