Criminal Justice Magazine
Spring 2000
Vol. 15, Issue 1
Representing a Child in Adult Criminal Court
By Malcolm C. Young
My first two visits with Latasha Armstead in the Juvenile Detention
Center in Milwaukee, Wisconsin, were easy. I was there as a consultant
brought in by Robin Shellow, a private practice lawyer who took the
case pro bono. Shellow, who has represented more than 40 young homicide
defendants in the past decade, was just what Latasha needed. The girl
was charged with first degree intentional homicide in the strangulation
death of her grandmother's care provider. Although it was Latasha's
17-year-old boyfriend who actually killed the caregiver, Latasha was
in the car when it happened, drove the car afterwards, and stayed with
her boyfriend until their arrest two days later. Under a 1996 revision
to the homicide statute, Wisconsin can try children as young as 10 in
adult court for first degree homicides. At 13, Latasha was the youngest
child charged under this state law. After two years of unsuccessful
appeals challenging the trial court's denial of her motion to dismiss,
Latasha was now about to go to trial. Shellow, adept at dealing with
child defendants, wanted a second opinion and asked my impressions of
her client, including how I thought Latasha would appear to a jury and
what I might suggest for her defense strategy. During the first visit,
Latasha and I talked about her life and what she liked to do. Eventually,
at Shellow's urging, the 15-year-old cautiously shared some of her writings
with me and told me what she had read. It went well, and after the second
interview, Shellow asked, "Why not leave the sidelines and come
and try her case with me?" Although there were a lot of reasons
not to-I hadn't been a trial counsel for 18 years-I decided this was
the time to come back. Now, I was no longer the visiting consultant
who could offer suggestions and walk out the door. I was second chair,
responsible for the fate of a young girl charged with murder. I tried
to recall during my six years as a criminal and juvenile defense lawyer
in Chicago (during a time when there was no death penalty in Illinois)
whether any of my clients or those of my colleagues had faced mandatory
life. None had. Times have changed; the stakes are higher. With Shellow's
encouragement and assurances I would not be left to handle anything
beyond my scope, I began to feel comfortable in the courtroom again.
My first motion hearings were exciting-a return to familiar ground where
I felt I belonged. My confidence grew. But something felt "off."
Maybe I belonged there, but Latasha didn't. It was not just the horrific
penalty that she faced, but the fact that at every critical point she
and her case showed how poorly equipped most children are to defend
themselves or be defended in adult criminal court. Latasha taught a
great lesson in awful detail: A child in adult criminal court is at
a huge disadvantage, not just when compared to children in juvenile
court, but against adults charged with similar crimes in the same court.
Her trial demonstrated that the due process and fact-finding protections,
the ingredients of fundamental fairness that can be made to work so
well for adults, hardly work at all for kids tried as if they were adults.
What follows is a step-by-step analysis, using Latasha's case for illustration,
of how children prosecuted as if they were adults are deprived of their
rights and penalized for being children in a grown-up court.
The commission of crime
Kids make sloppy criminals and bad defendants. Even if they manage
to hide their actions in the first place, it's often just bad luck that
their crimes aren't detected in the making, before anyone is hurt or
anything stolen. Such was the case for Latasha, whose crime occurred
in broad daylight inside a car in a residential neighborhood.
Anyone could have driven by during the moments of violence or observed
the 13-year-old driving for the first time on a snowy city street in
rush hour traffic. The aftermath was even less planned. Other children
witnessed incriminating activities, the stolen car was not hidden or
disguised and police found it within two days, and the victim's personal
effects were in plain view in Latasha's house when the police arrived.
No one should make light of the terrible things children can do, but
no lawyer can ignore that most children who commit a serious crime leave
an incriminating trail like so many dirty dishes after a forbidden midnight
snack. Arrests come quickly. And prosecuting children is like shooting
ducks in a penny arcade. Strong, traditional defenses such as identification
and alibi are rare. The defense is left with questions of state of mind
or lack of intent to commit a specific crime, not the easiest defense
to present for an adult, and far less so for a child.
