Right on the heels of the Illinois change to permit the automatic transfer of juvenile cases to adult court upon the age of 15 for the defendants comes the recent announcement that the defendants in the infamous ‘Slenderman Stabbing’ case are also being tried in an adult court. This seems at odds with advocate and legislature calls to reform the juvenile justice system. More and more teens and pre-teen defendants are facing adult sentencing than ever before. How can the two initiatives, seeming to be moving in opposite directions, be occurring at the same time?
The issue may lay in the changing nature of juvenile crime
While the courts have become adept at processing drug related juvenile cases and the juvenile justice system has made strides towards offering better rehabilitation services for kids with drug related issues, the nature of major crimes committed by minors has changed. There are more striking examples on the docks today that tell a story of juvenile serious mental illness than suggest the traditional broken home and drug addiction path of before. Slenderman’s defendants, two 13 year old girls who stabbed a classmate multiple times in order to prove their worth as real world proxies for a fictional character, is just one of the most visible cases where issues of SMI are playing a role. The juvenile courts may not be adequately prepared or have precedent to handle cases in which the treatment of SMI may play a critical role.
What are the main differences between SMI sentences in juvenile and adult courts?
As was also demonstrated by the recent release of the brother and sister team in Florida who murdered their parents because they came of age, the limits of the juvenile court system lies in the years in which it can govern. Upon reaching age, the defendant is released. With a greater recognition of how serious mental illness evolves from childhood on, many advocates are supporting the transfer of SMI related juvenile cases to the adult court system. In the adult court system, the defendant can be mandated to treatment for an indefinite period. Release is contingent on the remission or elimination of symptoms. That may also open the door to later criminal proceedings, but most cases accept criminal sentencing in conjunction with committed mental health treatment.
Is this the right way to treat youthful offenders with SMI?
That is always the question and there is no real answer for it. The diagnostic criteria and diagnosis themselves have also recently changed with the release of the latest addition of the DSMV. The correctional industry is struggling to deal with higher rates of prisoners with SMI and those with dual diagnoses as well. The problem really is that the justice and penal system is based upon a punitive measure that has a beginning and end. SMI does not have a similar time period of activation. Finding appropriate ways to punish criminality in the short term while providing long term care is difficult. No more so than with juvenile offenders whose onset of SMI symptoms may not even be fully realized.
Is the transfer worth it for your client?
This is another tricky issue. There are other recent precedents that are working to redefine the nature of client confidentiality. A recent case saw a limit placed upon attorney discovery. If you discover something about the nature of your client’s mental health without their admission, you are now allowed to enter that into the court record for consideration with or without the client’s permission. While that can open the doors to providing greater care, it can be a hard sell to the guardians of an underage defendant. In the end, the tide is changing towards how juvenile defendants with SMI are handled – but no one knows for sure if it is for the best.
The 2014 ruling that found that the LSAT practices for accommodations for people with disability faulty has hit yet another snag. A federal judge recently urged the panel that oversees the test to move towards ratifying and implementing the changes pushed by Federal and State Agencies. At hand is the process of verifying the disability claimed, something that runs afoul of many of the current American with Disabilities Act (ADA) guidelines. The LSAT is standing firm in requiring proof of disability, but this is raising even more concerns in the age of HIPAA and ADA accommodations.
The issue is the burden of proof
The stumbling block is not based upon the typical accommodation requests, but on the scoring practices and evidence requirement for claiming accommodation when taking the LSAT. As it stands now, the practice of annotating scores with notes about whether or not the person required extra time or special accommodation has been struck from the LSAT test guidelines. It was not only struck, but was part of a three plus million dollar settlement. The issue now is the process applicants must go through in submitting a requirement for accommodations based upon disability. The LSAT requires proof of disability, and proof that the accommodations are required by the disability to promote fair test taking practices.
What accommodations are they talking about?
At stake are the LSAT accommodations that allow for extended time for taking tests, breaks between test sections, and the use of special software. The LSAT says that for those without a disability this would constitute an unfair advantage on the test, which is why they are defending their practice of requiring proof of disability. According to ADA guidelines, proof requirements that are allowed under the act are surpassed by the current LSAT practices amounting to discriminatory practice.
The argument is based upon the weight of the LSAT
The argument on both sides isn’t really about the accommodations, but is concerned with the weight LSAT scores are given in admission to law school and gaining employment. While the earlier case stated that the practice of annotating test scores to reveal accommodations was discriminatory, the practice of extensive evidence of disability is being challenged as discriminatory as well. It may also be a violation of patient rights. Right now, the general rule is that if a person applies for a disability accommodation for the LSAT and they do not get it, they are filing suit against the LSAT governing council.
