Judge Tyler Gill Seeks New Statute To Allow Circuit Judge to Have Access to Juvenile Records at Bond Hearings

Circuit Judge Tyler Gill of Russelville,  is seeking an amendment to KRS 610.340, the statute which makes most juvenile records confidential.

Judge Tyler Gill notes that pre-trial release officers who should be supplying the court with copies of a defendant’s prior juvenile criminal history for use by the Judge in setting bonds, are not being allowed to provide the Judge with the defendants prior juvenile criminal history.

Judge Gill was informed by AOC that their staff attorneys have advised that juvenile records may be released for the purpose of sentencing defendants, but may not be released to judges who are asked to set pre-trial bonds for defendants. The practice of the AOC is to deny access to such records for judges being asked to set pre-trial bonds. Gill’s proposed amendment would allow this information to be released in bond setting hearings.

Our review of KRS 610.340 notes the exemption in the statute which says confidentiality does not apply to persons identified in KRS 610.340 Section (1) (b) Juvenile court records which contain information pertaining to arrests, petitions, adjudications, and dispositions of a child may be disclosed to victims or other persons authorized to attend a juvenile court hearing pursuant to KRS 610.070.

 

Surely the District Judge is entitled to attend a juvenile hearing. Judge Gill, a Circuit Judge says in his opinion KRs 610.340 does not permit a circuit judge to have such information.

 

KRS 610.070 provides a laundry list of persons who may review the arrest and conviction records of juveniles, and judges are certainly included in that list. There is stronger limitation on psychological and medical records in the statute.

 

The pre-trial officers are refusing to supply to circuit judges these records in bond hearing. This limits the ability of the trial judge to consider important evidence before making bond decisions.

 

It is understandable why he has requested that the legislature clarify that judges are entitled to view these records to assist them in their sentencing decisions.

LawReader has obtained a copy of a letter from Judge Gill to the LRC, the Chief Justice and Laurie Dudgeon, the Director of the Administrative Office of the Courts, which explains his request for new legislation on this important subject.

From: Gill, Tyler

Sent: Tuesday, November 22, 2011 11:27 AM

To: ‘John.Tilley@LRC.ky.gov’

Cc: Chief Justice John D. Minton, Jr.; Dudgeon, Laurie

 

Subject: Statutory clarification of KRS 610.340 (confidentiality of juvenile records)

Dear Representative Tilley,

I am seeking a statutory amendment to clarify the intent of KRS 610.340 which directs the confidentiality of juvenile court records. I suggest the following language:

“Criminal court judges determining felony bonds for adult defendants shall be provided with a Pretrial Services History Report and a Pretrial Risk Assessment that include Kentucky juvenile records of charges or adjudications of public offenses. In the event of a dismissal of all criminal charges, any written reference to the juvenile records in the adult criminal case may be sealed or purged from the record.”

Kentucky Judges are not informed about a criminal defendant’s juvenile records of public offense charges and adjudications in determining the amount of bond to set on felony crimes.

The Pretrial Release office of the Administrative Office of the Courts as a matter of unwritten policy excludes from the History Report and Pretrial Risk Assessment the defendant’s Kentucky juvenile history of public offense charges and adjudications. It sounds strange but Court of Justice records are hidden from Court of Justice judges by the Court of Justice. I am told that the reasoning behind the policy is fear that, in giving judges this information, AOC employees would be violating the confidentiality requirements regarding juvenile records.

I doubt whether anyone familiar with the current juvenile statutes would strongly oppose this clarification of law. I do not believe that there has ever existed a specific legislative intent that juvenile records should not be used in making bond decisions in felony criminal cases. To the contrary, the statutory framework suggests a legislative intent that criminal court judges be provided all relevant and available information to make informed bond decisions. KRS 610.340 requires confidentiality of juvenile court records except for “good cause” – plus other notable exceptions. The juvenile records of juveniles tried as adults are statutorily open to the public (See KRS 635.120) and admissible as evidence at trial (See KRS 610.320(5). Juvenile records of an adult criminal defendant may be presented to the jury in the sentencing phase of a criminal trial (KRS 610.320) and may be considered by a judge conducting a felony final sentencing hearing. The fact of juvenile adjudications of guilt of violent crimes is provided to school districts where those juveniles attend school. KRS 610.345(2). Subsection 2 of KRS 610.340 makes juvenile records available to “public officers or employees engaged in the investigation of and in the prosecution of cases under . . . the Kentucky Revised Statutes.”

In setting bonds on defendants between the ages of about 18 and 25 years old, the nature of the charge or other circumstances can make his or her juvenile history, or lack of it, one of the most important factors in determining the risk of flight and risk to others. For example, an adult defendant charged with a felony assault and the criminal history appears completely clean would ordinarily be low risk of new criminal conduct while out on bond and should be released. But with young defendants, the hidden truth may be that he or she has been adjudicated guilty of multiple prior violent offenses. The adult charge may be a sex crime. With no prior history the defendant appears low risk. But the truth represented by the juvenile records may be that the defendant is a serial sex offender. As you can imagine, the negative consequences of a bad decision here could be great. There should never be a hidden truth in this process. The process of judges setting bonds in felony criminal cases is not one where the public would expect or excuse institutionalized incompetence.

