DeBacker v. Brainard

PETITIONER:Clarence De Backer
RESPONDENT:Homer Brainard, Sherriff of Dodge County Nebraska
LOCATION:Dodge County Juvenile Court

DOCKET NO.: 15
DECIDED BY: Burger Court (1969-1970)
LOWER COURT:

CITATION: 396 US 28 (1969)
ARGUED: Oct 13, 1969 / Oct 14, 1969
DECIDED: Nov 12, 1969

ADVOCATES:
Alfred L. Scanlan, Jr. – as amicus curiae
Richard L. Kuhlman – for the appellee
William G. Line – for the appellant

Facts of the case

A juvenile court judge declared 17-year-old Clarence DeBacker a “delinquent child” and ordered him committed to the Boys’ Training School for forging his father’s signature on a check and attempting to pass it off as legitimate. Before the hearing, DeBacker had requested a jury trial, but the judge denied the request. The Nebraska Juvenile Court Act denies juveniles a trial by jury. Instead of seeking review of his sentence, DeBacker flied for state habeas corpus, arguing that the juvenile court violated the Sixth Amendment when it denied him a jury trial. The Nebraska District Court dismissed the petition and the Nebraska Supreme Court affirmed. On appeal, DeBacker argued that recent U.S. Supreme Court decisions inDuncan v Louisiana andBloom v Illinois entitle him to a jury trial.

Question

(1) Does the Nebraska Juvenile Court Act, which denies juveniles a trial by jury, violate the Sixth Amendment?

(2) Does a state statute requiring proof only by a preponderance of the evidence violate the Fourteenth Amendment?

Warren E. Burger:

You may proceed whenever you’re ready.

Richard L. Kuhlman:

If the Court please the appellant yesterday mentioned that you would accept the measure of involuntary custody.

It’s a matter of determination is to whether or not the jury trial guarantee in a criminal case applies to juvenile court proceedings.

Of course, we have that in the one hand and on the other —

William O. Douglas:

Could you tell me where the appellant is at the present time Is he in the regular prison of the state or is he in the —

Richard L. Kuhlman:

Yes, he is in the Men’s Reformatory which is a part of the penal complex.

He is no longer in the training school to which he was ordered by the Court.

William O. Douglas:

I’ve been looking in the record to see when the transfer took place and —

Richard L. Kuhlman:

It doesn’t appear in the record Your Honor.

John M. Harlan II:

Was it the — as a result of him acquiring a certain age?

Richard L. Kuhlman:

No.

This occurs as a matter of transfer by the Department of Institutions through a statute.

William O. Douglas:

Pure administrative —

John M. Harlan II:

Yes, purely administrative and as I pointed out yesterday.

This matter whether or not this statute which allows this transfer is unconstitutional should be attack in that way rather than attacking the juvenile court system through this vehicle.

But the fact that he is in the penal complex is by virtue of a separate statute which is not at issue here.

Well, he is now in the penal institution where man or woman who is an adult would be if convicted of forgery?

Richard L. Kuhlman:

Yes.

The basis for the transfer is a matter of the statute sets out if they become incorrigible they can be transferred and it was based on this that he was transferred.

Warren E. Burger:

As you terminated yesterday, I think you would just making the point that nowhere in this case is there any attack on the validity of this administrative process by which he was transferred out of a juvenile detention establishment into an adult penal institution?

Richard L. Kuhlman:

That’s correct Your Honor.

Warren E. Burger:

And I think your point was as you have just made it again, that if anything is the correct attack by collateral proceedings?

Richard L. Kuhlman:

Yes, by habeas corpus, then at the penal complex now to test the sufficiency or the constitutionality of this transfer rather than through the juvenile jury system.

Warren E. Burger:

While we have you have there, although it probably is not relevant here, was there any kind of hearing in the administrative process of making this transfer from one institution to the other?

Richard L. Kuhlman:

Yes, there is a hearing before the — within the Board of Pardons and the —

Warren E. Burger:

But there are hearing of some kind —

Richard L. Kuhlman:

Department of Public Institution, yes.

Warren E. Burger:

Thank you.

Richard L. Kuhlman:

There is a hearing that determines this.

Thurgood Marshall:

Is an institutional hearing held in the penitentiary?

Richard L. Kuhlman:

Held — I’m not certain just where they hold it.

I would assume, I’m not familiar with this part, but I would assume that they hold it at the training school at Carnegie where the boy is.

