In 2011, in his rejection of Rivkin’s appeal, Judge Irwin upheld his own convictions. In a written order, he said that the four truants entered court and after being advised of “the right to remain silent, the right to confront witnesses against them, and the right to an attorney, chose to enter a plea immediately, without the advice of counsel and offered no justification for … excessive absences.”
But, again, while truants in Tennessee must be informed of the rights that Irwin recited, indigent status offenders don’t have the right to the appointment of a defense attorney if they decide not to plead guilty and want a trial.
After Irwin’s initial ruling, the state of Tennessee and the Knox County D.A.’s office took on the defense of the juvenile court’s practices.
As part of that defense, the state argued that the juvenile court had adhered to proper procedure, including by jailing T.W., and that T.W. had missed a 10-day deadline for appealing his 2009 detention order. The state’s lawyers submitted forms identified as court notes with identical language on them declaring that T.W., during each of his court appearances, was “advised of rights.”
But as Rivkin noted in a filing, the state didn’t challenge the argument that there were no signed waivers in the files of his plaintiffs.
In 2012, in a second rejection for Rivkin, Judge Bill Swann of the Fourth Circuit found that the juvenile court’s actions were generally proper. He didn’t opine on whether he thought T.W. had been appropriately afforded an opportunity for appointed counsel before he was jailed. But Swann did reject Rivkin’s interpretation of federal law, arguing that existing law requires appointment of counsel only after indigent truants have already violated valid court orders and face possible incarceration.
“The constitutional right to counsel only attaches at that point, and not before,” Swann wrote. But he added that the plaintiffs “laudably urge the advancement of a social policy” that only the state’s legislators could change.
Last December, when a Court of Appeals panel also rejected Rivkin’s arguments, the judges found that the plaintiffs didn’t meet the burden of new evidence to justify a review of their convictions.
Knox County District Attorney Special Counsel John Gill told the Center for Public Integrity that the D.A.’s office acknowledges that state and federal law do not permit jailing truants except when valid court orders are issued and kids are informed that they have a right to the appointment of an attorney.
Asked about general allegations that kids were put into detention frequently in recent past years perhaps without understanding their rights, Gill did say: “There were some practices that hadn’t been scrutinized.”
“I’m not saying it hasn’t happened,” Gill said, referring to truants being jailed.
He said that he doesn’t believe that valid court orders are currently being issued in the court to handle truants or that they are being jailed. The D.A.’s interest, he said, is “getting kids back to school, not convictions and not in locking them up.”
How many were shackled, handcuffed and jailed?
In his appeal filings, Rivkin noted that by Knox County’s own count, more than 600 accused truants were called to the juvenile court between 2008 and 2012. But it’s hard to determine who among them was locked up because the court refuses to release detailed detention data that could include reasons for jailing, and whether detention was pre-trial or post-trial and if the kids had counsel.
Without transparent data, Rivkin said, “there is no way of knowing how many children and youth have suffered the consequences our clients did before we began representing them.”
In 2011, Rivkin filed public record act requests asking for lockup information, with juveniles’ names redacted. Irwin declined the request. The judge retained a lawyer for himself, Robert Watson of Knoxville, who has since died. Watson argued in a letter that the records were “confidential and inspection is allowed only if the judge so chooses.”
A Center associate in Tennessee filed a request for redacted juvenile detention records and was told in January that she would have to provide $17,500 in processing costs to Knox County first.
In the meantime, Rivkin was able to obtain, though an unofficial channel, an internal Knox court compilation tracing status offender histories over several years; the document contains no information about whether lawyers were appointed. But it is illuminating nonetheless.
The Center reviewed the compilation, which was submitted to the Fourth Circuit Court. The review found that in 2009 alone more than 50 status offenders identified only by “client” numbers were put into detention. The only charge listed in connection with some lockups was truancy. Most followed a succession of prior appearances and prior detentions for a mix of infractions no greater than truancy, running away, cigarette possession, curfew violation and probation revocation or valid court order violations.
One minor, the records show, appeared in court twice for truancy in 2006 and 2007, and then had probation revoked in 2008 and was put into detention that same year. The same minor was back in court again for tobacco possession in 2008, followed by revocation of probation again and detention again. In 2009, the minor was in court again for revocation of probation and again put into detention.
A young woman who asked to be identified as K.P. also has a history of cycling through court in Knox County during this time frame.
In February 2008, when she was 15, she pleaded guilty to truancy, without the benefit of an attorney. She was arrested twice later that year and put into detention both times. She was accused of disobeying truancy probation, but she had no valid court order in her file, lawyers at the Practicum who later represented her said.