This year the Legislature enacted KRS 466.101 (33) which defines a Pretrial Risk Assessment as an “objective, research based, validated, assessment tool that measures a defendant’s risk of flight and risk of anticipated criminal conduct . . .” An assessment that by policy omits available relevant information about the defendant’s past criminal conduct can never be truly objective or validated. The bottom line is that withholding important information from criminal court judges can jeopardize the public and undermine public confidence in the judiciary. The fix appears easy and, if there is a significant downside, I have not been able to find it.

I would appreciate your assistance in addressing this issue as soon as possible. Thank you for your attention to this matter.

Tyler L. Gill, Judge

Seventh Judicial Circuit

The statute that Judge Gill seeks amendment of, is KRS 610.340 which states;

 

KRS 610.340 Confidentiality of juvenile court records.

 

(1) (a) Unless a specific provision of KRS Chapters 600 to 645 specifies otherwise, all juvenile court records of any nature generated pursuant to KRS Chapters 600 to 645 by any agency or instrumentality, public or private, shall be deemed to be confidential and shall not be disclosed except to the child, parent, victims, or other persons authorized to attend a juvenile court hearing pursuant to KRS 610.070 unless ordered by the court for good cause.

(b) Juvenile court records which contain information pertaining to arrests, petitions, adjudications, and dispositions of a child may be disclosed to victims or other persons authorized to attend a juvenile court hearing pursuant to KRS 610.070.

(c) Release of the child’s treatment, medical, mental, or psychological records is prohibited unless presented as evidence in Circuit Court. Any records resulting from the child’s prior abuse and neglect under Title IV-E or Title IV-B of the Federal Social Security Act shall not be disclosed to victims or other persons authorized to attend a juvenile court hearing pursuant to KRS 610.070.

(d) Victim access under this subsection to juvenile court records shall include access to records of adjudications that occurred prior to July 15, 1998.

(2) The provisions of this section shall not apply to public officers or employees engaged in the investigation of and in the prosecution of cases under KRS Chapters 600 to 645 or other portions of the Kentucky Revised Statutes. Any record obtained pursuant to this subsection shall be used for official use only, shall not be disclosed publicly, and shall be exempt from disclosure under the Open Records Act, KRS 61.870 to 61.884.

(3) The provisions of this section shall not apply to any peace officer, as defined in KRS 446.010, who is engaged in the investigation or prosecution of cases under KRS Chapters 600 to 645 or other portions of the Kentucky Revised Statutes. Any record obtained pursuant to this subsection shall be used for official use only, shall not be disclosed publicly, and shall be exempt from disclosure under the Open Records Act, KRS 61.870 to 61.884.

(4) The provisions of this section shall not apply to employees of the Department of Juvenile Justice or cabinet or its designees responsible for any services under KRS Chapters 600 to 645 or to attorneys for parties involved in actions relating to KRS Chapters 600 to 645 or other prosecutions authorized by the Kentucky Revised Statutes.

(5) The provisions of this section shall not apply to records disclosed pursuant to KRS 610.320 or to public or private elementary and secondary school administrative, transportation, and counseling personnel, to any teacher or school employee with whom the student may come in contact, or to persons entitled to have juvenile records under KRS 610.345, if the possession and use of the records is in compliance with the provisions of KRS 610.345 and this section.

(6) No person, including school personnel, shall disclose any confidential record or any information contained therein except as permitted by this section or other specific section of KRS Chapters 600 to 645, or except as permitted by specific order of the court.

(7) No person, including school personnel, authorized to obtain records pursuant to KRS Chapters 600 to 645 shall obtain or attempt to obtain confidential records to which he is not entitled or for purposes for which he is not permitted to obtain them pursuant to KRS Chapters 600 to 645.

(8) No person, including school personnel, not authorized to obtain records pursuant to KRS Chapters 600 to 645 shall obtain or attempt to obtain records which are made confidential pursuant to KRS Chapters 600 to 645 except upon proper motion to a court of competent jurisdiction.

(9) No person shall destroy or attempt to destroy any record required to be kept pursuant to KRS Chapters 600 to 645 unless the destruction is permitted pursuant to KRS Chapters 600 to 645 and is authorized by the court upon proper motion and good cause for the destruction being shown.

(10) As used in this section the term “KRS Chapters 600 to 645″ includes any administrative regulations which are lawfully promulgated pursuant to KRS Chapters 600 to 645.

Effective: June 8, 2011

History: Amended 2011 Ky. Acts ch. 2, sec. 105, effective June 8, 2011. — Amended 2006 Ky. Acts ch. 182, sec. 69, effective July 12, 2006. — Amended 1998 Ky. Acts ch. 493, sec. 16, effective April 10, 1998; and ch. 606, sec. 23, effective July 15, 1998. — Amended 1996 Ky. Acts ch. 358, sec. 38, effective July 1, 1996 and July 15, 1997. — Created 1986 Ky. Acts ch. 423, sec. 53, effective July 1, 1987.

