Kids in Arkansas have a right to feel confused. The laws that apply to them are as erratic as a drunk behind the wheel. And, in the view of lawyers who defend the growing number of kids who end up in court, the laws affecting them are about as dangerous.
In the past half dozen years, Arkansas’s legislature has upended traditional notions of how kids are to be treated by police. And the state’s courts have approved of the changes. As a result, parents are frequently astonished when they learn how wildly inconsistent the laws affecting kids have become. Most assume that they would be notified if their son or daughter were picked up by police at school, handcuffed, and taken in for questioning about a serious crime. But no law requires that, and increasingly, young people are being interrogated by police, often for several hours, without a parent or guardian present.
Parents generally assume that if, under those conditions, a 15-year-old waived his or her right to a lawyer, the waiver would not be binding, any more than if the minor had signed a loan for a new car. But that assumption is wrong.
So is the belief that if parents learned of their child’s arrest, went to the police station and demanded to be with him or her during questioning, that request would have to be honored. But the law requires no such thing. In fact, a teenager, alone in a room with police, may be signing away his most important constitutional rights while his parents are outside demanding to be allowed to be with him. For a state whose laws have differentiated between children and adults on matters from schooling to curfews, it is a stunning turn of events.
For decades, lawmakers have recognized that young people are not as mature as adults. Kids have been seen as needing — and deserving — certain special protections. They cannot be worked as hard or as long as persons who are older. They cannot enter into contracts. They cannot buy alcohol or cigarettes. They are barred from certain movies. They cannot have their ears pierced without a parent present.
Yet, if they get into trouble — trouble so serious that it could send them to prison for the rest of their lives, or even to execution — the protections disappear. There was a time when juveniles who were being questioned about serious crimes were viewed as deserving of special protections. They were not viewed as being on equal footing with adults, given the complexity of the law, its potential impact on their lives, and the adversarial nature of the system. But those days are over.
While teenagers are still protected on countless less consequential matters, those who face questioning about serious crimes are now presumed to be as competent as adults. And, as with adults, they are presumed to understand their legal rights and to waive them if they choose.
In recent opinions, the Arkansas Supreme Court has ruled that, when it comes to making what could amount to life-or-death decisions, kids are as mature as adults: They may make critical and binding legal decisions while in the custody of police, and they may do so without the benefit of having a parent or guardian present.
The Conner case
Shortly after the murder of a West Memphis man in 1996, a witness identified Corey Jermo Conner as one of the assailants. That evening, Conner voluntarily appeared at the police station, where he was arrested and charged as an adult with capital murder. It was the day before Conner’s 17th birthday.
The next morning, under questioning by detectives, Conner, who had had no prior experience with the criminal justice system, signed a form waiving his right to an attorney and gave a tape-recorded statement. He denied involvement in the murder. The detectives began using the “good cop, bad cop” routine, as they interrogated Conner further. One of the officers falsely claimed that four or five witnesses had reported seeing Conner with a gun at the time of the shooting. Conner contended that neither he nor his two friends fired shots at the victim.
After warning Conner that only one of the three defendants would be able to obtain a plea bargain, the detective who was playing the “bad cop” went to work. “Do you know what will happen if you are proven guilty of capital murder,” he asked. “They strap you to a table and stick a needle in your arm and you go to sleep and you never wake up, that’s what happens, and I don’t believe a damn thing you’ve said since you started opening your mouth, you follow me?” As the interrogation progressed, the detective’s warning became more severe. At various times he said:
“We can save your life. We can save your life. We can be responsible for strapping you on the table, it’s up to you…
“The others are going to burn, bubba. They are going to burn in hell. They are going to be strapped to a damn table, a damn needle stuck in their arm, and they are going to be gone. Your chance. I am going to offer it to you. You blow it, you ain’t getting another one, because I got a whole lot to do today, and I am not going to set up here and plead with you to save your life, do you follow me?…
“I am a son of a bitch, do you follow me? I will give you a chance. Now, I’ll bust my ass to help you if you try to help yourself. You don’t, I’ll burn your ass in a heart beat, that’s the way I am. That’s the way I work…”
“As far as I am concerned, you’re a damn murderer. You deserve to be strapped to a table and stick a needle up your arm. If this new Huckabee have his way, your new governor, he’s going to reinstate the electric chair. He ain’t going this way no more. That’s one of Huckabee’s promises for law and order.”
