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Thursday, December 29, 2005

Protecting Juveniles v. Protecting Public: The unseen price of sealing records

Sunday, December 18, 2005

Closed courts hide crimes from public
Calls grow louder for lifting the curtain on proceedings; advocates for young offenders are urging caution

By Andrew Wolfson
The Courier-Journal

When Diana Thornsberry sent her 12-year-old daughter for a sleepover next door March 29, 1995, she had no idea that her neighbor's 17-year-old son had been convicted two years earlier of raping a 7-year-old girl.

Because Kentucky law protects juvenile offenders, she found out about Jeremy Gipson's record only after he raped, sodomized and murdered her daughter Jessica, then dumped her body in Louisville's Iroquois Park.

The attorney general at the time promised Thornsberry that her daughter's death would not be in vain.

But 10 years later Kentucky still prosecutes juveniles behind closed doors, then locks away their records.

The result: Nobody knows whether a dangerous juvenile is in their midst, or whether Kentucky is getting its money's worth for the tens of millions of dollars it spends on prosecution, treatment and rehabilitation of young offenders.

Kentucky shrouds its juvenile courts behind some of the strictest secrecy laws in the nation, requiring the public to accept on faith that it is being protected from dangerous children -- and that innocent children are being protected from dangerous adults.

It is one of only 15 states that bar the public and press from all delinquency proceedings.

The cloak of confidentiality is designed to protect juvenile offenders from being stigmatized, and to ease their transition into the community. But as a result of closed proceedings, The Courier-Journal found that:

After an 18-year-old was released in June from a state sex-offender program, he immediately found a job at a day-care center in Western Kentucky — a fact discovered only because he asked the Department of Juvenile Justice to send his vaccination records to his new employer.

After a juvenile allegedly beat 83-year-old June Bissmeyer nearly to death Oct. 15, 2004, during a robbery of her home, neighbors on Six Mile Lane said they were at a loss to protect themselves because they couldn't find out who did it or what had become of him.

"I didn't know who to look out for. It was very disturbing," said Rebecca Brewer, who owns an apartment building on the block occupied by several elderly residents.

For seven years , Dorothy Shelton lived next door to a sex offender in Madisonville , Ky., before she found recently that Timothy Wayne Brackett had been convicted of sodomizing a 9-year-old boy in 1998 when Brackett was 16. His conviction became public only when he was indicted recently in federal court on 19 counts of distributing child pornography over the Internet.

"I don't care how old someone is," Shelton said. "If they are doing something like that, it needs to be public record."

In October 2004, five Southern High School students were arrested on charges of felony terroristic threatening based on maps and notes that appeared to be part of a planned attack at the school. Parents were never told the identities of the alleged offenders and what happened to them in court.


It's `public blind spot' versus `scarlet letter'

Now Kentuckians may get to find out.

Lt. Gov. Steve Pence has announced that the administration will support legislation in the 2006 General Assembly that would open the prosecution of juveniles for felony crimes to the public and press.

Also, juveniles 14 and older accused of felony sex offenses automatically would be tried as adults and, if convicted, would have to register like adult sex offenders.

"These are serious offenses that the public has a right to know have been committed," Pence said.

At the same time, the Kentucky Press Association, which represents all 145 of the state's newspapers, including The Courier-Journal, is fighting in the federal courts to win access to state juvenile proceedings, citing the First Amendment's guarantees of freedom of the press.

The KPA lost the first round in U.S. District Court in Frankfort and is appealing.

"Juvenile courts have been allowed to conduct business in the public's blind spot," said John Nelson, managing editor of the Advocate-Messenger in Danville, who was president of the KPA when it filed the suit last year. "They are there, but we can't see them,"

A survey conducted this summer by the Kentucky County Attorneys Association found that prosecutors generally support opening juvenile hearings if the charge is a felony and the defendant is over 15, said Hopkins County Attorney Michael Foster, chairman of the group's legislative committee.

But advocates of confidentiality contend that it is essential to keep juveniles from being branded as criminals for life and that opening juvenile court would defeat its very purpose — to treat and successfully return them to the community.

