Md. legislature enacts counsel requirement at child interrogations over Hogan’s veto

Juveniles will have an unwaivable right to consult counsel before being interrogated by law enforcement except in compelling circumstances beginning Oct. 1 under a law the Maryland General Assembly enacted Saturday over Gov. Larry Hogan’s veto.

The Child Interrogation Protection Act will permit police officers to interrogate a child without counsel only when they reasonably believe the answer will be necessary to prevent a threat to public safety. Officers in these cases will be allowed to ask only questions “reasonably necessary” to prevent the threat.

Under the new law, police will also be required to take all reasonable steps to notify the minor’s parents or legal guardian before asking questions. The notice will have to include the child’s location, why the child was taken into custody for questioning and how the parent or guardian can make immediate in-person contact with the child.

Sen. Jill P. Carter, the chief sponsor of the measure, called the new law “a giant step in the direction of protecting all of our children,” who do not fully comprehend their constitutional right to remain silent and are susceptible to giving false confessions.

“On behalf of all of those children that have been harmed by the coercion and by the coerced confessions, I am happy that we are doing this veto override,” Carter, D-Baltimore city, told her colleagues on the Senate floor Saturday. “I thank you for doing this for the protection of our children and their constitutional rights.”

The Senate overrode Hogan’s veto by a 30-16 vote, one more than the 29 required for an override. The House voted 93-44 on Senate Bill 53, eight more votes than the 85 needed to override.

Hogan, in vetoing the legislation Friday, said the well-intentioned but flawed bill would “hamper criminal investigations and, in turn, potentially jeopardize public safety” by preventing children from waiving their right to counsel and speaking with police.

“These interactions, which are typically consensual, frequently provide crucial information that may lead to the identification of additional suspects and victims; evidence, such as firearms and other dangerous and deadly weapons, stolen property, and drug stashes; and facts that could assist in the investigation of alleged criminal activity as well as bringing criminals to justice,” Hogan wrote in a letter to legislative leaders. “Despite the fact that some youth may choose to speak freely and voluntarily, this legislation bars a youth from waiving the requirement to speak with a defense attorney or public defender.”

Hogan added that concern about police coercion of juveniles is misplaced as officers are routinely trained on the best practices for questioning youngsters consistent with their constitutional rights.

“Law enforcement officials understand the inherent difference and special care that is needed when a youth is in custody, so they take extra precautions to ensure that any statement that a youth provides is voluntary and in accordance with the Constitution and precedent established by the judicial branch,” Hogan wrote.

“Under current practices, it is rare for a custodial interrogation of a youth not to be recorded by audio and video,” he added. “The recordings of the interrogation are then meticulously reviewed by prosecutors, challenged in court by the defense, and the court will ultimately decide if the youth’s rights were violated or if the evidence is admissible.”

Sen. Robert Cassilly, in a failed effort to convince his colleagues to sustain Hogan’s veto, said the denial of the right to waive counsel will harm children in the juvenile justice system by foreclosing conversations with police and prosecutors trying to help them.

“The (measure’s) hoops, the burdens are so extreme that basically you shut down juvenile interrogations until the parents have consented, the lawyer’s there,” said Cassilly, R-Harford.

“The lawyer’s going to say ‘don’t do it,’ so you shut them (interrogations) down,” Cassilly added. “Let’s make no mistake: There will be no juvenile interrogations.”

But Sen. Delores G. Kelley, D-Baltimore County, called the measure necessary to protect a child’s right to counsel and ensure fairness in the criminal justice system.

“Why should children have less than an adult when they equally stand before the bar of justice?” Kelley told her colleagues. “We should not give less to a child who is facing trouble than an adult would have.”