Monday, October 11, 2010
Tamar R. Birckhead (University of North Carolina (UNC) at Chapel Hill - School of Law) has posted Culture Clash: The Challenge of Lawyering Across Difference in Juvenile Court (Rutgers Law Review, Vol. 62, No. 4, 2010) on SSRN. Here is the abstract:
In analyzing the causes of wrongful convictions of youth in juvenile court, the role of the defense attorney can be overlooked and its importance underestimated. Although juvenile defenders are trained to advocate based on their young client’s expressed interest rather than relying on what they deem to be in the child’s best interest, this basic tenet is often more challenging to follow than is commonly acknowledged. The norms of effective criminal defense practice – which emphasize rigorous oral and written advocacy with little mention of whether the client has learned a lesson from the experience – stand in direct contrast to the informal culture that permeates most juvenile courtrooms in the United States. When delinquency court judges do not apply the beyond-a-reasonable-doubt standard of proof, when prosecutors neglect to respond substantively to motions filed by the defense, and when probation officers reflexively recommend punitive sanctions that fail to address the child‟s actual needs, defense attorneys are confronted with hurdles that are difficult to overcome. In addition, the parents of juvenile clients may have goals and objectives vis-à-vis the case that differ greatly from those of the attorney, a serious problem that is compounded when the parent herself is a co-defendant, witness, or alleged victim of the offense. Further, even defense attorneys who are committed to their role and to the most robust form of representation are not immune from feeling conflicted, as juvenile clients can be impulsive, unreliable, and incapable of mature decision-making.
This Article examines the phenomenon that results when criminal defense culture, juvenile court culture, and the culture of the family intersect. It argues that when the defense attorney is caught in the middle of these competing norms, accurate fact-finding ceases to be a priority, the quality of advocacy falters, and a whole host of harms result – from the stigma of being labeled a juvenile delinquent to the trauma of institutionalization and commitment to the direct and collateral consequences of wrongful convictions. The Article proposes that law schools, state bar associations, and public defender agencies import the pioneering work of Sue Bryant and Jean Koh Peters on the five practices – or habits – of cross-cultural lawyering to juvenile court, thereby helping to ensure that defense attorneys are equipped with the tools necessary to practice law based on facts rather than assumptions. It emphasizes the importance of acknowledging the challenging nature of the problem and offers strategies for training juvenile defenders as well as for taking proactive steps to change the culture of juvenile court.