Conner did not change his statement. He was placed in a holding cell, where he was allowed to speak to a friend. After three hours in the holding cell, Conner asked to speak to the “good cop.” Without repeating the Miranda warnings, the detective took a statement from Conner. He admitted that he had been near the scene of the shooting and that he had had a gun. But he claimed that he ran away from the incident without firing a shot as soon as the shooting began.
Conner was tried, convicted and sentenced to life in prison without parole. His lawyers based their appeal largely on the circumstances surrounding his questioning by police. They pointed out that Conner’s mother had been at the police station, asking to speak with her son, but her requests had been refused. She protested that she had not consented to his decision to waive his right to counsel. But the Arkansas Supreme Court rejected that argument. It noted that, yes, a parent or guardian must consent to a juvenile’s waiver of rights. But, because Conner had been charged as an adult, the court wrote, “these safeguards do not apply.”
As for her request to speak with her son, the court ruled that it was not up to her to initiate the contact. The court ruled that the request for a parent or an attorney to be present must be made by the juvenile.
Members of the state Supreme Court admitted that they were “greatly troubled” by the detectives’ use of the “good-cop, bad-cop” routine, by their misrepresentations, and by the verbal treatment of the boy during questioning. “Specifically,” they wrote, “we cannot condone the severity of the statements [the detective made to a boy] who was only 17 years old and a stranger to the criminal justice system.” Yet the court considered none of these concerns serious enough to suggest that the teenager’s free will had been overborne.
Noting that the boy was physically larger than the detectives, the justices concluded that he did not seem to have been intimidated, and that the detectives’ misrepresentations to him about the number of witnesses against him and the governor’s plan to reinstitute the electric chair were not enough to have intimidated or coerced him.
‘A kid is still a kid’
Both as a parent and in her role as executive director of the Arkansas Public Defender Commission, Didi Sallings finds what happened in the Conner case appalling. “It demonstrates that a kid can be lied to, threatened, and cursed at while his mother’s banging on the door, wanting to get in, and our courts don’t find that disturbing.”
Sallings recognizes that the willingness to let juveniles waive their constitutional rights arises from the alarm that has accompanied a rise in juvenile violence. “People are scared of kids,” she says. “There’s a perception that kids are different today; that they’re evil and dangerous.”
But to disregard the age of young defendants and treat them the same as adults strikes her as “kind of scary.” To her, the idea of “a kid being picked up and questioned by an adult with a gun on his belt, in a little tiny room, with no parent or guardian present” offends a society’s standards of decency. “Everybody wants to get tough on crime,” she says, “but I think, I hope, I mean — a kid is still a kid.” Sallings notes that legislatures and courts have traditionally tried to protect juveniles. As an example, she points to laws against against even consensual sex with teenagers, based on the assumption that an innate imbalance of power exists between adults and juveniles. Courts have upheld those laws because they have believed that, even if the juvenile agreed to sex, the choice was not freely made.
Yet, recently, these same courts have been willing to rule, as they did in the Conner case, that a young person’s decision to waive his rights “was the product of a free and deliberate choice.” And they have done that despite the fact that the juvenile’s decision was made while he was alone and being questioned by one or more police officers — authority figures wearing guns — who were allowed to lie to and threaten him.
‘Do you know what a penis is?’
By law, when a suspect in police custody waives his constitutional rights, the decision is presumed to have been involuntary unless the state can prove otherwise. A defendant’s signature on a waiver form is usually persuasive evidence to a court that he knew what he was doing. In Arkansas, even juvenile defendants who are borderline mentally retarded are deemed capable of “knowingly and intelligently” waiving their Miranda rights.
Another case out of West Memphis demonstrated how broadly that assumption is applied. In 1993, a month after the murder of three eight-year-old boys, police invited 17-year-old Jessie Misskelley to come to the station for questioning. At first, Misskelley said he knew nothing about the murders. But after several hours of questioning, Misskelley printed his name on the form waiving his right to a lawyer, and confessed to having participated in the crime.
Misskelley’s statement was the only evidence presented against him at trial. It changed over several versions and was riddled with inconsistencies. Misskelley said, for example, that the boys had been tied with rope, when, in fact, they were bound with their own shoe laces. Asked to explain the discrepancies, a detective explained that, “Jessie just got confused.”