Thurgood Marshall:

Well, did they have outsiders there?

Richard L. Kuhlman:

That I don’t know Your Honor.

Thurgood Marshall:

Well, I mean when you say hearing, if all the hearing amounts to as a warden calls him in and talks to him, you wouldn’t call a hearing, would you?

Richard L. Kuhlman:

No.

No, I wouldn’t call that a hearing.

Thurgood Marshall:

Well, you said hearing and the amount — can you tell me how much of a hearing it is or do you know?

Richard L. Kuhlman:

I’m not familiar with this part of the of it Your Honor.

Potter Stewart:

The — he was originally committed to the industrial school for — until he reached the age of 21, is that correct?

Richard L. Kuhlman:

The — yes sir.

Basically, yes Your Honor.

The commitment is for an indeterminant period of time.

There is never a time stated in the order.

They are committed to the institution and whenever the institution feels that they are ready for release, they will release them.

Potter Stewart:

Is that statutory maximum?

Richard L. Kuhlman:

Yes, the longest period of time that they can be kept is until they are 21.

Potter Stewart:

This subsequent transfer to the adult penal institution, did that or could that increase the length of the term of his custody?

Richard L. Kuhlman:

The amount of time is limited to two years by the statute.

They can only commit them for a term of two years to the penal complex under this administrative custody.

Potter Stewart:

They committed him two days before this man’s 21st birthday, could it be then for an additional two years?

Richard L. Kuhlman:

I’m not certain Your Honor.

I would believe that they could, but I couldn’t be certain.

Potter Stewart:

But in any event it’s your submission that that matter is not before us in this case?

Richard L. Kuhlman:

Right.

This is my contention that this is another matter which should be taken up.

But on the other side of this is a matter of the benefits which a child receives from a judicially oriented juvenile court system.

This against the involuntary custody idea in the training school, not in the penal complex.

There was some mentioned yesterday of the delinquency of being a violation of statute.

This is the definition that the Nebraska Statutes have of being a delinquent, any one who violates any of the state statutes or municipal ordinances, but it’s more than just a violation that is involved that can involve involuntary custody.

Richard L. Kuhlman:

The child in need of special supervision can be disposed of in exactly the same way as a child who is being charged of being a delinquent child which involves the commitment to the training school or to a foster home or probation or any of the other avenues open so far as a delinquent child is concerned.

I might note in passing that even after a criminal trial, the District Judge has the option if he wishes to send the boy to the training school instead of sending him to the penal complex.

The fact that he has been convicted in District Court by a jury, doesn’t necessarily mean that he is going to the penal complex.

He could be sent to the training school if the court felt that this was a proper disposition of the case.

Warren E. Burger:

Could he be sent in the first instance by the juvenile court to the penal institution or must be first be sent to the juvenile institution?

Richard L. Kuhlman:

No.

He cannot be sent directly from the juvenile court to a penal institution.

He must — the only place they can commit him is to a training school or to some foster home or some other disposition.

They cannot sentence to the penal complex.

Warren E. Burger:

Then the Nebraska Statute in effect vests broader power in the administrative managers of the juvenile institution than they do in the juvenile judge himself, is that correct?

Richard L. Kuhlman:

Yes, this would be correct.

Warren E. Burger:

Any standards at all prescribed by statute for the transfer, guidelines?

Richard L. Kuhlman:

Incorrigibility is the one that I can recall right off hand as a basis for the transfer, but actually and with even neglected their dependent children if you’re talking about involuntary custody, a neglected or dependent child can be taken from his home and placed in some other home, be at a state home for children or what it maybe.

So, even with a dependent or a neglected child, there can still be a matter of involuntary custody so to speak involved.

If this can be is the measure of whether or not it is a criminal matter guaranteed a jury trial under the Sixth Amendment which guarantees a jury trial in the criminal matters.

Potter Stewart:

That would be — that’s so called custody however would be in a foster home, is it not?

Richard L. Kuhlman:

Yes, in a foster home or it could be in a state institution, a state home for children for this type of thing.

Potter Stewart:

Now, the fourth category provided by the statutes of your state seems to be a child in need of special supervision.

You have a neglected child, the dependent child, the delinquent child and fourthly, a child in need of special supervision.

How is such a child handles under your procedures?

Richard L. Kuhlman:

The child in need of special supervision can be handled the same as the delinquent child.

The disposition can be the same.

