Ensuring Access to Counsel in Ohio: Stories of Children Who Waived

Read more about the ACLU’s fight to defend Ohio juveniles’ rights >>

Kristal | Ryan | Pamela | A.C. | R.B.

ENSURING ACCESS TO COUNSEL IN OHIO:
> Estimated Waiver Rates By County
> Ohio Juvenile Justice Overview
> Why Youth Waive Their Right to Counsel
> A Demographic Profile of Children in the Ohio Juvenile Justice System
> Protecting the Right to a Lawyer: In Re Spears
>Defending Incarcerated Minors’ Right of Access to the Courts
MORE ABOUT THE ACLU’S WORK TO DEFEND OHIO JUVENILE’S RIGHTS>>

KRISTAL
Kristal was 13 years old when she was charged in Cuyahoga County with delinquency for breaking into her mother’s bedroom and taking money. She denies taking any money or entering her mother’s room for that purpose. Kristal was charged with felony burglary.

At a court appearance, Kristal waived her right to counsel. Lacking a lawyer, she admitted to the charges before the court read her rights to her, including her right to a trial. From Kristal’s point of view, she did see any point in having a trial—or an attorney—after she had already admitted to the charges. The following month, Kristal appeared in court for sentencing, again waiving her right to counsel, and the court placed Kristal on probation for an indefinite period of time.

A year later, Kristal, while still on probation but living with her grandmother, left home overnight without permission. When she returned, Kristal, her grandmother, and the family therapist went to see Kristal’s probation officer. During that meeting, Kristal’s probation officer took Kristal into the courtroom to see the Magistrate and filed a court order violation against her for leaving home and not following the rules. Kristal did not have a court date set for this day, and she and her grandmother were unaware that Kristal would be placed before the court.

During the proceeding, the court did not ask Kristal if she wanted an attorney to assist her, and no counsel was present or appointed to represent her. Kristal admitted to the charge. Her probation officer first asked the court to commit her to 90 days in county detention, but then increased the request to six months in DYS custody. Kristal was not provided with counsel, who could have advocated for no or reduced detention. Lacking advocacy on her behalf, Kristal was committed to DYS for a minimum of six months, maximum to her 21st birthday.

RYAN
Ryan, a 17-year-old boy, represented himself during his delinquency trial on a burglary charge in Clark County. Ryan took his case to trial, claiming his innocence. Like in many Ohio juvenile cases, the record of Ryan’s case contained no information indicating whether he was even informed he had a right to be represented by a lawyer. Without a lawyer to guide him, Ryan struggled in presenting testimony and evidence, and in knowing how or when to object to other improper testimony. Ryan lost his trial, was adjudicated delinquent and was sentenced to a DYS facility for a minimum of one year and a maximum to his 21st birthday.

Ryan appealed his case. After he had served ten months of his sentence in a correctional facility, the appeals court overturned his conviction and sent the case back to the trial court so that Ryan could be “fully apprised of his right to counsel.” When the case was returned to the trial court, the burglary charge against Ryan was ultimately dismissed. Ryan’s incarceration and subsequent legal expenses cost Ohio taxpayers more than $50,000.

PAMELA
Pamela was 15 years old and on probation when she was charged in Licking County with delinquency for possessing drugs after submitting to a urine test. The urine test revealed evidence of drug use, a fact that, standing alone, may be insufficient to support the charges.

Prior to appearing at her adjudication hearing on the drug charge and an unrelated probation violation, Pamela signed a series of “rights forms,” one of which indicated that she wished to waive her right to counsel. Pamela, her mother, and her probation officer attended the hearing; however, no defense attorney or prosecutor was present. Pamela waived her right to counsel “on the record” during the following brief colloquy with the court, after which she admitted to the drug charge:

THE COURT: In all of these cases you have the right to be represented by an attorney at today’s hearing. Do you understand that?

PAMELA: Yes, sir.

THE COURT: If you cannot afford an attorney and you qualify under state guidelines, I will appoint an attorney to represent you. Do you understand that?

