Wednesday, August 29, 2001

Miranda rights: Do kids get it?

By Marie McCain
The Cincinnati Enquirer

        A police officer sits down with a 13-year-old child accused of a serious crime. “You have the right to remain silent,” he begins. “You have the right to an attorney, even if you can't afford one...” Adults are expected to un derstand their Miranda rights. In Ohio and Kentucky, so are juveniles. But do they?

        It's a question being asked nationally as more and more juveniles enter the criminal justice system, charged with serious crimes.

        Some states — Colorado, Oklahoma and Massachusetts — require a parent to be present when a child younger than 14 is questioned by police. Neither Ohio nor Kentucky do.

        The issue takes center stage today in Hamilton County Juvenile Court with a hearing in the case of four girls accused of trying to poison their sixth-grade teacher.

        Attorneys for the girls — who attended Oyler Elementary in Lower Price Hill last school year — hope to convince a magistrate that their clients' statements to police should be suppressed because none of the girls understood their Miranda rights.

        Prosecutors say the girls told police they understood their rights and talked with investigators voluntarily.

        The girls — who were ages 11, 12, 12, and 13 at the time of the May 10 incident — have each been charged with contaminating a substance for human use, tampering with evidence and obstructing official business.

        During an earlier hearing, Cincinnati Police Officer James Robb testified that he and fellow Officer Shawn George read and recited Miranda rights to the girls. Each girl signed a form indicating that she understood those rights.

        “If they say they understand them — what else can we do?” he asked.

        Of the 243 juvenile arrests the officer said he made last year, half were of children under 13 — none of whom asserted their Miranda rights to remain silent or consult a lawyer. And in only one case was a parent present.

        “The boy was autistic,” Officer Robb testified. “I wanted his parents there because I knew he might not understand.”

        The Miranda issue was also raised by relatives of the 13- and 11-year-old boys charged in the recent beating death of 8-year-old Takeya Bryant in Northside.

        The relatives have publicly criticized investigators, claiming their children were unfairly questioned because the boys don't understand their Miranda rights.

        These cases are part of a growing nationwide problem.

        In 1998, two Chicago boys, ages 7 and 8, were charged with the murder and sexual assault of 11-year-old Ryan Harris. The girl's body was found in a South Side neighborhood where she'd been riding her bike.

        The two were charged with murder after investigators obtained statements from them supposedly confessing to the girl's killing.

        But a month later, the charges were dropped when semen was found on the girl's underwear. Boys that young cannot produce semen.

        Investigators later charged Floyd Durr, 32, who pleaded guilty in March to a similar type of attack on another 11-year-old girl.

        As a result, Cook County's prosecutor created the Commission on Juvenile Competency, which recommended that children under 10 charged with violent crimes undergo a civil hearing that plays down Miranda rights in favor of counseling.

        Locally, police say that if a child says he understands his rights, all they can do is believe him. They are not legal advocates or child psychologists. Their job is to solve crimes and catch criminals.

        “If you've got to wait for a parent to come up before you interview that person, you may lose the entire case. You may have a 14-year-old who just committed a very serious, violent crime. Do you want to risk losing the case in order to give the kid a break?” asks Cincinnati Police Division Lt. Stephen Luebbe, commander of the division's Personal Crimes Unit, which handles missing persons, sex crimes and other violent offenses.

        “What about the victim in the case? Who gave the victim a break? ... What it comes down to is: Who speaks for the victims in these cases?” he says. “Otherwise you're going to handcuff police and the justice system to ensure that these criminals' rights are (protected) that would make us defense attorneys every time we go to question one of these kids.”

        Steven Drizin, supervising attorney with the Children and Family Services Center at Northwestern University's School of Law in Chicago, says there is scientific proof that “most children under the age of 15 do not adequately understand one or more of the Miranda warnings.”

        “The concepts are simply too abstract for them,” he says. “Many children believe that the right to remain silent means they don't have to speak to police until the police tell them to.”

        Dr. Richard Livingston agrees.

        “I get seriously distressed when I feel like police are using the same kinds of tactics and techniques on children that they use on adults. An adult is responsible for themselves in everyone's eyes. But it's really hard to make that decision for kids,” says the Arkansas-based child psychiatrist, who has clients in the juvenile detention system.

        “The Miranda concept ... requires abstract reasoning. People are typically not able to think abstractly until they are age 12 or 13,” he says.

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