At arrest
From a child's perspective, it's natural to talk to authority figures,
and when arrested they readily "confess" to the police. My
colleagues who frequently represent children tell me kids never fail
to spill their guts to cops. Of course, some would argue that true confessions
only aid law enforcement, and if children readily confess, then justice
is well served. But it isn't that simple. Kids who confess tend to overimplicate
themselves. Shortly after her arrest, Latasha told police she obtained
the cord used to strangle the victim from a room in her house. In his
statement, Latasha's boyfriend and codefendant claimed credit for the
same act, but said he got the cord from a different room. Only one could
have been telling the truth. Latasha also told the police that she was
responsible for ideas and actions to which her codefendant admitted.
This is not unique. As Dewey Cornell, an associate professor of education
at the University of Virginia and nationally recognized expert in juvenile
homicide cases, reported to Latasha's judge at sentencing, "It
is not unusual for adolescent codefendants to protect one another by
assuming responsibility for a crime. Some adolescents will confess to
crimes they did not commit, or make other statements that incriminate
themselves and lessen the criminal responsibility of codefendants."
We saw this in several instances in Latasha's case, and could do little
about it. When the charge is murder and there is an issue of vicarious
liability or conspiracy, overincrimination usually means a conviction
on the most serious offense rather than a reduced verdict. The result
is years added to an already long prison sentence. After Latasha's arrest,
she over-incriminated herself in her statement to police. The reason
would only become apparent to us much later. Once we correctly figured
out why she was reluctant to admit to the whole truth of what she did
that day, it became the centerpiece of our defense. As her boyfriend
strangled the victim, Latasha slipped a knife under the cord, cutting
the woman on the neck and the wrist. During a motion to transfer the
case back to juvenile court, Shellow established that these wounds were
superficial, breaking only the outer layer of skin, and occurred near
the moment of death. (Unlike police reports and media stories, Latasha
had not "slashed" the victim.) Yet, for months, Latasha insisted
on a strange version of the truth. Although she readiliy admitted to
police that she had held a knife to the victim's throat, she denied
she cut her. As it turns out, we discovered that when Latasha saw blood
on the car seat, she believed she had killed the caregiver. In her faulty,
childish reasoning, she felt she was offering "helpful" information
when she admitted to holding the knife, but chose to deny what she thought
to be the most incriminating evidence-that she had cut the skin. As
her lawyers, we spent months in patient and often difficult discussions
with Latasha in order to work through her teenage fears and misperceptions
of reality. Once we gained her trust, we learned the real facts about
Latasha's handling of the knife. The police, meanwhile, let her denial
stand. As long as she admitted to holding the knife and confessed her
sense of guilt, Latasha's statement quickly brought the prosecutors,
the media, and a jury very close to the point at which it seemed impossible
not to conclude that the 13-year-old must have intended to take the
victim's life. But police never asked her "Why?" The real
explanation would have been offered by an adult at the very start of
police questioning. Latasha's inability to see this clearly ended up
hurting her case.
There are other ways juveniles penalize themselves. During interrogation,
they will easily agree to words the significance of which would scare
an adult. In Latasha's case, the police littered her confession with
"planning words" and words suggesting "agreement"
between the codefendants. It allowed them to establish the premeditation
and intent necessary for conviction on first degree murder. This common
police practice is far too sophisticated for a kid to pick up as he
or she readily initials each page of the confession, skipping over words
that have no specific meaning to them. In the police station and then
later at trial, Latasha could not convey the subtle distinction between
"agreement" and "acquiescence." This distinction
was of no interest to the police, and, by the time of trial, it was
too late. This article does not touch on the question of coerced statements,
such as in the Ryan Harris case in which a young Chicago girl was murdered
and two boys, ages seven and eight, were arrested and charged following
a police interrogation in which the parents were not present. The charges
were later dropped when a known child molester was connected by DNA
to the case. The public, however, was outraged by the police conduct
in regards to the questioning of the young suspects. Nor is this an
effort to suggest that Latasha's statement was a "false" confession.
