The other "Missouri Model": systemic juvenile injustice in the Show-Me State.

• Author: Quinn, Mae C.
• Position: Continuation of III. The "Other" Missouri Model B. Juvenile Courts and Due Process Failures through IV. A Single Vision: Evolving Standards and Hope for the Days Ahead, with footnotes, p. 1218-1244 - Bombshell or Babystep? The Ramifications of Miller v. Alabama for Sentencing Law and Juvenile Crime Policy

1. Conflicts in Court Structure

   Indeed, as described by my colleague Professor Josh Gupta-Kagan in his important symposium article, Where the Judiciary Prosecutes in Front of Itself: Missouri's Unconstitutional Juvenile Court Structure, Missouri's juvenile courts are inherently conflicted in their structure. (162) Professor Gupta-Kagan accurately and compellingly explains that Missouri juvenile court judges are directly and indirectly involved in the charging, processing, prosecuting, adjudicating, and sentencing of Missouri's youth. (163) only does the arrangement present professional conflicts of interest, it is very likely unconstitutional for a number of reasons.

   Juvenile officers, (164) who serve in a range of roles including probation officers and the prosecutors who represent those officers (known as attorneys for the juvenile officers), (165) are all considered part of the judge's own staff. While these actors may state that their day-to-day work is quite separate, there is no official requirement for--or check on--maintaining this separation. At the end of the day, Missouri juvenile court judges have the power to hire and fire the very people who bring cases in front of them--the attorneys for the juvenile officers--and those who are repeat parties--the juvenile officers themselves. (166)

   While Professor Gupta-Kagan's groundbreaking work primarily focuses on how such an ethically-challenged system impacts child abuse and neglect cases, I will focus on the implications for children facing prosecution in such courts. The consequences of the court's conflicted structure and its related unconstitutional practices are similarly troubling when young people face losing their liberty at the hands of these state actors. As will be described below, these problems manifest themselves in three different ways in Missouri juvenile prosecutions: through the roles of the judge, the juvenile officer, and the attorney for the juvenile officer.

   First, as a well-settled constitutional matter, the judiciary may not serve both as the investigating or prosecuting agent and as the fact finder. (167) The Supreme Court of the United States has long held that serving in such dual roles violates due process norms of impartiality, (168) as well as separation of powers principles that require prosecutorial and judicial roles to be distinct. (169) When a judge wears both hats in issuing or upholding warrants she may also violate the Fourth Amendment rights of a defendant. (170) This is why judges are not permitted to personally gather evidence that they plan to consider in any matter, and in fact should seek to recuse themselves whenever there may be a doubt as to their impartiality in any case. (171)

   Yet, this is exactly what occurs in Missouri's juvenile courts. From the court's approval of delinquency petitions that result in the temporary detention of youth, to issuing determinations at detention hearings for continued pretrial restraint of such young people, to rendering a final decision of guilt or innocence based on the evidence presented at an adjudication, Missouri's juvenile judges are making determinations about facts that were gathered and presented by their own staffs.

   Judges may suggest that they are able to disregard the fact that those who prosecute cases before them are their very own employees. But at some point any good-faith presumption of impartiality must give way to the appearance of impropriety, the realities of juvenile court practices around the state, and common sense. (172)

   In the experience of our JLJC clinic, legal officers have stated that they cannot take certain actions--such as modifying the charges in the petition for purposes of resolving a case--because the presiding judge would not agree to such an action. (173) It is also a matter of common knowledge that both the legal officers and deputy juvenile officers frequently engage in ex parte conversations with juvenile judges while defense attorneys and their clients are not present. (174) It might be suggested that such conversations simply expedite matters and do not result in any harm to the youth. However, these practices all contribute to the inherent bias towards court staff and against others who are not on the court's own "team." In addition, they create an insider's practice that is resistant to emerging best practices or new arguments.