"What are we going to do — put a scarlet letter on kids?" asked Rebecca DiLoreto, a juvenile specialist and post-trial division director in the state Department of Public Advocacy, which last year defended 18,420 juvenile cases. Juveniles "are still teachable and not yet hardened criminals," the attorney general's office has argued in opposing the press association's lawsuit.

Terry Brooks, director of Kentucky Youth Advocates, said, "Our concern is that a bad decision you make when you are 14 could loom to haunt you into adulthood."

Advocates for juveniles say most of them get in trouble because of intensely personal problems in their lives — they are being abused or their parents are going through a divorce, for example, or they are addicted to alcohol or drugs. If the doors of juvenile court are opened, advocates say, that kind of sensitive information won't be shared with the judge for fear of others finding out.


States that changed have reported few problems

Juvenile court proceedings fall into two broad categories.

In delinquency cases, juveniles are charged with crimes. In dependency cases, judges decide whether to remove children from their families because they are being abused or neglected.

The legislation Pence supports would open only delinquency court. The press association's suit seeks to open proceedings in both types of cases. Eighteen states open at least some portions of dependency cases.

Juvenile courts have been closed to the public since the early 20th century, when reformers designed them as informal proceedings in which, as the U.S. Supreme Court once said, "a fatherly judge and a wayward boy would sit side by side so the judge could put his arm around the bad boy and gently lead him back onto the righteous path."

But responding to public outrage over juvenile crime, legislatures in many states began in the 1980s to pull back the cloak of confidentiality.

Fourteen states either permit or require that juvenile delinquency hearings be open to the public and 21 others, including Indiana, open delinquency hearings to the public for certain offenses or for defendants of certain ages.

Kentucky allows the public and press into juvenile hearings only at the invitation of the defendant. While juveniles charged with the most serious offenses may be tried as adults (and those who use firearms in crimes are automatically transferred) only 524 of 19,900 juvenile cases statewide, or 2.6 percent, were removed from juvenile court last year.

There is little research on the impact of opening juvenile courts.

After Minnesota's chief justice opened dependency hearings in three counties in 1998 in a pilot project, the National Center for State Courts found it led to a slight increase in attendance at hearings; caused no harm to children; enhanced professional accountability; and showed that media were responsible in their coverage of the cases. As a result, the state opened such hearings statewide in 2001.

In states that have opened delinquency proceedings, judges and even defense attorneys say fears that it would stigmatize children and other concerns have not materialized.

In Oregon, where juvenile court hearings have been public since 1980, the head of the state's largest public defender office said openness hasn't hurt anyone.

"Everyone was sure it would ruin people forever — that never occurred," said James Hennings, executive director of the Metropolitan Public Defender agency in Portland. "We don't need to hide behind the curtain."

Judge Deanne Darling of Clackamas County, Ore., said the threat of public exposure has encouraged parents to keep a tighter rein on their children.

In Indiana, where felony cases have been opened for more than a decade, Clark Superior Court Judge Jerry Jacobi said it has been "the greatest non-event in the past 10 years." Although defendants can move to close hearings, Jacobi said not a single one has done so in his courtroom.

In Colorado, where criminal proceedings are open, Denver Presiding Juvenile Court Judge Karen Ashby said news organizations usually don't identify juveniles by name, even though they are allowed to do so.

Several national organizations have supported opening juvenile court, including the National Association of Juvenile and Family Court Judges, which says when a child is involved "in a serious crime, the public, the victims and the police have a right to know" except in the rare case in which "publicity will demonstrably cause more harm than good. Public safety overrides the reasons for confidentiality."


Court officials divided on which method works

But public defenders in Kentucky, as well as some judges and prosecutors, say that airing charges in public inevitably will harm the child.

Naming a juvenile charged with a crime might keep him from being hired later, especially in small towns and rural areas, they say.

Advocates also say that juveniles labeled as criminals will decide they might as well act like one, adding that some juveniles might even commit crimes for the attention and publicity.

Measuring the impact of identifying juvenile offenders is difficult, however, and even advocates for closed courtrooms acknowledged there is no direct, empirical proof that labeling juveniles as delinquents makes them more likely to commit additional offenses.

