In Forma Pauperis

On one fateful day in Florida a man named Clarence Earl Gideon broke into a poolroom with the intent to commit a misdemeanor.[1] This action constituted a felony in the state of Florida, and the man was charged with the crime. After being arrested, Gideon requested the assistance of counsel in his case. Gideon’s request for counsel was denied by the trial court, and Gideon went on to represent himself in his proceeding.[2] As a layperson, he put on his best defense. Gideon made an opening argument, performed cross- examinations, presented his own witnesses, refused to testify himself[3], and even made a closing argument. Alas, his greatest efforts were unsuccessful, and he was found guilty and sentenced to five years in prison. But, this is where the story begins.

            On appeal to the Supreme Court Gideon argued that his rights were violated by not being appointed counsel. Ironically, for this appeal Gideon was appointed counsel because he was acting in forma pauperis[4]. The Court found in favor of Gideon saying, “The right to be heard would be, in many cases, of little avail if it did not comprehend the right to be heard by counsel. Even the intelligent and educated layman has small and sometimes no skill in the science of law.”[5] In every criminal case a litigant is guaranteed counsel.  In civil matters, however, Gideon does not apply. Hypothetically, if a person were to violently rape and murder 17 women, 8 men, and a goat, that individual would be guaranteed an attorney to ensure justice. Yet, if a mother of 4 was wrongfully evicted from her home and subsequently lost custody of her children, that mother would not be guaranteed the same protection from the system.

            The University of Baltimore School of Law Sayra and Neil Meyerhoff Center for Families, Children and the Courts’ Truancy Court Program (TCP) uses a holistic approach to address the problem of truancy in Baltimore City schools. Truancy is often not the major problem but is a mere symptom of a deeper issue. Every known aspect of a student’s life is taken into account in order to offer services to the child and to the child’s parents, thus alleviating underlying causes of truancy. One of the services provided by the Truancy Court Program is limited legal advice concerning the child and the child’s living situation. Common issues that these families face are the need for creation or enforcement of an Individualized Education Plan (IEP), homelessness, drug abuse, and poverty. The TCP gives a select few families access to invaluable legal advice that these families may not have access to otherwise. For example, a parent or child may reveal at the TCP session that they are homeless. With assistance from the TCP, students have received assigned “yellow bus service” or school provided cab service to commute to and from school.[6]

            The lack of a Civil Gideon[7] in our court system has caused many to question the true legitimacy of the legal process, especially for those who cannot afford an attorney. Projects like the TCP help to mitigate the damage that the pro se[8] problem creates, and this impact must continue to expand and intensify until the system is corrected. Remember that the highest court in the nation recognizes that even the educated layman will do little better than clumsily stumble through the system without representation, and then consider that the majority of pro se litigants are unrepresented because they cannot afford an attorney. The conclusion that you reach is that the pro se problem disproportionately impacts the low income community, those who often need representation the most. The only things that overshadow barriers to justice presented in cases between two pro se litigants are the barriers to justice facing a pro se litigant who must argue against a represented party.

            When discussing pro se litigants, it is also important to recognize that many people without access to legal minds may never know how or why to get into court to begin with. While participating in the TCP, I have learned from our attorneys that there are specific requirements for IEPs and for those experiencing homelessness. This knowledge was also communicated to  parents, who are then able to put that knowledge to work.

            In an ideal world the TCP would not be necessary, because everyone would have access to legal representation. We do not live in an ideal world, however--in fact far from it.  So we must work to move closer to a more perfect world. An examination of just one of the many needs that the TCP fills shows just how important the services the TCP offers are to those that it serves. Hopefully, the program will continue to grow and expand not only in Maryland but also in the other 49 states of the union until we can say that we finally have a truly perfect union.   

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[1] For a full review of the case, including facts and holdings, please see Gideon v. Wainwright, 372 U.S. 335 (1963).

[2] The trial judge explained to Gideon that the laws of Florida required representation in cases concerning capital offenses.

[3] In criminal cases, the defendant has the right to refuse to testify under the Fifth Amendment of the United States Constitution. This is quite often in the best interest of the defendant for many reasons.

[4] In forma pauperis is Latin for “in the character or in the manner of a pauper”

[5] Gideon v. Wainwright, 372 U.S. 335, 344-345 (1963).

[6] For insight into issues with transportation in Baltimore City Schools please see CFCC blog entry “The Wheels on the Bus and the Truancy Court Program” by Samantha Sammartano posted Friday, November 7, 2014 at 12:47 pm.

[7] “Civil Gideon” is the right to an attorney in civil cases. This right has yet to be established.

