“Your Honor, in addition, the form requires that the minor sign, but he is under the age of contract in Pennsylvania, and it also requires the parent of the minor sign, but a parent cannot waive a constitutional right for a minor. In fact, in the case at bar, my client and his father did not know that they had the right to counsel or that one would be appointed free if they could not afford one, because they were told exactly the opposite. They asked and were told by the Public Defender’s Office that they could not qualify for a public defender because of the father’s income—”
“But none of that is on the record, counsel.”
“Correct, Your Honor, which is precisely the problem. The record is inadequate because the proceeding below was inadequate. The transcript of the hearing is barely three pages. My client’s father attempted to speak at the adjudication hearing and was cut off. My client, a middle schooler, was understandably intimidated, and in any event, we’re not at the draconian point where we hold minor children accountable for not knowing their constitutional rights.”
Judge Kittredge cocked his head. “So your position is that an on-the-record colloquy should’ve been conducted, the same as in an adult criminal trial, before what was essentially a guilty plea was accepted.”
“Exactly, Your Honor.”
“My research reveals that that is not yet the law in Pennsylvania with regard to juveniles. That specific, narrow question has yet to be decided by our state Supreme Court. It has not yet been reached, correct?”
Bennie’s mouth went dry. “That is correct, Your Honor, though the Pennsylvania Supreme Court has made clear that juveniles have the same right to counsel that adults do. Therefore, any such ruling by you would be completely consistent with the current law of the Commonwealth, as enunciated by our Supreme Court. In addition to his right to counsel, my client was not informed of his right to be presumed innocent, his right to confront and cross-examine witnesses, or any of the other rights that are guaranteed by the Constitution before incarceration.”
Judge Kittredge raised a hand, cutting Bennie off. “Your point is well taken, counsel. I share many of your concerns with the waiver form used below. Your legal analysis in this matter is sound. Certainly, I’ve heard of you by reputation, and you have not disappointed today.”
“Thank you, Your Honor,” Bennie said, surprised at the praise, though she had the feeling from the judge’s tone of voice that a “but” was coming—and it would be the reason he’d ordered oral argument.
“But the issue in this matter, at this juncture, is that it comes to me as a single appellate judge, sitting as a matter of emergency relief.” Judge Kittredge leaned over the dais, his tone sincere and unguarded. “If, in fact, counsel, you’re asking me to rule that the waiver was constitutionally defective because an on-the-record colloquy was not held for this juvenile, then I would be making law in the Commonwealth of Pennsylvania on my own. It may well be the logical extension of the law, and it may well be consistent with what the Supreme Court and the Superior Court panel in In re A.M. intended. But they did not say as much, nor did they reach this specific and narrow question, and therefore, it is an extension of the law.”
Bennie felt her heart sinking, but she didn’t dare interrupt Judge Kittredge, who continued.
“So we find ourselves at a procedural impasse. I may decide this question on my own, or I may refer this matter to a panel of my colleagues for decision, so that we may address it in the normal course. Or, it may raise a question of such legal importance that it is addressed by the entire court, sitting en banc.”
Bennie knew the last option would be a disaster, in terms of time. The Superior Court held its en banc sessions only a few times a year because they required the empaneling of the entire court.
“But that doesn’t help your client, does it, counsel?” Judge Kittredge asked, reading her mind.
“No, it doesn’t,” Bennie answered, seizing her opportunity, even though the yellow light on the podium came on. “My client’s sentence will have expired by then, and he stands in the shoes of every other juvenile, because juvenile sentences tend to be shorter term. If we wait for that occasion, then a profound constitutional defect will be permitted to stand, remaining essentially unreviewable and rendering a plain injustice for the juveniles of the Commonwealth.”
“Thank you, counsel. I have your argument.” Judge Kittredge turned to Natal, who was already on his feet. “Counsel, please come forward.”
“Thank you, Your Honor.” Bennie returned to counsel table, perching on the edge of her seat. She had made the best argument she could, but she wanted to see what the judge asked the Commonwealth, because that could be even more telling as to which way his decision would go.
