An interesting discussion arose recently when a woman posed a question about dealing with her fiance's behavior. She called him "jealous." What most of us saw in her description, even those who'd never had experience with domestic violence, was control. That's what domestic violence is about, after all. It doesn't occur because someone likes to hit people; it occurs because someone wants to control someone else. It's not just a loss of temper, either. Most abusers aren't going around beating up their bosses. Oh, no, they save it for those closest to them - their significant others, their children, sometimes even their parents, especially if the parents are elderly. People they can control.
Since it's about control, domestic violence isn't always physical. It can be more insidious than that, mental and emotional abuse that can do more damage than a slap to the face.
In the case of this woman who posed the question about her fiance, she described him as someone who's "always been very jealous." This man, who she says makes her feel like the most important person in the world, forces her to tell him if she thinks that anyone else besides him is attractive. He used to ask her if she'd "been being good." Her fiance won't go to therapy regarding his issues, because he "doesn't believe in it." He tried it once before and "said it didn't work." He has called her "whorish." In the past, when she found someone attractive, he got angry at her and yelled at her. Most recently, he "got sad" when she found someone else attractive.
His jealousy frustrates her, and this is her response: "I know that what I'm doing seems wrong and I've volunteered to go to counseling... I don't often think of other men and [my fiance and I] spend almost every minute we don't work together." Still, the issue flares up every month or so.
Meanwhile, she moved out of her parents' house a year ago because her mom was reading her texts, thereby finding out that she was sexually active at age 20. This, she deemed "extremely abusive." Even though her parents insisted that they would not try to break up the couple, this woman was "sure they would have." Later, the woman says that she told her fiance she left her family and moved to another state "for him." She's told him she's given him everything she has. Without her parents' support, she's had to leave school and works two jobs while her fiance completes his degree and works one job.
She believes they'd have no place to go if they broke up.
This is textbook stuff. I've been working with victims of domestic violence since 1989, and these are the red flags I see:
First, abusers will cut their victims off from their friends and family. They will convince the victims that their families hate them and won't accept them back, they convince them that their families are conspiring against them. They make themselves their victims' sole support system. They take the victims out of school - an education is dangerous. They stunt their victims' educations and careers to make them more dependent on the abusers.
Then, the control. This guy wanted to know all of his fiancee's thoughts and punish her for them. He made her feel wrong for having perfectly normal thoughts. He has her believing she's somehow evil for looking at or even thinking about another man. He has made her uncomfortable in her own skin and has her believing there is something wrong with her; enough that she's willing to go to counseling to fix herself for him.
The name-calling. And she accepts it as deserved.
The end result is that the victim comes to believe that she needs her abuser and has nowhere to go. She thinks her family won't take her back. She has no friends. Her education is incomplete and her career stunted. Plus, her brain doesn't work properly and she's a whore. She needs him. He's got her trapped. The thing is, he's got her trapped with lies. She could go back to her family, to a friend, to a shelter. She could leave and get out... before getting married, before kids, before it becomes more difficult.
If you are this girl, get out. If you were this girl, and now you're married, now there are kids, now it's more difficult... get out anyway. It's never too late. I once met a woman in her 70s who'd been married for 50 years to an abusive husband before she finally got up the courage and scavenged enough dropped change from the couch cushions to take the bus to the courthouse and file a complaint for domestic violence.
If she can, you can.
If you are a victim of domestic violence, get help. Call the National Domestic Violence Hotline at 1-800-799-SAFE (7233) or TTY at 1-800-787-3224.
Showing posts with label protection. Show all posts
Showing posts with label protection. Show all posts
Monday, March 29, 2010
Saturday, January 9, 2010
DWI, Refusal, and New Sentencing Problem
State v. Ciancaglini, January 7, 2010 - A discussion
[Full text of the decision here.]
The facts in brief: The defendant was stopped for traffic offenses in May of 2008. After breathalyzer testing showed a blood alcohol level of 0.17%, she pleaded guilty to DWI in September of 2008.
The defendant had a prior DWI conviction from 1979 and a conviction for refusal to take a breathalyzer test in 2006.