As a child facing first degree intentional homicide charges, with plenty
of physical evidence, her problem was far more subtle: she participated
in what the police characterized as "planning," but we argued,
she later changed her mind. She was, after all, of an age when kids
change the clothes they will wear three times before they go out the
door. Did the child Latasha ever make up her mind to take a life, or
did she do so and change her mind, or did her indecision reflect lack
of understanding and/or intent throughout? Is a child required to be
held to the same inferences about intent, as an adult who wakes up,
figures out the day, listens to the weather report, and dresses accordingly?
In the context of police interrogations and criminal court processes
with adult rules and penalties, the whimsical changing mind of the child
is all but obscured. No one will admit to it. From the police statement
onward, the job of Latasha's counsel was to convince a jury that she
was, very much, a child with nothing more than a child's mind at work.
The police statement made this difficult to do.
Bail or bond hearings
Because of the charge against her, bond was impossible for Latasha.
But I have seen bond set for many children in adult court, and a child
like Latasha would have failed the tests. With only an alcoholic, substance-abusing,
and absent mother, and a disabled grandmother, Latasha would have had
no adult to sponsor or house her. She was not in school, she had no
job, and she had no money. She lived without social services or family
support. The agencies that help children like her are almost unknown
to criminal court probation officers, most criminal defense lawyers,
and criminal courts. They are based in juvenile court, and therefore
unavailable to the children who are initially charged in adult criminal
court. The questions asked by a judge setting bond in adult court do
not work for children, who are almost never employed, seldom own property,
and frequently lack "ties to the community" that are factors
judges are supposed to consider. Knowing this, some criminal court judges
do set bail that would be low for an adult with the expectation that
the child will be released. But even low bail for an adult is often
unattainable for a child whose family is poor or nonexistent, and children
remain in jail while adults in similar situations would be released.
Probable cause and preliminary hearings
Under the new Wisconsin law that resulted in her being charged as if
she were an adult, Latasha faced a combined probable cause and "reverse
waiver" hearing to see if she would be transferred from criminal
to juvenile court. Due to her constitutional challenge to the newly
revised Wisconsin homicide statute, she was afforded nearly four months
to meet with her lawyers before the first substantive hearing-time to
investigate and obtain discovery. When Latasha suggested that she had
been coerced into committing a crime, Shellow knew there was minimal
evidence to support the claim. Eventually, Shellow determined that Latasha
was following a train of thought she picked up from one of the mental
health professionals who had seen her early on. She was able to avoid
following Latasha's false leads and pursued issues at the probable cause
hearing for which there was an inherent evidentiary integrity rather
than be stuck with an ill-conceived defense adopted by a child who didn't
have the capacity to understand that the truth was more helpful than
the lie. It is not this way for most children in criminal court. The
challenges to new laws that slowed down the proceedings in cases such
as Latasha's are now settled in many jurisdictions. Most criminal courts
are crowded, especially at the preliminary hearing stage. The public
defenders or assigned counsel who represent poor people in those courts
have many clients and little time. First interviews often last a few
minutes in a crowded lockup or holding area. There is no time for the
lawyer to pursue issues or explore answers. This puts children, who
are poorly equipped to sort out facts and information according to what
is important, at a sharp disadvantage to most adults who can usually
tell their lawyers what they need to know at that first hearing. It
probably would have been impossible to determine the truth of Latasha's
case under those circumstances.
Preparing for trial
Latasha, like most children, didn't know that details were helpful
and generalities were hurtful to her defense. She would try to filter
information according to her perceptions, which were inevitably flawed.
In the face of repeated inquiries, she would become frustrated, assert
"I told you that already," or "I ain't talking no more
if you ain't listening." Interviews became strained and stressful.