When defense lawyers introduced evidence that Misskelley had an IQ of 72 and had been in special education classes since the first grade, a police officer countered that, under questioning, he “did not appear to be slow” and that, in his opinion, the boy had seemed “like any other 17-year-old.” Yet there were indications that, during the questioning, Misskelley was not treated “like any other 17-year-old.” When an officer was questioning him, for example, about injuries to one of the victims, he had asked, “Do you know what a penis is?”
Despite the errors and inconsistencies in Misskelley’s statement and the questions about his mental ability, the confession was enough to convict him. A jury found Misskelley guilty and sentenced him to life in prison plus 40 years.
In their appeal, Misskelley’s lawyers argued that, besides his age and low IQ, the court should consider that he read on a third-grade level, that he had had no parent or lawyer present, and that he had been questioned by police for more than 12 hours. During that time the police had shown him gruesome photos of the children’s bodies, in an attempt to shock him into talking, and they had lied to him, telling Misskelley he had failed a polygraph examination when, in fact, he had not. In light of those circumstances, they argued, he could not have voluntarily waived his constitutional rights. The Arkansas Supreme Court did not agree. In a decision that has been cited many times since 1996, the court ruled that youth and low IQ do not, of themselves, render a defendant’s statements involuntary.
‘A definite problem’
For several years Dr. Richard Livingston was chief of psychiatry at Arkansas Children’s Hospital. He also headed the division of child and adolescent psychiatry at the University of Arkansas for Medical Sciences. He thinks adults may need to look more closely at how well young people, especially those with learning deficits, can understand the law.
The problem is complicated for young people like Jessie Misskelley, who have been identified by their schools as requiring special education. Without knowing whose records he was seeing, Livingston reviewed for this article a stack of test results introduced in court during Misskelley’s trial. The records reflected his cognitive abilities, as measured over the course of 10 years, by tests administered at school. Livingston noticed a big difference between the child’s verbal and non-verbal skills, a finding that, he said, might be evidence of brain damage.
But what struck Livingston most about the scores was how consistently low they were in the sections that measured how Misskelley processed what he heard. “It’s fairly clear to me that the young man has a definite problem with his auditory comprehension and memory,” Livingston said. “That means that his brain doesn’t process hearing well and hold onto what he hears.”
Admitting that his findings might be different if he examined the subject in person, Livingston offered his assessment of the records he had seen. “As a rough estimate, I would say that you’re dealing with someone who, at the age of 17, had the auditory comprehension of a child of 10 or 11”
When asked if someone of that ability would understand his Miranda rights, Livingston put the question another way: “The question is,” he said, “If you Mirandized a child of 10 or 11, without the parents around, would that be legitimate?”
Livingston said that the questioning of juveniles by police should raise serious questions for adults: “On whom should the burden be to prove that the child who has waived his rights was able to understand? What kind of working assumptions should you have? With an adult, I don’t think it’s unreasonable to assume we can understand, unless it’s proven otherwise. But with a kid, it seems to me that it makes more sense to go to greater lengths and be careful. Perhaps, for kids, the burden should be on the state to prove they understood.”
But that is not the tack Arkansas’s courts are taking. In the past few years, the state Supreme Court upheld the conviction and death sentence of 19-year-old from Jefferson County, with an IQ between 66 and 72, who had only completed the eighth grade and who read on a fourth-grade level. The court found that he had “knowingly and intelligently” waived his rights against self-incrimination. It also upheld the conviction of a reading and learning disabled 16-year-old from Mississippi County who waived his rights to an attorney and was sentenced to life without parole. And it found no problem with sentencing a seventh-grader from Sevier County to life without parole after he had waived his rights, despite evidence that the 15-year-old had failed three grades, read on a second-grade level, and had an IQ of 74.
And it upheld the conviction and sentence to death of a 16-year-old from Chicot County, with an IQ of 67. In that case it reasoned, in part, that the boy knew what he was doing when he waived his rights because he had been in juvenile court on two prior occasions and thus understood how the justice system worked.
Greater protection for police
Some defense lawyers find that assumption — that teenagers who’ve been in court before understand the implications of waiving their rights — particularly galling. Dan Stidham, of Paragould, who represented Jessie Misskelley, points out that even police officers, who might be presumed to be more familiar with the law than most ordinary adults, want special protections when they themselves are being questioned.
