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My kid’s been arrested! Tips for what to do next

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FRANK J. SCHULTZ
August 31, 2010
— The father was irate.

He had arrived at the lobby of the Janesville Police Department one night last spring to get his son.


His son was under arrest, and the man demanded to see him.


The clerk behind the counter said she would get an officer to speak to him. The man, clearly agitated, didn’t want to wait. He said he had a right to see his son and that he was calling his lawyer.


The man didn’t calm down when an officer arrived. He again made demands and suggested there would be consequences if his son told police something without his lawyer.


The man was so strident that the officer told him he had better adjust his attitude or the officer would arrest him for disorderly conduct.


The man backed off.


Parents often show up at the police department looking for their children, especially these days, when cell phones make communication so fast, said Dan Davis, deputy chief with the Janesville police.


The angry father actually had no right to see his in-custody son. Neither does his lawyer, Davis said.


Not only that, but a parent cannot invoke the right to remain silent for a child. The child must do that.


Same goes for a lawyer, Davis said.


“Unless the (lawyer’s) client tells us that, it doesn’t matter,” Davis said.


There is no such thing as a right to a phone call, either, although in most cases a juvenile is allowed to make a call—or police will call parents—as long as the timing would not interfere with an investigation, said Davis and Cmdr. Troy Knudson of the Rock County Sheriff’s Office.


Police decide on a case-by-case basis when it’s OK to let the parent see the child, Davis said, so it would behoove a parent to act respectfully. Demands, threats or shouting are unlikely to help.


Even if the parent is respectful, police might decide it’s best for their investigation that the parent wait, Davis said.


So what’s a parent to do?


Talk to your child before an arrest occurs, said everyone interviewed for this article.


What should you tell the child? Opinions vary from “say nothing” to “tell the truth.”


Janesville attorney Scott Schroeder said if it’s a criminal matter, it’s best for the child to remain silent and wait for a lawyer.


“There’s nothing they can tell the police that will help them,” agreed Janesville attorney Tod Daniel.


“That might sound like overkill, and that might be the case,” Schroeder said, but before you talk to a lawyer, you just don’t know.


“You can always talk to police after you talk to an attorney, but at least you want to get the lay of the land, know your rights, know your options … but you can’t do it the other way around, talk first and find out it was a mistake,” Schroeder said.


Schroeder also counsels caution with talking to school officials, who are not bound by rules about rights to remain silent and coercion and who could later tell police if they heard a confession.


The child could face legal action as well as discipline at school, such as expulsion or athletics-code sanctions, Schroeder said.


“Someone who is a minor or who is a young person might not be able to sort all the different implications for behavior, and they especially need the advice of an attorney or a knowledgeable parent,” Schroeder said.


Janesville attorney Sara Gehrig, who was a prosecutor in another state, has a different perspective.


Gehrig cautions against admitting guilt, but “cooperation is generally in everybody’s best interest unless there’s a real significant issue.”


Even Gehrig, however, advises parents to tell their kids that they should assert their right to have an attorney if they feel uncomfortable about talking.


Police elsewhere have been known, on occasion, to act inappropriately, but they generally are the good guys, Gehrig said.


Speaking up, in some situations, might keep the real bad guys from getting away, Gehrig noted.


“I would hope our children in our community would have sufficient trust in our law enforcement that they could talk to that officer without fear,” Gehrig said.


So, should a parent rush down to the sheriff’s office or police station?’


Daniel said that’s the parent’s job—to get involved when his or her child is in trouble.


“We never discourage a parent from coming down here or calling,” Davis said.


“I think a parent has the responsibility also to try and work with us to correct that problem behavior,” Knudson said.


“As soon as it’s reasonably possible, I would want them to be notified of what’s going on with their child so that an undue concern doesn’t develop,” Knudson said


Janesville police officer Tom Lemery, who routinely arrests juveniles in his job as the officer assigned to Craig High School, said school district policy requires that attempts be made to notify parents as soon as practical.