Legislative Research Commission Note (7/12/2006). This statute, as amended by 2006 Ky. Acts ch. 182, sec. 69, contained an internal reference in subsection (3) to “KRS 446.010(24).” Under KRS 7.136(1)(e), this reference has been changed in codification to “KRS 446.010(25)” by the Reviser of Statues to reflect the insertion of a new subsection (24) in KRS 446.010 and the resulting renumbering of succeeding subsections in 2006 Ky. Acts ch. 149, sec. 237

 

KRS 610.340 refers to the persons exempt from the confidentiality rule of KRS 610.340 sections (1)(b) and as being persons identified in KRS 610.070.

 

KRS 610.070 states:

 

Hearings.

(1) All cases involving children brought before the court whose cases are under the jurisdiction of the court shall be granted a speedy hearing and shall be dealt with by the court without a jury.

(2) The hearings shall be conducted in a formal manner, unless specified to the contrary by other provisions of KRS Chapters 600 to 645.

(3) The general public shall be excluded and only the immediate families or guardians of the parties before the court, witnesses necessary for the prosecution and defense of the case, the probation worker with direct interest in the case, a representative from the Department of Juvenile Justice, the victim, his parent or legal guardian, or if emancipated, his spouse, or a legal representative of either, such persons admitted as the judge shall find have a direct interest in the case or in the work of the court, and such other persons as agreed to by the child and his attorney may be admitted to the hearing.

 

(LawReader: . It is Judge Gill’s opinion that Circuit Judges who did not hear a juvenile case are not entitled to disclosure of juvenile records.)

 

A parent, legal guardian, or spouse if a witness shall be admitted to the hearing only during and after his testimony at the hearing, and witnesses shall be admitted to the hearing only for the duration of their testimony. The court may order the exclusion of a parent, legal guardian, or spouse, if it is shown to the satisfaction of the court that the parent, legal guardian, or spouse may physically disrupt the proceedings or may do violence to any participant therein. The mere presence of a parent, legal guardian, or spouse shall not be deemed to be a disruption of the proceedings merely because their presence may make the defendant uncomfortable; the court shall find a potential for actual physical disruption of the proceedings before an exclusion may be granted for this reason.

(4) The court may order the parents, guardians, or persons exercising custodial control over the child to be present at any hearing or other proceeding involving the child.

Effective: July 15, 1998

History: Amended 1998 Ky. Acts ch. 443, sec. 15, effective July 15, 1998. — Amended 1996 Ky. Acts ch. 358, sec. 21, effective July 15, 1997. — Amended 1994 Ky. Acts ch. 407, sec. 1, effective July 15, 1994. — Amended 1988 Ky. Acts ch. 350, sec. 19, effective April 10, 1988. — Created 1986 Ky. Acts ch. 423, sec. 26, effective July 1, 1987.

Legislative Research Commission Note (7/15/94). In 1994 Ky. Acts ch. 407, sec. 1, the sentence beginning

Judge Gill reports to LawReader;

“ I have never entered an order requiring anyone to give me the records. I would not know who to direct the order to.

Let me explain.

These juvenile records are court records in the possession of the Administrative Office of the Courts – available statewide on computer records at the touch of a button. The Pre-trial Release office is a branch of AOC.

Withholding the information from both pretrial officers and judges is a longstanding practice of AOC since the system was developed. Keep in mind that the AOC computer data base that allowed the records to be accessible easily statewide was not created until the mid 1990’s.

A couple of years ago I asked AOC Director Laurie Dudgeon if this situation could be fixed. She was unaware that judges did not get juvenile records in setting bonds and said she would look into it. She later told me that AOC lawyers told her that, because someone might argue that the act of giving judges juvenile records to set bond violates KRS 610.340, then AOC supervisors should not put its own pretrial officers in the position of possibly violating the law.

I refer to this as an unwritten policy because you cannot tell who created it or who is in charge of enforcing it. Who is directing the supervisors? …the legislature needs to clarify the statute

Assisting judges and making the system work should be AOC’s problem. If criminal trial judges cannot trust that they are getting the whole truth from pretrial officers, fewer people will get out of jail on bond.

The irony is that by statute, Judges can already use juvenile records at the trial and sentencing of the adult defendant. It is only in setting the initial bond that Circuit and District judges are blindfolded about the defendants juvenile history. Now District Judges in single judge rural communities who initially set bonds on felony cases may recall the defendant’s juvenile case in that county and set the bond appropriately. But that information is not given to the Circuit Judge when he reviews the bond after indictment.

…I do not think that as Circuit Judge, I am …entitled to attend a juvenile court hearing.

…In theory this is a matter of maintaining public confidence in the judiciary. In reality it is only about making the system work in the way it is supposed to. I do not know how many criminal court judges across Kentucky are aware that that the criminal history given to them with every bond decision omits the juvenile history. I have spoken to some who were not aware of this. I became aware of it by chance. I feel certain that the public is unaware of this and will remain blissfully ignorant. If a judge releases a defendant on bond – who then commits an atrocity – and it is discovered that a look at our own records would have predicted the conduct, maybe then the issue will be addressed. But then, since the records are confidential, who would make public the judicial incompetence? Secrecy perpetuates itself.”

 

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