[8] “Pro se” is Latin meaning “for self.” It is the term used to describe litigants that are not represented by counsel.

 

They Fight For Us, Can We Show the Same Respect? A Call for Veterans Courts in Maryland

      

            In 2012, there were over 1 million American soldiers in active duty across the world.[1] Luckily this number has dramatically decreased in the recent years, but that leaves the United States with a growing number of veterans returning from war trying to readjust to civilian life. Veterans have to deal with the tragedies that they witnessed while serving their country, and most fail to seek any help to deal with what they experienced. Issues such as posttraumatic stress disorder and substance abuse are common problems faced by these returning veterans. These problems have been linked to increased criminal behavior, landing a number of our veterans in our criminal justice system. The men and women who were brave enough to fight for our country now face time in prison.

To combat this threat of prison, Judge Robert Russell developed the first Veterans Court in Buffalo, New York, in 2008.[2] Veterans Courts are problem-solving courts aimed at helping veterans deal with psychological problems resulting from war, while still holding the veteran accountable for the criminal behavior. In areas that have Veterans Courts, veterans who enter the criminal justice system have the option to accept treatment from Veterans Courts. Once accepted into the VC treatment program, the adversarial roles of the attorneys dissolve, and the parties become a team focused on helping the veteran. The team develops a plan of treatment, including mental health counseling, substance abuse counseling, and help with employment, housing, and education. The veteran is also paired with a peer mentor who can help the veteran deal with problems that are unique to serving in active combat. The judge leads the treatment team and ensures that the veteran is following the treatment. The whole process is individualized for each veteran and looks for a holistic approach incorporating a wide array of services.[3] Everyone on the team is focused on helping the veteran succeed through the program and get the necessary help he/she needs.

While the concept of Veterans Courts is still relatively new, the impact of the courts has been favorable. For example, in Pennsylvania, those participating in the Veterans Court program had a recidivism rate of one percent.[4] Similarly in New York, veterans had a recidivism rate of 40 percent when not in a veterans treatment program, and that number dropped to 6 percent for those veterans who completed the treatment program.[5]

Maryland has approximately 476,000 veterans residing in the state today.[6] In 2012, Governor Martin O’Malley approved a task force to research the effectiveness of Veterans Courts.[7] The task force strongly recommended a pilot program for Veteran Courts in Maryland, and a Veterans Court should start in 2015 in Prince George’s County.[8] Unfortunately, this is all dependent upon funding. While funding is a problem for all programs across the state, I believe that this program is so beneficial for the veterans across Maryland that this program needs to get started so veterans can get the help they deserve. These people have put their lives on the line to protect our freedoms.  We should be able to provide necessary services to help veterans return to civilian life.

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[1] https://www.vetfriends.com/us-deployments-overseas/index.cfm

[2] Hon. C. Phillip Nichols Jr., Veterans Courts: A New Concept for Maryland, 47 Md. B.J. 43, 44 (2014)

[3] See generally Nichols, supra note 2; http://justiceforvets.org/sites/default/files/files/Ten%20Key%20Components%20of%20Veterans%20Treatment%20Courts%20.pdf

[4] Nichols, supra note 2, at 49.

[5] Id.

[6] Id. at 44.

[7] Beth Totman, Seeing the Justice System Through a Soldier’s Eyes: A Call to Action for Maryland to Adopt a Veterans Treatment Court System, 16 J. Health Care L. & Pol’y 431, 434 (2013).

[8] Nichols, supra note 2, at 46.

 

The Story of George Trevino: A Lesson that the Holistic Approach Employed by Family Courts Requires a Concerted Effort by All

           

           This semester I have graciously served as a Student Fellow for the Sayra and Neil Meyerhoff Center For Children, Families, and the Courts. Throughout my involvement with this program, I have had the pleasure of interacting with enthusiastic Baltimore City students, classmates that share a similar passion for family and the law, and multiple professors and professionals that challenge each of us to think independently and reach reasonable, well-grounded solutions. Though my experiences with this program have been exceptional, I find that the common perception regarding family law, for the most part, holds true: individuals that practice this area of law must be inherently stoic, for the challenges presented are mentally taxing. Few things, if any, have moved me like the story of George Trevino.[1]

George Trevino was presumably born to a family less fortunate, living in a van with his mother and two siblings until age six. At this time, George entered the child welfare system as a neglected child, resulting in separation from each family member. Despite the fact that George bounced from home to home, enduring years of foster care drift, he eventually thrived when given the chance to remain in a placement for one full year. In what became an axiomatic failure by the welfare system, the State removed George from this stable environment and assumed that his best interests were suited elsewhere. He was subsequently placed with his uncle and aunt, one a drug dealer, the other a substance abuser. George regressed and exhibited traits he never had before. His plummeting grades and truant behavior culminated in street gang involvement and eventually criminal behavior. As a result, his welfare case was terminated, and he was moved to the delinquency court system.  

