Behind the Headlines – September 1, 2017

Behind the Headlines – September 1, 2017


– (female announcer)
Production funding for Behind the Headlines is made possible in part by
the WKNO Production Fund, the WKNO Endowment Fund, and by Viewers Like You. Thank you. – Juvenile justice
and Judge Dan Michael, tonight, on Behind
the Headlines. [dramatic orchestral music] – I’m Eric Barnes, publisher
of the Memphis Daily News. Thanks for joining us. I am joined tonight
by Judge Dan Michael, from the Juvenile Court of
Memphis and Shelby County. Thanks for being here. – Absolutely. Thanks for havin’ me. – (Eric)
Absolutely. Along with Bill
Dries, senior reporter with the Memphis Daily News. Let’s talk about. We’ll talk a lot. We’ll talk about the
court, some of the history, what the court does,
some of the complictions and try to peel back all
the layers of what goes on in Juvenile Court and how it’s evolved over time, involved in your, you’ve been Judge since what? 2014?
– 2014. – And things have
happened since then. But, for, let me start
with this question. Almost a fill in
the blank question. From your point of view,
the Juvenile Court, for kids who go there,
it is what for them? – Juvenile Court is
about rehabilitation, period, end of sentence. If you’re in trouble
with the law, as a juvenile, our purpose
is to give you direction so that you can
rehabilitate your life, and become a productive citizen. The law in Tennessee does
not use the word punishment when it comes to Juvenile Court. Now, I know that frustrates
a lot of citizens, but what most folks
need to understand is we’re dealing with children. We’re not dealing with adults. Children are not little adults. They function differently. Their brains are different, and the law recognized
that before the science caught up to it. Now the science justifies
what the law says. So, the whole purpose of, our goal in dealing with
juvenile delinquency is to give that child
a chance to do better. Judge the act, not the child, and get that child
on the right track. – What age kids go
through the juvenile…? – Justice system?
– Yes. – Well, technically
there’s no bottom age. But in the law, a child
needs to be old enough to develop the intent. Did a child intend
to do the act? Arguably, yesterday, I
was coming back from lunch and there was an
11-year-old being brought in. And I asked the young man,
I said, “How old are you?” He said, “I’m 11.” He was tiny. And I told the law
enforcement officers, I said, “We’re not
gonna keep him. They’re gonna send him home.” Which they did. I don’t know what he did, I wasn’t gonna ask
him what he did. The average age coming in is
somewhere between 14 and 17, it varies. – And the top age, is what? – Well, it varies. It’s 18, or 19, if you
commit an act of delinquency before your 18th birthday. – And when you say delinquency,
I think you mean that in a legalistic term. We think, I think delinquency
is they skipped school. Delinquency is something
else, in your terms. – That is correct. – Will you define that?
– Yes. A delinquent act is an
act that would be a crime if you’re an adult. It is a quasi-civil act. It’s not a criminal act. So, when a child is charged with something as serious as murder, they have committed
a delinquent act, not a crime. We’re not a criminal court,
we’re a juvenile court. Now there are, you know, there are laws in
place that let us deal with those very serious issues, but a delinquent act can
only be committed by a child. – A couple more,
just again sort of, the universe you live in and I’ll turn it to Bill, to
dig in some more of this. How many kids are there, how many kids go through
the Juvenile Court on a given day, a given year? – A given year, the averages
are somewhere between 4,500 and 6,000. We’ll bump up against
6,000 this year, just on delinquent charges. Now, we also have jurisdiction
over children who are being abused and neglected. And it’s exclusive
to Juvenile Court, and what the public
needs to realize is that those
children that we see who are abused and neglected, if we don’t break that cycle, they wind up on the other side. – (Eric)
They come in on the other side. – They come back
on the other side. – For, again, kids who
are, do you house kids? – We have a detention
center in the building that’s run by the
Sheriff’s Department. – Okay, and they might
be detained there for days, weeks, years? – Never years. The longest detention might
be 200 days before trial. The average length of
stay is about 38 days. This morning when I got
up we had 90 children in detention. It’s an aberration. About this time last
year, we had about 50. We don’t know why we have 90. But, statistically our
numbers vary over the years. – And last one, just again, you are receiving kids from– – Memphis Police Department, Shelby County
Sheriff’s Department, Bartlett, Arlington,
Germantown, Collierville. Millington. All the municipalities. – (Eric)
They come to you. – (Judge)
They have to. They don’t have a choice. – (Eric)
