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W.Va. Supreme Court cites Katner in case that expands juvenile rights

October 23, 2019 9:00 AM
Alina Hernandez

Prof. David Katner has been the Director of the law school’s Juvenile Clinic since 1984, and has spent the greater part of his career at the forefront of children’s rights and juvenile law. (Photo Credit: Tracie Morris Schaefer)


An article by law Professor David Katner that contends that young children should be presumed incompetent to stand trial—rather than the current presumption that they are all competent-- in delinquency cases was cited by the West Virginia Supreme Court in a decision that will extend the right to challenge competency to juveniles using the law that applies to adult defendants.

Katner’s article, Eliminating the Competency Presumption in Juvenile Delinquency Cases (24 Cornell Journal of Law & Public Policy 403, 2015) aided the state’s highest court in deciding a case where a juvenile challenged his competency to stand trial. West Virginia state law did not recognize competency challenges for juveniles, just challenges for adults.

The Court opined that the Legislature has “rightly and vigorously” protected an adult’s fundamental right to be examined and treated for competency prior to trial.

However, the Court said, the state legislature had not yet extended that right to children. It called upon the Legislature to “create a process to address the unique competency and mental health needs of juveniles facing delinquency proceedings, to protect those children who do not understand the adversarial process being brought against them by the State.”

Katner’s article vigorously argues that the current legal presumption should be reversed because of the social science literature coupled with the developmental immaturity of children aged 16 years and younger. If the State wants to bring delinquency or criminal charges against young kids, then the State should bear the burden of first proving in a court of law that the juvenile is competent to stand trial.  This would reverse the current legal presumption, as Katner explained in the article:

Modern day forensic clinical psychology “can trace its roots to the juvenile courts and the juvenile justice system, as it was in that venue that psychologists first came to regularly assist judges and attorneys in their decision making.” [Yet] ...much of the system continues to be based on legal processes and assumptions that, while appropriate for adult matters, are incompatible with juvenile capacities and behaviors.”


Katner has been the Director of the law school’s Juvenile Clinic since 1984, and has spent the greater part of his career at the forefront of children’s rights and juvenile law. While in private practice, he started his own firm and also worked as an indigent defender, and litigated general civil and felony criminal cases, including death penalty cases.

Katner has served on the Board of the National Association of Counsel for Children and on the Board of the Children's Bureau; he has served on the Board of Directors of the New Orleans Legal Assistance Corporation, and the Jefferson Parish Juvenile Services Advisory Board, and on the Louisiana Mental Health Advocacy Services Board.

 He is the faculty founder of the Tulane University Vietnamese Association, of Tulane's Collegiate Organization for AIDS Prevention, and Tulane's student chapter of the National Association of Counsel for Children. 

 He has served as legal advisor to the Louisiana Children's Code Project and Covenant House in New Orleans. He sits as an ad hoc judge in Orleans Parish Juvenile Court.  At Tulane, Katner has taught Trial Advocacy, Legal Profession (Legal Ethics), Advanced Criminal Procedure, Evidence, and Introduction to Forensic Child Psychiatry at the Tulane Medical School.