PAMELA: Yes, sir.

THE COURT: On the new charge of felony five possession of drugs, do you wish to go forward in that case without an attorney?

PAMELA: Yes, sir.

THE COURT: You do.

PAMELA: Yes.

THE COURT: Then I need you to sign and your mother to sign your waiver of attorney, please.

With respect to the probation violation case, Pamela had previously requested an attorney; however, her mother had not completed the court appointed attorney application in time for the court proceeding. Subsequently, Pamela’s mother prompted Pamela to admit to the probation violation without an attorney so, “That way we’ll be done.” At first, Pamela resisted proceeding without an attorney. However, following questioning by the court, Pamela admitted to the probation violation as well.

At the disposition proceeding, the court again failed to appoint counsel to or secure a valid waiver of the right to counsel from Pamela and committed her to DYS for a minimum period of six months and a maximum period extending to her 21st birthday. Following disposition, Pamela signed a form, waiving her right to file written objections to the Magistrate’s Decision.

Pamela is currently incarcerated in a DYS facility and has filed an appeal. She has yet to receive any drug or alcohol counseling in DYS, except for the Alcoholics Anonymous meetings that she voluntarily attends.

A.C.
A.C. was a 17-year-old honors student with no criminal record when he was arrested for stealing American flags from neighbors’ yards shortly after the war in Iraq began. After A.C. told the officers who arrested him that he would not speak to them without an attorney, the officers transported him to the Hamilton County juvenile detention center, where he was held overnight.

The following morning, A.C. admitted to stealing the flags, without being advised of his right to counsel and without having the charges against him—or their potential consequences—explained to him in court. Without any knowledge of the juvenile court system, A.C. believed that he would be released from detention if he owned up to what he had done. However, upon confessing to the crime in court, A.C. was sentenced to two weeks in detention while a probation investigation report was generated.

A.C.’s mother promptly retained a private attorney, who successfully withdrew A.C.’s plea on the grounds that he had not been adequately advised of his right to counsel or the charges against him. A.C. was immediately released. He ultimately admitted to a single count of theft, and the remaining charges were dismissed. He did not serve any more time in detention.

R.B.
R.B., age fifteen, was detained and charged with delinquency in Clark County Juvenile Court for drug-related charges. During his arraignment, which neither of his parents attended, R.B. asked the court if there was, “any way he could get out” of detention. R.B. also informed the court, “I’m scared. I know I keep messing up, man, but I’m scared to go to court because I don’t want to get locked back up.” The Magistrate asked R.B. if he wanted an attorney, and R.B. responded, “Yeah.” R.B. again asked if there was any way he could be released from detention, to which the court responded, “Not right now.”

Approximately three weeks later, R.B. had an adjudication hearing. This time, both of his parents appeared in court. R.B. was not represented by counsel and, although R.B. had indicated at his arraignment that he wanted an attorney to represent him, the court did not discuss the issue of counsel. During the adjudication hearing, R.B. entered a plea to amended charges and was found delinquent. Afterward, in response to questions from R.B.’s father, the court informed R.B.’s parents that if they could find a suitable program for R.B. to attend, the court would consider not committing him to DYS.

One month later, R.B. appeared in court with his father for disposition proceedings. Again, R.B. was not represented by counsel, did not waive counsel, and the court neither raised the issue nor appointed a lawyer to R.B. at any point during the proceedings. Subsequently, the court committed R.B. to DYS for a minimum of six months, maximum to his 21st birthday. R.B. appealed, and the Second District Court of Appeals reversed his case, finding that his right to counsel had been violated. See In re R.B., 2006-Ohio-264; 2006 WL 172367 (Ohio App. 2 Dist.)

R.B. was released from DYS after winning his appeal; however, he spent 183 days in a state juvenile prison which, according to DYS figures, cost Ohio taxpayers approximately $33,719 (excluding two months of county detention costs): a very high price to pay considering the court would have considered alternatives to incarceration for R.B. if only an advocate had presented suitable programs to the court at disposition.