However, there is one restriction that in order for child in need of special supervision to be committed to an institution in the first instance, there must be a showing that it is for the — that is necessary for the protection of the welfare of the child or of society in general.

And this must be specifically shown alleged in the petition which is served and shown at the hearing before they can be committed in the first instance.

Otherwise, there must be probation and/or some other type of disposition and if after a period of time, it’s shown that there is not been the rehabilitation that should be, they can then be brought back into court and they can be sent to the training school.

Potter Stewart:

To the very same place that this kid has been sent?

Richard L. Kuhlman:

Yes.

So far as the benefits of not having the jury trial and juvenile court of concern, the two main things are the promptness of the disposition and avoiding the trauma of a public hearing.

So far as the prompt hearing is concerned, the jury trial in and of itself is a delay.

Just simply setting up a jury trial where in addition to the people involved in the thing, you must get either six or 12 other people at a certain place at a certain time.

Richard L. Kuhlman:

Schedule —

Hugo L. Black:

Its you provided the jury trial —

Richard L. Kuhlman:

Yes, they do Your Honor.

Hugo L. Black:

How many are they?

Richard L. Kuhlman:

I believe there are 12 jurisdictions I believe, I’m not sure that’s all states.

The District of Columbia does have provision for a jury trial in their proceedings.

I might point out that according to Judge Miller’s testimony before the Senate that there were approximately 10% of the juveniles that asked for a jury trial and this 10% asking for a jury trial has caused approximately a six-year backlog in these trials.

Thurgood Marshall:

That was the cost, they only handle 40 a year, wasn’t it?

Richard L. Kuhlman:

Yes, Your Honor.

Thurgood Marshall:

Less than one week?

Richard L. Kuhlman:

Yes.

This is what —

Thurgood Marshall:

The ways submission to the readings of that?

Richard L. Kuhlman:

Pardon?

Thurgood Marshall:

I didn’t say an explanation for the reason they don’t need the whole one week.

Richard L. Kuhlman:

I would assume that it is because of the other business of the Court that they can only schedule one per week.

Warren E. Burger:

You are speaking now of one jury trial?

Richard L. Kuhlman:

One jury trial, yes, one jury trial per week.

Warren E. Burger:

And while they’re doing one jury trial a week, they doing multitude of other non-jury trials.

Richard L. Kuhlman:

There were approximately —

Thurgood Marshall:

Could that be remedied by more court rooms?

Richard L. Kuhlman:

I think this is what the judge —

Thurgood Marshall:

More judges?

Richard L. Kuhlman:

This is what the judge was asking for.

Thurgood Marshall:

That can be remedied by money.

Richard L. Kuhlman:

Pardon?

Thurgood Marshall:

That can be remedied by money, money?

Richard L. Kuhlman:

Yes, by increasing it, there were approximately 2,500 cases that were handled during this year.

Thurgood Marshall:

Like it was a thousand, they could be handled by money?

Richard L. Kuhlman:

Yes.

Richard L. Kuhlman:

This is true.

Thurgood Marshall:

The other point, what about the fact, is that not true that the — all of these benefits that accrue from the standard juvenile court proceedings, isn’t it possible that these juvenile or his lawyer or his parents could waive the jury trial and accept all of those nice benefits?

Richard L. Kuhlman:

Well, this presents a problem.

It was pointed out here yesterday that in Colorado where they allow jury trials that there were only two over a certain period of time.

However, I believe this was prior to Gault when the Attorney was injected into the juvenile court proceedings.

Since that time, there had been more and more juveniles with an Attorney.

Thurgood Marshall:

But they could waive it?

Richard L. Kuhlman:

Yes.

Well, this presents a problem, Your Honor.

Thurgood Marshall:

Well, as I understand your argument, all of this is for the benefit of the juvenile?

Richard L. Kuhlman:

Yes sir.

Thurgood Marshall:

And if the juvenile wants of all of that benefit.

He can get it by merely not asking for a jury trial, am I correct?

Richard L. Kuhlman:

He can get it with by waiving a jury trial, by pleading —

Thurgood Marshall:

So, what’s wrong with allowing him to have a jury trial if he wants to waive all those benefits?

Richard L. Kuhlman:

This brings up the problem of how does he waive it?

How does a youngster waive it?

Attorneys are becoming more and more hesitant about waiving for a youngster because of the fact that he will discuss it with the youngster and the youngster will say later, I didn’t understand.

