What’s On Their Minds: Does a Juvenile Need to Show Prejudice When the Court Fails to Appoint a Guardian Ad Litem? State of Ohio v. Raymond Morgan.

Update: On September 13, 2017, the Supreme Court of Ohio handed down a merit decision in this case. Read the analysis here.

“But what I am troubled with is at certain stages of these proceedings, there was a breakdown between the lawyer and the child. And if that’s not a red flag for a judge to look at a GAL, I don’t know what is.”

Chief Justice O’Connor, to the prosecutor.

On February 8, 2017, the Supreme Court of Ohio heard oral argument in the case of State of Ohio v. Raymond Morgan, 2015-0924. At issue in this case is whether a juvenile court committed reversible error when failing to appoint a Guardian Ad Litem for an amenability hearing.

Case Background

In February of 2012, Raymond Morgan (“Raymond” or “Morgan”) was involved in a string of crimes near Columbus, Ohio. Morgan was sixteen years old when he faced allegations of delinquency in juvenile court for these offenses. Had these crimes been committed by an adult, they would have been considered felonies. Based on this, the state moved to transfer the case to the Franklin County Court of Common Pleas and to try Morgan as an adult.

Before the amenability hearing to determine whether Morgan would be bound over, he had a disagreement with his appointed counsel. In June of 2012, Morgan requested new counsel, but this request was denied.

Morgan’s father was not present at any of the juvenile proceedings because he died a few weeks before the offenses were committed. Morgan’s mother had regularly been attending the proceedings, but she died in October 2012.

The amenability hearing occurred on October 24, 2012. Morgan’s attorney was present, but there was not a parent, guardian, or other legal custodian present on his behalf. A “godsister” was at the amenability hearing and asked to be pointed out to the court, but her name is absent from the record. She never assumed guardianship of Morgan in any official capacity. Despite being aware of Morgan’s familial situation, the court did not appoint a Guardian Ad Litem (“GAL”), nor did counsel request one or object to the failure to appoint one.

For the hearing, a psychological evaluation was conducted on Morgan by Dr. Barbara Bergman. Based on her findings, Dr. Bergman found that Morgan was amenable to care within the juvenile system, and recommended to the court that Morgan not be transferred to adult court. However, the court chose to transfer anyway, given the severity and “egregious nature” of the gun violence crime spree.

After the case was transferred, Morgan was indicted on thirteen counts. He pled guilty to one count of burglary, two counts of felonious assault, and one count of robbery, with accompanying firearm specifications. He was sentenced to a total of 18 years in prison.

Morgan appealed, asserting that it was reversible error for the court not to appoint a GAL at the amenability hearing. In a unanimous decision authored by Judge Luper Shuster, joined by Judges Brown and Sadler, the Tenth District Court of Appeals agreed that it was error to fail to appoint a GAL. But while acknowledging that some appellate districts have found that an appellant need not object to the failure to appoint a GAL to warrant reversal, the Tenth District believed plain error to be the proper standard where an appellant never requested a GAL. Since Morgan never requested a GAL, he would have to show prejudice to warrant reversal, and the appeals court found that he did not. The case was reversed and remanded on sentencing issues unrelated to this appeal.

Read the oral argument preview in the case here.

Key Precedent

Ohio Juv.R. 4(B)(1) (If a child is without parents or a legal guardian, then the court must appoint a GAL.)

Prof.Cond.R. 1.2 (An attorney is bound to represent his or her client’s expressed interests.)

Sup.R. 48 (Outlines the requirements and obligations owed by court appointed GALs.)

R.C. 2151.281(A)(1) (“The court shall appoint a GAL, subject to rules adopted by the supreme court, to protect the interest of a child in any proceeding concerning an alleged or adjudicated delinquent child or unruly child when . . . [t]he child has no parent, guardian, or legal custodian.”)

R.C. 2152.12(B) (Juvenile court may transfer case involving an alleged delinquent child if that child was at least fourteen years of age, and the crime would be a felony offense if committed by an adult.)

In re Gault, 387 U.S. 1 (1967) (Holding that children, like adults, are entitled to due process and fair treatment.)

