Juvenile jury trials still on legislative radar

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After two failed attempts, a state legislator will try again to reinstate jury trials for juveniles facing extended detention.

State Rep. Fred Kessler, D-Milwaukee, first introduced the legislation in 2009. It unanimously passed the Assembly, before dying in the Senate at the end of that session.

On March 5, he reintroduced the bill to reinstate juvenile trials, but it failed to advance before the session ended. He plans to introduce it again in the next legislative session, which begins Jan. 7.

Since 1996, juvenile delinquents in Wisconsin haven’t had the right to a criminal jury trial unless they are charged in adult court. Instead, juvenile defendants’ fates are in the hands of the presiding judge and prosecutors, who can recommend extended placement in the state’s Serious Juvenile Offender Program or in a juvenile correctional facility.

At any point after the judge sentences the juvenile, prosecutors can recommend as many as three years of prolonged supervision beyond age 17, even though offenders by then qualify as adults in Wisconsin’s criminal justice system.

Kessler’s proposal seeks to change that by forcing prosecutors to make it clear at the beginning of the case that they might seek extended placement for the offender beyond age 17. If prosecutors state that intention, under the proposal, the juvenile would then have the right to a jury trial at the onset of the case.

“Prosecutors should have to make a choice at the beginning of the case,” said Kessler, a former judge in Milwaukee County Children’s Court. “Do they want to have extended jurisdiction? And if so, they should have to get individuals to waive their right to a trial or agree to one.”

But Milwaukee County Assistant District Attorney Pat Kenney said the proposal would force prosecutors to predict a juvenile delinquent’s behavior before knowing how that person fared in detention.

Kenney, who from 2000 to 2009 worked as a prosecutor in the Children’s Division, said the decision to extend supervision or detention is based on whether the individual fulfills conditions of probation and how the family collaborates with the court.

“It would be irresponsible,” he said, “to say, ‘No matter how a child does on probation, they won’t have to go to a correctional facility unless the petitioner reserves the right to a jury trial at the beginning of the case.’”

Restoring juvenile jury trials will result in an increased cost to the criminal justice system, Kenney said, due to lengthier hearings and more prosecutors needed to handle cases.

According to a fiscal estimate from the Wisconsin District Attorney’s Association, an additional 25.35 prosecutors would be needed at a cost of $1,779,925 per year. The estimate is based on the 330 delinquency cases opened on average each year and the 8,366 juvenile cases opened in Wisconsin in 2010.

“I think the money is better spent on providing additional services to children and families involved in juvenile court,” Kenney said. “I don’t think the system has lost anything by the elimination of jury trials.”

But Waukesha criminal defense attorney Anthony Cotton said juvenile defendants are losing out on trial tactics available to people charged in adult court.

While juvenile courts offer the option to suppress evidence or a confession during the initial fact-finding hearing, said Cotton, of Kuchler & Cotton SC, that motion is granted by the same judge ruling on the case.

That eliminates a defense attorney’s chance to appeal to a completely neutral audience, he said.

“Everything has to be routed through the judge,” Cotton said. “There is never a scenario where you can cut the judge out and let the jury decide.”

Kessler estimates the changes in the proposal would result in 10 to 15 juvenile jury trials per year, which he said would not overburden the system.

He said the bill’s previous failures are based more on timing than problems with the proposal.

“I think it was too late in this session,” Kessler said. “But I’m assuming since it went through the Assembly before, I can get a few representatives to sign on again and we’ll see what happens.”