Access to Juvenile Justice Spring 2012 Minors making news: a state-by-state guide to juvenile courts nationwide By Kristen Rasmussen The last time Tim Harmon said he heard about a prior restraint on publication was in the 1970s in what famously became known as the Pentagon Papers case — until, that is, two months ago. That’s when editors and others in the South Bend Tribune newsroom learned that an Indiana appeals court had granted a request from a state agency to prevent publication of information from four audio recordings and accompanying transcripts from the agency’s child abuse hotline. The information con- tained in the records was the basis of a signif- icant report in the paper’s ongoing investiga- tive series about the child-protection system in Indiana. The documents revealed that six months before a 10-year-old boy was found tortured and killed in his home late last year, an anonymous caller tried to get the agency to investigate the mistreatment of children at the boy’s home, pleading at times during the 20-minute phone conversation with the those for whom such anonymity and con- age crime wave produced a significant child welfare official to intervene imme- fidentiality are intended to protect are the increase in the number of older juveniles diately, before a child dies. ones making the news. charged with serious offenses, Berlin said. Faced with the threat of contempt of The public access right “also has to do court, executive editor Harmon and other The jurisprudence of access to with the severity of the crime. When you newsroom leaders opted to follow the juvenile courts have barely juveniles charged with mur- advice of their attorney and remove the Courts across the country have repeat- der, many of those cases start to look more story from the paper’s website, only about edly declined to find a First Amendment- like an adult proceeding,” he said. an hour after it had been posted that Fri- based right of public access to the juve- Ohio media lawyer David Marburger day afternoon, and halt plans to publish in nile court system. Following the U.S. agreed. Marburger represented The print that weekend. Supreme Court’s rationale that such a Columbus Dispatch in its 1990 appeal to As it turns out, child services officials, right exists where both experience and the Ohio Supreme Court challenging a who maintained that publicly disclosing logic favor openness, most courts have trial court order closing all juvenile court the identity of anonymous hotline callers found that public scrutiny is inconsistent proceedings to determine whether a child would chill similar reports of child abuse, with the juvenile court’s aim of protecting was abused, neglected or dependent. The had little to worry about. In accordance children from the stigma and emotional state Supreme Court found that juvenile with its consistent assertion that the paper trauma that can accompany publicity. court proceedings are neither presump- had no interest in identifying the caller, Courts likewise have dismissed historical tively open nor presumptively closed in staff members, as soon as they received considerations, finding that a hallmark of Ohio. And a juvenile court can restrict the records, began extensive efforts to dis- the nation’s juvenile court system is the public access to the proceedings only if, guise the woman’s identity. adjudication of matters outside the pub- after a hearing, it finds there is a reason- “We spent those few days [between lic’s gaze. able and substantial basis for believing receiving the records and the Friday “The primary purpose has traditionally that public access could harm the child or of online publication] getting the story been to try and intervene with juveniles endanger the fairness of the adjudication, ready. We made sure to take out all iden- and protect them, so there has been a the potential harm to the child outweighs tifying information. We changed [the move to keep proceedings that involve the benefits of public access and there are caller’s] voice so significantly that you juveniles more private than [parties] no reasonable alternatives to closure. couldn’t even tell the gender,” Harmon would be entitled to in an adult court Since then, there has been increased said in an interview. system,” said Seth Berlin, a Washington, openness in juvenile court proceedings Shortly before a hearing before the D.C., media lawyer who authored in part in Ohio and more judicial skepticism of appeals court in Indianapolis the next a treatise on newsgathering and the law attempts to close proceedings, Marburger Monday, state Attorney General Greg that includes a comprehensive discussion said. Zoeller intervened, asking the court to of the right of access to juvenile courts Although the 1990 Dispatch case involved dismiss the matter. He said that a system nationwide. access to juvenile dependency proceed- exists to resolve disputes between govern- As such, juvenile proceedings, namely ings, Marburger, like Berlin, attributes ment agencies and the news media over delinquency proceedings, largely resem- much of the increased access to the spike access to public records but that “prior ble criminal cases. However, unlike adult in serious juvenile delinquent acts. restraint of the news media publishing offenders, juveniles in most jurisdictions “What we were mostly accustomed records is inconsistent with the First are not charged with crimes but rather to was confidentiality to protect juve- Amendment.” with committing “delinquent acts.” niles from their immature acts creating For journalists and others who rely on Accordingly, juveniles do not have a trial; bad consequences for them when they this constitutional right to gather and dis- they have an adjudicatory hearing. If the achieved a more mature adulthood,” he seminate information about matters of court finds that the child committed the said. “The issue now is that these 17-year- public interest and concern free from gov- delinquent act, the child is not convicted olds who would be charged with violent ernment interference, the case is certainly but instead declared an adjudicated delin- crimes if committed by an adult don’t significant — and not only as an alarming quent. Because these proceedings are need as much protection as the juvenile example of the dangerous threats to press technically not criminal prosecutions, court system would give them. The public freedom in those rare instances where courts have been free to reject the firm has a big interest in seeing how those mat- “some misguided government agency body of law that generally holds that ters are resolved.” finds a misguided judge who’s willing to criminal proceedings are presumptively Despite this trend toward openness, order a publication to suppress a story,” open to the public. Marburger observed earlier this year that as a March 13 Tribune editorial described the juvenile court’s longstanding stigma the events. Shifting standards of secrecy may not be so easily discarded. The scenario also serves as a dramatic But the media’s and public’s ability to In February, a juvenile court judge, before example of the tension between the pub- gain access to juvenile delinquency pro- any hearing in the matter and on his own, lic’s interest in providing oversight of ceedings has improved since the late issued an order prohibiting members of an institution that adjudicates children’s 1980s and early 1990s, when a teen- the news media from photographing the matters and its interest in rehabilitating and protecting its most vulnerable from lasting stigma and emotional trauma. To be sure, the secrecy that traditionally This guide was researched and written by McCormick has been the hallmark of juvenile courts Fellow Kristen Rasmussen. Funding for its publication nationwide often impedes the ability to was provided by The McCormick Foundation. gather and disseminate information when 2 The Reporters Committee for Freedom of the Press face of 17-year-old T.J. Lane, the high juvenile dependency proceedings in Los further guidance on the relevant statute. school sophomore charged with gunning Angeles County are open to the media Note that the law governing the right of down three fellow students and wounding unless the parties involved can show that public access to other proceedings involv- two others on campus, or any member of harm or detriment to the minor involved ing minors, including divorce, child cus- his family not only in the courtroom but is reasonably likely to occur because of tody and visitation, paternity and adoption presumably on court premises and per- media access to the proceeding. proceedings, is not covered in this guide. haps at all, Marburger said. “There has been a recent recognition Finally, because the guide is intended for Before he challenged the order on behalf that the juvenile court system does not journalists, it does not expound on situa- of the Associated Press, Marburger and work as well as it always should,” Berlin tions where various individuals or agen- Lane’s attorney reached an agreement, said. “Even in dependency cases, there cies designated by statute have a right of and the court vacated its order. are some courts that have said that having access to proceedings or records that does “One of the things that is strange about a little bit more openness serves a good not extend to members of the news media. juvenile courts is that they have always public benefit.” This guide is meant as a general intro- had an aura of confidentiality created by duction for journalists to the state of the statute and rules that make them almost State-by-state guide law concerning the right of public access a secret court,” he said. “But judges [who The following is a state-by-state guide to juvenile courts.