Over the past several months, attorneys at the Office of the Juvenile Defender, the Wake County Public Defender’s Office, and my office (the Office of the Appellate Defender) have been strategizing on how to challenge automatic transfer from juvenile court to superior court. One other attorney – Katie Kerr – served as both scribe and generator-of-ideas. Katie helped move this process along and deserves a great deal of credit for pulling us over the finish line. The finish line, of course, are new packets for juvenile defenders to challenge automatic transfer from district court to superior court.
The new packets come in two varieties. One for 13-, 14-, and 15-year-olds and one for 16- and 17-year-olds. Each packet contains instructions, a motion and a supporting memorandum for district court, and a separation motion and memorandum for superior court.
Why all the fuss? There two primary concerns: completeness and waiver.
Regarding completeness: Those of us who worked on these packets tried to come up with any and all arguments that might convince a court to strike down automatic transfer. The kitchen sink, you might say. We might have missed a few arguments, but we included several, including procedural and substantive due process, cruel and unusual punishment, and even the deprivation of the right to counsel. We don’t know which – if any – of these ideas might work, but we hope that at least one will.
Regarding waiver: Appeals are byzantine. There are many traps for the unwary, including waiver. In order to blunt inevitable waiver arguments on appeal, we strongly recommend that you challenge automatic transfer in both juvenile court and adult court. File the motions and memoranda. Then, raise all of the arguments orally and get rulings on them all. As I mentioned above, we might not win on the merits, but we at least want to be able to argue the merits on appeal.
If you have questions about challenging automatic transfer, I encourage you to post them to the juvenile listserv. I guarantee others will have the same concerns. And good luck litigating this important issue!
The motions and instructions can be located on the Office of the Juvenile Defender website in the Defender’s Only Section. If you need to obtain access, please contact LaTobia Avent at Latobia.s.avent@nccourts.org
Written by, David Andrews. David W. Andrews is an Assistant Appellate Defender in the North Carolina Office of the Appellate Defender (OAD), a division of the Office of Indigent Defense Services. OAD staff attorneys represent indigent clients in criminal, juvenile delinquency, and involuntary commitment appeals to the Court of Appeals of North Carolina and the Supreme Court of North Carolina.