Natal straightened up at the lectern, and the green light went on. “May it please the court, my name is John Natal, and I represent the Commonwealth—”
“Counsel,” Judge Kittredge interrupted. “Let’s get directly to this waiver form. Is Ms. Rosato correct that it fails to pass muster under the Constitution?”
“No. She is incorrect, Your Honor.” Natal shuffled quickly through a set of papers, stopping at the waiver. “It states clearly at the top, ‘Waiver of Right to Counsel,’ and it reads that, ‘I am aware I have the right to counsel in the juvenile matter before the Court. I have consulted and been advised by a responsible adult who is aware of the fifth and sixth amendments right guaranteed to me—’”
“Counsel, I can read it. My question is, is it valid under the Constitution of the United States and of the Commonwealth of Pennsylvania?”
“We believe it is, Your Honor. By its very terms, it both informs appellant and his father that they have the right to counsel and that they are waiving it by signing the form. It is in plain English, not legalese, and is self-explanatory.” Natal set the form aside. “We believe that this Court should not be placed in a position, as appellant’s counsel would have you do, in which it is not only extending the law of criminal procedure with respect to juveniles, but reaching its hand down into the court below and micromanaging its courtroom administration.” Natal shuffled to the photocopied case on top of his stack. “It is well established in the Commonwealth that lower courts are accorded wide latitude in juvenile matters to conduct and administer their courtrooms as they see fit, under the case of—”
“Of course, that is subject to the Constitution. Is it not, counsel?”
“Yes, Your Honor, but in this matter, the lower court did follow and conform its procedure according to prevailing law. There is no current legal requirement for an on-the-record colloquy for juveniles who wish to enter a guilty plea to an adjudication, and the waiver form was signed not only by appellant’s father, but by the juvenile himself. If appellant or his father had an objection or a question about it, they could’ve asked it in open court.”
“What about Ms. Rosato’s argument, that they felt intimidated or were otherwise silenced?”
“Your Honor, these are not matters of record, as you have correctly pointed out. For that reason, they may not be considered at the appellate level.”
Judge Kittredge frowned. “The transcript was terribly brief, counsel.”
“And that, Your Honor, is precisely the reason the waiver form is utilized. It streamlines the administration of justice in juvenile court, and that is all the more reason why juvenile courts should not be micromanaged at this upper level.” Natal cleared his throat, and the yellow bulb lit up on the lectern. “If appellant’s argument were to prevail, Your Honor, then even an on-the-record colloquy would not cure it, and it’s difficult to see where it stops.”
Judge Kittredge frowned again. “Please explain, counsel.”
“With respect, Your Honor, an appellate court cannot speculate about what would have been said or what would have been done, in the absence of any indication on the record. If an appellate court follows that path, then it’s a slippery slope indeed, extending not only to juvenile court matters, but to all manner of cases that
come before Your Honor.”
Judge Kittredge nodded, but didn’t say anything, so Natal continued.
“Such a decision is of the utmost importance, not only in terms of procedure but in terms of substantive law, and it should not be decided by you as an individual judge, sitting alone.” Natal looked down, and the yellow light on his podium blinked on. “Your Honor, the appellant has been adjudicated a juvenile delinquent for fighting in school. It is incumbent upon our juvenile courts to ensure that violence in our public schools is eradicated. Recent news stories of school shootings warn all of us of these dangers. This matter goes directly to the health, safety, and welfare of children in public schools, as well as of teachers and staff. For all of the foregoing reasons, the Commonwealth asks that you deny Appellant’s Application for Emergency Relief.”
“Thank you, counsel, I have your argument.” Judge Kittredge turned to Bennie. “Counsel for appellant, rebuttal?”