State v. Barnes, 94 Ohio St.3d 21 (2002) (Plain error requires a three-prong showing: (1) an error, (2) that was “plain” or “obvious,” and (3) that this error affected “substantial rights,” affecting the outcome of the proceedings. These errors should only be recognized in order to “prevent a manifest miscarriage of justice.”)

In re D.R.B., 2015-Ohio-3346 (8th Dist.) (Rejected plain-error analysis. Due to the mandatory nature of the statute, no objection is necessary for reversible error when a court failed to appoint a GAL.)

State v. D.W., 2012-Ohio-4544 (“Procedural protections are vital” during transfer proceedings. One of these protection is the amenability hearing, which is critical stage of juvenile court proceeding and is rooted in federal due process protections.)

Kent v. U.S., 383 U.S. 541 (1966) (While courts are given discretion regarding transfer proceedings, this does not “confer upon the Juvenile Court a license for arbitrary procedure.” Juveniles still retain fundamental guarantees of fair treatment and due process.)

State v. Perry, 2004-Ohio-297 (Structural errors are “constitutional defects” in the “framework” of the trial proceedings that are considered to be “per se prejudicial.” These errors are rarely found, and there is a strong presumption against such a finding when an individual is represented by counsel.)

At Oral Argument

Arguing Counsel

Charlyn Bohland, Assistant State Public Defender, Columbus, for Appellant Raymond Morgan

Seth L. Gilbert, Assistant Prosecuting Attorney, Franklin County, for Appellee State of Ohio

Morgan’s Argument

If a child has no parent or guardian, the law requires that the juvenile court appoint a GAL to represent the child’s best interest in the juvenile proceedings. The rule applies in all situations in juvenile court when the child has no parent because of death, unavailability, or termination of parental rights. Superintendence Rule 48 sets forth requirements for GALs.

In this case 16 year old Raymond appeared in juvenile court for his amenability hearing just 9 months after his father died and just a few weeks after his mother died. Still traumatized, Raymond had no parents to provide a best interests perspective to the juvenile court. While Raymond did have a lawyer, this court has made it very clear that the role of a lawyer and a GAL are different. It is a lawyer’s job to represent the child’s expressed interest, while a GAL presents the child’s best interest. Because the lawyer represents the child’s expressed interest, the lawyer owes a duty of confidentiality to that child. Because of that, there may be situations where the lawyer is prevented from giving the court the kind of information that could come from a GAL, which is why the legislature placed the burden on the court to make sure that perspective is in the courtroom. In this case, a GAL could have made recommendations about custody and future placement—that isn’t the lawyer’s role.

Before making an amenability determination, the juvenile court must first conduct a full investigation. In this case, the court was lacking the best interest perspective that would have been provided by the GAL. The cornerstone of the juvenile system is the best interest of the child, so that perspective must be present in the courtroom. While some of what the GAL presents may be duplicative of what the lawyer presents, it is from a different—and required-perspective. Nor is what the psychologist presented a substitute for a GAL’s perspective. The psychologist evaluates factors relevant to the amenability determination.

The plain error standard used by the Court of Appeals creates an impossible situation for a juvenile defendant. Without an objection, the child must show the outcome would have been different. That would have been impossible in this case. How can the child show what the GAL, a neutral party, would have presented to the court, or how the court’s mind would have been changed with that information? Instead, the court should use a per se prejudicial standard. Structural error, which admittedly this court does not use lightly, is error that affects the fairness of the proceedings.  That was the case here. The amenability proceeding must measure up to the essentials of due process and fair treatment. Because juvenile court is different from adult court, additional procedural protections may be required. The procedural safeguards that are set forth by the legislature rise to a constitutional level. The procedure itself has been violated.

State’s Argument

All forfeited argument is subject to plain error review. There is no such thing as per se prejudice in plain error review. The defendant here must show that the error affected the outcome of the proceeding. The defendant cannot do that in this case.

The juvenile rules expressly allow for a lawyer also to serve as a GAL if there is no conflict in those roles. And the ethics rules expressly allow a lawyer to seek the appointment of a guardian if the lawyer feels that the client, because of diminished capacity, which includes minority, is unable to represent his or her own best interest. The lawyer can even disclose confidential information if necessary to secure a GAL to represent the client’s best interest.