The municipal court sentenced the defendant as a third-time offender, subjecting her to six months in jail, a fine of $1,006, ten-year loss of her driver's license and vehicle registration, and other penalties. She filed an appeal with the Law Division of the Superior Court, which decided that the 2006 refusal conviction could not be considered the same as a prior DWI conviction. Because the 1979 conviction was more than ten yares earlier, the statute called for the defendant to be sentenced as a first-time offender under the DWI statute. She was sentenced to thirty days in jail, a $500 fine, and a one-year suspension of her driver's license, plus the other requisite penalties.
At this time, the defendant has already served the thirty-day jail sentence.
The issues: Can a defendant with a prior conviction for refusing to take a breathalyzer be subjected to the enhanced penalties facing a multiple-offender when she is later convicted of driving while intoxicated? Does the right against double jeopardy prohibit the imposition of an increased sentence where the defendant has already served the lesser sentence?
The court's holidng: Previously, the Appellate Division had held that a conviction for refusal would not count as a prior offense with regard to sentencing for later DWI convictions and would not result in enhanced penalties.
The sentence for a refusal to submit to a breath test is essentially the same as the sentence for DWI itself. You should know that if you are convicted of both refusal and DWI as a result of a single traffic stop, those two charges and sentences are no longer merged; you can be convicted of both and are subject to both sentences.
While I do understand and support the State's interest in removing drunk drivers from the streets, and I do understand the frustration of law enforcement officials when a suspect refuses a breath test when there is suspected DWI, I have some issues with the penalties for refusal. On the one hand, the law says that an intoxicated person is incapable of taking marital vows, entering into a contract, entering into a divorce property settlement agreement, or taking a number of other actions. On the other hand, the traffic code holds allegedly intoxicated people responsible, with severe penalties, for a decision made (refusal) during the state of intoxication.
While conviction under the refusal statute does not result in a period of incarceration, the fines and license suspension periods are parallel to those for DWI and increase comparably with convictions subsequent to a first offense of either refusal or DWI.
Previously, the Appellate Division treated refusal as a civil-type offense, holding that the standard of proof was merely a "preponderance of the evidence," rather than the stricter "beyond a reasonable doubt" afforded criminal cases. However, that was rejected by the NJ Supreme court, which determined that the offense was quasi-criminal in nature, requiring proof beyond a reasonable doubt and affording it the protection of the bar against double jeopardy.
For these reasons, because a DWI conviction enhances penalties for a subsequent refusal, and because refusal is now treated as a quasi-criminal charge rather than civil, the Appellate Division has now determined that the refusal offense and DWI offense are interchangeable enough that a conviction for refusal counts as a "prior conviction" when calculating whether a subsequent DWI is a first, second, or third offense for sentencing purposes.
Therefore, the defendant's September 2008 conviction for DWI was her third offense.
The guarantee against double jeopardy prohibits multiple sentences for the same offense, but does not permit a defendant to serve only a lesser sentence imposed based upon an error of law.
Although the reduced sentence imposed by the Law Division was not an illegal sentence based upon an error of law, because it was imposed based upon a prior decision of the Appellate Division, the court stated that it need not address the double jeopardy issue in this case. The Law Division's sentence was not the only sentence imposed, and defendant's double jeopardy rights are not violated by the return to an original sentence imposed by the municipal court and mistakenly decreased by the Law Division.
Because the sentence reduction was based upon a finding of law, not facts, by an intermediate court after defendant's appeal, defendant also did not have an expectation of finality regarding the reduced sentence.
The end result: The matter was remanded to the Law Division for the imposition of the original sentence imposed by the municipal court. The defendant will have to serve the remainder of the six months in jail, lose her license and vehicle registration for ten years, and pay enhanced fines and penalties according to her third-time offender status.
What does all of this mean to you? If you are convicted of refusal to submit to a breath test pursuant to a DWI stop, and later are convicted of a DWI, even if you are not convicted of DWI at the time of the refusal conviction, and even if a first DWI is never proven or admitted in any court, the later DWI conviction will be treated as a second or subsequent offense for sentencing purposes.
