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The Right to Counsel and the Right to Justice

Sara Jacobson, Esq. on 4/8/2009

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Director of Trial Advocacy and Associate Professor Temple University, Beasley School of Law

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          In 1964 in Arizona at the age of fifteen, Gerald Gault was denied the right to counsel and to due process after being arrested for making a prank phone call.  Without a lawyer, he was convicted and sent away by a system that valued his rights less because he was a juvenile.  In 2007 in Luzerne County, Pennsylvania, Hillary Transue, also fifteen at the time, was arrested for creating a prank MySpace page.  She was convicted by a system that not only denied her the right to counsel but was corrupt as well.

          Gerald Gault and Hillary Transue met in November of 2007 at an event at the Constitution Center here in Philadelphia.  The event had been organized by the Juvenile Law Center and other community partners to commemorate the 40th anniversary of In Re Gault, the case that bears Gerald Gault’s name.  The Gault decision is the seminal case on juvenile rights in this country.  It provides children arrested for delinquent acts with Constitutional due process rights such as notice of the charges against them, protection from self incrimination, the opportunity to confront and cross examine witnesses, and, perhaps most importantly, the right to counsel. In Re Gault, 387 U.S. 1 (1967).  Gault and Transue were at the Constitution Center speaking on a panel both to commemorate the anniversary of the case and to discuss whether the promise of the Gault decision has actually been realized.

          In Pennsylvania, there are protections in place that are designed to make waiving the right to counsel difficult.  In 2005 Pennsylvania adopted statewide Rules of Juvenile Procedure, which sought both, “to provide for the just determination of every delinquency proceeding,” and, “to secure uniformity and simplicity in procedure, fairness in administration, and the elimination of unjustifiable expense and delay.”  Pa.R.J.C.P. 101.  The rules cover all delinquency proceedings across the Commonwealth, and they suspend any existing local customs or procedures that do not comport with the statewide rules. Pa.R.J.C.P. 100, 121.  The rules contain specific provisions regarding the right to counsel.  They require that kids be informed of their right to counsel by the court and include provisions for appointing counsel to those who cannot otherwise afford to hire an attorney. Pa.R.J.C.P. 151.  The right to counsel cannot be waived unless the court conducts a formal colloquy with the child, on the record, informing the child and guardian of the right to a lawyer. Pa.R.J.C.P. 152. The decision to waive counsel can only be made by the child.  The guardian cannot make that choice on the child’s behalf. Pa.R.J.C.P. 152.

          Despite the protections required by Gault and codified in Pennsylvania by the rules, Hillary Transue was brought before a juvenile court judge without a lawyer.  She appeared before Luzerne County Judge Mark A. Ciavarella, who, despite the minor nature of the crime and the fact this was her first arrest, placed her in a youth forestry camp.   On February 12, 2009, both Ciavarella and Luzerne County Judge Michael T. Conahan pled guilty to charges stemming from a criminal information which alleged that the judges benefitted financially from using their positions to make the construction of a juvenile detention facility possible and to then fill it with Luzerne County’s kids.  They are alleged to have been paid about 2.6 million dollars over a number of years in the course of the scheme.  According to data from the Juvenile Court Judges Commission (JCJC), in 2006 juveniles were permitted to appear in Luzerne County delinquency proceedings without a lawyer 52% of the time, almost ten times the statewide average. See Pennsylvania Juvenile Court Judges’ Commission, Pennsylvania Juvenile Court Dispositions available at http://www.jcjc.state.pa.us/jcjc/site/default.asp.  Not surprisingly, from 2002 to 2006 Luzerne County kids were sent to placement, the juvenile equivalent of jail, nearly a quarter of the time they were arrested and brought to court- two to three times the state average for placement.  Although the absence of counsel is itself a scandal separate and apart from the judges’ unlawful receipt of kickbacks, the two schemes certainly went hand in hand.  The right to counsel protects not only the rights of the individual, but protects against larger corruption within the judicial system.

          When the Juvenile Law Center became involved in Hillary Transue’s case, providing her the representation required by due process and set forth in the Pennsylvania rules, they requested that the Judge reconsider his decision.  The result was that Transue was released and her case resolved without the attendant consequences of a criminal record.  JLC is now helping many other juveniles and families seek redress for the Luzerne County juvenile court corruption in a federal class action lawsuit.  At the same time, and also in response to a lawsuit filed by Juvenile Law Center, a Special Master has been appointed by the Pennsylvania Supreme Court to review the cases that came before Ciavarella.  The Special Master has already ordered mass expunction of the records of first time offenders convicted of low level offenses who were unrepresented.  Forty years ago following his appeal, when Gerald Gault had counsel appointed and his case retried, he was acquitted.

          After speaking to the group present at the Constitution Center, Gerald Gault gave Hillary Transue a hug.  He treats anyone involved in the fight for juvenile justice rights like a member of his extended family.  Due process rights like the right to counsel prevent unfairness, curb corruption, and protect the innocent from going to jail.  This Tuesday night, there is another event at the Constitution Center, a reception to celebrate the formation of the new Pennsylvania Innocence Project, an organization that seeks to use physical evidence to exonerate those who have been wrongly convicted (http://www.innocenceprojectpa.org/newsandevents/docs/reception.htm).  The fight to realize the legacy of In Re Gault continues in our courtrooms and in our communities even as the justice system falters, falls short, and tries again.               

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  • 4/8/2009 by Rebecca Schatschneider, Esq.

    Thanks, Professor Jacobson, for an illuminating and timely article. Hopefully Luzerne County will serve to remind us for a long time that unchecked power will always skew the scales of justice. With all of the stories in the news lately about the demise of the legal "industry," it certainly seems like the need for ethical lawyers committed to serving justice and their communities is stronger than ever.

  • 4/8/2009 by anthony hom

    The privatization of the prison system has resulted in a prison industrial complex. Prisons built and run by private companies have one goal and that is profit, not justice. The building of prisons is supported by unions composed of prisons guards and other prison employees who have a livelihood at stake, judges, construction companies, etc. An entire industry (private prisons) has been built out of air, the result -corruption and the victims are the most vulnerable in our society-children. As lawyers we must examine the prison industrial complex particularly the private prison system.The result of privatization is corruption, not justice.

  • 5/5/2009 by sophie smyth

    This piece is a poignant call for active vigilance from all of us to speak out in defense of the rights of others.

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