The defense wants the appointment of a GAL to be entirely the responsibility of the court, and to remove the lawyer from the process. That would be a mistake. Counsel is going to be the one privy to information that will determine whether a GAL is necessary, and is in the best position to make that determination. There could be strategic reasons for not requesting a GAL. Based on this record, there is no evidence at all that the juvenile’s stated interest conflicted with his best interest, necessitating the appointment of a separate GAL. In addition, the psychologist’s report contains almost all the same facts as required by Superintendence rule 48.

Morgan did not waive any significant rights after his mother died. He fought the state every step of the way. And at the amenability hearing the defendant did have the support of a godsister who told the court she was there in the role of the mother. She was not just a bystander. That shows that the defendant was receiving the support of a family member. And if Morgan was dissatisfied with his lawyer, there is another type of proceeding to address that. Whether the lawyer was effective or not is completely separate from whether the absence of a GAL prejudiced the proceedings so as to amount to plain error.

If it is hard to show prejudice in plain error review, it should be. In this case Morgan has not shown any of the factors necessary to show that the absence of a GAL prejudiced the proceedings.

What Was On Their Minds

The Fact that Raymond was an Orphan

What weight should be given to the fact that the defendant had a godsister in court, asked Justice O’Donnell? What was their relationship? Did he live with her? (both counsel agreed the record is silent on any details about the godsister)

Plain Error, Structural Error, and Prejudice

Are we on plain error review here, asked Justice Fischer? Couldn’t the lawyer have objected [to the failure to appoint a GAL]?

Are we under plain error in a civil context or is this criminal plain error, asked Justice French? Has the court ever used structural error in a civil proceeding? And in a key question of the day, she asked, if the court were to say this is not structural error, can prejudice be shown? Later, she asked whether the fact that the defendant was making decisions by himself, after his mother died, should be weighed in favor of finding prejudice, adding that there was testimony that this juvenile was amenable to rehabilitation in the juvenile system, but the court still agreed to a bind over.  Couldn’t  a GAL have talked about the child’s future being  better off  in the juvenile system? Isn’t the child’s future in the adult system very different than it would be in the juvenile system?

Structural errors are constitutional errors, commented Justice O’Donnell. The defense is not arguing there is a constitutional right to a GAL? (no, the defense wasn’t) He commented that he was not following the analysis on this issue.

Is the state arguing for some sort of relaxed prejudice standard, asked Justice DeWine? (answer: no)


How is it fair to have the state on one side, and a juvenile who is an orphan on the other, with no family member, whose lawyer is deliberately ignoring his statutory right to have someone at his side, asked Justice O’Neill?

Affecting the Outcome

In this case what possibly could have been different if a guardian had been appointed, asked Justice DeWine? How would the proceedings been affected? Justice O’Donnell asked the same thing.

Was there information that wasn’t given to the court that could have been given to the court, asked Justice O’Donnell?

Didn’t the psychologist recommend structured intervention with supervised community control and therapy in recommending against transfer, asked Chief Justice O’Connor?

Role of the GAL Versus Role of the Lawyer

Since Raymond had a lawyer in court, why did he need a parent present, asked Justice O’Neill? If a lawyer thinks no GAL is needed, does the lawyer just keep that information to himself or herself, and not tell the court that?

Can the defendant show that the best interest of the child was not given consideration, asked Justice O’Donnell? Didn’t Morgan’s lawyer have his best interest at heart?

The lawyer and Raymond didn’t have a very good working relationship at times, did they, asked Chief Justice O’Connor? Do we expect a 16 year old, without the assistance of a GAL, without a parent, to properly articulate his dissatisfaction with his attorney? Isn’t that asking a lot? Who was there to talk about the support system that there would be if this juvenile remained in the juvenile system, and who would be responsible upon his release? Did the lawyer talk about any of that?

What if a child told his lawyer he didn’t want a guardian, asked Justice DeWine? Wouldn’t counsel be ethically unable to object in that situation? And doesn’t the statute make the appointment of a GAL mandatory since it uses the word “shall?”

