Shifting standards

May 1, 2012


But the media’s and public’s ability to gain access to juvenile delinquency proceedings has improved since the late 1980s and early 1990s, when a teenage crime wave produced a significant increase in the number of older juveniles charged with serious offenses, Berlin said.

The public access right “also has to do with the severity of the crime. When you have barely juveniles charged with murder, many of those cases start to look more like an adult proceeding,” he said.

Ohio media lawyer David Marburger agreed. Marburger represented The Columbus Dispatch in its 1990 appeal to the Ohio Supreme Court challenging a trial court order closing all juvenile court proceedings to determine whether a child was abused, neglected or dependent. The state Supreme Court found that juvenile court proceedings are neither presumptively open nor presumptively closed in Ohio. And a juvenile court can restrict public access to the proceedings only if, after a hearing, it finds there is a reasonable and substantial basis for believing that public access could harm the child or endanger the fairness of the adjudication, the potential harm to the child outweighs the benefits of public access and there are no reasonable alternatives to closure.

Since then, there has been increased openness in juvenile court proceedings in Ohio and more judicial skepticism of attempts to close proceedings, Marburger said.

Although the 1990 Dispatch case involved access to juvenile dependency proceedings, Marburger, like Berlin, attributes much of the increased access to the spike in serious juvenile delinquent acts.

“What we were mostly accustomed to was confidentiality to protect juveniles from their immature acts creating bad consequences for them when they achieved a more mature adulthood,” he said. “The issue now is that these 17-year-olds who would be charged with violent crimes if committed by an adult don’t need as much protection as the juvenile court system would give them. The public has a big interest in seeing how those matters are resolved.”

Despite this trend toward openness, Marburger observed earlier this year that the juvenile court’s longstanding stigma of secrecy may not be so easily discarded. In February, a juvenile court judge, before any hearing in the matter and on his own, issued an order prohibiting members of the news media from photographing the face of 17-year-old T.J. Lane, the high school sophomore charged with gunning down three fellow students and wounding two others on campus, or any member of his family not only in the courtroom but presumably on court premises and perhaps at all, Marburger said.

Before he challenged the order on behalf of the Associated Press, Marburger and Lane’s attorney reached an agreement, and the court vacated its order.

“One of the things that is strange about juvenile courts is that they have always had an aura of confidentiality created by statute and rules that make them almost a secret court,” he said. “But judges [who are not accustomed to presiding over high-profile juvenile delinquency proceedings] have a very limited understanding or realization that these secret courts are not as secret as they used to be.”

But even the Ohio Supreme Court in the 1990 Dispatch case recognized that the need for confidentiality is even more compelling in the case of a child who is abused, neglected or dependent.

“The delinquent child is at least partially responsible for the case being in court; an abused, neglected, or dependent child is wholly innocent of wrongdoing,” the court said in In re T.R., which involved a consolidated custody and dependency proceeding related to a child born to a surrogate mother. “While the public arguably has an interest in delinquency proceedings which is analogous to its interest in criminal proceedings … this interest is not present in abuse, neglect, and dependency proceedings.”

Because of this lack of similarity to criminal proceedings, access to which is governed by constitutional standards, access issues in the dependency side of juvenile courts — where abuse, neglect and abandonment issues are handled — largely involve the interpretation of statutes, which vary greatly among the states in terms of transparency.

But dependency proceedings generally remain even more impervious to public insight than delinquency cases. But perhaps taking a cue from the delinquency side, some juvenile courts have concluded that public access to dependency proceedings may improve juvenile court practice and serve many, if not all, of the societal values first recognized in the context of a criminal trial.

Perhaps most recent among them is the Los Angeles County Juvenile Court. Pursuant to a Jan. 31, 2012, order by the court’s presiding judge, members of the media are deemed to have a legitimate interest in the work of the court, and juvenile dependency proceedings in Los Angeles County are open to the media unless the parties involved can show that harm or detriment to the minor involved is reasonably likely to occur because of media access to the proceeding.

“There has been a recent recognition that the juvenile court system does not work as well as it always should,” Berlin said. “Even in dependency cases, there are some courts that have said that having a little bit more openness serves a good public benefit.”