This may seem unjust, and I agree. You can be sentenced as a second or third offender without first been convicted of an initial DWI.
The smartest thing? Do not refuse a breath test. In fifteen years of doing defense work, I have never seen it help anyone's case, only increase the number of charges they are facing and make their lives more difficult.
[Full text of the decision here.]
The facts in brief: The defendant was stopped for traffic offenses in May of 2008. After breathalyzer testing showed a blood alcohol level of 0.17%, she pleaded guilty to DWI in September of 2008.
The defendant had a prior DWI conviction from 1979 and a conviction for refusal to take a breathalyzer test in 2006.
The municipal court sentenced the defendant as a third-time offender, subjecting her to six months in jail, a fine of $1,006, ten-year loss of her driver's license and vehicle registration, and other penalties. She filed an appeal with the Law Division of the Superior Court, which decided that the 2006 refusal conviction could not be considered the same as a prior DWI conviction. Because the 1979 conviction was more than ten yares earlier, the statute called for the defendant to be sentenced as a first-time offender under the DWI statute. She was sentenced to thirty days in jail, a $500 fine, and a one-year suspension of her driver's license, plus the other requisite penalties.
At this time, the defendant has already served the thirty-day jail sentence.
The issues: Can a defendant with a prior conviction for refusing to take a breathalyzer be subjected to the enhanced penalties facing a multiple-offender when she is later convicted of driving while intoxicated? Does the right against double jeopardy prohibit the imposition of an increased sentence where the defendant has already served the lesser sentence?
The court's holidng: Previously, the Appellate Division had held that a conviction for refusal would not count as a prior offense with regard to sentencing for later DWI convictions and would not result in enhanced penalties.
The sentence for a refusal to submit to a breath test is essentially the same as the sentence for DWI itself. You should know that if you are convicted of both refusal and DWI as a result of a single traffic stop, those two charges and sentences are no longer merged; you can be convicted of both and are subject to both sentences.
While I do understand and support the State's interest in removing drunk drivers from the streets, and I do understand the frustration of law enforcement officials when a suspect refuses a breath test when there is suspected DWI, I have some issues with the penalties for refusal. On the one hand, the law says that an intoxicated person is incapable of taking marital vows, entering into a contract, entering into a divorce property settlement agreement, or taking a number of other actions. On the other hand, the traffic code holds allegedly intoxicated people responsible, with severe penalties, for a decision made (refusal) during the state of intoxication.
While conviction under the refusal statute does not result in a period of incarceration, the fines and license suspension periods are parallel to those for DWI and increase comparably with convictions subsequent to a first offense of either refusal or DWI.
Previously, the Appellate Division treated refusal as a civil-type offense, holding that the standard of proof was merely a "preponderance of the evidence," rather than the stricter "beyond a reasonable doubt" afforded criminal cases. However, that was rejected by the NJ Supreme court, which determined that the offense was quasi-criminal in nature, requiring proof beyond a reasonable doubt and affording it the protection of the bar against double jeopardy.
For these reasons, because a DWI conviction enhances penalties for a subsequent refusal, and because refusal is now treated as a quasi-criminal charge rather than civil, the Appellate Division has now determined that the refusal offense and DWI offense are interchangeable enough that a conviction for refusal counts as a "prior conviction" when calculating whether a subsequent DWI is a first, second, or third offense for sentencing purposes.
Therefore, the defendant's September 2008 conviction for DWI was her third offense.
The guarantee against double jeopardy prohibits multiple sentences for the same offense, but does not permit a defendant to serve only a lesser sentence imposed based upon an error of law.
Although the reduced sentence imposed by the Law Division was not an illegal sentence based upon an error of law, because it was imposed based upon a prior decision of the Appellate Division, the court stated that it need not address the double jeopardy issue in this case. The Law Division's sentence was not the only sentence imposed, and defendant's double jeopardy rights are not violated by the return to an original sentence imposed by the municipal court and mistakenly decreased by the Law Division.
Because the sentence reduction was based upon a finding of law, not facts, by an intermediate court after defendant's appeal, defendant also did not have an expectation of finality regarding the reduced sentence.
