Merit Decision: A Juvenile’s Statutory Right to Counsel Does Not Attach at a Police Interrogation. In Re M.W.

On October 3, 2012, the Supreme Court of Ohio handed down a merit decision in In Re M.W., 2012-Ohio-4538.  The case was argued December 6, 2011.  By a vote of 4-3, the Court held that a juvenile has no statutory right to a lawyer during police questioning before court proceedings have begun.  Justice O’Donnell wrote the majority opinion, joined by Justices Cupp, Lanzinger, and Stratton. Chief Justice O’Connor wrote a blockbuster dissent, joined by Justices Pfeifer and McGee Brown.  It is one of her most eloquent opinions.   A must read.

Useful Information For This Decision

Statutory Right to Counsel

R.C. 2151.352  provides that “a child, the child’s parents or custodian, or any other person in loco parentis of the child is entitled to representation by legal counsel at all stages of the proceedings under this chapter or Chapter 2152 (Delinquent Children Section) of the Revised Code .”

Second Syllabus Paragraph In re C.S., 2007-Ohio-4919

In a delinquency proceeding, a juvenile may waive his constitutional right to counsel, subject to certain standards, if he is counseled and advised by his parent, custodian, or guardian. If the juvenile is not counseled by his parent, guardian, or custodian and has not consulted with an attorney, he may not waive his right to counsel.

Case Background

M.W., then fifteen, was stopped by a Cleveland police officer who determined the youth did not have a valid driver’s license. M.W. admitted to the officer that he had served as the lookout in an armed robbery the day before. He was then arrested, taken into custody, and Mirandized. With no parent or lawyer present, M.W. waived his Miranda rights and signed a written statement confessing to the offense. Delinquency proceedings were then initiated in juvenile court with the filing of a complaint. The state presented M.W.’s written statement at trial. M.W. was subsequently adjudicated delinquent and committed to the Ohio Department of Youth Services.

The Eighth District affirmed the trial court’s admission of the written statement, finding that an investigatory interrogation is not a stage of the proceedings under R.C. 2151.352.  The appeals court also held that M.W. never exercised his Fifth Amendment right to counsel under Miranda, and that his reliance on In Re C.S. was misplaced because the holding in that case was limited to a delinquency proceeding and had no bearing on a waiver of Miranda rights before a delinquency proceeding had begun.


The issue before the Supreme Court was whether the statutory right to counsel under R.C. 2151.352  attaches to a police interrogation that occurred before the filing of a complaint alleging delinquency or before any appearance by the juvenile in juvenile court.  Read the oral argument preview of the case here and the analysis of the oral argument here.

State’s position

The state argued throughout that “proceeding” means “court proceeding.” A delinquency proceeding is begun when a complaint is filed or a juvenile appears before the juvenile court.  M.W. gave his written statement to the police before any complaint was filed in juvenile court, so his statutory right to counsel had not attached during his police interrogation.

M.W.’s position

M.W. contended that an interrogation is a “stage of the proceeding” to which his right to counsel attached. He also argued that the waiver of his Miranda right to counsel was invalid because he had not consulted with a parent or a lawyer.

Strictly A Narrow Case of Statutory Interpretation

The Supreme Court majority first determined that only the statutory right to counsel was before it, agreeing with the Court of Appeals that while M.W. did have a Fifth Amendment right to counsel under Miranda, he did not exercise that right. And it distinguished In Re C.S. because that case dealt with the constitutional right to counsel during a delinquency proceeding, while this case dealt with the statutory right to counsel during an interrogation that took place before delinquency proceedings were initiated.

Justice O’Donnell made it clear that the majority decision was a narrow one.  “We stress that the only claimed right to counsel in this appeal is a statutory one premised on R.C. 2151.352, and our narrow holding does not address any constitutional right to counsel or the issue of waiver,” he wrote.

The Majority Interprets “Proceeding” To Mean “Court Proceeding”

The Court determined that the legal dictionary definition, case law,  juvenile rules, and the context of R.C. 2151.352  all support its finding  that the definition of “proceeding” means a court proceeding, not something that occurs earlier, such as an investigatory action by the police.

“In view of these reasons and the plain language of R.C. 2151.352, we conclude that an interrogation that occurs prior to the filing of a complaint alleging delinquency or prior to an appearance in juvenile court is not a proceeding that falls within the scope of R.C. Chapter 2151,” wrote Justice O’Donnell.

Separate Concurrence

Justice Lanzinger wrote a brief separate concurrence joined by Justice Cupp.  She agreed that “proceeding” relates to juvenile court proceedings that begin when a complaint alleging delinquency is filed.   She added, in response to the dissent, that if the legislature wanted the statutory right to counsel to attach earlier, it could define “proceeding” to include investigations of delinquency.

Chief Justice O’Connor’s Dissent

The key to the Chief’s dissent is this fundamental philosophy, which she quotes:

“[A juvenile] cannot be compared with an adult in full possession of his senses and knowledgeable of the consequences of his admissions.” Gallegos v. Colorado, 370 U.S. 49, 54, 82 S.Ct. 1209, 8 L.Ed.2d 325 (1962). A juvenile in police custody is often in need of “more mature judgment” from an adult relative or counsel, who can give the juvenile “the protection which his own immaturity could not.” Id.