Okay, Bill. – So, Judge, in June
there was this letter that you signed, that Shelby County
Mayor Mark Luttrell signed, and Sheriff Bill Oldham signed
to the US Attorney General Jeff Sessions asking that
the Justice Department end its oversight, which began
in 2012, of Juvenile Court. As we record this show, what
is the state of that request? – Don’t know. We’ve not heard back from
the Justice Department. There have been inquiries
made, I do know that. But I don’t know
what the answer is. The last answer I
got, I got from NPR which said they were told
they’re working on it. So, that’s as much as I know. And let me clarify
something, Bill. What the letter
actually said was we’re asking, he
asked for the letter, General Jeff Sessions
asked for the letter. We sent the letter and the
request was please review our actions under the MOA, and if you agree with
us, then we’re asking you to terminate the MOA. If you disagree with
us, send it back, and we’ll do what
you’re asking us to do. – Right. So, in the interim, the
Shelby County Commission has approved a new
coordinator for the agreement, basically someone to
oversee, make sure everyone’s talkin’ to each other,
documents are being exchanged, and that is retired State
Criminal Appeals Court Judge Paul Summers. – (Judge)
It is. – At this point, he’s
getting acclimated to– – (Judge)
Yes, in fact, he will be in Memphis at our building next
Tuesday and Wednesday to get acclimated. If you’ll remember, Bill,
Bill Powell was what we call the settlement coordinator
in Shelby County. Bill retired and because
we had not heard anything back on the letter, we
wanted to stay in compliance. The Memorandum of
Agreement gives either me or the mayor the authority
to ask for who the settlement coordinator is. The mayor had chosen Bill Powell and I reached out to the mayor. I said, “I’d like to
choose the next one, and I recommended we
choose Paul Summers.” The mayor was thrilled with
that idea and evidently, Paul was too, because
we had a meeting with General Summers. We went through the details. He was obviously well
studied on the issue, and agreed that if
the county commission would go through
with the process, he would take the position. So, if General Sessions
comes back and says, “I agree with the
request you have made,” that’s not the end of the
Memorandum of Agreement. There is, in effect, a wind
down period, is there not? Or that’s it? – It would be it. That would be it. Paul would be out of a job. – Can we back, I don’t
wanna put this on you, because this memorandum
we’re talking about predates your election as judge and so, Bill, can you do a
quick background on what, why the Federal
Government got involved and what they were
concerned about and where this memorandum
between the justice, Federal Justice
Department, Shelby County, and the court came about? – Sure, the Justice Department
did an investigation over several years
of juvenile court at the request of County
Commissioner Henri Brooks, and came back with
some findings and said, “We see issues, there
are due process issues “in the court. There are a lot of things
we think need fixing.” Ordinarily, the next
step might be to go in to file some kind of
lawsuit in Federal Court. That’s not what happened here. Shelby County government,
Juvenile Court, entered into a settlement agreement
that had very specific and many conditions to it, for, this is how we agree
to improve things. This is how we agree to
continue to monitor things going forward to
fix these problems. – Those problems that you
mentioned: due process, there was also, there was a lot of emphasis
on what they termed disproportionate
minority contact. – (Judge)
Yeah, equal protection. There are three areas under
the Memorandum of Agreement. Equal protection, due
process, and safety from harm which is the detention center. – And questions about how
kids were being treated in that detention center. I mean real, real– – Well, question, questions
about how children were being treated, period. Not just in the
detention center. There were no
allegations of abuse in the detention center. – But restraint chairs
that were questioned. – That were purchased
with money from the Department of Justice,
let me make that clear. Restraint chairs at one time
were an approved system, by the Department of Justice. Things change over
time, obviously. When they asked us
to get rid of it, we got rid of it right away. – So, that, am I right in saying that in the, around the time
you guys wrote the letter, as you say, at the request
of General Sessions, that monitor had come out
and said that a lot of, a lot of the points in the
agreement had been met. Certain things had been fixed,
but certain things had not. Why is there, I think critics
have said there’s this urgency to get rid of
the federal monitor. Is there an urgency to get
rid of the federal monitor? – No. – So, in the Paul Summers
role, again, back, just to get in
the weeds on this, is an outcome of that
agreement from 2012. There’s somebody in
