Details, Details
Failure to follow the letter of the law in juvenile court may have a devastating impact on subsequent criminal court proceedings

A recent decision by the Supreme Court of Virginia has already had sweeping ramifications for juvenile prosecutors throughout the state. The June 1999 decision in Baker v. Commonwealth, 258 Va. 1, 516 S.E.2d 219, 1999 Va. LEXIS 83, sent shock waves through Virginia's juvenile courts and the criminal justice system as a whole. It has already caused two scheduled executions to be stayed and it threatens to cause hundreds of felony convictions to be overturned.

Numerous misdemeanor appeals may also loom ahead, threatening to flood already crowded criminal court dockets. For many juvenile prosecutors, the Baker case, which clearly defined the huge role that parental notification plays whenever criminal action is initiated against a juvenile, came as a shock. It represents a wake-up call to those involved in the juvenile justice system. It sends the loud-and-clear message that strict adherence to statutory language is essential.The sweeping ramifications of sloppy prosecutorial work or failure to strictly adhere to state laws are all too clear in Virginia today. Virginia's prosecutors are not the only ones who should pay close attention to this case. Prosecutors all over the country must be mindful of the challenge and what it could mean to them in their jurisdictions, since defense attorneys nationwide have surely heeded Baker's message about statutory compliance. Similar challenges in other states may not be far behind.

The Case: Baker v. Commonwealth

Jeramie Baker was 17 when he stabbed a convenience store clerk in March 1996. A jury convicted him of attempted robbery and unlawful wounding; he was sentenced to 40 months in prison. But a three-judge panel of the Virginia Court of Appeals threw out that conviction in September 1998, ruling that Stafford County officials violated state law by not informing Baker's father of the charges against his son. As a consequence, the court said, Baker was entitled to a new trial. The court held that it was irrelevant that Baker's father had abandoned the family when Jeramie was four years old and at the time the charges were brought against his son, his whereabouts were unknown. The court officials were nevertheless required to serve him with notice of the charges against his son, or to certify, on the record, that Mr. Baker's whereabouts were unknown.The court held that the statutory language requiring formal notification to both parents prior to a transfer hearing in juvenile court was mandatory. Without the appropriate statutory notice, the juvenile court never acquired jurisdiction and therefore lacked the authority to transfer the case to circuit court. As a consequence, the circuit court lacked jurisdiction and all subsequent proceedings and adjudications are void. The Court of Appeals noted the importance of adhering to statutorily mandated procedures in juvenile court. In particular, the court stated that the parental notification section of the Virginia Code relating to procedures for instituting proceedings against juveniles, are "mandatory and jurisdictional" and require prosecutors and court officials to "strictly follow" the notice procedures. Baker v. Commonwealth, 28 Va. App. 306, 504 S.E.2d 394,396,1998 Va. App. LEXIS 484 (1998), quoting Karim v. Commonwealth, 22 Va. App. 767, 473 S.E. 2d 103 (1996) (en banc). Failure to do so denies a defendant "a substantive right and the constitutional guarantee of due process." Id. Relying on the Virginia Supreme Court's long history of consistently insisting on strict statutory compliance with juvenile court pro- cedures, the Court of Appeals concluded that failure to notify both of Baker's parents, in accordance with Va. Code §16.263-1, necessitated reversal of Baker's conviction. Baker v. Commonwealth, supra.

In Virginia, juvenile court proceedings are jurisdictional rather than procedural. Evans v. Cox, 327 F Supp. 1057 (E.D.Va. 1971).The statutes relating to the procedure applicable to proceedings for cases tried in juvenile court are mandatory and must be strictly followed. Evans v. Cox, 327 F Supp. 1057 (E.D.Va. 1971). Failure of the juvenile court to comply with the statutory provisions of procedure will render the certification to a court of record void. Id.