Thurgood Marshall:

Well, it is possible that they were also discussing it with the parents?

Richard L. Kuhlman:

I would say — I would say they should.

Thurgood Marshall:

But not be the usual gang?

Richard L. Kuhlman:

But can the parent —

Thurgood Marshall:

Juvenile, the parents and the lawyer, right?

Richard L. Kuhlman:

Yes, Your Honor.

Thurgood Marshall:

And they decide that they want a jury?

They want to give up all these benefits.

What’s wrong with that?

Richard L. Kuhlman:

I don’t know that they would be giving up the benefits of a court by asking for a jury trial.

I don’t think that this would necessarily be so.

Thurgood Marshall:

Because after the jury trial, the judge could still give him all of these benefits.

Richard L. Kuhlman:

Oh yes, he could.

Thurgood Marshall:

I’m not talking about the constitutionality of the claim for the jury trial.

I’m just talking practically, there is very little problem there, is it?

Richard L. Kuhlman:

The problem is that the attorneys become hesitant about waiving because can a parent waive for a child or does the child have to understand is the child that has —

Thurgood Marshall:

In the view will be thought, doesn’t the in the regular proceeding is it normal for the judge to ask the parents about what they think, not that he is bound by the thought.

Richard L. Kuhlman:

In our proceedings at least, they are.

The matters discussed with the parents and with the child.

Thurgood Marshall:

So, it would be jury would find that, say they find the juvenile delinquent and the judge talks it over the time says, I really don’t think this anything or behaved by putting this boy away out.

Do what they would normally do.

Nothing is lost, but money.

Richard L. Kuhlman:

I’m not sure I follow you Your Honor.

Thurgood Marshall:

I say, I don’t think anything is lost, but the cost of the state of summoning the jury.

What else is lost?

Richard L. Kuhlman:

If there are a number of these, there can be a long delay during the period when they readjusting for this.

These things can’t happen immediately.

During this period of time, something has to be done with these youngsters.

They’re at this time they’re in their formative years.

They’re in the period of time when they are forming themselves for later life and by not correcting the thing immediately or as close to the time of the incident as possible, you’re really doing damage to the child rather than helping him.

You’re hindering the child.

You’re burdening the child with something that he shouldn’t be.

You’re burdening him with the delay that is really bad for him.

Thurgood Marshall:

But which, he, his family and his lawyer agree they want?

Richard L. Kuhlman:

Yes, and this my question is, is this right?

Is this fair to thrust this thing in?

I’m not sure I don’t have any figures state wide in the particular county in which I am; population approximately 35,000.

I would say that we run 30 to 35 juvenile cases a year in the juvenile court.

Potter Stewart:

And the juvenile court in your county is just the same judge with the different hat on, is that correct?

Richard L. Kuhlman:

Yes sir.

We use the — there, we use the county judge which — who serves as probate judge and has a — it doesn’t have general jurisdiction, but he has charge of probate matters and we use him as the juvenile judge.

Potter Stewart:

I suppose in the city like Omaha, special juvenile court?

Richard L. Kuhlman:

In Omaha in Lincoln, they do have special juvenile courts and I’m not familiar the figures there.

Potter Stewart:

Just while interrupted you, I suppose that often there is a or at least infrequently, there maybe a adversity of interest between the juvenile’s parents and the juvenile?

Is that true often that parents be complaining witnesses, is that true?

Richard L. Kuhlman:

This is very true.

There can be a number of things.

The child — the child’s real problem is to where he is, maybe his parents.

This may well be, maybe his parents haven’t provided him with the background that he needs.

This is a reason that he’s into this difficulty.

This is a reason that he is going out and stolen or this type of thing and the parents maybe the real problem in the thing and having the parents waive or speak for him isn’t doing justice for the child.

So far as the insistence of the appellant that he could have won the case in a criminal court to a jury there is other evidence that I have which is still in the file which had not used in this Court, in the juvenile court.

I’m just as convinced that I could’ve convicted in a criminal case, however, my decision was that the possibilities for using the juvenile court could possibly save this young man and this was the reason that he was taken into juvenile court rather than taking into the criminal court.

Potter Stewart:

And you have absolute discretion on that as I understand it if you asking on it what, 48 hours or something?

Richard L. Kuhlman:

Yes.

Potter Stewart:

And you have discretion with respect to a juvenile, what, between 16 and 18 or what is it?

Richard L. Kuhlman:

No, I have discretion on at any age.