Later in the decision, she agreed with a holding from the Indiana Supreme Court that “juveniles should be afforded safeguards that are in addition to those required by Miranda when subjected to custodial interrogation.”

The Majority’s Mistaken Contentions

The Chief began by underscoring what she saw as two big errors in the underpinnings of the majority decision:

  • That R.C. 2151.352 is clear and unambiguous, and subject to only one possible interpretation
  • That the constitutional right to counsel is not implicated in this case

As to the second point, she noted that this was the proposition the Court had accepted for review: Whether a juvenile has the right to counsel at all stages of the proceedings against him, and whether in the interrogation stage, the juvenile must be represented by his parent, guardian, custodian, or an attorney before waiving his right to counsel pursuant to Miranda.

Context Matters! (as I always tell my torts students)

The Chief made a couple of key points here.  First, she posits that if we are going to use Black’s Law Dictionary, as the majority does, “proceedings” includes “all ancillary or provisional steps, such as arrest.”  So much for only one plain and ordinary meaning of “proceedings.” So, onward to legislative intent, which in this case she insists must go beyond the words in the statute.

It’s Due Process That Controls Here

Fundamentally, the Chief disagrees that no constitutional right to counsel is implicated here. She disagrees that “proceedings” only means court proceedings, and not the investigatory action taken by police prior to the filing of the complaint or a juvenile’s appearance before a tribunal. She continues to believe, as she did as author of In Re C.S. that it is the Due Process Clause of the Fourteenth Amendment controls in juvenile cases. Due process makes a juvenile’s right to counsel malleable, driven by fundamental fairness. And as she wrote later in her dissent, “the custodial interrogation is at least as important as the events that subsequently unfold in court, and given its repercussions, a child must be afforded the right to counsel and parents during that period.”

The Majority is Using the Wrong Case Precedent

Next, the Chief criticizes the majority for using case law to interpret R.C. 2151.352 that was decided long after the legislature enacted it in 1969. This underscores her earlier point that context matters. In this part of her decision she throws in some federal court decisions —which she admits also have no more bearing on the interpretation of R.C. 2151.352 than the cases cited by the majority—that clearly define the term “proceedings” broadly, to include investigations that occur before any complaints or indictments are filed in a court.

The Proper Interpretation of R.C. 2151.352

R.C. 2151.352 was enacted in response to the U.S. Supreme Court decision in In Re Gault, (which held that certain constitutional rights, including the right to counsel and the right against self-incrimination apply to children as well as to adults.) In enacting this statute, the legislature intended to provide a statutory right to counsel that went beyond constitutional requirements. The Fifth Amendment clearly protects individuals against self-incrimination, both in a court and in a custodial interrogation. And custodial police interrogations are even more coercive for juveniles than for adults. So the Chief is especially critical of the majority for interpreting a statute that was intended to go beyond constitutional requirements in a manner that ignores constitutional requirements. “We must look to the constitutional requirements that the statute embodies,” she wrote.  “And after doing so, we must be true to them and to the statutory right that exceeds those requirements. ”

She continued,  “the General Assembly enacted R.C. 2151.352 in response to a series of directives from the United States Supreme Court calling for courts to ensure fundamental fairness in juvenile proceedings, including protecting juveniles’ right, from custodial interrogation through adjudication, not to incriminate themselves. Given those purposes, the majority’s construction of R.C. 2151.352 improperly vitiates the very purpose of the statute… More importantly, it offends fundamental notions of due process and fairness.”

The Chief’s’ Conclusion

“The majority’s holding implicitly endorses a system in which the rights our federal and state constitutions were designed to protect, as expressed in Miranda, Gault, and C.S., are offended. I cannot countenance such a holding, and thus I strongly dissent.

Case Syllabus

The term “proceedings” as used in R.C. 2151.352 means court proceedings, and in that context, a child is statutorily entitled to representation by legal counsel upon the filing of a complaint in juvenile court or upon initial appearance in the juvenile court.

Concluding Observations

I’m with Chief Justice O’Connor here, and really commend the passion of her dissent. I agree with the proposal in the amicus brief filed by the Juvenile Law Center, National Juvenile Defender Center, Center on Wrongful Convictions of Youth and the Children’s Law Center that a “bright line rule should be adopted requiring that juveniles consult with an attorney prior to waiving their rights during interrogation.” Or, barring that, as Justice Lanzinger suggests in her separate concurrence, let’s hope the legislature does amend the statute to make it clear that a juvenile’s  statutory right to counsel attaches at the interrogation stage of the proceedings.

Justice O’Donnell, author of the majority decision, has been decidedly hostile to greater protections for juvenile offenders.  He dissented from the holding in In Re CP, 2012-Ohio-1446  which struck down automatic lifetime registration and notification requirements for certain juvenile sex offenders. He also voted against the recent amendments to Juvenile Rule 3, which really tightens up the right to counsel by juveniles, and requires very strict judicial review of any kind of waiver of this right.




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One Response to Merit Decision: A Juvenile’s Statutory Right to Counsel Does Not Attach at a Police Interrogation. In Re M.W.

  1. Bart Rosenberg says:

    Do we really expect a 15 year old to understand Miranda et al and implications? Hell, this went all the way to the SC. Give the kid a break.

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