Corrupted (18 page)

“Good morning, counsel, please sit down.” Judge Kittredge shot her and Natal a quick smile as he ascended the dais.

“Good morning, Your Honor,” Bennie replied, in serendipitous unison with the Commonwealth attorney, then they both sat down.

“Counsel for appellant?” Judge Kittredge sat down and motioned her to the lectern. “Let us have your argument.”

“Thank you, Your Honor.” Bennie rose, walked to the lectern, and set down her papers. Instantaneously, the green bulb on the lectern lit up, an electrical system operated by the courtroom deputy. “May it please the court, my name is Bennie Rosato, and I'd like to reserve two minutes for rebuttal.”

“Granted.”

“Thank you, Your Honor. I represent the appellant, a twelve-year-old boy who is presently incarcerated in the juvenile correctional facility in Wilkes-Barre, for pushing another student—”

“Counsel, your position is that your client's constitutional right to counsel was violated by the lower court, is that correct?”

“Yes, Your Honor.” Bennie felt a surge of adrenaline, ready to jump right into the fray. “It's well established that juveniles have the constitutional right to counsel, and that waivers of constitutional rights have to be knowing, voluntary, and intelligent to be valid. My client was induced to enter a guilty plea and waived his right to counsel by signing a so-called waiver form that did not pass constitutional muster, nor was there any colloquy on the record to ensure that his waiver was knowing, voluntary, and intelligent.”

“You rely as authority for your position on the case of
In re A.M.
, in which a panel of my colleagues reversed the trial court for failing to guarantee that the waiver was knowing and intelligently made in a juvenile proceeding. Correct?”

“Yes, Your Honor.”

“However, I note that in
In re A.M.
, there was no written waiver of the right to counsel, as there was in appellant's.”

“That's true, Your Honor.” Bennie had made that point in her brief. “
In re A.M.
was decided only last year, and my sense is that the lower court judge developed the waiver in response to the panel's decision—”

“That may be true, but as you point out, that fact is not of record.”

“True, but in any event, my argument remains the same. It's a distinction without a difference. The lower court judge may have attempted to correct itself by developing a waiver form, but that still doesn't pass constitutional muster. The waiver form used in the case at bar is like a simple release, a waiver of liability you'd expect to see at an amusement park. It simply is not enough to guarantee that a constitutional right was knowingly, voluntarily, and intelligently waived.”

Judge Kittredge didn't interrupt, so Bennie kept talking, picking up her argument where she left off, which was the standard protocol at oral argument.

“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.”