Protections for accused cops, not kids
Stidham notes that, under Arkansas law, municipalities may adopt something known as the “Police Officers’ Bill of Rights.” Here are the protections that law enforcement officers have sought for themselves, should they face questioning about a crime:
1. “Questions will be posed by or through only one interrogator at a time”;
2. Any interrogation shall be for a “reasonable period of time and shall allow for reasonable periods of rest;”
3. “No threat, harassment, promise, or reward shall be made in order to induce the answering of any questions;”
4. And “all interrogations shall be recorded in full.”
As Stidham sees it, the statute allowing these protections for police officers who are being questioned about crimes raises questions as whether all citizens — not to mention juveniles — receive equal protection under the law, as required by both the U.S. and Arkansas constitutions.
Noting that Misskelley’s interrogation lasted for over 12 hours and that only a fraction of what he said was recorded, Stidham asks, “Why are police officers entitled to Super Miranda rights, when ordinary citizens — and even mentally retarded kids — are not?”
Other states protect teenagers from the decision to waive their rights, unless that decision is agreed to by a parent or guardian. The Supreme Court of Indiana noted that when police question a teenager, “In most cases he is aware that he is in trouble. If he is not under formal arrest, he is usually being questioned in a police-dominated atmosphere and finds himself in some instances cut off from anything familiar or comforting to him. Many times he faces his accusers alone and without the benefit of either parent or counsel.”
The Indiana court continued: “It is in these circumstances that children under 18 are required to decide whether they wish to give up the intricate, important and long established Fifth and Sixth amendment rights. It indeed seems questionable whether any child falling under the legally defined age of a juvenile and confronted in such a setting can be said to be able to voluntarily, and willingly, waive those most important rights.”
The U.S. Supreme Court has also noted that, “That which would leave a man cold and unimpressed can overawe and overwhelm a lad in his early teensÉ,” adding that “we cannot believe that a lad of tender years is a match for the police in such a contest.”
Miller v. State
By contrast, the Arkansas Supreme Court ruled last summer that, although juveniles are still entitled to certain rights when they are not charged as adults, police are under no obligation to inform them of those rights. Experts in juvenile law shake their heads, for example, over the Joey Miller case.
Miller was a 13-year-old living in Pulaski County. On August 31, 1998, Miller’s father notified police that his son was missing. On the following day, September 1, police arrested young Miller and, without notifying his father that they’d found him, questioned the boy about a recent kidnapping and murder. When they asked the boy whether he could read and write, Miller told them that he could; that he had completed the sixth grade.
Because Joey Miller was 13 and too young to be charged as an adult, he had a right under Arkansas law to speak with a parent or guardian. But the detectives who were questioning him did not inform him of that right. They read him the Miranda form, which Miller signed, waiving his right to an attorney. In the questioning that followed, the boy admitted to having participated in the crimes. Police did not notify his father that they had his son in custody until 2:30 a.m. the following day.
The trial court ruled that Joey Miller had made his statement to police voluntarily, intelligently, and knowingly, and it denied his lawyer’s motions to suppress the confession. Miller was adjudicated a delinquent and sentenced to the Department of Youth Services until the age of 21.
In its review of the case this summer, the Arkansas Supreme Court agreed that Miller’s confession had been voluntary. In support of that conclusion it noted that the boy was nearly 14 years old, that he had completed the sixth grade, and that he had been informed of his Miranda rights.
It also held that the police were under no obligation to tell the boy that, because of his age and the fact that he was not being charged as an adult, he had the right to have his father present. (Juveniles who are charged as adults have no right under Arkansas law to request that a parent be present.) While acknowledging that officers must inform all suspects of their constitutional rights, it noted that the right of juveniles to have a parent present is not a constitutional right but one ordained by Arkansas law. And, because that right is statutory, the court said, police officers are not required to inform juveniles that they have it.
In other words, Joey Miller and other children charged in juvenile court are expected to be aware that they possess this little known right. If they don’t know, they forfeit it. In 1972, in its monumental Miranda ruling, the U.S. Supreme Court concluded that police had an obligation to inform citizens of their rights to remain silent and to have a lawyer with them while they were being questioned. That landmark ruling is itself now being reexamined by the court. But in Arkansas, the state supreme court has already found that children can be expected to do what is not expected of adults; that is, to be aware of what rights might protect them.