It was not just the painful subject matter, but the necessity of shaping
it into the context demanded for a criminal jury trial-bringing the
child to the point of being able to talk about a horrendous situation
as if she had the insight, maturity, and years of experience of a normal
life. Latasha didn't want to deal with it. She would mope. She would
shrug. She would grow silent for long periods of time. In short, she
never became an adult defendant and remained the obstinate child. No
legislation or order of court could change that. Ours was not a unique
experience for lawyers working for children. Kids seldom remember addresses,
full names, or descriptions, and they are terrible at sorting out facts
that are important to their defense. They protect parents or elders,
as Latasha did when she minimized her mother's drug problems and postcrime
participation. Children tend to idealize roles and tell stories designed
to picture the world as they wish it would be. Latasha idealized her
description of life at her grandmother's house. She left out that by
age 12 she was the oldest able-bodied person in the apartment and did
all the cooking, shopping, and cleaning. She never told me, until I
asked, that she washed the feet of her invalid grandmother, and helped
her in the bathroom. She never complained about a childhood stolen from
her; we had to pull the details out. It took Shellow and her team of
experts two years of hard work to get all the background facts. Many
lawyers-particularly public defenders-do not have the time or the staff
to conduct daily interviews, build trust, and explore the child's mind.
The truth at last
It was only at the end of this long period of trust-building that Shellow
figured out why Latasha had so much difficulty describing how she cut
the victim's neck. Despite expert medical testimony that the victim
died from strangulation, which Latasha heard at the preliminary hearing,
she held on to the belief that the superficial knife wounds she inflicted
caused the victim's death. By refusing to admit she had cut the victim,
Latasha felt she was protecting a terrible secret, when, in fact, she
was concealing a fact that supported her best defense. As Shellow and
her staff pored over photographs, physical evidence, mock-ups of the
scene, and recently received transcripts of testimony of the codefendant
from his trial, it became apparent that the transcript would be critical
to the teenager's defense. The codefendant described Latasha's actions
with the knife: "She was trying to cut her neck under the cord,"
he said, as if he meant below the cord, lower down on the neck. Rereading
it, Shellow interpreted it to mean Latasha had inserted the knife underneath
the cord, against the neck. Then she recognized the significance of
the codefendant's description of Latasha "pulling at the knife."
In this case, pulling away from the victim, against the cord. Carefully,
Shellow merged the physical evidence with the information gained from
Latasha to form a picture of what actually happened in the car. Her
eventual hypothesis-the only one into which all the pieces seemed to
fit-was that Latasha had attempted to rescue the victim. We framed a
new set of questions and went to talk to Latasha. Surprised and losing
her fear of admitting to cutting the victim with the knife, Latasha
slowly and for the first time filled in details that convinced us that
she had a defense to the most serious charge against her. What had been
characterized as "slashing" could now be seen as evidence
of lack of intent to kill. Because she could barely carry the weight
of discussing the knife, we spent hours with Latasha going over the
episode. By the time she was able to give a clear account, it was the
eve of trial.
Putting children on the witness stand
Defense lawyers are always of two minds regarding whether their clients
should testify on their own behalf. Adults find it a fearful opportunity
to be confused, contradicted by prior statements, or to make an unintended
admission. For a child, the risks are greater, yet Latasha, now 15,
had to testify. No one else could explain why she had done what she'd
done or why she denied to police she had cut the victim. It was particularly
necessary for Latasha to testify because, until November 1999, Wisconsin
barred expert testimony on any issues surrounding state of mind in the
case in chief. The load this teenager carried was enormous. She alone
could describe for a jury the subtle influence her boyfriend had over
her, the sense of protection he offered a girl who had been raped at
the age of 12, and the power of her fear of abandonment. Although the
medical examiner could hypothesize about what made various wounds, Latasha
alone could describe her actions with the knife, including not only
the effort to cut the cord, which left the superficial cuts on the victim's
neck, but a slip that we believed had cut the victim's wrist. Shellow
had professional drawings and a computer-animated video prepared, but
the court denied their use as demonstrative evidence. Admittedly, it
might have been hard for Latasha to qualify the evidence. Although an
adult defendant would be better able to understand and "teach"
a jury using visual aids, a child is simply not used to a graphic artist's
conventions, the orientation of the drawn figures, and the use of teaching
aids generally. But we would have liked to have had the chance. I was
left wondering about the fairness of rules of evidence under which the
state can obtain permission for a child sex abuse victim to use anatomical
dolls to help illustrate embarrassing testimony, but defense lawyers
cannot make use of standard trial aids to help explain what a child
did during a traumatic crime. Preparing to take Latasha's testimony
was a nightmare. She could not talk with her lawyers about the facts
of her case for more than 20 minutes at a time without closing down
in fear. She was easily confused. I've seen adults of all abilities
do better than did this 15-year-old. At times she simply couldn't understand
what to expect, how the prosecutor might question her, how she would
have to talk into a microphone, and why it was important she wear a
dress, not jeans. At trial, Latasha testified for more than two hours
under my direct, telling as much as the court would allow. I was ecstatic
and proud of her. She had risen to the occasion in ways I hadn't thought
possible. The audience, however, had a different reaction. They saw
only the girl who appeared on the stand or sat at counsel table, deathly
afraid of the camera crew that covered her case for C-Span. They hadn't
seen how far she had come. To them she appeared reluctant and detached.