The end result: The matter was remanded to the Law Division for the imposition of the original sentence imposed by the municipal court. The defendant will have to serve the remainder of the six months in jail, lose her license and vehicle registration for ten years, and pay enhanced fines and penalties according to her third-time offender status.
What does all of this mean to you? If you are convicted of refusal to submit to a breath test pursuant to a DWI stop, and later are convicted of a DWI, even if you are not convicted of DWI at the time of the refusal conviction, and even if a first DWI is never proven or admitted in any court, the later DWI conviction will be treated as a second or subsequent offense for sentencing purposes.
This may seem unjust, and I agree. You can be sentenced as a second or third offender without first been convicted of an initial DWI.
The smartest thing? Do not refuse a breath test. In fifteen years of doing defense work, I have never seen it help anyone's case, only increase the number of charges they are facing and make their lives more difficult.
Monday, December 14, 2009
"Escorts" and the Domestic Violence Act
J.S. v. J.F., December 10, 2009 - A Discussion
[Full text of the decision here.]
The facts in brief: The plaintiff worked as a dancer at several clubs where defendant was a patron, and defendant occasionally paid plaintiff to be his paid escort. They went out on several occasions, including once when the defendant took the plaintiff to his parents' house for Thanksgiving. After the plaintiff began seeing someone, the defendant began to threaten the plaintiff and her boyfriend with bodily harm and deportation. The plaintiff obtained a temporary restraining order based on terroristic threats and harassment on December 2, 2008. Eight days later, after a final hearing, the judge issued a final restraining order.
The issues: Does the plaintiff qualify as a victim of domestic violence in the context of the parties' relationship, although the defendant paid for her company?
The court's holding: The New Jersey Domestic Violence Act outlines the state's definition of domestic violence and the parameters under which relief can be granted. Not anyone can obtain a restraining order against anyone else in the New Jersey Family Court.
[For instance, you can't go to Family Court to get a restraining order against your neighbor or some guy at work, even if he smacked you in the head with a baseball bat. There is other relief available in the criminal and civil courts for cases like that, but not in family court.]
The protected classes of people under the Domestic Violence Act are spouses, former spouses, and any present or former household member of the defendant, anyone with whom the defendant has a child in common, or anyone with whom the defendant has had a dating relationship. The Act, however, has not defined the term "dating relationship," and has left it to the courts to make that determination on a case-by-case basis. The only precedent for the Appellate Division to consider in this matter was a single 2003 case, decided at the trial court level. The holding of a lower court is not binding on the Appellate Division, but is merely advisory. In the 2003 case, the judge suggested several factors to consider in determining the existence of a dating relationship: Minimal social bonding of the parties, above and beyond the casual, how, long the alleged dating relationship existed prior to the acts of domestic violence, the nature and frequency of the parties' interactions, the parties' individual or joint expectations with respect to the relationship, the parties' affirmation to others of their relationship by statement or conduct, and any other reasons unique to the case in question that support or detract from a finding that a "dating relationship" exists.
The Appellate Division declined to use the test outlined in that case, but agreed with the 2003 trial court's reasoning that "the facts should be liberally construed in favor of finding a dating relationship because the Act itself is to be liberally construed in favor of the legislative intent to eradicate domestic violence. Stated another way, the Act embodies a strong public policy against domestic violence. Because the Act is remedial in nature, it has been liberally construed for teh protection of victims of domestic violence. Indeed, the Act itself announces that its purpose is 'to assure the victims of domestic violence the maximum protection from abuse the law can provide.'" As the Appellate Division stated, "These principles would not be served by a cramped interpretation of what constitutes a dating relationship."
In considering the scope of the Act, the Appellate Division rejected the defendant's contention that a relationship that includes a payment in consideration for the other's time precludes the finding of a dating relationship.
[The court went so far as to say that an au pair or live-in housekeeper would qualify under the Act as a protected class as someone who "is a present or former household member." Financial benefit from the relationship does not automatically preclude legal benefits under the Act.]
The key consideration is what the particular parties involved would view as a "date," which can vary from couple to couple, group to group, generation to generation. No matter what, the courts should be careful to consider the parties' own understanding of their relationship.
