G. Attorneys' Initial DutiesStandards included here address these issues:
See also Compendium Volume II, "Standards on Attorney Performance," pages E2-E7.
Commentary. See also the relevant standards in Compendium Volume II, "Standards on Attorney Performance," pages E2-E6. The two ABA Counsel for Private Parties standards here refer to specific juvenile justice features.
ABA Juvenile Justice Standards Relating to Counsel for Private Parties
6.1 Intake and early disposition, generally
Whenever the nature and circumstances of the case permit, counsel should explore the possibility of early diversion from the formal juvenile court process through subjudicial agencies and other community resources. Participation in pre- or nonjudicial stages of the juvenile court process may be critical to such diversion, as well as to protection of the client's rights.
6.4 Detention
If the client is detained or the client's child is held in shelter care, the lawyer should immediately consider all steps that may in good faith be taken to secure the child's release from custody.
Where the intake department has initial responsibility for custodial decisions, the lawyer should promptly seek to discover the grounds for removal from the home and may present facts and arguments for release at the intake hearing or earlier. If a judicial detention hearing will be held, the attorney should be prepared, where circumstances warrant, to present facts and arguments relating to the jurisdictional sufficiency of the allegations, the appropriateness of the place of and criteria used for detention, and any noncompliance with procedures for referral to court or for detention. The attorney should also be prepared to present evidence with regard to the necessity for detention and a plan for pretrial release of the juvenile.
The lawyer should not personally guarantee the attendance or behavior of the client or any other person, whether as surety on a bail bond or otherwise.
ABA Juvenile Justice Standards Relating to Interim Status
8.2 Duties
It should be the duty of counsel for an accused juvenile to explore promptly the least restrictive form of release, the alternatives to detention, and the opportunities for detention review, at every stage of the proceedings where such an inquiry would be relevant.
2. Visiting Detention Facility
Commentary. The special status of juveniles requires constant monitoring to ensure that standards are being adhered to, including visits to any detention facility or program.
ABA Juvenile Justice Standards Relating to Interim Status
8.3 Visit detention facility
Whenever an accused juvenile is held in some form of detention, the attorney should periodically visit the juvenile, at no less than seven day intervals, and review personally his or her well-being, the conditions of the facility, and opportunities to relax the conditions of detention or to secure release. A report on each such visit should be retained in the attorney's permanent file of the case.
Commentary. Compare this standard to relevant standards in Compendium Volume II, "Standards on Attorney Performance," pages C2-C3. This general admonition must be integrated with other standards such as those for seeking early release.
ABA Juvenile Justice Standards Relating to Counsel for Private Parties
4.1 Prompt action to protect the client
Many important rights of clients involved in juvenile court proceedings can be protected only by prompt advice and action. The lawyers should immediately inform clients of their rights and pursue any investigatory or procedural steps necessary to protection of their clients' interests.
Commentary. This is a unique provision for trial level counsel, although similar standards for challenging inadequate defense on appeal appear in Compendium Volume IV, "Standards on Appellate Representation." There, of course, the relief sought for inadequate counsel is reversal of a conviction.
ABA Juvenile Justice Standards Relating to Counsel for Private Parties
10.7 Challenges to effectiveness of counsel. (Duty to assess prior counsel's effectiveness.)
A lawyer appointed or retained to represent a client previously represented by other counsel has a good faith duty to examine prior counsel's actions and strategy. If, after investigation, the new attorney is satisfied that prior counsel did not provide effective assistance, the client should be so advised and any appropriate relief for the client on that ground should be vigorously pursued.
A lawyer whose conduct of a juvenile court case is drawn into question may testify in judicial, administrative or investigatory proceedings concerning the matters charged, even though in so doing the lawyer must reveal information which was given by the client in confidence.
Commentary. See also Compendium Volume II, "Standards on Attorney Performance," pages E2-E6.
Massachusetts Committee for Public Counsel Services, Assigned Counsel Manual: Policies and Procedures
J 2.1 Arraignment
(a) Counsel should be familiar with the bail laws, including the legal standards the court may consider in setting the conditions of release as well as the procedure for appeal of the court's decision. If the nature of the offense and/or the client's record indicate that the client may not be released on personal recognizance, counsel should insist on an opportunity to interview the client and conduct an appropriate investigation before the court considers setting bail. Before interviewing the client, counsel should examine the complaint and/or indictment and inform the client of the exact charges, obtain the police report, review the client's probation record, paying particular attention to any alleged defaults, and ascertain what other relevant information may be in the possession of the probation department or prosecution.