The next morning the newspaper reported that Latasha spoke in a "flat
monotone," and that she "showed no emotion as she recounted
[the victim's] slaying." As her lawyers, we knew differently, but
feared this was bad news for a jury. It was hard to face Latasha. She
had tried so hard, come so far, and felt so much pain in doing the best
she could. It hadn't been enough. By adult standards, Latasha did poorly
under cross-examination. Shellow had warned me; I was more confident.
But a child's desire to please overcame Latasha, who did not want to
make the district attorney or the court angry.
The prosecutor was gentle and children want to believe that an adult
who is nice will not hurt them. It is not difficult to lead them into
giving answers that hurt them at trial. A child like Latasha falls easily
to a clever cross-examination that takes advantage of classic evidentiary
tactics such as prior inconsistent statements. On cross-examination,
Latasha compounded the damage done in her statement to police. The prosecutor
got Latasha to say again and again that she did not remember the damaging
statements-that she had "planned" the crime and that she had
left her house "knowing" there was an agreement to kill the
victim. Latasha spoke honestly when she said she did not remember all
that she might have said to the police. We did not allow her to study
her statements to the police, fearing that it would confuse her testimony
in a way it would not an adult. Despite rehabilitation on redirect,
explaining why she had made some of the damaging statements to the police
was mostly beyond her. She would have had to reconstruct and credibly
explain the sequence of events and her thought process at the time of
the crime. This would be a challenge for many adults; children simply
lack the language and the insight.
Plea bargaining, instructions, decisions
Children have marginal competency to understand many aspects of the
court system, but they suffer most in being asked to accept or reject
plea offers designed for adults who have some life experience behind
them. Observing other cases, I have seen that children in court and
in custody are eager to accept any arrangement that gets them "out"
or home. At Latasha's age, they don't grasp the significance of long-term
consequences, such as those that apply for failure to comply with terms
of probation. They barely grasp the significance of a sentence of the
months or years of incarceration, and are incapable of weighing the
strength of a case against their desire to go home "right away!"
Plea bargaining is just another negotiation for lawyers in adult court.
When the prosecution has a weak case, or if they want your client's
information or as a witness against another defendant, they will offer
a good deal to get it. Children tend to receive worse offers than a
similarly situated adult, in part because they perform poorly in the
witness stand. In fact, the state had successfully prosecuted Latasha's
codefendant without her testimony. Latasha's case was unlikely to have
been pled in any event. The state made an offer that gave the judge
the discretion to sentence Latasha to 40 years in an adult prison, and
so the issues were fairly straightforward. But issues similarly complex
to those posed by plea negotiations emerge in cases that go to trial.
In Wisconsin and other states, the defendant has the right to ask that
the jury consider a lesser degree of homicide if there is evidence to
support that lesser-included offense. This decision is uniquely the
defendant's to make. It requires a complex weighing of factors and as
much rational thought as possible.
We requested the lesser-included offense of felony murder, arguing
that Latasha's efforts to cut the cord from the victim's neck demonstrated
a lack of intent to kill, leaving her guilty of felony murder because
she had joined the enterprise to steal the victim's car. Under a new
Wisconsin statute, a conviction for felony murder would have resulted
in a mandatory return to the jurisdiction of the juvenile court where
she would be released at the age of 18. The judge denied our request.