Potter Stewart:

What if it is a 10-year-old boy?

Richard L. Kuhlman:

I would have discretion there too.

Potter Stewart:

You would?

Richard L. Kuhlman:

Yes.

Potter Stewart:

Any and what if it’s — but the discretion was stopped at some age or what if it’s a 50-year-old man, you don’t have discretion of bringing him before the juvenile court?

Richard L. Kuhlman:

No, no.

The top age is 18.

When they reach their 18th birthday, they are no longer subject to the juvenile court.

Then, they must go directly into criminal court.

Potter Stewart:

But 18 and below, you have discretion to initiate juvenile proceedings or to initiate criminal proceedings in the criminal court no matter how tender the age?

Richard L. Kuhlman:

Yes.

Potter Stewart:

So far as this statute goes?

Richard L. Kuhlman:

Yes.

So far as the statute is concerned.

By way of background, we do have the presumption that a 7-year-old cannot form intent and that someone between 7 and the 14, it’s a rebuttable presumption whether or not they can.

Byron R. White:

Was this matter taken up in the court, the Supreme Court of Nebraska?

It’s a matter of your discretion?

Richard L. Kuhlman:

It was touched upon Your Honor.

Byron R. White:

What did the court say?

Richard L. Kuhlman:

I don’t believe that court’s opinion mentioned it, but it was simply touched upon and —

Byron R. White:

Did the courts in Nebraska construed it all of it’s or dealt with this area of discretion?

Do they say it’s absolute or it is unreviewable or it is reviewable by the Court?

Richard L. Kuhlman:

The closest thing to it is the Fugate versus Ronin case where they say that the prosecutor has an absolute discretion in it which is putting with this —

Byron R. White:

Standardless discretion?

Richard L. Kuhlman:

Yes, which is the basic concept of the prosecution throughout all of the United States, that prosecutor has discretion as to what he will file or whether it would be misdemeanor, felony or whatever it maybe.

So far as other jurisdictions which or other people which feel that a jury trial should not be had, there are of course 34 states which do not provide for a jury trial.

Of course the District of Columbia as I’ve mentioned before does have a jury trial provision and at present time, there is a Bill in the House and in the Senate which is supported by the United States Attorney General’s Office which among other things eliminates the provision for a jury trial for juveniles.

The President’s Prime Commission Report, in their report they state that they do not feel that a jury trial serves any purpose in a juvenile proceeding.

The uniform Juvenile Court Act does not provide for a jury trial and the model rules for a juvenile court much is prepared by the National Council of Juvenile Judges does not provide for a jury trial in a juvenile court.

Really, one other problem that you have in connection with a jury trial for a juvenile court, in a juvenile court, is the matter of finding a jury of peers.

Really, the juvenile judge who by dealing with these children all the time is less apt to be shocked by the long hair, by the mannerisms, by the things that the children do than the average person from off of the street.

Your juvenile judge is actually closer to being a peer of the juvenile than all of the juries as they are selected now.

Potter Stewart:

In your state, I suppose person has to be 21 years or older than the juror, is he?

Richard L. Kuhlman:

Yes.

They just had recent legislation Your Honor, there used to be 25 I believe and they reduced it to either 20 or 21.

Potter Stewart:

But in any event you could not have teenage juror?

Richard L. Kuhlman:

No, there’s no provision for teenage jurors.

So far as the Duncan Rule, the reason for this rule was the compliant or the bias or the eccentric judge, for protection against this type of thing.

Where in juvenile court, any judicially oriented juvenile court has another provision which protects against the same thing, the trial de novo, and either the District Court or in the Supreme Court.

Warren E. Burger:

Thank you Mr. Kuhlman.

Mr. Scanlan?

Alfred L. Scanlan, Jr.:

Mr. Chief Justice, may it please the Court.

The National Council of Juvenile Court Judges appears today as amicus to support the contention of the appellee with the Sixth Amendment as incorporated through the Fourteenth, does not require a jury trial in juvenile adjudications of delinquency.

And secondly, to support its claim that the transfer or the exercise of the prosecutor’s discretion to try a child as a juvenile rather than to accuse him as a criminal violated no requirement of due process.

Potter Stewart:

Do you take any position on the burden of proof?

Alfred L. Scanlan, Jr.:

No Mr. Justice Stewart, we do not for several reasons.

Frankly in this area at least, it seems to me the quantum of proof formula become more semantic than ever.