Here, the defendant contradicted himself with regard to this issue, asserting that the relationship was merely "professional," while also stating that he gave the plaintiff money to help her out. He did not object when the judge classified the relationship as "dating." The plaintiff maintained throughout her testimony that they were boyfriend and girlfriend.
The end result: The Appellate Division refused to vacate plaintiff's restraining order against defendant. Plaintiff has a permanent Final Restraining Order.
What does all of this mean to you? If you are a victim of violence, do not think that recourse is not available to you simply because you are in some semblance of a business relationship with your abuser. If your situation is akin to the one described here, or if you are an in-home, full-time employee of the abuser or the abuser's family member, you may very well be entitled to a domestic violence restraining order and the protections with which it comes. Definitely contact the police and/or an attorney for advice and assistance.
[Full text of the decision here.]
The facts in brief: The plaintiff worked as a dancer at several clubs where defendant was a patron, and defendant occasionally paid plaintiff to be his paid escort. They went out on several occasions, including once when the defendant took the plaintiff to his parents' house for Thanksgiving. After the plaintiff began seeing someone, the defendant began to threaten the plaintiff and her boyfriend with bodily harm and deportation. The plaintiff obtained a temporary restraining order based on terroristic threats and harassment on December 2, 2008. Eight days later, after a final hearing, the judge issued a final restraining order.
The issues: Does the plaintiff qualify as a victim of domestic violence in the context of the parties' relationship, although the defendant paid for her company?
The court's holding: The New Jersey Domestic Violence Act outlines the state's definition of domestic violence and the parameters under which relief can be granted. Not anyone can obtain a restraining order against anyone else in the New Jersey Family Court.
[For instance, you can't go to Family Court to get a restraining order against your neighbor or some guy at work, even if he smacked you in the head with a baseball bat. There is other relief available in the criminal and civil courts for cases like that, but not in family court.]
The protected classes of people under the Domestic Violence Act are spouses, former spouses, and any present or former household member of the defendant, anyone with whom the defendant has a child in common, or anyone with whom the defendant has had a dating relationship. The Act, however, has not defined the term "dating relationship," and has left it to the courts to make that determination on a case-by-case basis. The only precedent for the Appellate Division to consider in this matter was a single 2003 case, decided at the trial court level. The holding of a lower court is not binding on the Appellate Division, but is merely advisory. In the 2003 case, the judge suggested several factors to consider in determining the existence of a dating relationship: Minimal social bonding of the parties, above and beyond the casual, how, long the alleged dating relationship existed prior to the acts of domestic violence, the nature and frequency of the parties' interactions, the parties' individual or joint expectations with respect to the relationship, the parties' affirmation to others of their relationship by statement or conduct, and any other reasons unique to the case in question that support or detract from a finding that a "dating relationship" exists.
The Appellate Division declined to use the test outlined in that case, but agreed with the 2003 trial court's reasoning that "the facts should be liberally construed in favor of finding a dating relationship because the Act itself is to be liberally construed in favor of the legislative intent to eradicate domestic violence. Stated another way, the Act embodies a strong public policy against domestic violence. Because the Act is remedial in nature, it has been liberally construed for teh protection of victims of domestic violence. Indeed, the Act itself announces that its purpose is 'to assure the victims of domestic violence the maximum protection from abuse the law can provide.'" As the Appellate Division stated, "These principles would not be served by a cramped interpretation of what constitutes a dating relationship."
In considering the scope of the Act, the Appellate Division rejected the defendant's contention that a relationship that includes a payment in consideration for the other's time precludes the finding of a dating relationship.
[The court went so far as to say that an au pair or live-in housekeeper would qualify under the Act as a protected class as someone who "is a present or former household member." Financial benefit from the relationship does not automatically preclude legal benefits under the Act.]
The key consideration is what the particular parties involved would view as a "date," which can vary from couple to couple, group to group, generation to generation. No matter what, the courts should be careful to consider the parties' own understanding of their relationship.
