Legal Aid Victorious In Juvenile Rights Case In Which Judge Suppresses Boy's Statements And Faults Police Script
WEDNESDAY, DECEMBER 18, 2013

Queens Family Court Judge Stephen Bogacz suppressed a 13-year-old boy's statements after faulting a police script that he described as "inaccurate at best, and misleading at worst." Tami Steckler, the Attorney-in-Charge of the Juvenile Rights Practice at The Legal Aid Society, said the decision demonstrated that "we have to look very carefully at separating parents from kids" during police questioning. "I think that should be done as little as possible," she said. Moreover, Steckler said the script could be further simplified and rewritten.

Steckler told the Law Journal that the script has been in use "for a long time" and Legal Aid attorneys had previously challenged the script in hearings and trials for other juveniles. "We obviously agree with the judge's decision [that] our client didn't understand when he could access an attorney. We agree with the judge's determination that Miranda warnings for children need to be closely considered and always supportive of looking really closely at statements given by children to make sure they are voluntary."




New York Law Journal
Judge Faults Simplifed Cautions, Suppresses Teen's Statements
By Andrew Keshner
Decembr 5, 2013

A Queens Family Court judge suppressed a boy's inculpatory statements after faulting a police script that attempted to explain Miranda rights to juveniles with wording the judge said was "inaccurate at best, and misleading at worst."

Before questioning Edwin S., a detective informed the 13-year-old boy that if he could not afford an attorney, he would be given one without cost, continuing, "That means if you want a lawyer but do not have the money to pay for one, the court will give you a lawyer for free. Do you understand?"

But Judge Stephen Bogacz (See Profile) said the wording ran afoul of a Miranda warning's intent to tell detainees of their right to counsel during interrogation.

"For a 'reasonable thirteen year old,' being advised that assigned counsel would be provided by the court is tantamount to telling that youth that a free attorney would not be available during the police questioning," Bogacz wrote in Matter of Edwin S., E17794/12, saying the flawed script, combined with other circumstances surrounding the questioning proved "fatal to [the] voluntariness" of Edwin's statements.

In November 2012, a police detective met Edwin, his mother and stepfather at the offices of the Queens Child Abuse Squad.

Days before the meeting, the detective spoke on the phone with Edwin's mother, telling her that Edwin's cousin had made certain allegations.

The detective told the mother over the phone that Edwin would be arrested if brought to the station, but if she did not bring him to the station, he would be arrested at home.

The detective did not "affirmatively advise the mother she could have an attorney present when she brought in her son," Bogacz noted.

When the trio arrived at the station, the detective first spoke separately with the mother and stepfather.

The detective said the cousin made allegations of a "sexual nature," and she believed her.

The mother "made some indication that she knew her son had done wrong," saying she had walked into a bedroom during a party and found Edwin and the girl adjusting their clothing. The mother told the detective she was "in the process of getting help" for Edwin.

The detective told the mother she was going to read the "juvenile Miranda warnings" to Edwin and arrest him. The detective told the mother it was her choice to let the detective first speak to Edwin. The mother, crying, gave her permission.

Edwin entered the room where his mother and the detective were. The detective read the "simplified" Miranda warnings.

Bogacz said when the detective testified at the suppression hearing, she read two of the warnings contained in the script verbatim but merely said she had given the other cautions in "the same fashion" without reading them.

Bogacz complained "This conclusory testimony deprived the Court of the opportunity to view the manner in which the remaining warnings were given, even in simulation."

At any rate, when the detective finished reading the script at the police station, she asked Edwin if he would answer questions.

He and his mother agreed, but the detective did not offer the pair an opportunity to discuss the matter with each other beforehand.

The detective then asked Edwin if it was "OK" for his mother to be there. Edwin said he preferred speaking to the detective alone. The mother agreed and left the room.

When the detective asked Edwin if he knew why he was there, the boy acknowledged it had to do with his cousin. He offered a "lengthy and inculpatory" rendition of what happened at the party and gave a written statement.

Bogacz observed that case law required a standard of "greater care" to protect the rights of youths who are questioned by the police.

He credited the police for trying to explain a juvenile's rights in language he or she could understand.

"This Court questions neither the good intentions nor the effort of the NYPD. The Court does, however, have a problem with the efficacy of that effort," he said.

He observed that the Miranda court put "great and repeated emphasis on the right to counsel at a police interrogation."

But the judge said the simplified warning was "likely to confuse a thirteen year-old being confronted with an interrogation that is clearly immediate, and a right to assigned counsel that he could reasonably interpret as being sometime in the future, when before 'the court,' and certainly beyond the immediate questioning session."

Viewing the case as a whole, the facts favored suppression, said Bogacz.

"Taken alone," suppression was not warranted because the detective did not simulate at the hearing how she delivered the warning. Moreover, the judge said neither the questioning of Edwin by himself nor the detective's failure to "facilitate consultation" before the mother left merited suppression.

"However, when these factors are coupled with and considered together with the clearly defective nature of simplified Miranda warning number four in the instant matter, the analysis becomes particularly problematic," Bogacz wrote.

In an interview, Tamara Steckler, attorney-in-charge of the Legal Aid Society's Juvenile Rights Practice, said the script has been in use "for a long time" and Legal Aid attorneys had previously challenged the script in hearings and trials for other juveniles.

Steckler said the decision demonstrated that "we have to look very carefully at separating parents from kids" during police questioning. "I think that should be done as little as possible," she said. Moreover, Steckler said the script could be further simplified and rewritten.

Steckler said "we obviously agree with the judge's decision our client didn't understand when he could access an attorney. We agree with the judge's determination that Miranda warnings for children need to be closely considered and always supportive of looking really closely at statements given by children to make sure they are voluntary."

"We are disappointed with the Court's decision. The simplified Miranda warnings are designed to ensure that juveniles understand their rights, and we believe that the warnings are effective," Angela Albertus, Chief of the Family Court Division for the city's Law Department, said in a statement.

Assistant Corporation Counsel Tracie Reilly appeared for the city. Lisa Tuntigian of the Legal Aid Society's Juvenile Rights Practice represented Edwin S.