“Thank you, Your Honor.” Bennie strode quickly to the podium, and the green light blinked on. She reminded herself that the purpose of rebuttal was to refute only what the Commonwealth had said, and she knew exactly what she wanted to say. “Your Honor, you have heard the Commonwealth say that you would be micromanaging if you granted appellant’s application in this case, and you’ve heard him further suggest that forms such as this obviously facially invalid waiver are necessary, perhaps to prevent the occurrence of another tragic shooting.”
Judge Kittredge’s face grew somber, and Bennie worried that the Commonwealth’s point had hit home, so she had to address it, right now.
“We are all mindful of that tragedy, as we are of the perilous times in which we live. Not only Columbine, but September 11, and the war in Afghanistan. We know that we will be facing legal issues in the days to come, which will require courts to strike a balance between our collective security and our individual rights. Going forward, it’s important to focus on the facts and not to let our understandable concern for public safety render meaningless the procedural protections that safeguard our individual freedoms and those of our children.”
Judge Kittredge nodded, so Bennie continued.
“This is not an application for relief that has anything to do with Columbine High School. This is about a twelve-year-old boy, an A student in Crestwood Middle School, who has never been in any kind of trouble. He gets bullied, and he finally pushed back when another student called his late mother a nasty name.” Bennie knew the facts were outside the scope of the record, but she went for it anyway. “This is the sort of thing that occurs in every cafeteria and playground in the country. This is not a matter that belongs in any court at all, much less an appellate court, and we must exercise caution not to make it so, for that is the slippery slope I fear the most. Law must always protect justice, not injustice, though it is capable of either. Your Honor, I ask that you grant Appellant’s Application for Emergency Relief. Thank you.”
“Thank you, counsel.” Judge Kittredge banged the gavel, his expression impassive. “Court is dismissed.”
CHAPTER TWENTY-FIVE
“So how do you think it went?” Bennie asked Declan, as they pushed through the double doors of the courtroom, their parkas open.
“I think it went great.” Declan looked over, his dark eyes shining and his face alive with animation. He reached out his large hand. “Give me your bag.”
“Thanks.” Bennie handed him her heavy messenger bag, knowing he’d insist anyway, and they walked down the corridor of rose marble. They were alone, and the ancient frosted fixtures shed barely any light.
“You were awesome. You did a great job.” Declan grinned, hoisting the bag easily to his shoulder. “You even made me like lawyers. Really, I mean it. I get why you had to work so late, last night. When I saw the green light go on, I thought, damn. The green light makes it real. ‘Ready, set, go!’”
“I’m fine with the green light; it’s the red light I hate.” Bennie smiled, and Declan smiled back.
“Because it’s over then?”
“Yes, I have to shut up.”
Declan chuckled. “You gave me hope for Richie. For the both of them. I think we won.”
“How about we go with cautious optimism?” Bennie couldn’t help but temper his enthusiasm, a practitioner’s reflex.
“Hell, no. How could we not win? You were so convincing.”
“Declan, you heard the judge.” Bennie’s heels clacked on the hard marble floor as they walked toward the glass exit doors. “He’s with us on the substance, but not the procedure. He doesn’t want to rule alone. Best-case scenario, we win, but not yet. Is that a win or not? Justice delayed is justice denied, isn’t it?”
“I see what you mean.” Declan’s smile faded. “You know, I’m going to explore becoming Richie’s legal guardian.”
“What, really?” Bennie stopped in her tracks, and so did Declan. They stood in the sunlight coming through the exit doors. “When did you decide to do this?”
“It’s been growing on me, from watching you.” Declan frowned. “I didn’t get a chance to tell you. Doreen is refusing to meet with the new lawyers I found.”
“How is that even an option? Richie needs a lawyer.” Bennie didn’t hide her anger.
“I know. I think she’s sabotaging me. Honestly, I don’t think she wants Richie out.”
“I wondered about that,” Bennie said gently.
“You dropped everything for Jason. That’s what Richie needs, too.” Declan clenched his jaw. “If I were a lawyer, I’d do it on my own, like you did today.”
