One of the most basic principles of the American legal system is the guarantee that what you tell the attorney representing you is confidential and can't be disclosed without your permission. That's an absolute. Unless, the Colorado Supreme Court ruled this week, you happen to be a vulnerable child in a dependency and neglect proceeding -- for example, the alleged victim of a sexual assault by your own stepfather.
The peculiar ruling, which has been sharply criticized by the Rocky Mountain Children's Law Center and other advocacy groups, has to do with the role of a guardian ad litem (GAL), a court-appointed attorney who represents juveniles in dependency and neglect hearings. In pressing charges against a man for allegedly molesting his stepdaughter, Colorado Springs prosecutors sought to compel the GAL who'd represented the victim to testify about her private conversations with the girl.
The testimony was crucial, prosecutors argued, in order to refute the victim's efforts to recant her allegations. (Recantations of charges of sex abuse are regarded with great skepticism by the courts, even when there's ample reason to believe the recantation is legitimate -- as noted in my feature "Beyond Belief," an examination of the terrible Charles Farrar case.)
Lower courts ruled that the girl's conversations with the GAL were protected by attorney-client privilege. But the Supremes concluded that no such privilege exists, since the child is not a defendant in D&N matters -- and technically, not a "client" of the GAL.
Chief Justice Michael Bender and Justice Alex Martinez (soon to be Denver's new manager of safety) joined in a strong dissent against the decision, stating that the ruling could have "devastating effects on the ability of GALs to fully represent the best interests of children."
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In effect, the Supreme Court is now saying that juveniles in dependency and neglect hearings have no right to the benefits of legal representation afforded the most heinous criminal. If abused or neglected children can't safely divulge their secrets to the lawyer the court has appointed to protect them, then who can they trust? The high court's decision doesn't address that problem.
"The children we represent have often been through horrific abuse before landing in state care," says Jeff Koy, director of litigation of the Children's Law Center and an experienced guardian ad litem. "They need someone to confide in. Until today, that person was their GAL."
The Supreme Court's link to the opinion leads, for some reason, to a water case. To read the full text of the ruling, go here.
More from our Follow That Story archive: "Charles Farrar: Last-gasp appeal of sex-abuse case claims prosecution misconduct."