Had we won with the court, Latasha would have had to weigh the factors
that go into electing whether or not to allow the jury to consider a
lesser-included offense. It would have been her choice, but as a witness
to her immaturity, it seems sheer fiction to pretend that any child
would have adequately understood and been able to balance the information
upon which such a decision should be based.
At sentencing
In many less serious cases, children in adult court are penalized because
the officials in charge of recommending alternatives to incarceration
do not know the needs of children or the programs available. Judges,
prosecutors, and defense attorneys in criminal court are in a similar
situation. They are unfamiliar with the resources for children or the
symptoms of learning disabilities, mental illness, or physical shortcomings
such as asthma, lead poisoning or head injuries that affect children
and should be considered in their sentencing. Adults have medical histories
that they can articulate; children are often uninformed about their
medical conditions. Children can also fail miserably at meeting the
adult test of "showing remorse." And, kids in trouble often
have poor school records and pessimistic psychiatric summaries for references.
Certainly this would have been true for Latasha, who with her grandmother's
consent dropped out of school nearly a year before her arrest. Latasha
never had the option of a community-based sentence. Having lost at trial,
in part because we were unable to establish without expert witnesses
that she was a severely damaged and limited child who had abandoned
her intent to kill, she faced a life sentence where the judge has the
authority to set a parole eligibility date. Latasha suffered in comparison
to an adult sentenced for the same crime: "life" is a longer
sentence for a child than for an adult.
Moreover, children who have gone into the adult prison system do not
adjust well to the adult rules: they often end up with disciplinary
actions against them that result in denial of parole for years after
they have served the minimum time. In some sense, though, and perhaps
for the first time in the legal process, Latasha did not completely
lose at sentencing. Her case attracted national and international attention
and coverage in the press, leading to statements of support and a sense
that people outside the courtroom were paying attention to what happened
to this child. Norval Morris, a prominent legal scholar and criminologist,
spoke on her behalf. Human Rights Watch, Amnesty International, and
other children's activists groups sent letters eloquently pleading the
case for leniency. At her sentencing hearing, the court ordered that
Latasha be eligible for parole in 17 years, 42 months more than the
minimum, but far less than the 100 years assigned to her codefendant.
In the context of the trial, we considered this a victory. As one of
Latasha's attorneys, I would like to think that at last the court heard
in Latasha her voice as a child and felt constrained against denying
her any hope for a life as a full-formed person. Some children lose
their entire lives when tried as adults, but at least this court only
forfeited the remains of Latasha's childhood and her 20s. Even if unsuccessful
in her appeals, she may still have a chance to live the prime of her
life outside the prison walls. Latasha's trial was excruciating. Neither
Shellow nor I ever lost sight of the tragedy of the death that had occurred,
but we hoped for a better verdict and lesser sentence for a girl who
was just 13 at the time of the offense. For the first time in my trial
career, I now had a client serving life-life at 15. She joins hundereds
of children currently doing life sentences. And with the laws now in
place, she will be joined by hundreds more. For my part, it was sad
to realize that the only victory we may have won for Latasha was a belated
recognition that she was a child, a reality the state had denied in
bringing her to adult court in the first place. If so, victory came
too late to correct for the many disadvantages she suffered compared
to an adult defendant. And her case is not unique. The same injustices
will fall upon all children put to trial as if, by fiat, new "get
tough" laws can suddenly make them into adults.
Malcolm C. Young is the founder and executive director of The Sentencing
Project in Washington, D.C. Established in 1986, it is a private, nonprofit
corporation that promotes less use of jails and prisons and advocates
for criminal justice reforms. He also helped establish and serves as
executive director of the National Association of Sentencing Advocates
and the Campaign for an Effective Crime Policy, which are sponsored
by The Sentencing Project. Recently, he served as a technical assistance
provider to the Annie E. Casey Foundation's Juvenile Detention Alternatives
Initiative, where he participated in juvenile justice detention and
sentencing program reform. He currently directs a project designed to
improve advocacy on behalf of juveniles prosecuted in adult criminal
court.