Not only does the story of George Trevino represent a failure by the welfare system, but it is also a failure by legal personnel involved in the process, as well. His Juvenile Court Judge was never apprised of the fact that he had been raised in foster care, and apparently no one, not even his lawyer, the social worker, or the case manager, acknowledged the fact that when George was provided with a positive environment, he thrived. Because his situation was handled in such a horrid manner, George Trevino was deprived the privilege of life. In fact, he expressed this helpless feeling in a poem he wrote while incarcerated, with a passage that read, “there’s no way out, my screams have no voice no matter how loud I shout.” George Trevino could have been you or I. The sad truth is that there are presumably hundreds of George Trevinos, each falling victim to challenging life circumstances. And yet, as gut wrenching as his story is, it can be used as a learning tool to foster the holistic approach to family law cases that should be employed by judges, lawyers, social workers, and other figures in the family court system.  

Throughout the course of this semester, we have explored concepts that include therapeutic jurisprudence and preventive law, among others. Both theories share a relationship essential to the holistic approach. The concept of preventive law ensures that client contact with the court system, if at all, is minimal. The concept of therapeutic jurisprudence expresses the belief that the law ought to affect individuals in a beneficial manner. Essentially, preventive law can be thought of as the task, while therapeutic jurisprudence is the guiding hand. Yet, despite the promulgation of such theories, family related matters appear before the court system at alarming rates. Data suggest that these matters comprise more than half of the complaints filed in state trial courts. And although this figure is astronomically high, indicating that these cases need proper attention, family disputes are still perceived as the “stepchildren” of the justice system. In order to ensure that the story of George Trevino becomes less common, this perception must change.

Key figures have taken important steps to minimize this perception through the establishment and implementation of the unified family court system. These courts feature several crucial qualities that include, but are not limited to, a user-friendly atmosphere, a vast array of services, and specialized case management. The mere existence of these court systems, standing alone, however, does not guarantee that they will be effective. Each participant and component within this system, ranging from judges to various medical personnel, must challenge each other and strive for great results. We live in a society premised on the concept of family, and with every positive intervention, a life could be improved. It is no stretch of the imagination to suggest that the story of George Trevino could have been different had his case been handled in a unified family court system rather than the fragmented court system he endured. Had key issues been raised to the judge or had the individuals assigned to George’s case displayed a higher degree of care, his outcome could have, and likely would have, been different. The case of George Trevino suggests that in order for the unified family court system to avoid similar outcomes and rid itself of its “stepchild” stigma, all personnel must exercise their best judgment through a thoughtful, concerted effort, leaving no detail, no matter how slim, unnoticed.    

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[1] Catherine J. Ross, The Failure of Fragmentation: The Promise of a System of Unified Family Courts, 52 Family Law Quarterly 3 (1998).

Collaborative Family Law Works

Collaborative family law is a non-traditional type of dispute resolution that focuses on the unification of the parties in an efficient and therapeutic manner.  Unlike the traditional litigation process, collaborative law negotiations occur outside the courtroom and commit to cooperation and honesty.   This commitment to transparent communication encourages parties to work together toward a mutually agreeable settlement.

The traditional collaborative law model consists of an  attorney for each client, who agree to work together with the parties toward a single goal of reaching a fair settlement.   Furthermore, each attorney can consult experts,  such as a child or financial specialist, to further advance the transparency of the negotiations.

Unlike mediation, each client’s lawyer is present during settlement and can provide legal advice during face to face negotiations.  The term “fair” is used because both parties must agree before a settlement is reached. Consequently, parties are more satisfied with their decisions because they are in control and are not solely relying on a judge’s interpretation of their family’s dispute.

Secondly, unlike most litigation, collaborative law takes into account the present and future needs of the clients.  Here, clients can schedule meetings without waiting for court dates, which often can require long waits before hearings.  This delay in litigation can create new issues for the  litigants. 

Moreover, unlike other settlements, which can occur under the threat of  litigation, collaborative law eliminates the adversarial element by requiring both attorneys to withdraw from representation if an agreement is not reached. This encourages each party to disclose privileged information, which cannot be used during  any necessary litigation, in a setting which preserves the privacy of each party. This privacy element is often key to restoring and keeping communications open in family disputes.  Many attorneys, however, believe this requirement to withdraw  is a barrier to the widespread practice of collaborative law.  Withdrawal of representation and requiring parties to hire new attorneys causes inflated legal costs and eliminates the  lawyers’ familiarity with the case. 