Most juvenile court judges I’d to say as Dean Paulson points out, are not going to find the child guilty of the act of which he’s accused, unless he is really convinced the boy did the act and I think — I don’t think it is a matter of great moment.

If this Court decides that the Sixth Amendment through the Fourteenth requires a jury trial it would seem to me quite obvious that you would follow it with the reasonable doubts standard.

But if the Court — I can see the Court being troubled by the actual adjudication of delinquency in this case.

A subsequent Nebraska case to which we refer in our brief Guy versus Bishop at page 8, in our view at least and in the view of the dissenting judge there, seem that the parts somewhat from the stricter preponderance of proof.

Now, it is possible if the Nebraska court got another look at that particular issue in this case, it might reach a different result that.

Unfortunately, the appellant elected to come to habeas corpus route.

He has chose to bring the direct appeal or it would have had a trial de novo in the District Court, and then again at — I was amazed to find in the Nebraska that Supreme Court has rather broad powers in civil cases on the equity side in reviewing the sufficiency of the evidence.

So, that the sufficiency of the evidence question as I read this record was never squarely presented to the Nebraska Supreme Court.

I would think since four judges went for him among the constitutional grounds he probably would have won the case if he went that way, but I don’t know what the Nebraska Supreme Court would do if it went back in that posture.

Maybe they, in Nebraska like most states you can’t use habeas corpus as a substitute for appeal, I don’t know what they do.

I suppose it much would depend if there was a mandate from this Court on the particular issue.

So for those reasons, we have not taken up the standard of proof point.

Byron R. White:

What’s the appellate route?

Alfred L. Scanlan, Jr.:

The appellate route is one of careful protection Mr. Justice White.

There would have been an appeal from the adjudication of the juvenile court judge here to the District Court, and there, there would be a trial de novo.

Byron R. White:

With the jury?

Alfred L. Scanlan, Jr.:

Not with the jury, not with the jury.

Byron R. White:

He couldn’t get a jury in the District Court either?

Alfred L. Scanlan, Jr.:

That’s right.

He couldn’t get a jury, I don’t mean that to imply that and that’s —

William J. Brennan, Jr.:

And that’s a repeat of the juvenile court proceeding in the District Court?

Alfred L. Scanlan, Jr.:

I gather it is, I gather it is.

It’s a statute that goes a long way in protecting the juvenile.

Byron R. White:

The same judge?

Alfred L. Scanlan, Jr.:

No in this — no because in this county particularly, you only have like a county judge, it would not be the same judge.

Potter Stewart:

And then there would be a trial de novo in the District Court?

Alfred L. Scanlan, Jr.:

Correct.

Potter Stewart:

And that did not happen in this case, you tell us?

Alfred L. Scanlan, Jr.:

Oh no, this was a habeas corpus.

Potter Stewart:

State habeas corpus.

Alfred L. Scanlan, Jr.:

That’s correct.

Potter Stewart:

State habeas corpus.

Alfred L. Scanlan, Jr.:

That’s right, in the District Court.

Potter Stewart:

Yes.

There was no direct —

Alfred L. Scanlan, Jr.:

Just the constitutional issues presented to it, not the sufficiency of the evidence question. We turn then to — I’m out of it — well, I guess, we injected into the case, the retroactivity issue.

As I understand that Mr. Line’s position, he stated it very candidly yesterday, it’s sort of a simplistic syllogism.

Duncan versus Louisiana and Bloom versus the United States require a jury trial in this serious criminal matter.

Deprivation of a child of his liberty is a serious criminal matter, Q.E.D; a jury trial is required in adjudications of delinquency of this type.

Hugo L. Black:

What did he define a serious criminal matter?

Alfred L. Scanlan, Jr.:

Well, I think he would say and we would admit Mr. Justice Blank that a proceeding that deprived the child of his liberty up to his 21st birthday was a serious matter.

Now, I don’t think it’s important in this case that we bog down and label as if — we want the — those that support juvenile court jurisdiction have been accused of using labels to justify their conclusion that jury trials are not required in such proceedings, but I think this other side is guilty of the same thing.

Juvenile court jurisprudence is something quite different, whether it finds its origins in the English Equity Courts or whether it has a relationship to American Criminal Justice, I don’t think it’s too important.

It’s a creation of idealistic reformers.

The reforms might have bogged down here and there but it is something different.

It’s like America administrative law is something different.

It’s a civil proceeding, but it’s different.