(b) Counsel should familiarize him/herself with the particular arraignment practices of each session in which s/he appears. For example some courts routinely obtain school attendance records at arraignment.
(c) In addition to meeting with the juvenile client, counsel should determine whether a parent is at the court in connection with the juvenile proceeding. Counsel should ascertain the adult's ability and willingness to assume custody of the juvenile or to post bail for the juvenile. Counsel should be aware that the court will usually release a juvenile to the care and custody of a parent. Counsel should also be aware that most juvenile courts will not release a juvenile without an apparently responsible adult in court willing to take custody. Every effort should be made to locate and contact such a responsible adult if none are present.
(d) Counsel should be familiar with the law regarding pre-trial detention on the grounds of "dangerousness." If the commonwealth moves for a hearing to determine whether or not the client should be detained, counsel should determine whether or not there is a legal basis for such a motion. Counsel should seek to minimize the amount of time the client is held prior to a detention hearing. In preparing for a detention hearing, counsel should consider the wisdom and consequences of summonsing witnesses including the complainant.
(e) Counsel should insure that the client does not waive any significant rights at this proceeding, including whether to proceed with a jury trial or to have the case heard in the bench trial division.
(1) A guilty plea or an admission to sufficient facts at this stage is inadvisable due to the inadequate time to investigate the case. In rare circumstances, and if the attorney has significant experience and after adequate consultation with the client and investigation, it may be appropriate to take advantage of a disposition that may not be available later, especially one which does not involve a criminal record such as diversion, drug evaluation under G.L. c.111(e), mediation, or a continuance without a finding.
(f) Counsel should be thoroughly familiar with the law and court practices regarding competence to stand trial and criminal responsibility. Counsel should also be aware of, and protect, the client's statutory and constitutional rights with respect to such competency examinations. Counsel should be aware that children present special competency and criminal responsibility issues and should be alert for these issues.(2) Where strategically appropriate and especially if the client may be held on bail, counsel should request a trial or pretrial hearing as soon as practicable within fifteen (15) days. Counsel must discuss with the client his/her right to return to court within fifteen (15) days and may waive this right only after discussion with the client of the pros and cons of such a waiver.
(3) Counsel should be aware of [laws] regarding pretrial evaluation of a juvenile. Counsel should consider and protect the juvenile's rights to relative confidentiality, evidentiary, and tactical issues.
(g) Counsel should insure that every client (and parent) is provided with a card noting the next court date, an office appointment date, any other important dates, as well as complete information on how to contact the attorney.
J 2.2 Initial Interview and Preparation for Bail Hearing
(a) The scope and focus of the initial interview will vary according to the circumstances under which it occurs.
(b) If identification may be an issue, counsel should be aware of, and consider preventing, any identification opportunities for prosecution witnesses that may arise at arraignment.
(c) If the client may be detained, the focus of the initial interview and investigation will be to obtain information relevant to the determination of pretrial conditions of release. Such information should generally include:
(1) client's residence and length of time at that residence;
(d) Such information should be verified whenever possible.(2) family (names, addresses and phone numbers);
(3) health (mental and physical) and employment background;
(4) explanation of any court defaults and any other information on the record;
(5) probation/DYS/CHINS status;
(6) possible sources of bail money;
(7) the general circumstances of the alleged offense and/or arrest, including, where relevant, any identification procedures that occurred;
(8) client's legal custody (parent, family, state agency) and physical custody (person responsible to supervise client) names, addresses and phone numbers;
(9) client's school placement, status, attendance, special ed designation;
(10) possible adults willing to assume responsibility for the juveniles and/or post bail; and
(11) the names and addresses of any agencies involved with the child and/or parent, e.g. DSS worker, DMH worker, community health center, etc.