Virginia courts have long held that juvenile court procedural statutes are of the utmost importance. "Notice, to comply with due process requirements, must be given sufficiently in advance of scheduled court appearances so that reasonable opportunity to prepare will be afforded... . Due process of law requires... notice, which would be deemed constitutionally adequate in a civil or criminal proceeding. It does not allow a hearing to be held in which a youth's freedom and his parents' right to his custody are at stake without giving them timely notice, in advance of the hearing, of the specific issues that they must meet." Karim, supra, citing In re Gault, 387 U.S. 1, 33-34, 18 L.Ed.2d 527,87 S.Ct. 1428 (1967).

On June II, 1999, the Virginia Supreme Court unanimously affirmed the decision by the Court of Appeals. The court agreed that the juvenile court's failure to provide service of process to Baker's biological father violated the mandatory requirements of state law. The court found that Baker's convictions for armed robbery and malicious wounding must be reversed, and his case remanded to the circuit court with instructions to remand to the juvenile and domestic relations court for any further action that the commonwealth found appropriate.TheVirginia Supreme Court concluded that "Here, even though the juvenile's mother received notice, the juvenile's biological father was not notified, there was no attempt to give him notice, and the circuit court made no certification on the record that the identity of the father was not reasonably ascertainable."

The Statute

The statute at issue required that "parents, guardian, legal custodian or other person standing in loco parentis" be sent a summons to the juvenile court proceeding.Va. Code Ann. § 16.1-263. After the Baker trial, the statute was amended in 1997 to allow a judge to forego issuance of a summons if he/she could certify on the record "that (i) the identity of a parent or guardian is not reasonably ascertainable or (ii) in cases in which it is alleged that a juvenile has committed a delinquent act .... The location... of a parent or guardian is not reasonably ascertainable."Va. Code Ann. § 16.1-263(E). Until Baker's attorney raised this issue, most officials assumed that providing notice to one of a juvenile's parents was sufficient, particularly where the juvenile lived with only one parent. But in September of 1998, the Court of Appeals ruled that the amended Code §16.1-263, implemented in 1991, mandated that formal summonses be issued to both parents of charged juveniles, not just the custodial parent. The statute said summonses must go "to the parents" of the juvenile, and that is exactly what the legislature intended, according to the court. Prosecutors should review the appropriate statutes in their jurisdictions, and the case law interpreting them, to avoid potential problems.

The Fallout

On June 16 of this year, for the first time in the 23 years since the death penalty was reinstated, the Virginia Supreme Court stepped in to stay an execution. Just five hours before 26-year-old Douglas Christopher Thomas was scheduled to die for murdering his girlfriend's parents in November of 1990, when he was 17, the court stopped the execution based on Baker, issued just five days earlier on June 11.

Thomas's case had been transferred from juvenile court to criminal court. At his trial in 1991, the jury found him guilty of all charges, and he was sentenced to death. However, there was a problem; he claims that his natural father was never notified of the charges his son faced. Nor was his father notified of the hearing held in juvenile court to decide whether Thomas's case should be transferred to adult criminal court. Thomas argued that since his father was never notified of the charges pending against him, the court that sentenced him to death never had jurisdiction over him in the first place. Thomas's attorneys claim that his case is an even more egregious violation of the statute, since Thomas's father would have been easy to locate: he was a postal employee in Charlottesville,Virginia, where he has lived for the past 18 years; he had a social security number; he filed tax returns; and he was listed in the telephone book.

Steven Roach, also sentenced to death for a murder he committed when he was l7, has been granted a reprieve because of the same decision. He was scheduled to die August 25, 1999. Both Roach's case and Thomas's were argued before the Virginia Supreme Court on September 15, to determine whether either man should be granted a new trial. A decision is expected November 6 (after this issue of In Re has gone to press). They could either be granted new trials or sent back to death row, where their executions would be rescheduled.

The Baker decision has been alternatively lauded by defense attorneys and some judges and criticized by prosecutors, law enforcement and other court personnel. Supporters of the decision argue that this decision simply reinforces the notion that juveniles involved with the legal system need the assistance and support of both of their parents. As the Court of Appeals wrote, citing Kent v. United States, 383 US. 541, 16 L.Ed. 2d 84, 86 S.Ct. 1045 (1966), the statute "reflects society's special concern for children."