there who is accountable to everyone say, “Hey, these
things are being addressed and others aren’t.” – Exactly. That is his role under the MOA. – Without him, let’s
say, everything, he signs off, the justice
department let’s it go, who oversees the court? I mean everyone has, who oversees you, what are
the checks and balances? – The voters. The Court of
Appeals, the Supreme Court. – Okay, and if, again, if I, if a child goes
through the Juvenile Court, they are, let’s say, they’re
not somebody who can afford a lawyer on their own. Who represents them? – A lawyer. – (Eric)
But from the Public Defender’s office, or a volunteer, or someone on your staff? – The first appointment
will be a public defender. Under the law in
Tennessee, under Rule 13, if you’re indigent and you
cannot afford an attorney, the court shall maintain a
roster of qualified attorneys to appoint to
indigent defendants, if the public defender
is conflicted. So, your first appointment
is the public defender. Now, up until this
agreement, we did not have the public defender. – Okay, that’s what
I’m gettin’ at. Yeah, that, keep
goin’, keep goin’. I think, ’cause
that’s a new thing, that the public
defender’s office is– – That is correct. We use panels, just like
the Federal Government does in the Federal Courts. You apply to be a lawyer on
a panel at the Federal Court. You apply to be on a
panel at Juvenile Court. You’re vetted. You’re put on the docket
and you’re assigned cases under the law. And, a child comes in, mom can’t afford a lawyer
then we pick an attorney off the panel. It’s all done by computer. – But not a public defender? – Before the public
defender came in. And that was one of
the conflicts that DOJ did not like. Now, since the public
defender has come in, those number of panel
attorneys have dropped because they’re handling
about 65% of the caseload. They have conflicts, so if they have represented
Dan Michael and Bill Dries, before, and Bill is
represented by private counsel, Dan gets in trouble again, it can conflict them out, which means we now have to have
two private attorneys, okay. So, they get conflicted
out on, you know, co-defendant cases, multiple
cases on a regular basis. And they come in and they
say, “Your Honor, we can’t “represent Bill. They can’t represent me
because of the conflict.” And we’ll reach out to
the panel and pick an attorney. – Are you, then I’ll go to Bill, are you comfortable that in this new world, again, which was put in place
in 2012 agreement and you’ve lived with,
you were a magistrate before you were elected. You worked within
the juvenile, yeah, then you were elected. Are you comfortable
that there are, that the kids who come
through have access to adequate counsel? – Oh, absolutely, absolutely. – Bill. – And on the question
of disproportionate minority contact, is an
African-American child who comes to juvenile court,
are they treated harsher? Are they treated more
severely than a white child who is there for
the same reason? – I can only answer that on
a case by case basis, okay? The answer that the justice
department came up with was that African-American
children are treated more harshly than Caucasian children
who come into the court system. Well, when 98% of the kids
that come into the court system are African-American, the
percentage of those kids that get harsher judgements
is gonna be higher. It’s a statistical fact. You can’t change that. Eighty-eight percent of the
children that we receive at Juvenile Court come from inside
the city limits of Memphis, which is a majority
African-American city. What, 67%, I believe? We have very few
children coming in from the outlying jurisdictions. Now, by law, if a child
burglarizes a home in Germantown, Germantown police can’t
keep him in Germantown. They have to transport
him to Juvenile Court, and I tried to explain
this to the public when I’m out there. Here’s the difference. The difference is in poverty. The difference is in resources. The difference is in privilege. The difference is
in transportation. Let’s take two kids. Let’s take one from Germantown, two parent household. Does something really stupid. Now let’s take a
kid from Frayser. The only adult he has
in his home is his mom and he’s got three siblings. He doesn’t know his dad. I see this everyday. The case calls, comes
before the court. Child’s been taken into custody,
brought to Juvenile Court, standing before a judge
for a detention hearing. – Having done, in your scenario,
and I hate to interrupt ’cause this is very interesting,
having done what level of offense? And we’re talking
about, in your example. – Aggravated burglary,
they broke into a home. – The kid from
Germantown and the, the African-American kid. – They both did Agg Burglaries. It’s a felony. They come in, they’re
before the judge. You take the kid from Frayser. His momma may, or
may not, be there. He’s 15. You think as a judge, I’m
gonna release that 15 year old back to the community
when there’s not an adult to take him?