(e) Whether or not the client is detained, counsel should describe the court procedures and counsel's obligation regarding the attorney/client privilege. Counsel should explain the client's rights under the Fifth Amendment to the United States Constitution and Article XII of the Massachusetts Declaration of Rights and should specifically advise the client not to discuss the case or any of the facts surrounding it with anyone, including fellow prisoners, unless counsel advises otherwise. Counsel should inform the client of the right to request that his/her attorney be present at any interview or questioning.
(f) Counsel should obtain signed releases by the client and parent for mental health records, school records, DSS records, DYS records, employment records, etc. Counsel should advise the client of the potential use of this information and the privileges that attach to this information.
J 2.3 Bail or Detention Hearing
(a) Counsel has an obligation to vigorously attempt to secure the pretrial release of the client under conditions most desirable to the client. While favorable release conditions are the principal goal of the hearing, counsel should also be alert to all opportunities for obtaining discovery.
(b) Counsel's argument to the court should include the client's ties to the community and other factors that support a conclusion that the client, if released, will return for future court appearances. The client should not, except under the most extraordinary circumstances, testify at a bail hearing. Although comments on the strength and quality of the Commonwealth's case are appropriate and reference may be made to the general nature of the anticipated defense, the specific elements of the client's defense should not be revealed at the arraignment or bail hearing.
(c) Counsel should be prepared to address the special issues of "dangerousness" that are the focus of hearings, and, where appropriate and possible, be ready to present "proffers" that address those issues.
(d) Counsel should consider and advocate for reasonable conditions of release or recognizance such as pre-trial probation, electronic monitoring, "stay away" orders, curfews, surrender of passports or licenses (motor vehicle or firearms), etc., in addition to monetary sureties.
(e) …Counsel should be aware that the statute provides for a presumption of personal recognizance. The focus of the bail hearing should be "whether the juvenile will appear for further court proceedings." Counsel should oppose any bail order which is in the nature of preventive detention, such as "DSS or DYS only cash bail", or any bail order where the purpose of detention is ostensibly for treatment. Counsel should be careful in considering whether a "parent only cash bail" is tantamount to preventive detention.
(f) Even if release is not effected, counsel should advocate for the least amount of bail. The amount of bail and type of charge may determine the type of facility where the juvenile will be held, i.e., lower bail may result in a less restrictive setting within DYS. Therefore, bail appeals must be considered in every case where bail is imposed and the client is detained.
(g) Where the client is not able to obtain release under the conditions set by the court, counsel should advise the client of his/her right to appeal and the advantages and disadvantages of doing so. Where appropriate, counsel should facilitate the bail appeal procedure, including pressing for the right to be heard on the same day and be prepared to represent the client at the hearing. It is crucial that counsel learn the bail appeal procedures applicable to each jurisdiction in which they practice.
(h) Where the client is incarcerated and unable to obtain pretrial release, counsel should alert the court, the sheriff, and DYS to any special needs of the client, e.g., medical problems, and request the court to order appropriate measures.
J 2.4 Preliminary Discovery Issues/Prosecution Requests for Non-Testimonial Evidence
(a) Counsel should carefully examine and seek copies of all pertinent and available court papers and police reports. Counsel should seek preservation and/or discovery of evidence (such as visible injuries) likely to become unavailable unless special measures are taken. Where appropriate, counsel should request court orders for preservation of evidence, e.g. "911" or "turret" tape recordings. Counsel should be aware of the potential for loss or destruction of evidence by forensic examination or testing and take appropriate steps to prevent or minimize it. Counsel should know and protect the client's rights governing the prosecution's efforts to require a defendant to submit to procedures for gathering non-testimonial evidence, such as lineups or other identification procedures, handwriting exemplars, physical specimens, etc.
(b) Counsel should be aware that the Juvenile Court Rules of Procedure and [law] require that discovery be in writing, and request that this requirement be honored in appropriate circumstances.
J 2.5 Special Concerns
(a) Particularly if the client is detained, counsel should consider a prompt motion to dismiss any charge or aggravating element that is not supported by probable cause.
(b) Where appropriate, counsel should consider the advantages and disadvantages of seeking cross-complaints.
(c) Counsel should be aware of the special privacy considerations given a juvenile, i.e., [law] requires all delinquency hearings be closed to the general public.
(d) Counsel should be aware that delinquency papers are not public documents. However, after two findings of delinquency on felony charges, the probation officer may make public the juvenile's name when the juvenile is charged with a third felony.