These cases are extremely delicate and time-sensitive. When it seems obvious that your child has committed the offense(s) that the school district has accused him/her of committing, your lawyer has to contact the school district immediately and display a conciliatory and cooperative attitude. I have no problem saying that the vast majority of these cases should not be litigated and fought ‘tool and nail.’ If that happens, your child will miss valuable schooling and time away from the friends and activities that are a priceless part of the growing up process.
When a lawyer represents a minor who is probably guilty of having committed the offense(s) in question, the entire mindset should be ‘damage control.’ Most school districts are always ready to take remedial measures and give the child a second chance.
My client was a soft-spoken 14 year old who was accused of selling marijuana on school premises while school was in session. He said that his older cousin had told him to do it. This 14 year old had never been in trouble before – he had never even been in detention. But this charge was very serious and of course, his parents were in a huge panic.
Due to this charge, he was suspended from school immediately, pending the scheduling of a hearing pursuant to Education Law Sec. 3214 to determine if he was guilty of the charge. During the suspension, he was forbidden to be on school grounds at all times. On the same day that the child was caught in the act, he already admitted to the principal that he had tried to sell marijuana at school that day, before his parents were contacted and before I was retained.
A minor is not an adult wherein the lawyer should sorry about things like coercion, 5th Amendment rights, Miranda warning, etc. This is a child and your lawyer needs to have a completely different mindset. Can you imagine forcing a child to testify at a hearing while his nervous parents are watching? Unless the child is absolutely, 100% innocent, I would never subject a client to that process.
We settled the case on the best terms possible. Since the child was caught in June (right at the end of the school year), here were the essential terms of the settlement: a) the family waived its right to the hearing – their son would have lost anyway and then suffered the maximum punishment (expulsion); b) the child was suspended for the remaining part of the 2006-07 school year (which lasted less than 3 weeks) and for the entirety of the 2007-08 school year; c) in the discretion of the school district, they would consider reducing the 2007-08 entire suspension by 50%, taking into consideration the child’s attendance, academic performance and behavior in the ‘alternate instruction’ (i.e., home schooling that the school district provided, at the cost of the school district), any community service, etc.
The parents were pleased with the outcome of the case. I was happy that their son was not forced to testify, which would not have gone well for him.
In 2008, I was hired to represent a 14 year old boy who was accused of shoplifting (“petty larceny,” an A misdemeanor). On Long Island when a minor under 16 years old is arrested, his case takes place in Family Court, not District Court. Then again, if the child’s parents (or the lawyer that the child’s family hires for the case) refuses to negotiate a deal and insists on going to trial, the maximum punishment for being found guilty of shoplifting a/k/a petty larceny is 1 year in jail, although a minor would not be sent to a ‘jail’ as an adult understands the term.
The point is, when an under the age of 16 child is accused of a crime, unless the evidence is clearly, undoubtedly, beyond the shadow of a doubt in favor of the child, do not allow the lawyer you have hired to push the case to trial. The incredible burden of forcing a child to go through a protracted legal process, including missing days from school in order to attend all the court appearances before trial and the trial itself, preparing the child to testify, etc. is an incredibly bad idea to put your child and your family through.
I have also noticed that when a child is directly involved as a defendant in a criminal case or a respondent in a Family Court case, the attorney fees go up exponentially.
Edwin’s mother pleaded with me that, unbeknownst to her, Edwin picked up a toy when they were at Target and tried to walk out of the store with it. Edwin’s stepfather felt bad and blamed the incident on his not paying attention to Edwin while at the store. Regardless, the store security apprehended Edwin with the toy tucked into his clothing and charged him.
When we appeared in Family Court, the County Attorney offered me an ‘ACOD’ for Edwin’s case. Considering that 14 yr old Edwin had never been arrested or convicted in his life, I accepted the ‘ACOD,’ which was an excellent disposition for this case. What the ‘ACOD’ meant was that if Edwin did not get arrested on any new, unrelated charge for the next 6 months, the shoplifting/petty larceny charge would be dismissed and the case would be sealed.
Accepting the ‘ACOD’ for Edwin meant that I would not have to subpoena the security guard for the trial, prepare 14 yr old Edwin to testify, charge his parents much more in attorney fees, etc. Even if your lawyer does not obtain an ‘ACOD’ (or a straight dismissal of the charges) for your young child, my advice is to do whatever possible to avoid subjecting your child to having to go through a trial.
The presiding judge added 2 conditions to the granting of the ‘ACOD’: in the 6 month period following the granting of the ‘ACOD,’ I had to contact Edwin’s school district to forward his attendance record to Family Court, the 1st time two months after the case was over and the 2nd time 5 months after the case was over. I thought that it was an excellent idea regardless and Edwin’s parents agreed.