I can’t do that. That would be abandoning
that child to the street, so he’s gonna get detained. Now, this is his first offense. Now, mom may show up
later that evening and say, “I was at work. “I couldn’t leave. I’d get fired,” which is a common
problem with moms who are trying to
support four kids with no help from dad. Or she may have been
in the courtroom and said, “He can’t come home.” “Why?” “He’s ruining my
other three kids. “They’re younger than he is. “He’s out on the street. “He won’t come home at night. He’s all kinds of trouble.” It happens on a regular basis. – So, is that then a
failing of the system that there isn’t an alternative for– – No, it’s a failing of the
society that we’re dealing with. – But, but it’s landed in
your lap to do something, something with it. – And that’s my frustration. – Are you limited in what
you can do as Juvenile Court judge for that child? – Yes, yes, absolutely. One of my frustrations
and one of the reasons that I was willing to
sign off on this agreement when DOJ came in and made their
findings in April of 2012, there was a team meeting of
all the senior level folks at Juvenile Court and Curtis
Person asked the question. He said, “We’ve got two choices. “We either sign this agreement
or we can go to court. “Go home, sleep on it, be
back here in the morning, give us your decision.” – Curtis Person being
your predecessor. – He was my predecessor. He was my judge at that time. We all came back into the
office the next morning and he polled us one by one. Everybody agreed to the MOA. We didn’t agree what was in it, but we agreed to do
the MOA because we felt as a public organization
the best way to resolve these problems was to
not fight it out in court and cost the citizens
millions of dollars and time. We felt we could resolve the
problems working with the Department of Justice
and their lawyers, and we think we have. The problem we’ve
got to now though is that they created
such a firestorm with their findings in
a city that is as raw as Memphis is on racial issues, that every time they
come to Memphis, and they stand before the
cameras, they raise the ire of problems, over and
over and over, again. My issue as the judge is, we’ve got problems in Memphis. I’m born and raised here. This is my home. You can’t put it all
on the Juvenile Court. We know where the
problems come from. If you want to focus
on solving the problems you have to get rid
of the diversion that in my mind a lot of
the naysayers are using as an excuse not to
address the hard work. – (Eric)
The diversion being what? – The MOA.
– I gotcha. The distraction, I thought
you meant legal diversion– – Distraction. It’s a distraction. – So, a couple
things, one, you know, you talk about this, the
rawness of these issues in Memphis, but you
look around nationally in the last couple years, since Ferguson, since
all the police shootings, since Charlottesville
more recently. It’s a country that has a
lot of raw racial issues that go into the
criminal justice system. And back to your scenario
of the kid from Germantown and the kid from Frayser, I’m fascinated by that. We’ve had lots of
people on before talking about these issues. The first touch with the
criminal justice system. So back to your
scenario for a second, when that child who you
say, “Look, I can’t, “I decide I can’t send him home. Mom’s not here.” Mom is saying,
“Don’t send him back. He’s a problem.” What are your options then? – Keep him ’til trial. – And what does that mean? His life will be what? He will be in a prison outfit,
he will be behind bars? I mean really kind of get
into what does that mean for him? – He is in a secure
detention facility inside Juvenile Court. He will be assigned a
single room, detention room. He won’t share a
bunk with anybody. He’ll be in a room by himself. He’ll be in school every
day school is open. We have a school
up there, alright, Hope Academy. He will be fed three times a day and he’ll have
several snacks a day. He’ll be able to make
phone calls everyday. He can visit his family. He can visit his lawyers. He will wear a
uniform, more or less, that we provide that
is ascribed to by the federal folks for suicide
prevention, right? You can’t give ’em belts, you can’t give ’em
shoelaces, things like that. – What do, what about, we
have about five minutes left. And again, I think
this, I hope that, I find this fascinating. Let’s assume for a second
that care and feeding is taken care of. What about back to how you
opened the show, rehabilitation? As he’s waiting for
trial, what, what, if anything, is being
done, can be done to, whether it’s mental health, whether it’s morals training, whether it’s, whatever it is, that is starting that
path of rehabilitation is there anything
that you all can do? – We are doing everyday. We have groups come