In summary, one must remember that collaborative law is only one method to resolve family legal disputes and may not be the correct approach for everyone. This is especially true in cases involving domestic violence, as these often  require a resolution by a judicial officer.

What is Therapeutic Jurisprudence (TJ)?

I founded the Sayra and Neil Meyerhoff Center for Families, Children and the Courts (CFCC) in August, 2000, with Therapeutic Jurisprudence (TJ) as one of its two underlying theoretical constructs. Indeed, TJ informs and frames all of CFCC’s work. Many academics have heard of TJ, and the legal and judicial communities are becoming increasingly familiar with its meaning and implications for the practice of law. Nonetheless, there are some misconceptions surrounding TJ and its application. For example, one popular misconception is that TJ calls for judges and lawyers to be experts in psychology or social work.

Professor David Wexler, one of the two co-founders of TJ, and I recently published an article in the Encyclopedia of Criminology and Criminal Justice that helps to explain the evolution of TJ, its meaning, and its impact on the law across a wide range of practice areas.

Therapeutic jurisprudence is a field of inquiry that “focuses on the law's impact on an individual's emotional and psychological well-being.” Professor Wexler and I explain:

“TJ looks at the law as a social force that can produce therapeutic (helpful) or antitherapeutic (harmful) consequences. These consequences flow from substantive law, legal rules, and legal procedures (the "legal landscape") and from the behavior (the "practices and techniques") of legal actors, including lawyers, judges, court personnel, and others working within a legal context… Therapeutic jurisprudence aims to produce tangible, positive change: to promote the well-being of all legal actors and to improve the justice system so that it is more relevant and helpful for participants and their communities.” 

As we point out, TJ is a lens or framework through which to examine the legal and judicial systems. TJ asks us to think about the law in a very different way—to view the law as a helping profession rather than as an adversarial process in which there are always winners and losers. TJ urges judges and lawyers, for example, to consider the impact of their decisions and actions on the well-being of the parties who come before them. It asks all legal actors to think beyond the immediate facts of a case and to take into account the potential consequences, both intended and unintended, of their actions and decisions.

Addressing issues of marriage, divorce, custody, child support, adoption, property, and protection, among other issues, family law has a profound impact on people’s lives and well-being. Family law and the family justice system also include the child welfare system, or child abuse and neglect cases, and the juvenile justice system, or juvenile delinquency cases, both of which regularly define and/or change the trajectory of a child’s life.

Although TJ does not demand that judges and lawyers become social workers or psychologists, it does call for an interdisciplinary approach to judicial and legal decision-making. The social sciences offer important and helpful perspectives.

I believe that lawyers and judges in the family justice system should be trained to identify and address the legal and non-legal reasons underlying a family's problems. They also should be taught to examine the connections and interactions among family members, as well as the relationship of the family to community institutions. Judges and lawyers who use a holistic approach to strengthen these connections and who can find creative solutions to a family’s legal and non-legal issues are the true problem-solvers that these families and children need and deserve.

Why the Unified Family Court System in Maryland is a Model for Success

Last Wednesday, the Student Fellows with the University of Baltimore Sayra and Neil Meyerhoff Center for Families, Children, and the Courts (“CFCC”) took a “field trip” to the Baltimore City Circuit Court Family Division.  The Division’s coordinator, T. Sue German gave the Student Fellows a tour of the center and explained the role the Division plays in Baltimore City.  

Justice reform in Maryland was formally launched in January of 1998 when the judges of the Court of Appeals of Maryland, headed by Chief Judge Robert M. Bell, signed Rule 16-204.  Babb, Barbara A., Maryland’s Family Divisions: Sensible Justice for Families and Children, 72 Md. L. Rev. 1124 (2013).  Thus far, the focus of much of our CFCC seminar has been on looking at law reform through different lenses.  For example, Therapeutic Jurisprudence and Preventive Law together work to create a justice system that focuses on preventing future conflicts and resolving disputes in a more “client-centered” way.

The tour was an opportunity for us as students to see how these theories play a role every day in Baltimore City’s Family Division.  While much was discussed during our visit, one fact that stood out was that from July 1, 2011 – June 30, 2012 (Fiscal Year 2012), in eighty-nine percent (89%) of the cases in the Division, at least one of the litigants appeared pro se.   Circuit Court for Baltimore City, Annual Report of the Family Division Fiscal Year 2012 (Oct. 15, 2012).  Although unsure, I can imagine this is the case in most courts, as clients with family law matters are not afforded the same right to counsel as those in criminal. 