That doesn’t’ mean the investigation stops until the parents arrive, Lemery said.


Knudson said deputies have more discretion in dealing with juveniles than with adults, especially for minor offenses.


“A lot of behaviors we deal with, with juveniles, a lot of them are relatively lower-level offenses and can be handled with the parents,” Knudson said.


Underage drinking usually requires a citation, however, because the sheriff’s office takes a strong stand against it, Knudson said. A citation will lead to a fine but also to help that a child might need to avoid becoming a regular alcohol abuser, Knudson said.


Davis said if the child didn’t do anything wrong, speaking up can help officers conduct an investigation that could clear the child of suspicion.


“I’ve seen as many folks go to jail because they remained silent as I have because they spoke up,” Davis said.


“What we’re looking for is to find out what the truth is, and if a person chooses not to speak, then I will have to make my determination as to what happened based on those who do speak … and what evidence is available at the scene,” Knudson said.


Davis said he told his children that they should always answer an officer’s questions fully, rather than make the officer’s job more difficult.


If they’re guilty, they should accept the consequences, Davis said.


“I expect them to step up and accept responsibility,” Lemery agreed, speaking of his children.


Lemery suggested that parents talk to their child about much more than a possible arrest someday.


Talk about right and wrong, about choosing good friends, about alcohol, and—never mind what the school or police do—talk about what the consequences will be at home if your child steps out of line, Lemery suggested.


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Here are some other things that might rush through a parent’s mind as she’s driving to the police department:


Q: Will my kid go to jail?
A: In Rock County, children 16 or younger do not go to the adult jail. If they are incarcerated, it is at the juvenile detention center, a separate building near the jail in Janesville. Many if not most juvenile offenders are released pending a court date. A juvenile probation officer—not police—will decide whether the juvenile is committed to the detention center. Later, a juvenile court judge will decide whether the juvenile is guilty and whether incarceration—either locally or at a state juvenile institution—will be part of the sentence.
Q: What if my child is 17? That’s a juvenile, right?
A: Under Wisconsin law, all 17-year-olds are arrested as adults. Courts can, on rare occasions, decide that an even younger child be sent to adult court.
Q: Do police have to read my child his Miranda rights before questioning?
A: If the child is under arrest, then yes, police must tell the child that he has the right to remain silent, etc. The same rules apply as for adults.
Q: How does he know when he’s under arrest?
A: Police don’t have to specifically spell it out, said Janesville Deputy Chief Dan Davis, but usually it’s obvious that the child is not at liberty to leave. However, the law allows a “temporary detention,” also called a “Terry stop,” which is not an arrest but in which a person can be held if an officer believes a crime might have been committed or was about to be committed.

“The courts do not require that the police specifically spell it out, but as a general practice we do,” Davis said.


Q: What if my son says he won’t talk until he sees a lawyer?
A: Once the child is under arrest, asking for a lawyer is the same as invoking his right to remain silent, and police must not question him further. However, if the suspect says he does not want to answer questions, without referring to a lawyer, the law allows police to return to the suspect after a “reasonable” time and give him another chance to talk. A suspect also may change his mind and decide to talk.
Q: Are police required to inform parents when a child is in custody?
A: There’s no formal rule and no ticking clock for informing parents, but normally Janesville police and the Rock County Sheriff’s Office will call parents in a timely fashion. In rare occasions—for instance when a call to parents might jeopardize an investigation—police may delay calling parents for several hours, Davis said.

The younger the child, the faster deputies would get a parent involved, said Cmdr. Troy Knudson of the Rock County Sheriff’s Office.


“Obviously, there’s big difference between 12 and 16,” Knudson said.


Q: Do police record interrogations?
A: By law, all interrogations of juveniles who are in custody must be audio- or video-recorded, Davis said.
Q: Do police bend the truth to get a suspect to talk?
A: They might outright lie, Davis said. For instance, they might say that the suspect’s partner has told police “your buddy said you did it” when that isn’t so. However, if police go too far, a court could rule that police coerced a confession and throw out the evidence.

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