Does the current system push frivolous suits?
That last bit has the courts concerned that the LSAT is unfairly burdening the courts with frivolous lawsuits concerning a policy reform that they should be mandating or denying as their own agency, not waiting to build a court case that will dictate the decision. This is causing many agencies to lose patience with LSAT and question what exactly are the grounds for the disability problems the test seems to be having.
What the proposed changes could mean
The changes mean that the LSAT would follow no different protocol for claimed accommodations than any other national test. As if stand now, application for accommodations require only notice of disability award or doctors confirmation. The testing agency would no longer be able to engage in further “investigative” behaviors. This will move the LSAT into compliance with the ADA, but it appears to be a course of action the council is determined to have mandated to them by the courts rather than initiating the reforms themselves.
A silicon valley concern that focuses on start-ups has released a preview of the ROSS system that stands to change the shape of the legal industry. ROSS is billed as the first artificially intelligent lawyer. It is paired with IBM’s powerful Watson processor and allows not just for database research on legal issues, but the formulation of tactics and related supporting documentation. While the legal industry has long made use of digital resources, this stands to have the same impact on the profession as the EHR has had on healthcare.
Early adopters may break ahead
ROSS is already functioning at a stage where early adopters in the industry are putting it to use. That can mean a serious boost in alleviating time constraints in preparing cases. Early adopters can utilize the processing power of Watson to identity more relevant case material faster than is available with any other system. Given ROSS’s claimed ability to draw inferences and conclusions, it could also present a challenge to other attorneys by delivering the advantage of accessing precedents that otherwise could not be found without months of continuances and research.
How far along is ROSS really?
That all sounds daunting but the reality is that ROSS is little more than a shell at the moment. The power of ROSS is dependent on the maturity of its artificial intelligence (AI). To reach maturity ROSS must interact with lawyers in order to begin to build a logical system of reference. How good ROSS becomes is going to depend on this vital training period. How much time effective lawyers have to give training an AI program is limited and it may only proceed with the help of researchers and law students. It is not at the point yet where you will be facing a ROSS assisted lawyer in court.
What does this mean for the future of practice?
While it may be a while before your opponent is seated at a table and accompanied by a ROSS enabled system, this does herald a change coming to practice. In the same way that EHR signaled a massive industry change in healthcare, ROSS could bring about the same forced move into the digital age. As it is powered by Watson, it won’t face the sheer manpower requirements that the EHR transition had to incorporate. This means it could then become a reality in the legal field much sooner than the roll out of EHR happened on for medical and healthcare providers.
Like LEXIS only better
ROSS has been described as the Lexis system on steroids, but it is much more than that. Lexis can only return findings driven by its human search operator. ROSS is growing the ability to conduct its own search directions. You could potentially enter a jurisdiction and charge, along with case documentation, and ROSS would then construct the entire approach. While some tech industry analysts are heralding it as the replacement for a flesh and blood lawyer, there are still too many nuances for it to handle to suggest that you will be facing off against an artificially intelligent lawyer in court.
What is could single a need for in your office
What the ROSS announcement does suggest is that the law sphere is moving officially into the digital age. This goes beyond the use of Lexis to the integration of databases and electronic services into practice. Issues of accountability, reliability and human error in the construction of the AI abound, but EHR has demonstrated that with backup verification settings that they can be overcome. IT is highly recommended that practices begin to incorporate more wired processes than ever before in order to train a new generation of lawyers to be able to incorporate ROSS into their case preparation more effectively.
In other news this week the dot law domain name extension became officially available and some early adopters have been registering names with abandon. Given the limited success of other specific name extensions in the public sphere, how much attention should your practice be paying to the dot law move? It can be hard to tell. There have been several cases in which attorneys have gone at each other due to copyright and trademark issues over firm names and domain names. The reality may be that dot law is not a solution, but it may be a necessity.
The issue with domain names
The issue with domain names has been building steadily over the past decade. With the rise of use of the Internet by every man, the number of domain names registered has grown. It has almost peaked out the allowed space for the dot coms and dot govs are moving to protect their territories. Depending on where you are in the world, some countries are establishing digital borders and claiming extension like dot in and dot pk are only allowed for registered entities functioning within that country’s geographic borders. The Internet policy commission has approved the release of new naming conventions in order to meet the new demand for online identities. That has proven to open a can of worms when it comes to identity and trademark violations.
