Los Angeles County Juvenile Defense | Law Offices of Jerod Gunsberg

Judge Michael Nash, the Presiding Judge of Los Angeles County Juvenile Court, ruled last week to allow members of the media to attend certain juvenile law proceedings.  In its February 12, 2012 editorial, The Los Angeles Times applauded Judge Nash’s decision.

The decision has been criticized by some organizations that advocate on behalf of abused children.  Specifically, the Children’s Law Center has filed a lawsuit seeking to overturn Judge Nash’s decision.

The decision to provide media access is limited to dependency proceedings, which generally relate to instances of alleged or suspected abuse.  Judge Nash’s decision does not, however, give the media or members of the general public access to juvenile delinquency hearings.  Even people generally familiar with juvenile law in California are surprised to learn that section 676(a) of the California Welfare and Institutions Code regulates public access to juvenile delinquency proceedings.  In practice this law has been largely ignored, and juvenile delinquency court has long operated under a veil of secrecy.

Section 676(a) presumes that the general public should be excluded from juvenile criminal cases:

Unless requested by the minor concerning whom the petition has been filed and any parent or guardian present, the public shall not be admitted to a juvenile court hearing.

The exclusion on public attendance in juvenile criminal matters is not absolute.  As indicted above, the minor and/or the minor parent and guardian may request that the hearing or parts of it be open to the public. In addition, the law permits attendance by family members of a prosecuting witness, alleged victims of the juvenile’s criminal conduct, and a limited number of family members of the victim.  The law also takes into account the severity of the alleged crime, and identifies more than 20 extremely serious offenses where all members of the public are permitted to observe the proceedings. In contrast, the law provides extra protections to certain aspects of a juvenile proceeding, such as when a defendant minor under the age of 16 is testifying.  The law sensibly recognizes that the testimony of the accused juvenile may be more traumatic than other aspects of the trial.

Reasonable people can and do disagree about the extent to which juvenile proceedings should be open to the media and members of the public.  No one is suggesting that juvenile cases always be open to the media.  The real question is how much discretion judges should exercise to protect privacy in a particular case. As a criminal defense lawyer who often defends kids in Los Angeles Juvenile Court, I support opening up the system and making it more transparent.  It is a mistake to think that such transparency automatically harms the juvenile.  Too often prosecutors seek harsh penalties against juveniles because there isn’t a public voice present that could help mitigate the tendency to be punitive and come across as tough on crime.  I have handled cases where increased public scrutiny may have helped moderate some of the more extreme charges brought against my clients.  People act more responsibly when they know that someone—especially a member of the media—might be watching.

Moreover, the current system of secrecy reinforces the notion that lawyers, social service workers, and others involved in the juvenile justice system are opposed to increased transparency because they are worried that more people will see how incompetent or lazy they are.  The blog for the National Coalition for Child Protection Reform implicitly makes this argument.

What does it tell you about the general quality of family representation in Los Angeles County that the chief lawyer actually had to explain to his staff that it’s generally a good idea to ask their clients what they want before purporting to speak to them – and still, they didn’t always do it?

(bold in the original).

I certainly can’t speak for other lawyers, but I for one believe that shedding more light on the juvenile criminal justice system will make it easier for lawyers to represent our clients effectively.  There will be cases where it will be in our clients’ interests to protect their privacy from the media.  We can handle such cases individually.  But overall the juvenile justice system in Los Angeles could benefit from more public exposure.  As the old saying goes, light can act as a powerful disinfectant.

Prosecutors across the country are beginning to bring criminal charges in cases where students have been accused of cheating on standardized tests.

The most publicized comes out of New York State.  In November 2011, two students turned themselves in after being charged criminally for receiving payments to impersonate other students who were taking the ACT or SAT examinations.

Michael Pomerantz, 18, and an unidentified teenager turned themselves into Nassau County prosecutors before being taken to district court for arraignment. Pomerantz is one of five current or former students at Great Neck-area public and private high schools charged with accepting payments of between $500 and $3,600 to impersonate other students on SAT and ACT college entrance exams.

More recently, hundreds of high school seniors who attend a highly regarded high school in Dallas, Texas are also being accused of cheating.  According to the Huffington Post more than 200 students are implicated.

Now, officials at the southeast Houston Clear Creek Independent School District are investigating how around 200 students at Clear Lake High School acquired test answers before the exam in December.

Educators at Clear Lake realized that about a third of the exams had identical answers. As a result, administrators nulled all 600 tests, and offered the students two options: take the test again or have their final grade calculated without a final exam grade.

It is unclear whether any of the Texas students will be facing criminal charges.  These cases do, however, raise the question of how similar incidents might be treated under California law.

The short answer is that high-school students who cheat on standardized tests in California could be charged with several crimes, including felonies.  The most obvious charge would be for forgery, which is defined in section 470 of the California Penal Code.  In addition, prosecutors could bring charges for False Impersonation, which is defined by Penal Code section 529, as follows:

529.  Every person who falsely personates another in either his
private or official capacity, and in such assumed character either:

1.  Becomes bail or surety for any party in any proceeding
whatever, before any court or officer authorized to take such bail or
surety;

2.  Verifies, publishes, acknowledges, or proves, in the name of
another person, ANY written instrument, with intent that the same may be recorded, delivered, or used as true; or,

3.  Does any other act whereby, if done by the person falsely
personated, he might, in any event, become liable to any suit or
prosecution, or to pay any sum of money, or to incur any charge,
forfeiture, or penalty, or whereby any benefit might accrue to the
party personating, or to any other person;
Is punishable by a fine not exceeding ten thousand dollars
($10,000), or by imprisonment in the state prison, or in a county
jail not exceeding one year, or by both such fine and imprisonment.

Emphasis added.

There are two aspects of the definition of false impersonation that are especially problematic as they apply to cases of alleged cheating on standardized exams.  First, the crime applies to conduct that is private.  Thus, the fact that the SAT is created and administered by a private company would appear not to matter.  Second, false impersonation is broadly defined to include any written instrument; prosecutors would likely argue that the exam itself is the written instrument.  Moreover, any person who was deemed to have benefited from the alleged cheating could be charged with entering a conspiracy to commit false impersonation.

The recent cases in New York and Texas suggest that prosecutors are less likely to view cheating on exams as purely private matters to be settled between the schools and the students.  Whether they realize it or not, California students who are caught up in allegations of cheating on exams may be taking legal risks that they and their parents often do not foresee.