"At a transfer hearing, the juvenile judge answers the 'critically important' question whether a child will be deprived of the special protections and provisions" of the juvenile court system and determines "vitally important statutory rights of the juvenile." Baker v. Commonwealth, supra at 310, quoting Kent, 383 U.S. at 553, 556. Fredericksburg attorney Clifford Y. Rose, who represented Jeramie Baker in this appeal, stated that "We're at a time when people are suggesting we hold parents more accountable for their children's behavior. If you're going to do that, you've got to let them know what's going on." (Larry O'Dell, "Court Upholds Ruling That Could Invalidate Convictions," THE ASSOCIATED PRESS STATE AND LOCAL WIRE, June 11, 1999, LEXIS). Supporters praise the decision as a warning to prosecutors that they must follow the letter of the law, even in juvenile cases. Kent Willis, executive director of the American Civil Liberties Union in Virginia, said "There's always the tendency among prosecutors to take shortcuts. This is an important due process decision." Id.

Critics counter that expending precious time, energy and funding tracking down a parent who has been nonexistent for virtually all of a child's life does nothing to help the child or the juvenile justice system. Even before the Supreme Court affirmed the Baker decision, its fallout was being felt throughout the state. Cases were delayed, and some even sent back and re-started, in order to ensure that both parents had been properly notified of the pending charges against their child. Assistant Attorney General Michael T. Judge wrote in his brief to the Supreme Court that upholding the Court of Appeal's reversal of Baker's conviction "could invalidate thousands of felony convictions, adjudications of delinquency and commitments to the Department of Juvenile Justice." (Maria Gold, "VA Ruling Jeopardizes Juvenile Convictions,"WASHINGTON POST,June 12,1999, at A01).

In addition, there is the fear that the case will cause a flood of appeals to clog court dockets all over the state as lawyers appeal old cases. In Virginia, according to state statistics, 46% of the 1,680 juveniles sentenced in Virginia last year came from single-parent homes. (Maria Gold, "VA Juvenile Justice Faces a Two-Parent Problem," WASHINGTON POST, March 7, 1999, at C01). More than half came from single-parent homes or homes where neither biological parent lived (Mathew Dolan, "Parental Requirement Could Shake the State's Juvenilej Justice System," THE VIRGINIAN PILOT, April 7,1999, at Al).

Prosecutors fear they will be crippled by loss of evidence and witnesses if they have to retry old cases. Retrying cases means victims and their families must not only relive the crime again but also the trial experience. However, officials note that every claim taking advantage of the Supreme Court ruling and alleging improper parental notification must be raised individually. Convicted individuals who seek to overturn their convictions based on Baker will not be immediately released; rather, they face another trial and possibly stiffer penalties.

Note: Gov. James S. Gilmore III (R) proposed, and the Virginia General Assembly approved, a change to the state law. The measure, which was approved April 7, 1999 and took effect July 1, 1999, now requires notification of "at least one parent" rather than both parents. However, the new law does not apply to already adjudicated cases.

Tell us what you think about Baker v. Commonwealth or any issues discussed in this article:

• Is parental notification mandated by statute in your jurisdictions?
• Has your jurisdiction faced this issue?
• How was it resolved?
• Does your jurisdiction routinely notify both biological parents of charges pending against their children?
• Has your jurisdiction encountered other questions of statutory compliance or interpretation similar to those raised in the Baker case? What was the result? How did it effect the juvenile court system as a whole in your jurisdiction?
• Does your jurisdiction only require that the child's guardian be notified (whether biological or non-biological), or does it require that the biological parent(s) be notified as well?

We are interested in your reactions and comments. Please write your answers in the space provided below and fax (or email if you prefer) to APRI's Juvenile Justice Prosecution Program at (703) 836-3195 (FAX) or e-mail Staff Attorney Jeanne Klapps at jeanne.kiapps@ndaa-apri.org.