Protecting your online identity
It used to be that all you had to do to protect your identity online was to make sure you registered the top three tier names for your practice. With the explosive growth in domain name registration, and the complicated nature of search engine optimization techniques, even having your firm’s name as a dot com isn’t enough to make sure you are clearly identified in searches. There have been several cases in the US where startup firms where challenged, and lost, over the nature of their similar names to established practices. When it comes to trademark, the rules can be extremely foggy when it comes to defining identity. The push for industry wide adoption of dot law doesn’t appear to really be poised to clarify anything at all.
Will dot law make a difference with copyright?
The problem with using dot law to address copyright and trademark issues is that the popular culture still identifies dot com with the “real deal.” Early adopters are hoping that the specificity of the three letter designation will easily supplant the association in the public’s mind but the reality remains that people will still adopt for the dot com over any other naming convention. In order to successfully use this as your marketing identity, you will have to invest in SEO and real time publication.
If it’s an issue then you need to invest
One reason that you would need to consider investing in a dot law is if you are practices across jurisdictions. There is the chance that you could benefit from a geographically identified dot law name. What that success would depend on is making sure that clients can find you and that will require firms becoming more willing to invest in Internet marketing. Right now, dollars still go more towards the traditional billboard and print modes, but the tide may be changing.
Getting clients to find you
Recent statistics are showing that more and more people are using the Internet for information and to connect with local services. Adding dot law to your name isn’t going to push you out in front. There are considerations with SEO to make sure that the search engines can read and validate your website on mobile and desktop sites. With a careful strategy, you could turn dot law to your advantage if you are the early adopter in your town – but you also stand the risk of being excluded from current searches. The best practice looks to be a hybrid of the two with mirrored sites shared around until the dust settles on whether this naming convention is going to have an impact beyond the industry.
The recent decision by a Bronx Criminal Justice in the People Vs Julio Velasquez highlights the burdens on prosecutors for proof of the existence of a mental illness in a time when the role of mental illness in criminal cases is under the spotlight. The defendant had challenge the claimant to a review of their reliability of their testimony based upon knowledge of information that the claimant had a history of bipolar illness. At hand is the issue that the common side effect of medications used to treat the disorder can cause a faulty memory of events. In a contentious ruling, Bronx Criminal Justice, Steven Hornstein, ruled that the prosecutors must submit evidence supporting the admissibility of their claimant’s testimony in regards to the knowledge of the serious mental illness (SMI).
Who bears the burden?
The mental hygiene law of New York places the burden of proof on the reliability of testimony on the prosecution when it comes to determining admissibility of testimony from those with a serious mental illness. The law was designed to protect those with SMI as it was imagined they would be the majority defendants in cases. What flips the law this time is that the claimant is the person with the SMI, not the defendant. It stands to create a dangerous precedent for future cases.
The dangerous precedent at hand
The claim of the defendant that the sworn testimony of the claimant is inadmissible due to the nature of the claimant’s serious mental illness stands to create a dangerous precedent. While the mental hygiene law was written to protect defendants with SMI, this case has the claimant in the position of having to prove they were competent to give sworn testimony. The precedent that the claimant’s deposition can be called into question based upon a pre-existing mental illness creates the potential for a raft of challenges based on dismissal. It opens the door to a precedent that all persons with serious mental illness must now prove their reliability in court even if the SMI is appropriately managed. The burden may remain on the prosecution, but it now means that disclosure practices may change and it could but the HIPAA rights of those with mental illness at risk.
When is disclosure proactive?
From either side of a case it could mean that a proactive disclosure of the diagnoses and treatment of a serious mental illness would have to become the norm. That then pushes the burden of proof onto the prosecutor and could set up a limited window for challenge. While this could benefit some cases, it sets a dangerous precedent of violating the privacy that the mental hygiene act originally intended to protect. Disclosure, at this point, is a tricky field of trying to navigate what can become public record and what is discriminatory. With the recent spate of bills focusing on mental health in regards to gun licensing, it looks like there may also be a judicial tide towards the re-stigmatization of mental illness.
Does SMI reduce validity of complaint?
What is also a potential with this ruling is that it reinforces the question of the validity and reliability of any statement from a person with serious mental illness. This could also create a retroactive door to appeals for numerous cases in which not just the defendant suffered from SMI, but so did the claimant. Testimony, admission and confessions could be challenged due to the fact of a documented condition. The condition itself would not be the determining factor, but also the side effects of its treatment and the effects on a person’s recall and memory. Expect criminal lawyers everywhere to be reviewing the implications of this decision on both old and new cases alike.