Citing “a culture of intimidation that undermines due process,” a new report by a Department of Justice monitor on the treatment of African-American youth in Shelby County’s juvenile court challenges the abrupt termination of federal oversight of the court.

"It’s damning in a lot of ways. It reopens the concerns that never really went away," said Tami Sawyer, chair of the Shelby County Board of Commissioner's Law Enforcement, Courts and Corrections Committee.

Following the termination of DOJ oversight on Oct. 19, the Board of Commissioners requested final reports from federal monitors. The closure of the agreement followed a year of lobbying by Juvenile Court Judge Dan Michael and former Shelby County Mayor Mark Luttrell to end monitoring.

More:Department of Justice ends oversight of Shelby County Juvenile Court

But the new report, submitted to county officials Monday, outlines two areas where the county remains non-compliant with the Memorandum of Agreement signed with the DOJ in 2012, according to author Sandra Simkins, one of three monitors who have visited the court biannually for the past six years.

The agreement was put in place following a federal investigation that found the court violated the constitutional rights of children through a failure to provide safe conditions of confinement and proper legal proceedings. In particular, the DOJ found in 2012, that the court “discriminates against Black children.”

Appointed by Shelby County and the DOJ, Simkins directs a children’s defense legal clinic at Rutgers University, where she is a distinguished clinical professor of law.

According to Simkins' report on her final Shelby County visit in early October, "blatantly unfair" practices persist.

Two major issues are outlined in the report. One is the judicial appointment of "conflict panel" defense attorneys, which Simkins says prevents 39 percent of juvenile defendants from accessing independent counsel.

The second major concern outlined in the report is the "constellation" of practices surrounding hearings in which children are transferred to adult criminal court that Simkins says create "a toxic combination for African-American youth."

The Commercial Appeal has requested comment from a spokesperson for Judge Dan Michael, who has previously refused to discuss the DOJ monitors' reports.

'A culture of intimidation'

The monitor's report noted that when a case poses a conflict of interest to the Public Defender's office, a defense attorney is appointed by the court, rather than an independent body — the creation of which was a requirement of the initial DOJ Agreement.

The report offers "a concrete example of the Court exercising inappropriate influence" over defense appointments. A lengthy email exchange is included, in which Judge Michael denied the assignment of any cases to the University of Memphis Children's Defense Clinic, following a fallout with then-Director Lisa Geis.

Geis has since brought a judicial misconduct complaint against Michael before the Tennessee Board of Judicial Conduct.

'A toxic combination for African-American youth'

Since 2015, the number of children transferred to adult criminal court rose from 47 to 92 in 2017, data in the monitors' report shows.

Those transfers occurred without due process, according to Simkins, who says that she has found no other jurisdiction in Tennessee that denies defense attorneys discovery in transfer cases. That means juvenile defense attorneys are not privy to adequate information about the charges their clients face, writes Simkins.

The monitor also flagged regular denial of psychological evaluations and the practice of Shelby County prosecutors to routinely file transfer notices on all applicable cases, without in-depth review.

"Given the enormous life-altering stakes of transfer to criminal court, one would hope that prosecutors would thoughtfully evaluate cases," writes Simkins. Instead, she wrote, prosecutorial "gamesmanship" leads to a "toxic combination for African-American youth."

Meanwhile, Simkins adds, the denial of psychological evaluations flies in the face of the court's identification with trauma-informed practices.

"One would hope that a Court that understands the complex impact of trauma would be particularly cautious before transferring a youth to adult court and would welcome all information about prior trauma," writes Simkins.

'We are playing political games with children's lives'

Sawyer, one of many commissioners who have criticized DOJ's withdrawal from the monitoring agreement, said the report demands that the commission take action, particularly in light of a recent high profile case that, she says, reveals the high stakes of transferring youth to adult court.

"I’m concerned about the ability of the court to read this and take significant action," she said of next steps after the report.

"I hope that as a commission, we will take action, and that the mayor will as well," Sawyer said.

"We have to do better," she said. "We are playing political games with children's lives."

Shelby County Mayor Lee Harris was not available for comment while traveling, a spokesperson said.

The report comes days after the Tennessee Supreme Court said that Cyntoia Brown, a sex-trafficking survivor serving a life sentence for a murder that she says she committed, as a 16-year-old, in self-defense, will not be eligible for parole for 51 years. Brown was tried in adult court.

“We have proof in our hands that shows we have no right to sentence anyone to a day, let alone 51 years, our system is so broken right now," Sawyer said.

Reporter Sarah Macaraeg can be reached at sarah.macaraeg@commercialappeal.com or 901-426-4357. She is on Twitter at @seramak.

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