Wary state justices: Minors can waive their rights

Published: Friday, January 28, 2005 at 6:01 a.m.
Last Modified: Thursday, January 27, 2005 at 10:05 p.m.
TALLAHASSEE - Children and teenagers who get in trouble with the law can waive their constitutional right to an attorney without first talking that decision over with a lawyer, the state Supreme Court ruled Thursday.
But the court took heed of a finding of the Florida Bar Commission on the Legal Needs of Children that a "disturbing" number of minors who land before a judge are waiving their right to counsel.
The Bar recommended that the high court approve changes to court rules in an effort to make sure minors know the possible consequences of waiving their right to an attorney.
One of the proposals was a requirement that a juvenile facing delinquency charges, which are the equivalent of criminal charges in the adult system, talk to an attorney before waiving the right to a lawyer.
In Thursday's 5-2 decision, the court said it would wait before taking that step. Instead, it urged the Legislature to pass a law giving juveniles that right and for trial judges around the state to take steps to make sure that juveniles don't give up their right to an attorney without understanding the ramifications.
Some judges already may be taking that step, although in other parts of the state the percentage of kids without lawyers is as high as 75 percent, according to the high court.
The problem with approving a rule, Chief Justice Barbara Pariente wrote for the court, is one of money.
"Although we believe that consultation with an attorney prior to waiving counsel is an important additional safeguard designed to protect a juvenile's constitutional right to counsel, we are also mindful of the potential financial impact of this requirement," Pariente wrote.
Justices Charles Wells, Peggy Quince, Raoul Cantero and Kenneth Bell concurred. Justices Harry Lee Anstead and R. Fred Lewis partially concurred and partially dissented.
Lewis strongly criticized the majority decision.
"The majority now pays only 'lip-service' to protecting children and the exclamations of concern ring hollow when actions are analyzed," he said in a separate opinion joined by Anstead.
But Anstead also wrote a separate opinion saying he understood why the justices in the majority wanted to work with state lawmakers and calling such a delay both wise and constructive.
Orlando attorney Gerard Glynn made the argument for the requirement on behalf of the Florida Bar Rules Committee.
Glynn said Thursday the only way to provide meaningful protections to children in court was to require that they talk with an attorney before they waive their right to representation.
Far too many children waive their right to an attorney because their parents or guardians fear the expense, Glynn said.
"Even middle class folks are afraid of attorney fees," he said.
Glynn said he thought the Supreme Court was trying to appease state lawmakers, who are often critical of rulings and carefully guard their power to decide how money gets spent.
"The children are being caught in a battle between the court and the Legislature," he said.
State Sen. Victor Crist, a Tampa Republican who will oversee the criminal justice budget in the state Senate, said he thought the idea sounded like a good one but added he didn't know if the Legislature would be able to respond in the 60-day session that begins in March.
"At this point, it's late in the game," Crist said, adding that lawmakers might want to study the issue and come back next year.
The Florida Supreme Court did approve two changes to the juvenile rules proposed by the Bar. One requires waivers of counsel to be written and requires that a parent, guardian, adult relative or attorney verify that the child understood the consequences of the waiver.
Ward Metzger, an assistant public defender in Jacksonville who represented the Florida Public Defenders Association before the court, said those two changes would make a difference.
So did Deborah A. Schroth, a Jacksonville attorney with Florida Legal Services who chairs the Bar's committee on juvenile procedures.
Schroth also praised the tone of the opinion.
"The court has made a very strong statement to all of the trial courts," she said.

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