Should Lawyers Be There When Cops Question Juveniles?
The number one reason that kids confess to crimes they didn't commit is that they want to go home. At least that's what Steven Drizin thinks.
DRIZIN: Sometimes they're directly told that and other times it's implied. But after hour after hour of interrogation, just the idea of being able to see a parent or be able to have the prospect of sleeping in one's own bed, is enough to induce children to confess to crimes – often crimes they did not commit.
Drizin is legal director at the Center on Wrongful Convictions at Northwestern University and he gets cases from all around the country. In the aftermath of the Ryan Harris case there was a lot of public hand-wringing, he says, and eventually legislators passed a bill that may not sound like much, but here's what it said: Kids under the age of 13 who are suspected of homicide or sexual assault must be given attorneys during their interrogations.
DRIZIN: Another reform was passed in homicide cases only that required that all custodial interrogations of children and adults be electronically recorded, videotaped or audiotaped from start to finish.
And that's where the law still stands today: If you're 12 or younger and being interrogated about murder or sexual assault (obviously, these are very rare cases) the state will demand that you have a lawyer. But if you're 12 or younger being questioned about other serious crimes, a lawyer isn't required. And if you're 13 years oldâ€”or 14, 15, or 16â€”even if you're being held and questioned about very serious crimes-armed robbery let's say-or rape, it's possible to be interrogated with no lawyer in the room.
DRIZIN: No question about it. That's the state of the law. It's insane. But that's the state of the law in Illinois.
Drizin says when kids are given their Miranda warningsâ€”told that they have a right to remain silent and a right to a lawyerâ€”studies show that most kids don't understand what those words mean.
DRIZIN: And the police officers make it seem like if they ask for an attorney, then they have something to hide, so children are willing to waive those rights very easily.
But here's one kid, who apparently didn't.
SISTER: Take that downstairs...Lotta stuff in there...
On his older sister's instructions, 16 year old Tyroneâ€”we're not using his real name because his case is still in the courtsâ€”Tyrone is lugging a very full laundry basket down to the basement. He doesn't look all that happy about it, but this is one of his chores since getting home from juvenile prison about 3 months ago. He's also supposed to water his family's garden of turnips, mint and collard greens, plus...
TYRONE: Keep the weeds out the grass.
As Tyrone and his lawyer recount his story, two years ago, when he was just 14, Tyrone had his first run-in with the law. It was a tumultuous time in his life. His mother, whom he adored and shared a room with had suddenly died. Just went for an outpatient surgery one day and never came back. He moved into the room of another brother he was very close to, and within six months, that brother died of sickle cell anemia. Another brother was in prison.
On the day of the crime Tyrone claims that he and his friends were eating at a Burger King when a guyâ€”an adversary of the older brother who's in prisonâ€”stood outside the window and pointed a gun towards them. Someone in Tyrone's group also had a gun. It was passed among Tyrone and the others as they all ran outside and one of the groupâ€”Tyrone says it wasn't himâ€”shot at the guy, grazing his shoulder.
It's what comes next that is relevant to this story. At the police station when given his Miranda rights, Tyrone, unlike most kids, actually invoked them. Said he wanted to remain silent and asked for a lawyer. The detective immediately complied and stopped the questions.
TYRONE: He left out the room...
Tyrone's sister says she figured things were under control, so she left the station to drive their grandmother home. But while she was gone a different officer entered the room and, Tyrone says, told him that there is a “special place” at the County Jailâ€”the ADULT County Jailâ€”for kids who don't talk. According to Tyrone, the officer said that if he'd take him to the gun that had been used, Tyrone wouldn't have to go to County Jail. At that point, Tyrone says he reversed course. Decided he was willing to talk and later did take the officer to a gun that was stashed in an alley.
TYRONE: Guess you could say I felt scared. I wasn't gonna see my family no more. That was all I could think of, like, 'Dang, my life over now.'
When Tyrone's sister got back to the police station, she was told that Tyrone wanted to confess.
SISTER: And I can tell he was nervous. It was like he was really shaking and his eyes were really red. And seriously I was like, 'Ok this is not right.' And then when the officer kept talkin', and it was like he was feeding him stuff and I didn't know if he had been threatened or anything and I couldn't ask that. I didn't have the time alone to see what really had went on in the conversation.
Luckily for Tyrone, the first detective had documented that he had indeed requested a lawyer and asked to remain silent. And that was key in getting charges against him reduced, Tyrone spent about a year and a half locked up and now he's on parole and getting ready to attend high school in the fall.
MILLNER: Try some of these soy nuts. They're good for you. REPORTER: Actually, they're delicious.
You know that stereotype of a cop who's kind of thick around the middle and spends a lot of time at the donut shop? Well, forget about it when you meet the trim and athletic –looking John Millner
REPORTER: And how did you get on the green tea?
MILLNER: High in antioxidants and you know what? It tastes good.
John Millnerâ€”that's State Senator John Millerâ€”worked for more than 30 years in law enforcement before running for the state legislature. He served as everything from patrolman to police chief in suburban Elk Grove Village. Plus he has his own company to train officers in what he calls the art of interviewing and interrogation.
MILLNER: We cannot tell the police today that you can't talk to a juvenile because they're a juvenile. Then we may as well just close up shop, let these kids kill each other, and there'll be so many victims we won't be able to count ‘em all. I mean we have to be able to stop the crime. We have to be able to talk to people and get the truth and find out who did what and who didn't do what.
And that becomes a problem, Senator Millner says, when defense attorneys routinely advise their clients – do not talk to the police.
MILLNER: I think some of these defense attorneys, actually it's quite a bit of concern to many of us. They think the Miranda rights are designed to tell people not to talk, period. And I've seen defense attorneys literally write letters to police agencies saying, if you stop anybody that says they're represented by me, you are hereby ordered not to speak to them. Well, you can't do that.
Millner is sympathetic to the horror cases that Steven Drizin and other defense attorneys can cite. But he thinks those are the aberrations.
MILLNER: My recommendation to students in my classes are the suspect must prove to youâ€”if they confessâ€”they must prove to you that they committed the crime. In other words they have to give you information that you didn't even know about. They have to give you data that you wouldn't have known about unless they told you. And that to me is a valid confession.
BAER: You're right, that would be a good interrogation. That doesn't happen.
Simmie Baer is litigation director at Northwestern's Children & Family Justice Center.
BAER: In theory, that's right. Does it work that way? I have not seen it work that way.
Baer thinks that the police rely too much on confessions and not enough on good old-fashioned police work. Lifting fingerprints. Talking to witnesses.
BAER: The whole point is to be able to make a case without a confession. And that the confession should be the cherry on top. Not the whole sundae! From her corner of the world, as a defense attorney, the scales should be tipped a little in favor of juveniles.
BAER: And I guess when you're balancing the officers' right to close a case versus a juvenile's constitutional right to a lawyer and right to remain silent and not incriminate themselves, that should win out. That should be meaningful.
Senator Millner firmly believes that many kids can understand their right to remain silent. And if, without coercion, they choose to talk to police, he doesn't want anybody discouraging them.
MILLNER: We want to know what really, really happened and to do that we have to talk to a lot of children. And I know that some of the proposals out there would basically stop police officers from talking to anybody, and that certainly wouldn't be in the interest of public safety. It wouldn't be a good piece of public policy, and frankly, it would be dangerous for all of us if we had to live in a situation like that.
A bill recently proposed in Springfield would have presented a compromise for murder cases only. Basically it said that you can't use a kid's confession in criminal court if he or she didn't have a lawyer during interrogation. This bill had so little support, it never even made it out of committee.