Here, the defendant contradicted himself with regard to this issue, asserting that the relationship was merely "professional," while also stating that he gave the plaintiff money to help her out. He did not object when the judge classified the relationship as "dating." The plaintiff maintained throughout her testimony that they were boyfriend and girlfriend.
The end result: The Appellate Division refused to vacate plaintiff's restraining order against defendant. Plaintiff has a permanent Final Restraining Order.
What does all of this mean to you? If you are a victim of violence, do not think that recourse is not available to you simply because you are in some semblance of a business relationship with your abuser. If your situation is akin to the one described here, or if you are an in-home, full-time employee of the abuser or the abuser's family member, you may very well be entitled to a domestic violence restraining order and the protections with which it comes. Definitely contact the police and/or an attorney for advice and assistance.
Thursday, August 20, 2009
Miranda Rights and Juveniles
State of New Jersey in the Interest of A.S., August 12, 2009 - A Discussion
The facts in brief: A 14-year-old girl, A.S. was accused of molesting the 4-year-old grandson of her adoptive mother. Had she been an adult, the acts described would have constituted first-degree aggravated sexual assault. A.S. had been abandoned by her substance-abusing biological mother at the age of nine, and began living with her adoptive mother when she was eleven. She was reading at a third-grade level although she was in high school. She had no prior experience with the police, courts, or legal system.
The issues: Was A.S.' waiver of her right to counsel and right to remain silent under Miranda v. Arizona given knowingly and voluntarily? Did A.S. invoke her right to remain silent?
The court's holding: The Appellate Division determined that the confession, in fact, should not have been admitted into evidence.
The end result: In the end, the Appellate Division did uphold the adjudication of the Family Court. It had no choice, though it was gravely disturbed by the way the confession was handled and the findings of the Family Court judge with regard to its admissibility. The Family Court judge had indicated at trial that even without the confession he would have come to the same findings. It is the job of the Family Court judge to determine credibility, and he found the victim had given enough credible testimony to result in adjudication of A.S. as a delinquent and her registration with Megan's Law. It was not the place of the Appellate Division to dispute those findings.
The facts in brief: A 14-year-old girl, A.S. was accused of molesting the 4-year-old grandson of her adoptive mother. Had she been an adult, the acts described would have constituted first-degree aggravated sexual assault. A.S. had been abandoned by her substance-abusing biological mother at the age of nine, and began living with her adoptive mother when she was eleven. She was reading at a third-grade level although she was in high school. She had no prior experience with the police, courts, or legal system.
After a detective with the county prosecutor's office interviewed the victim, A.S. appeared for questioning with her adoptive mother, at which time A.S. confessed to the acts alleged. At trial, the Family Court judge conducted a suppression hearing to determine the admissibility of this confession.
From the tape of the interview as well as A.S. testimony during the suppression hearing, the judge learned that the prosecutor had directed A.S.' mother to read to A.S. her Miranda warnings. When A.S. asked what a lawyer would do for her, her mother responded simply, "Suppose to represent you," and then told A.S. that she'd have to talk eventually and that they already knew what she'd done. A.S.' mother, without obtaining the juvenile's consent, told the prosecutor that he could question her. It was only then that A.S. signed the waiver.
When A.S. again asked what an attorney would do on her behalf, her mother and the prosecutor told her that he would represent her and ensure that her rights were not violated, but could not speak for her. She was told by her mother, "When the questions are asked, you have to answer the question" and by the prosecutor, "... you're the only one that can actually speak the truth here." A.S. was not asked again whether she would like to have an attorney; instead, her mother expressed impatience at the delay A.S. was creating and the prosecutor told A.S., "the truth is only gonna help you," and that "an attorney that's an assistant prosecutor was gonna review all this information," and "the more truthful you are and the more complete you are, okay, the better it looks for you, okay."
The two adults proceeded to question her until she confessed to the acts alleged. Throughout, the antagonism of her mother toward A.S. was clear as she repeatedly insisted that A.S. confess to the prosecutor.
During the hearing, A.S. stated that she understood "some of" her rights, and that when she refused to answer questions, she was intending to invoke her right to "remain silent," until she was badgered into responding. She also stated that she never asked for an attorney because they didn't do anything but just "sit there." The judge determined that the confession was indeed admissible, if troubling.The issues: Was A.S.' waiver of her right to counsel and right to remain silent under Miranda v. Arizona given knowingly and voluntarily? Did A.S. invoke her right to remain silent?
