Supreme Court Rejects Juvenile’s Ex Parte Communication
A Wisconsin Supreme Court majority ruled it was okay for a prosecuting
attorney to have ex parte communication with a county agency
preparing a report on whether a juvenile should be charged as an adult,
but recommends against it in the future.
By org jforward wisbar Joe Forward, Legal Writer,
State Bar of Wisconsin
2012 – It was not improper ex parte communication for
an assistant district attorney to attend a meeting assembled to decide
whether a 15-year-old should be prosecuted in adult court for armed
robbery, the Wisconsin Supreme Court recently concluded.
The state wanted to charge a Walworth County
juvenile, Tyler, as an adult for his part in a gas station robbery with
BB guns resembling semiautomatic weapons. Tyler was also involved in
other robberies and crimes in other counties.
The circuit court ordered the county’s Department of Health and
Human Services (DHHS) to prepare an investigation report on
whether Tyler should be waived as a juvenile and treated as an adult,
known as waiver investigation report.
At a meeting on the issue, the assistant district attorney attended,
recommending adult treatment. Neither Tyler nor his attorney was invited
to participate. A juvenile court intake worker gathered information
separately from Tyler, his attorney and his parents.
Ultimately, DHHS filed its report but did not make a final
recommendation. Tyler argued that the report should be disregarded
because of the assistant district attorney’s involvement. Absent
that influence, he argued, DHHS would have
recommended juvenile court jurisdiction.
The circuit court waived juvenile court jurisdiction, ruling that the
state showed keeping Tyler in the juvenile justice system was not in
Tyler’s or the public’s best interest. The court did not
find the assistant district attorney’s presence at the waiver
investigation meeting to be coercive.
Tyler appealed, asking for preparation of a new waiver investigation
report and a new waiver hearing with a different judge. The appeals
court rejected Tyler’s request.
v. Tyler T., 2012 WI 52 (May 22, 2012), the Wisconsin Supreme
Court affirmed by a 4-2 vote (Justice David Prosser did not
participate), reviewing a line of cases examining defendant challenges
to presentence investigation reports that can influence sentencing.
“While we, like the circuit court, have reservations about the
DHHS’s decision to invite only [the
assistant district attorney] to its final staffing meeting, we decline
to create a bright-line rule precluding the DHHS from communicating
directly with either party, be it the State or the juvenile, for
purposes of preparing a waiver investigation report,” wrote
Justice Annette Ziegler.
The majority ruled that DHHS has discretion to
compile the information necessary for the waiver investigation report
when ordered to do so by a circuit court.
“In the future, however, it may be a better practice for the
DHHS to invite both parties, or neither party,
to its final staffing meeting,” Justice Ziegler wrote, suggesting
that there could be situations in which one party’s presence is
coercive. “We will leave that decision to the DHHS.”
Justice Ann Walsh Bradley wrote a dissenting opinion (joined by Chief
Justice Shirley Abrahamson),
arguing that improper ex parte communication
“Because I conclude that the prosecuting attorney’s ex
parte advocacy at the Department’s
decision-making meeting was improper, and because I cannot determine
that Tyler suffered no prejudice as a result, I respectfully
dissent,” Justice Bradley wrote.