   As further evidence of this phenomenon, formal written motions and other zealous work of JLJC students repeatedly have been met with the following response: "That is not the way we do things here." In an extreme example, both my students and I were shouted at publically by a legal officer after we filed a petition to challenge ongoing policies of the court and a motion for reconsideration in a case the attorney was handling. (175) While these examples reflect the actions of individual actors in individual situations, they--and those that follow--demonstrate the inherent dangers of Missouri's current system, which allows judges, prosecutors, and probation staff to think of themselves as one team.

   As noted, the amorphous role of the juvenile officer presents a second serious problem for the current court model. Again, such individuals are roughly equivalent to the probation officers that exist in juvenile courts around the country, but are also different given the many hats that they wear. The juvenile officers are referred to as the clients of the prosecutor; however, they can also serve as members of the prosecutor's investigative staff who assist in gathering information for use during the prosecution, law enforcement agents who effectuate arrests of youth, and, finally, as alleged advocates for the same youth.

   For example, juvenile officers serve as intake screeners at the front end of a case to determine if charges should be brought. (176) Legal officers then oversee this assessment by reviewing and filing the delinquency petitions. But when a child is brought to court to answer for those charges, lines become blurred. Youths are informed both that the legal officer is the attorney for the juvenile officer--that is, that the juvenile officer is in essence the plaintiff bringing the suit against the child--and that the juvenile officer will be making recommendations to the court about pretrial detention and disposition at the end of the case. In this way, the juvenile officer serves as a double agent--he is both a represented opposing party in litigation, as well as the individual with whom the child and family is expected to share information that will be considered by the officer suggesting release or detention for the child. (177)

   More than this, juvenile officers frequently suggest to young people that they are there to "advocate" for the child, creating further confusion in the minds of the children and family members who encounter these officers. (178) Indeed, in several of the cases the JLJC clinic has handled, after the juvenile officer interviewed the child upon his arrest, family members were left with the distinct impression that the officer was, in fact, the child's defense attorney. This can be attributed to the fact that in St. Louis County, as in other counties, juvenile officers often conduct interviews with the children well before an attorney is provided. (179) In addition, some courts actually provide juvenile officers with the title "youth advocate," adding to the confusion. (180) Either way, many children and family members become upset when these same officers--who were originally believed to be advocates of the youth turn on the child, use information shared by the family against him or her, and recommend a child's detention or placement.

   Because the juvenile officer is, at times, treated like a represented party, this creates another problematic situation for defense attorneys seeking to effectively represent their clients. Some legal officers allow defense counsel to freely talk about pending cases with juvenile officers. Other legal officers claim that defense attorneys may not speak with juvenile officers without either their express permission or the presence of a prosecutor, treating the juvenile officer like a privately-represented litigant. (181) However, the juvenile officer is a government agent like any other law enforcement officer; therefore, he or she should be accessible to defense counsel for investigative interviews. (182) When such contacts are precluded as a matter of prosecutorial policy it skews the playing field even more against the accused child and in favor of the juvenile court team.

   Yet the legal officers may still deploy the juvenile officer--again, a government actor--to gather evidence directly from the child as opposing party. They may then also claim that a child's failure to speak with the juvenile officer reflects a lack of cooperation on the part of the child that should be used against them. (183) All of this seems even more procedurally perverse when considering that all of these people are actually employees of the judge who will hear and decide the case; in other words, such power plays are taking place with the express or implied consent of the court.

   The above dynamic also points to the third problem created by the court's structure: the manifold ethical challenges facing legal officers. These officers must operate in such conflicted systems while still trying to fulfill their ordinary professional responsibilities as attorneys, as well as their special duties as prosecutors. On one hand, attorneys generally must take care to represent their clients free of any conflicts that would impede their ability to achieve the client's objectives. (184) This includes restrictions on accepting (payment from one place for purposes of representing a third party, (185) and restrictions on disclosure of professional relationships that may impact the client. (186)) But in Missouri juvenile courts, legal officers necessarily have a duty to...