"I Plead the Sixth"

The waiting room of the New Orleans juvenile court is hot and crowded. Its garishly painted walls stare down on angry parents, manacled teenagers and the occasional lawyer. In a corner, Victor Papai, the head of indigent defense at the juvenile court, shares a 4-foot-by-10-foot office with a staff of six part-time attorneys. Each handles close to 800 cases per year -- four times the federally recommended annual caseload for full-time juvenile defenders. But when I enter, Papai is alone playing solitaire on his computer.

Most of the juvenile defendants milling around this waiting room will spend no more than a few minutes with a lawyer, despite their Sixth Amendment right to counsel. The vast majority are encouraged to accept plea bargains. According to Papai, more than half plead guilty after their initial five- to 10-minute conference with an attorney. This precludes any meaningful hearing before a judge, and the consequences are stark: More than 70 percent of juveniles in secure confinement in Louisiana are there for nonviolent offenses. And incarceration in this state means being sent to some of the most violent and poorly run facilities in the country. In 2000 the U.S. Department of Justice forced Louisiana's privately run Jena juvenile prison to shut down; it is currently working to close another.

Though it is renowned for its poor treatment of juveniles, Louisiana is not alone in depriving its children of adequate counsel. The American Bar Association Juvenile Justice Center is currently conducting state by state studies, and has already documented extensive problems in Texas and Georgia. And despite the landmark 1967 Supreme Court case In re Gault, which affirmed that juveniles enjoy the same Sixth Amendment right to counsel as adults, preliminary investigations reveal that judges from Virginia to Montana still discourage lawyers from advocating aggressively on behalf of juvenile clients.

The Juvenile Justice Project of Louisiana, a small but influential public-interest law firm, is attempting to buck the trend. Dissatisfied with the quality of representation given to children in the New Orleans juvenile court, project attorney Derwyn Bunton recently began devoting 14-hour days and much of his weekends to indigent juvenile defense. He has little praise for the six contract attorneys currently handling such cases. "They don't want to work that hard because they're not getting paid that much," he says. Their current contracts are for only $24,000 a year, so they put their time into their private, paying clients, Bunton says. The typical defense attorney for a poor teenager gets the police report, speaks to the officer involved and spends only a few minutes talking to the client. "You've got a lawyer who doesn't care and doesn't know about the kid," says Bunton. "It's like walking into the doctor's office and them giving you medication without asking where the pain is."

Consider the case of Jerome. Charged at age 16 with possession with intent to distribute crack cocaine, he says he spent only three minutes with his court-appointed defender. "She wasn't defendin' me or nothin'," he says. "She just told me if I pleaded guilty I'd come out better." Jerome followed her advice and was sentenced to four years and six months in secure confinement at the Jetson Correctional Center for Youth in Baton Rouge. Now out of custody, Jerome insists, "If I'd have pleaded not guilty I would have come out better with my own story."

"[Juvenile defendants] are giving away substantive rights without counsel," says Bunton. "That, I think, is malpractice."

Bunton does acknowledge the challenges created by lack of funding. "At least I have a computer and a filing cabinet," he says. But then again, Papai and his staff do not seem to be clamoring for more resources. Papai admits that "the facilities could use a lot of improvement" and that "it would be nice to have some clerical support." But he shrugs and observes, "There's very little money in juvenile law and I don't think there ever will be. ... It's not practical at this time." To Gabriella Celeste of the Juvenile Justice Project, Papai's statement "exudes what's missing there: vision and guts."

The financial strains, however, are real. Louisiana's indigent defense system is funded primarily by revenues from parking and speeding tickets. These are barely enough to keep the system afloat at any level. Bunton recalls seeing Judge Mark Doherty driving around with wood in the back of his car: Funds for the juvenile courts are so scarce that Doherty had to build his own witness stand.

In his chambers, the cuffs of his blue jeans slipping out from beneath his black robes, an exhausted Doherty explains that a typical attorney "has to try a case by the seat of his pants." Lack of investigators and a heavy caseload leave them no alternative. "In every institutional area our hands are tied, the resources aren't there," says Doherty. "We're stuck with 'let 'em out and hope nothing happens or lock 'em up.'" His colleague Judge C. Hearn Taylor insists that the court-contracted defense attorneys are getting a bad rap for something that is not necessarily their fault. "You can't measure them on what they've produced but what they've been provided with," says Taylor, citing the part-time attorneys' low salaries and the single office and lone computer that all six share. Taylor maintains that the current New Orleans approach to juvenile justice is "like putting a Band-Aid on Hodgkin's disease. It doesn't work."

The rest of the state is even worse. Outside Orleans Parish, many accused children -- between 50 percent and 90 percent, according to the Juvenile Justice Project -- never see a lawyer at all. Walter Sanchez, a private attorney in southwestern Louisiana near the Texas border, reports that "on a 40 case docket it would not be uncommon for that to happen in 100 percent of the indigent cases." After a brief conversation with a judge or a probation officer, poor children are usually presented with a heap of incomprehensible legal papers and asked to sign; only a minority even have their parents present. According to Celeste, "They don't know what the hell they're signing." Many judges and probation officers tell them they'll get home faster if they sign away their right to a lawyer, so they do it. "Kids think in the moment," says Celeste.

But this can leave their records forever scarred. By pleading guilty, juveniles are often agreeing to accept only a misdemeanor conviction and a sentence of probation. Yet once they do so, any trivial probation violation -- such as breaking curfew or disobeying parental orders -- can get them sent to jail, and any future charge can get them "multibilled" as a repeat offender. As a result, a great number of juvenile offenders are being incarcerated without ever having met with an attorney.

Although the Louisiana State Constitution guarantees poor defendants the right to "qualified counsel," Sanchez believes the state "for the most part has abdicated its responsibility." In his view, there is "very little in the way of what passes for representation in these courts. There is very little interest in rocking the boat or slowing down the process."

In 1995, nearly three decades after the Supreme Court's landmark Gault decision, the ABA Juvenile Justice Center's last comprehensive survey of the nation's juvenile-justice system found a widespread lack of representation. Children waived their right to counsel in more than a third of public defender offices. More disturbingly, only 54 percent of these offices reported that judges regularly explained to children their right to a lawyer. And in the eyes of Ilona Picou, the ABA Juvenile Justice Center's mid-Atlantic regional director, not much has changed since: The "high incidence of waiver and lack of representation means we haven't fulfilled Gault, " Picou says. "It's still a kangaroo court."

There are a few bright spots, such as Texas, which recently passed the Fair Defense Act, a strong piece of legislation that was vetoed by George W. Bush when he was governor. According to Hanna Liebman Dershowitz, who at the time was general counsel to the state senator who spearheaded the reform, the new law will provide a "much greater opportunity for the accused to invoke the right to counsel" and will significantly increase funding for juvenile defense attorneys representing poor clients.

Elsewhere, things look less encouraging. And with increasingly stiff sanctions for juvenile offenders and ever larger numbers of juvenile cases being sent to adult court, guilty pleas on seemingly innocuous charges at an early age are not trivial. As Picou argues, "They're going to end up in adult court and misdemeanor counts are going to matter. Then, juvenile court convictions count as points against you." Quite simply, says Bunton, "bad representation can land you in jail."