How it Looks from the Bleachers

To Professor Emerita Bettman

Like a win for Morgan, but definitely not via structural error. That argument fizzled.  I think the court will adopt plain error review here, as the 10th district did, but where the appeals court found no prejudice, I think a majority of the high court will.

Justice French took the lead here with articulating where prejudice might be found in this case. It was she who first suggested that prejudice could be found when a young man who had had adults helping him make decisions, with his mother in particular attending every hearing, suddenly loses first his father, then his mother, close in time, leaving no adult to counsel him. The Chief followed that line of reasoning noting there was no one who spoke up for a support system for Morgan if he remained in the juvenile system, or who would be responsible upon his release. Nor was it the psychologist’s job to present Morgan’s best interest.

The Chief in particular, who has made the protection of juveniles a hallmark of her tenure, was clearly dissatisfied with the state’s argument that the lawyer in this case effectively represented both the child’s best interest and stated interest. As the Chief said, once there was a breakdown between Raymond and his lawyer, that was a red flag for the court to appoint a GAL.

The prosecutor made two arguments that really annoyed the Chief. First, he suggested that the mysterious godsister would never have told the juvenile judge she was stepping into the role of mother if she didn’t think she was mature enough to fill that role. I had barely had a chance to write a note to myself, “how on earth could you know that” when the Chief said very sharply, “you have no way of knowing that.”  The prosecutor  also said counsel was the only one to decide if a GAL was necessary, but when the Chief immediately got on him about that, he said he meant the lawyer was privy to the information about whether a GAL was necessary. Still, the prosecutor tenaciously stuck to his guns about the lack of prejudice in this situation.

The Chief is going to be looking for allies when it comes to the protection of or expansion of juvenile rights. Her two most dependable allies on this topic—Justices Pfeifer and Lanzinger, have now retired, and Justice French has usually sided with the conservatives in declining to find constitutionally-based greater protections for juveniles, as in Moore and Aalim. But French is a stickler for fairness in the proceedings, and this one seems to be in her wheelhouse.

Still, this isn’t a walk in the park for Morgan. Justice O’Donnell will undoubtedly find for the state, because he clearly didn’t see how the proceedings themselves were prejudiced.  Justice Kennedy, silent as usual, has tended to side with O’Donnell on such matters, and Justice DeWine asked some hard questions about this as well.

To Student Contributor Jefferson Kisor

Will the Supreme Court of Ohio continue its trend in favor of juvenile protections? That was the main question I had going into this argument. Especially considering its recent decisions regarding juveniles (e.g., State v. Moore, State v. Aalim) After hearing the argument, I believe that this court will find for Morgan. However, I am unsure whether it will be by the means of a structural error, or a finding of prejudice.

Counsel for Morgan continually circled back to the “best interest perspective” and its absence in the amenability hearing. Without this neutral party to provide a best interest recommendation, the framework of the proceeding was suspect. While the denial of a GAL is not necessarily a constitutional defect, the failure to abide by procedural safeguards guaranteed to Morgan, “infected the fairness of the proceeding.” That is the constitutional right (to a fair proceeding), which calls for this court to find a structural error. However, I have reservations that a majority will answer this call. The structural error “door” once opened may be too difficult to close.

While Morgan contended throughout the argument that a prejudice requirement was an impossible standard to meet, I am not so sure the court agrees. GALs are able to provide information to the court that would not have been found in Dr. Bergman’s amenability report, and the State conceded that it was not provided by Morgan’s attorney at the hearing. Justice French even explicitly suggested a possible factor for prejudice.

Even though the State insisted that an attorney can represent the child’s best interest while still abiding by his expressed interests, the attorney-client relationship in this case did not support such a notion. As the Chief Justice noted, this should have been a blatant red-flag for the judge overseeing the transfer process, yet a GAL was never appointed.

Justice O’Neill really captured the essence of this case when he asked the State about the fundamental fairness of the process. When “an orphan. . . who has a lawyer who is deliberately ignoring his statutory right to have someone at his side – how is that fair?” Frankly, it’s not. Which is why I have confidence that the court will side with Morgan.



This entry was posted in Juvenile Law, Student Contributors, What's On Their Minds? and tagged , . Bookmark the permalink.