The Division has established many resources for represented and unrepresented clients and has seen tremendous success from these efforts, making Baltimore City a model for an effective “Unified  Family Court” System.  However, budget cuts impair the ability of the Division to reach its full potential.  With family law disputes making up such a large percentage of the cases in the Circuit Court system, budget cuts relate to the lack of resources available these clients.  Even in Baltimore City, where the State’s highest court has endorsed and supported the Family Division, they still struggle with budget issues.  

I pose a few reflection questions for you to think about:

• If these efforts are proven to be successful, why are they then not being incorporated into more legal systems?
• If justice is the goal, then why do we as a society allow so many clients to be unrepresented in family law cases, thus hindering their ability to receive the justice they deserve?

While the simplest answer is of course budget cuts, there is a lot of support showing that these models help to decrease repetitive appearances by the same clients over and over and are both more efficient and effective.  

Investing in Children’s Mental Health As a Preventive Law Approach to Juvenile Delinquency

Courts struggle with effective ways to deal with individuals whose mental health issues lead to criminal behavior. This is especially true for courts responsible for adjudicating juvenile delinquency. Childhood exposure to violence can impact children’s social and emotional development. It has been linked to poor social functioning and mental health issues, including depression, low self-esteem, anxiety, and depression. Some children repeatedly exposed to violence, particularly violence in the home, develop PTSD with symptoms such as re-experiencing, avoidance, numbing, attachment issues, and impulsivity and inattentiveness that mimic the symptoms of AD/HD¹. Children involved in the court system, both the delinquency and abuse and neglect systems, have higher trauma exposure rates than other children. They need access to mental health services and treatment programs that can provide appropriate intervention, and they need a trauma-informed court system that can work in tandem with these providers.

Yet as a CFCC Student Fellow examining Maryland’s delinquency system, I find myself wondering how effective our system is at meeting the needs of these children. The Maryland Department of Juvenile Services is charged with providing “individualized care and treatment to youth who have violated the law or who are a danger to themselves or others².” DJS treatment programs include Functional Family Therapy and Multi-systemic Therapy that provide services in both clinical settings and in the home. These interventions have the potential to help to positively impact children and their family unit as they address some of the underlying issues, including trauma, that lead to the child’s delinquency.

The problem with this model, however, is that children have to be adjudicated as delinquent before they have access to these services. This is especially problematic for poor families who cannot afford to pay for services on their own. Where middle and upper income families can afford to pay for private therapy programs to help their children who are acting out, families without these means must wait for the behaviors to worsen and the consequences to become more severe before intervention is available. By then, the intervention may be too little too late.

Perhaps it is not DJS’s role to provide access to mental health and family therapy services before youth are adjudicated as delinquent. The agency is after all charged with the care and rehabilitation of juvenile offenders. If DJS cannot provide these services, I think the state should provide access through another agency. While it is true that in the current economic climate funding for such programs is scarce, the state ends up paying the price down the road in the form of juvenile detention. Maryland spends $22.6 million each year to detain youth.³ According to one study, 2/3 of young people in juvenile detention would meet the requirements to be diagnosed with a mental disorder.⁴ Furthermore, Maryland continues to move forward with plans to spend $70 million building a 120-bed jail to house youth who have been charged as adults. Juvenile detention is expensive and arguably ineffective. Looking at these statistics, I believe that more investment at the front end to provide children and families with better access to mental health services could lead to lower rates of offenses. Our current system is reactionary. A proactive preventive approach would likely be a better use of the state’s limited resources.

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1 Lisa Pilinik & Jessica R. Kendall, The Safe Start Center Series on Children Exposed to Violence Issue Brief #7: Victimization and Trauma Experience by Children and Youth: Implications for Advocates (2012) available at www.safestartcenter.org.
2 Maryland Department of Juvenile Services, DATA RESOURCE GUIDE FISCAL YEAR 2011 (2012)
3 STOP BALTIMORE YOUTH JAIL: OPPORTUNITY NOT DETENTION, www.stopbaltimoreyouthjail.com.
4 Just Kids Partnership, JUST KIDS: BALTIMORE’S YOUTH IN THE ADULT CRIMINAL JUSTICE SYSTEM. A REPORT OF THE JUST KIDS PARTNERSHIP TO END THE AUTOMATIC PROSECUTION OF YOUTH AS ADULTS (2010) available at www.justkidsmaryland.org.