The court's holding: The Appellate Division determined that the confession, in fact, should not have been admitted into evidence.
In the case of a juvenile, the standards regarding the waiver of Miranda rights are exacting.
As the court discussed, "To admit the confession of a juvenile over the age of fourteen, the State must demonstrate, beyond a reasonable doubt, that the statement was knowingly, intelligently, and voluntarily given," based upon factors including the suspect's age, education, intelligence, advice as to constitutional rights, repetition and length of questioning, and the suspect's prior encounters with the law. When a juvenile is being interrogated, the role of a parent takes on a special significance. The parent’s role is to support the juvenile and guide her, not to be an additional adversary in an unfamiliar and intimidating setting. The court emphasized the necessity for adult protection with a juvenile suspect.
With regard to A.S. specifically, nothing was done to contribute to her comprehension of her rights, discuss whether waiver was an appropriate course for her to take, or explain to her what the practical effects of a waiver would be.
In addition, A.S.’ long silences suggested that she was indeed attempting to invoke her right to silence, requiring further inquiry from the prosecutor with regard to A.S. wishes, rather than further interrogation. The courts have held that a request by a defendant to terminate an interrogation must be scrupulously honored, no matter how ambiguous, even when the person being questioned is an adult. This requirement imposed by the courts upon prosecutors is all the more important when the suspect is a juvenile.
Most troubling to the court was the evident conflict of interest resulting from A.S.’ mother’s relationship to the victim and her actions in the best interests of her grandson, to the detriment of her adopted daughter. The purpose of a parent’s presence at the interrogation of a juvenile is to provide a buffer between law enforcement and the child. No such buffer was created here.
The facts of this case, reviewed as a whole, rendered A.S.’ confession substantially unfair. The court found that, “In circumstances such as those existing in the present matter, where the adult advisor is known to have a close family relationship to the victim and the alleged perpetrator, the prudent approach would be to require the presence of an attorney capable of advising the juvenile with respect to her rights and her potential culpability.”The end result: In the end, the Appellate Division did uphold the adjudication of the Family Court. It had no choice, though it was gravely disturbed by the way the confession was handled and the findings of the Family Court judge with regard to its admissibility. The Family Court judge had indicated at trial that even without the confession he would have come to the same findings. It is the job of the Family Court judge to determine credibility, and he found the victim had given enough credible testimony to result in adjudication of A.S. as a delinquent and her registration with Megan's Law. It was not the place of the Appellate Division to dispute those findings.
What does all of this mean to you and your child?: The court has reiterated the great importance of protecting the rights of all defendants, but especially those of juveniles.
Certainly, if you have a conflict of interest with regard to a child in your care who has been arrested, it would be in the best interests of all concerned for you to obtain representation for the child to preserve his or her rights before any questioning begins. Failing to do so would merely drag out the process, harming the victim, harming the juvenile defendant, and increasing the expense.
If, as in most cases, you do not have a conflict of interest and are truly interested in protecting your child, do not allow him or her to be questioned without legal representation. If you cannot afford it, know that a public defender must be appointed on his or her behalf. Even if you can afford it, if there is no time given to you to to obtain private representation prior to initial questioning, a public defender must be assigned to protect your child. If you can obtain private representation, do so.
Prosecutors and police officers will always do all that is in their power to convince their suspect to waive his or her rights to counsel and silence and to confess; juveniles are treated no differently than adults in this. While they are not permitted to trample the rights of you or of your child, they will always, always tell you that it is in your child's best interest to talk, that the child would be helping himself and that they are there to help.
It is when they convince you of this, when you agree to permit your child to talk to the police or prosecutor unrepresented, that the defense attorney eventually retained to represent your child has the most difficult job ahead. It decreases the likelihood that your attorney can help, it decreases the likelihood that you will see a positive outcome to your child's case, and it increases the danger that your child will be adjudicated a delinquent and face the most severe types of punishment.
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