“But guardianship?” Bennie wondered if Declan knew what he was getting into. “You can’t be declared Richie’s guardian unless you show that Doreen is unfit. That’s a high standard. She didn’t seem unfit to me, and it would be an ugly court battle.”
“I don’t think it will go as far as court. I already have Richie’s okay. I’m hoping she’ll go along.”
“Do you think she will? I mean, how close are you two, anyway?”
“Not very. We used to be closer. Our whole family was close. But then my parents passed, a year apart. She took it hard.” Declan’s frown deepened. “She met her ex, and I couldn’t stand him. I knew he was a loser from day one. I told her so, before they got married. That didn’t help. You would think we got closer after they broke up. We didn’t. It only made it worse I turned out to be right.”
“So, do you really think she’ll agree?”
“Yes. She wants somebody to solve this problem for her. She’s like that. Richie thinks she’ll agree, too. He wants to get out of River Street. He said he’d rather live with me. I could get him the help he needs, whenever he gets out.” Declan managed a smile. “Even if he gets out later than we all want.”
Bennie realized she hadn’t called Matthew yet. “Oh, I almost forgot, Jason’s father is waiting to hear how the argument went. Can you give me a minute?”
“Sure.” Declan gestured outside. “I’ll go get the truck and pick you up.”
“Okay, thanks.” Bennie slid her phone from her purse and pressed in Matthew’s number, as Declan left the courthouse.
Matthew answered immediately. “Did we win?” he asked, anxious.
“The judge hasn’t ruled yet. It’s a difficult legal question, and even though we’re right, the judge might be reluctant to decide it on his own—”
“Isn’t that his job, to decide things on his own?” Matthew sounded confused. “Look, just tell me straight, is Jason getting out or not?”
“I don’t know if or when he’s getting out, yet, because I don’t know when the judge will rule. I hope it will be before Christmas, but he doesn’t have to do that if he doesn’t want to.”
“I hardly slept last night. It’s Friday already. Do they decide on the weekend?”
“It’s only one judge, and no, he doesn’t. I’m sorry, Matthew. I want him out as much as you do.”
“Don’t they know the meaning of the word emergency?” Matthew sighed.
“It’s like they don’t care.”
“They do, I think that’s why we’re making the progress we are.” Bennie could hear the hopelessness in his tone. “Did you visit Jason last night? Did you see his bald patch?”
“Yes, he showed it to me. He had the hat on.”
“So what do you think?”
“I’ll see if it gets better on its own. The nurse made an appointment for him to see the doctor, but they couldn’t schedule it until after New Year’s.”
Bennie sighed inwardly. “Matthew, it’s not going to get better, and his hair is going to fall out. The boys will tease him, even worse—”
“Uh-oh, Bennie, I gotta get back to work, my boss is on the floor. Would you do me a favor and visit him this weekend? I’ll go Saturday, but I can’t go Sunday. They offered me overtime, and if I work a double, I can get ahead of Jason’s expenses.”
“Don’t worry, I’ll go Sunday.”
“Thanks. He was asking for you. He likes you.”
“I like him, too. He’s a great kid.” Bennie’s throat caught. “I’ll let you know as soon as I hear anything from the judge.”
“Thank you. Bye now.”
“Good-bye.” Bennie hung up, shaking her head. She slipped her phone back in her purse and saw Declan’s truck pulling up near the courthouse entrance, so she went outside.
“How’d it go?” Declan asked, coming around the front of the truck to open the door for her.
“Thanks. He’s disappointed, and I get that.” Bennie climbed inside the truck and closed the door behind her. She set her purse on the seat, then noticed a gift on the console, wrapped with shiny red paper. An attached note card read, For Bennie, Merry Christmas to my favorite lawyer. From, Declan.
Declan opened the driver’s side door, got into the truck, and closed it behind him with a grin. “Merry Christmas!”
“What’s this?” Bennie asked, delighted. She picked up the gift.
Corrupted: A Rosato & DiNunzio Novel Page 14