Still, Todd County Attorney Harold "Mac" Johns says, opening juvenile court would destroy the informality that allows judges to find out what is really going on in a juvenile's life.

Fayette juvenile prosecutor Diane Minniefield noted that victims already are allowed inside juvenile court, and she said the public is protected because the court must report violent offenders to their schools.

If juvenile court is opened, DiLoreto said, it would put extraordinary pressures on elected judges, who decide the fate of the young defendants without juries, to impose harsh sentences.

"If every decision is available for the public to look at, the child will have no chance to prevail," she said.

The Courier-Journal asked Kentucky's 152 family and district court judges if they favor or oppose opening the door to juvenile court. Most declined to respond after the Administrative Office of the Courts advised them not to comment because of the pending Kentucky Press Association lawsuit.

But of the 30 who answered, 23, or 77 percent, said they favored making juvenile delinquency cases open unless a good reason was presented to close them.

"We are public servants, and we should be held accountable for our actions," Jefferson Family Court Judge Hugh Smith Haynie said. "Secret proceedings are anathema to justice."

Joan Byer, another Jefferson Family Court judge, said opening the courts would improve the system. "It's going to make people do what they do better.''

Jefferson County Attorney Irv Maze, who has championed opening juvenile court, said that some juveniles are coddled there while others are treated too harshly. The problem, he said, "is how would you know?"

Even David Richart — the former director of Kentucky Youth Advocates who heads the Louisville-based National Institute on Children and describes himself as a former "hardliner" on confidentiality in juvenile court — now says: "I think privacy and confidentiality more often protects the agency rather than the child and his family."

Franklin District Court Judge Jack Hart said, however, that he would not open the courts up, saying he thinks the system works well. "If it ain't broke, don't fix it," he said.


Old law is blocked, new ones are uncertain

In the wake of Jessica Thornsberry's murder, the 1996 General Assembly enacted several laws that made it easier to prosecute juveniles as well as a measure that made charges and dispositions of serious felonies public.

But the very next year, the Administrative Office of the Courts advised court clerks that they didn't have to maintain a log of such cases, making it impossible to know whose records were available.

The Fayette County attorney's office voluntarily compiles a list of such offenders every six months. The most recent roster bears the names of 40 juveniles, including a 13-year-old found to have raped and sodomized a 7-year-old girl at his home.

But no list is maintained in Jefferson County, so nobody had ever requested juvenile records under the statute, juvenile court clerk Debbie Davis said earlier this year.

Chris Gorman, who as attorney general vowed to fight for open records after Jessica Thornsberry's murder, said the legislation was a compromise. "You take what you can get."

The prognosis for legislation next year is uncertain.

As chairman of the House Judiciary Committee, Rep. Gross Lindsay, D-Henderson, is often able to stymie new criminal laws he doesn't like. He said he's concerned about stigmatizing juvenile offenders. "It is hard to put a branding iron on a calf," he said.

The Courier-Journal's Bluegrass State Poll also didn't find much popular support for change. A survey of 801 adults conducted Sept. 7-13 found 39 percent favored opening juvenile crime proceedings to the public and press, while 50 percent opposed it.

The legislation also will be considered against a backdrop of declining juvenile crime in Kentucky and across the United States. The total number of juvenile cases in the state dropped from 22,514 in 2000 to 19,900 in 2004, a decline of about 12 percent, according to the Administrative Office of the Courts.

Nationally, the number of juvenile arrests for violent crime in 2003, the most recent year available, was the lowest since 1987, according to the federal Office of Juvenile Justice and Delinquency Prevention.

But Jessica's mother, Diana, said she still hopes to end the secrecy in juvenile court that she blames for her daughter's death. She said she wants "to help somebody else."

Gipson, her daughter's killer, was prosecuted as an adult for Jessica's rape and murder and is serving life without parole for 25 years. Now 28, he is eligible for parole in 2020.

Jessica would have celebrated her 23rd birthday on Oct. 19. Instead on that day, Thornsberry visited her grave at Bethany Cemetery, as she does each year on her birthday and the anniversary of her murder.

"If I'd only known," she said, "I would never have sent my daughter over there."