in from the community that talk to the young men. We have a psychologist on staff. We have medical care all the
way up to a child psychiatrist so if they’re having problems. You need glasses and
you’ve lost your glasses? We’ll get you glasses
so you can read. Now, the rehabilitation
starts after trial because if you’re not
convicted, you go home. You’ve been acquitted. But if you are found to have
committed the delinquent act, that’s when the really
hard work starts. And one of the key
components of rehabilitation is having a parent or parents
to buy into the hard work it’s gonna take, to take
that child and give him the chance he deserves. – Well, go to Bill. Just a few minutes left here. – At the outset of
this, you said that the Juvenile Court
under Judge Person, you all did not agree with the findings that the justice
department came back with. – (Judge)
We did not. – So, do you understand why
there is some skepticism from the critics about what
happens if the DOJ goes away? – Absolutely, and I
think there’s a big misunderstanding. You have to read the,
you have to read it. The language that
African-American children are treated harsher
than Caucasian children comes from what
they call the RRI. It is a statistical
database that they use to determine treatment of
children based on race. The only people that use the RRI is the Department of Justice. Most people who hear
about this think the Juvenile Court got sued. We did not get sued. We went into an agreement with
the Department of Justice. These were lawyers who
came in and I’ve heard this said before, but
they made findings. So what, I make
findings everyday. My findings are reviewed
by the Court of Appeals. My findings are reviewed
by the Supreme Court. Who reviews the DOJ’s findings
in a Memorandum of Agreement? No one. – Do the monitors though
who are supposed to be independent of everyone, what role do you
think they play? Do you think they
have been objective? – No, I do not. Just very bluntly, I do not. Michael Leiber will tell you, he’s from University of Florida. I like Michael. He’s a good guy but
he’s a statistician. He’ll tell ya he’s
paid his house off on the money he’s
made working as a “independent monitor” for
the Department of Justice. Sandra Simkins, who’s a
law professor at Rutgers, who teaches clinic up there, first time as a monitor. I will tell you that her
reports mimic what she’s told by the Department
of Justice lawyers. Neither are independent. – Again, we talked
about this before, but I wanna go back to it. With the, if the
monitors went away, if the Memorandum of
Agreement was gone, again, that accountability, from people who say,
“Look, I wanna know “who is Judge Michael
accountable to? Who is that court
system accountable to?” Is it just the voters? Because a lot of
people don’t vote, and a lotta people don’t, they’re not engaged in
the process in that way. You have an eight year term. So, if they disagree with you, they’ve gotta wait six years
to vote you out of office. Should there be more– – Have to wait six years
or they have to come in and file a complaint with
the Board of Judiciary that I’m not doing
my job properly. And have the Board remove me. – Back to the scenario
that I keep comin’ back to. I think this is
fascinating stuff. And we’ve talked about
a lot with other people about criminal justice and
how people get in the system. Take your scenario down
from an aggravated burglary to a delinquency from school. What I think of as a
layman’s term delinquency or someone who is
just out and about. Is your court the appropriate
place for a kid from Frayser or a kid
from Germantown to go if they have quote violated
the law by not being in school. For those, but, and yet, do you get those kids? – We do. Because the law is
structured that way, but I don’t believe
it’s correct. You have to
understand something. This year if we get
somewhere close to 6,000 “delinquent referrals,”
only about 2,000 of those will get before a judge. All those other kids
will be pushed out of the system through diversion. It doesn’t mean
nothing will happen. What it means is the
resources we apply to them does not involve a courtroom. – But do police, ’cause
you can’t say to the, we only have a couple seconds
left, so I’ll have to have you back. Are the police bringing
you too many kids who have done
low-level offenses that really aren’t appropriate
that shouldn’t be going into the criminal
justice system? Not enough time to answer but. – Not as bad as it used to be. It’s much, much better. – Okay, we’ll have you back and we’ll talk all
that through some more. I really enjoyed it. Thank you, Bill. Thank you for joining us. Join us again next week. Good night. [dramatic orchestral music] [guitar chords]

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