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Questioning of foster child in Athens County rape investigation raises issue of juveniles’ legal rights
By: David Forster
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ATHENS, Ohio (WOUB) — When Athens County investigators were looking to question a boy in the foster system who was a suspect in a rape investigation, they ran into some resistance.
Several employees at Athens County Children Services, which runs the county’s foster care program, raised objections. They wanted the boy to have an attorney present during questioning.
One employee allegedly lied about the boy’s whereabouts and was charged with obstructing justice. She has resigned and the criminal case against her remains under investigation.
The boy, who is 12, was questioned alone.
Athens County Prosecutor Keller Blackburn said the law is clear that children in Ohio have no automatic right to have an attorney present when being interrogated in a criminal investigation.
Children are entitled to the same Miranda rights as adults, including the right to an attorney. But if a child wants an attorney, they have to request one. No one — not their parents, foster parents, caseworkers or anyone else — can do it on their behalf.
This is the law in Ohio and most other states.
Advocates for children’s legal rights are trying to change this. Several states have passed or are considering laws requiring that a child be able to consult with an attorney before an interrogation.
The boy in this case will likely soon be charged with rape and gross sexual imposition involving multiple children in the foster system, Blackburn said.
Agency presses for adult presence
Otis Crockron, executive director of Athens County Children Services, said he is not allowed to discuss details of specific cases given confidentiality rules involving children in foster care.
He did say that in this case, his employees did not try to prevent the boy from being questioned. They were trying to make arrangements to have an attorney, or at least a foster parent or caseworker, present during the questioning.
“It is our custom and our desire to make sure all children are safe,” Crockron said, “and in those situations where a child is going to be interviewed … we want to make sure we’re doing it with the best process to minimize trauma with the child.”
Once it became clear their efforts were not going to be successful, his employees did not try to interfere, Crockron said. “The goal was never to have it where he would not be interviewed,” he said.
Crockron also said that if officers are trying to find a foster child as part of an investigation, his agency would cooperate. “We view the prosecutor’s office and the sheriff’s office as our partners,” he said.
Cases of suspected sexual abuse involving a foster child are handled by a task force that includes representatives from several agencies, including Children Services and the sheriff’s and prosecutor’s offices.
It was during a meeting of this task force that law enforcement officers were trying to find out where the boy was. A Children Services employee, Jamie Mays, said she did not want them interviewing the boy, Blackburn said.
Mays then allegedly told officers the boy was outside the county in a residential treatment facility. Officers later discovered the boy was in fact attending school in Athens County.
When officers arrived looking for the boy, school officials contacted the boy’s foster parents, which is the protocol. The foster parents objected to an interview, as they had been encouraged to do by a Children Services employee, Blackburn said.
The boy was taken to the sheriff’s office for questioning. A Children Services employee called the sheriff’s office asking that the child not be questioned without an attorney present, Blackburn said. Another employee came down to the office and asked to be in the interview room during the questioning, he said.
A decision was made that this would interfere with the process, Blackburn said, and the boy was questioned alone.
No automatic right to an attorney
In 1966, the U.S. Supreme Court issued its Miranda decision, requiring that criminal suspects in custody be advised of their rights to remain silent and to have an attorney present during questioning.
Miranda rights apply to minors as well. The Supreme Court has said whether a child actually understands their rights and what they’re giving up by waiving them should be determined based on an analysis that includes age, education, experience, background and intelligence.
If a child is deemed capable of understanding their rights, the child must invoke their right to an attorney. No one else can do it for them.
The Miranda decision established a constitutional baseline, meaning states can offer more protections if they wish. Some states have done so when it comes to minors, but not Ohio.
In a 2011 decision, the Ohio Supreme Court said children have no automatic right to have an attorney present while being questioned in a criminal investigation.
But like Miranda, this decision establishes a baseline, said Amanda Powell, a former state public defender who represented the child in the Ohio case. Powell is now a consultant to attorneys on juvenile defense.
A court in a particular case may find a child’s decision to waive their Miranda rights was not one they should have made on their own, Powell said.
“For children you have to take extra care to make sure their admissions are voluntary, that it’s not a product of ignorance of rights,” she said.
In evaluating whether a child knowingly and voluntarily waived their Miranda rights, Ohio courts have said one consideration is whether the child was able to consult with a parent or other concerned adult before being questioned.
Whether a child is capable of understanding their Miranda rights without talking to an adult first is a decision made by the law enforcement officers who want to question the child.
Advocates for children’s rights say this puts the decision in the hands of those who have the most to gain by getting the child to waive their rights.
Blackburn argues this is not a problem because there is a fix available if the wrong decision is made. If in a particular case a court finds a child should have been able to consult with someone before waiving their rights, it can suppress any statements the child made during the interrogation.
Children’s rights advocates argue this approach does not undo all the damage done. A child may have been charged with a crime, held in a detention center and brought to court based on statements they made during an interrogation.
Studies have shown this can have long-term consequences for the child. This is particularly the case with their emotional development, said Amy Borror, justice systems manager for The Gault Center, which promotes children’s legal rights.
“Even a single night in detention has long-term effects,” she said.
New laws offer more protection
Some states have passed laws requiring children be allowed to consult with a parent or legal guardian before being interrogated or waiving their Miranda rights.
Children’s advocates say this is a step in the right direction, but argue parents may not have the legal understanding to fully appreciate what is at stake for the child. Also, the parents’ actions may not always align with what is in the child’s best interest from a legal perspective.
“As parents we encourage our children to take responsibility for things,” said Jessica Feierman, senior managing director of the Juvenile Law Center, a national youth advocacy organization. “Sometimes parents encourage children to confess without understanding the implications.”
Two states, California and Washington, now require children consult with an attorney before an interrogation. This right cannot be waived by the child, meaning no one can try to talk them out of it.
Maryland may soon have the same requirement if the governor signs a bill the legislature sent to his desk last week. Similar legislation pending in New York and the District of Columbia appears to have some traction.
Child advocates argue children need more protection than adults when it comes to police interrogations.
Children lack the emotional maturity and life experience to fully comprehend what their rights mean and the potential consequences of waiving them, Feierman said. They are raised to be deferential to authority figures, are susceptible to pressure and tend to be focused on short-term rewards over long-term consequences, she said.
The result is a high level of false confessions by children compared with adults.
“If you really take into account what a teenager in a stressful situation is able to understand and appreciate,” she said, “having an attorney present is much more protective.”