July 9, 2011


Legal Tactic Raises Issues for Juveniles

By Trey Bundy  |  New York Times  —

By Trey Bundy

In April 2010, three boys, ages 12, 12 and 13, were accused of raping a 12-year-old female classmate in the gymnasium of their San Francisco middle school. Last month, the allegations against two of the boys were found to be true by a juvenile court judge, and they now await sentencing. The third boy is free and could have had his case dismissed — despite a detailed confession to the police — because a psychologist chosen by his lawyer said he was not competent to face a judge.

This case was not unusual. Over the past 18 months, there has been a tenfold increase in the number of cases in San Francisco’s juvenile courts in which defense lawyers question whether minors are able to understand the legal process or assist in their own defense and therefore should not be subject to legal proceedings.

The surge in competency cases has created a range of new problems for San Francisco’s juvenile justice system. When lawyers express doubts about their clients’ competency, the court suspends proceedings while the minors are evaluated. Meanwhile they are often locked up for months or released without adequate supervision or services.

“These are very, very challenging kids and we need to address their issues,” said Patti Lee, who supervises San Francisco’s juvenile public defenders. “If we don’t, those kids can end up getting killed or harming someone or ending up in the adult system.”

The drastic increase in competency cases is attributable, in part, to three precedent-setting cases tried in Sacramento between 2005 and 2008.

In the most important of those cases — known as Timothy J — a Sacramento public defender, Arthur Bowie, successfully argued that children could be found incompetent based merely on their level of developmental maturity. The finding allowed the question of competency to come into play even in the absence of mental health problems or developmental disabilities.

“Why do we say a child can’t have a drink at 10 because he’s not thinking it through, but he can walk into a courtroom and understand what’s going on?” Mr. Bowie said in an interview.

Mr. Bowie’s cases informed state legislation in 2010 that cemented guidelines for youth competency and defined the qualifications for mental health experts who testify in fitness hearings. But the new law did little to clarify how minors found incompetent should be treated.

Some argue that the Timothy J case has made it easier for defense lawyers to get minors released and cases dismissed.

“I know people are using it as a litigation strategy, and that’s not a good thing,” said George Beckwith, a private lawyer who defends minors in San Francisco. “I don’t believe it’s rampant but I do believe it exists.”

Mr. Bowie called such concerns unfounded.

“This is something that judges and D.A.’s concoct in their sleep at night, because it’s not true,” he said. “They’re afraid the case is going to get dragged out, the case is going to go stale, especially if they have a good case.”

The San Francisco Juvenile Justice Center — which includes delinquency courts, district attorneys and public defenders — formed a task force last fall to address the competency issue. The group discovered that San Francisco had little information, few standards for evaluating competency and even fewer protocols for helping minors once competency was questioned.

“We don’t have any good data,” said Sue Burrell, a lawyer for the Youth Law Center in San Francisco. “We don’t know if the incompetent kids are all rapists and murderers, but I suspect that most of them are low-level or midlevel kids that just need services.”

Last fall, Garry Bieringer, a detention alternative coordinator for the Department of Juvenile Probation, began counting competency cases in San Francisco. There were 10 between 2007 and 2009, he said. For 2010, he found 30 cases. He said 2011 was on track to reach 30 cases or more.

Patrick Mahoney, a San Francisco Juvenile Court judge, said competency had become a national issue.

“What is happening is not unique to San Francisco,” he said. “This issue is being raised in every jurisdiction where I’ve had the opportunity to speak with judges.”

Last fall, the task force looked at experts who routinely provided competency evaluations. At least one psychologist was dismissed after it was determined that the doctor had found defendants incompetent in most, if not all, cases. The judges assembled a new panel of psychologists amid suspicions that defense lawyers could count on certain experts to find clients incompetent.

Rani Singh, an assistant district attorney who prosecuted the middle school rape case, said the lawyer who questioned his client’s competency chose an expert outside the panel, who determined the boy was incompetent. Proceedings were suspended and Ms. Singh had him evaluated by a psychologist on the panel, who said the minor was fit to attend court.

Alexis Goldner, a San Francisco police inspector, interrogated the boy in April 2010 and said he confessed to raping his classmate. “He said that they held her down,” Ms. Goldner said. “He still knew the difference between right and wrong. I don’t understand why he wouldn’t be held accountable.”

It appeared that Judge Julie Tang would have to preside over a “battle of the experts,” to determine the boy’s competency. But on Friday, an agreement was reached in which the boy was found competent and he pled to a lesser charge of sexual battery.

When competency is questioned, minors are supposed to undergo a treatment plan outlined by a psychologist. As with adults, the goal is to render them competent to face a judge. But providing services involves wrangling multiple agencies and defying harsh budget realities.

“There are individual cases where things have gone well because everybody is sitting around the table and the kid has really high needs, so mountains are moved,” said Dr. Emily Gerber, a psychologist at the San Francisco Department of Public Health, who connects youth in the justice system with support services. “But I think that’s the exception.”

Ms. Lee of the public defender’s office said the lawyers working for her were trained to connect clients with counseling and other support, regardless of court rulings, but doing so presented steep challenges.

“With competence, it’s very difficult to remediate and provide restorative services because they don’t exist,” she said. “Most of these youth don’t qualify for the funding streams and that’s a quandary for the system, and that’s when these kids languish in custody.”

Mr. Beckwith handled a case last year that involved a 12-year-old boy who was arrested for robbery twice in seven months. Both times the boy was released because of incompetence. Despite a court-ordered treatment plan, Mr. Beckwith said, most of the remediation services never arrived. When the boy was arrested a third time last December, the judge placed him in juvenile hall, where he has been for more than six months.

After seeing that the boy had not received adequate counseling while incarcerated, Mr. Beckwith said he would never question competency again.

“I don’t care if the client is standing there blubbering, because they lock them up, proceedings are suspended, and they don’t get services,” he said. “You fight like hell to get your kid into some kind of a program but for the average kid it’s not going to happen.”

Mr. Mahoney said there was a “disconnect” between the court’s best intentions and achievable treatment goals.

“The treatment plans can be really difficult to execute,” he added. “They’re often unrealistic in terms of the real world.”