Similarly, I think a juvenile court jurisprudence, juvenile court justice is something different either from the parents patriarch business or from criminal justice and I think a decision has to be made, does the insertion of the jury system with all of it’s delays, it’s horrendous delays, is the insertion of that system into the juvenile court system.

Is that going to contribute materially to the integrity of the efficacy of the fact finding process?

Is it going to confer any substantial benefit on the child or rather might it not do some harm?

Now, Mr. Justice Marshall talks about it only takes money.

It takes money in time.

The District of Columbia is — how many judges can you pour into this situation and for what benefit?

The adverse publicity of a trial, the Sixth Amendment says “public trial,” I’m not going to have quiet little jury trials, “public trials.”

I don’t see how that can be advantageous to children in most instances?

Thurgood Marshall:

Couldn’t a juvenile waive the public trial?

Alfred L. Scanlan, Jr.:

Yes Mr. Justice Marshall, a juvenile could waive a public trial.

He could waive a jury trial as Mr. —

Byron R. White:

Over the — over the objection of the prosecutor

Alfred L. Scanlan, Jr.:

Oh!

I was contemplating the situation Mr. Justice Marshall envisioned.

In other words, we had a jury trial provided by statute.

I didn’t — he said said by requirement of Constitution by statute and his question was couldn’t he waive, and I would have to say, yes he could.

He could waive the jury trial.

He could waive the public aspect of the Sixth Amendment protections of the jury trial certainly.

But for the few children for whom that might be at some benefit, why do we have to undermine the whole system?

Giving the jury trial, none of the evils at which this Court decision in Gault was directed —

Byron R. White:

Now, how about retroactivity which you said was injected in the —

Alfred L. Scanlan, Jr.:

Yes, I never did answer that, I’m sorry.

I would say that in DeStefano versus the United States, this Court decided that it would not apply Duncan versus Louisiana retroactively.

In DeStefano, there was an attempt to expand the right of jury trial.

The precise question in that case was that whether having less than the unanimous jury in a non capital case violated the Sixth Amendment.

This was a new question.

This was going beyond Duncan, but this Court did not go beyond Duncan and DeStefano, rather it said no.

We’re not going —

Byron R. White:

You just said that the Sixth Amendment didn’t apply to the states until May 20, 1968?

Alfred L. Scanlan, Jr.:

That’s correct, that’s correct.

Now, it seems to me anomalous to say — to hold that it doesn’t apply to adult criminals until May 20, 1968, but would apply to juvenile criminals earlier than that date.

The fact that the Nebraska Supreme Court didn’t consider it, You Honor I think it’s easily explained by the fact that it’s never presented to it.

Actually, I think the case wasn’t argued in the Supreme Court of Nebraska after — before DeStefano was even decided.

I think that’s the counters right on that.

So, I just think, if his whole case is — I stand on Duncan versus Louisiana, they gave us the right, I’m entitled to that right.

It seems to me if you take Duncan versus Louisiana as the basis of your claim that you have a jury trial right, you have to take the restrictions on Duncan versus Louisiana as annunciated by this Court in DeStefano versus the United States.

Byron R. White:

Well, it doesn’t quite make a — he doesn’t either in the jurisdictional statement or his brief argue the Equal Protection Clause, but he does arrive at the same result through the discretion argument to that adults have jury trials and he wants to have a jury trial, why the prosecutor is going to turn him down, he should have some decent reasons for it.

Alfred L. Scanlan, Jr.:

Well, with respect to equal protection the amicus of course wouldn’t as the question wasn’t raised in that context, but that that’s put that aside.

It seems to me the answer to the equal protection objection is that the decisions of this Court show that children can be treated differently from adults with respect to the application of the constitutional rights if it’s for their benefits.

Or the case is not that, the case here this morning is not as Mr. Line said is the Constitution for adults only.

We only need to go back to the Ginsberg case and the Prince case where this Court certainly did not give a child the protections which free speech would give an adult or the protections which the free exercise of Religion Clause would give an adult.

Alfred L. Scanlan, Jr.:

So clearly, the question is, is this a reasonable classification?

Children are treated differently because they have a condition of immaturity.

It distinguishes to them from adults.

As a result of that condition and other factors working on it, they get in situations where for their own benefit the society must do something.

The system that is growing up with all its imperfections to deal with children on a different basis than adults is the juvenile court system.

Is that an unreasonable classification?

It seems to me when you have the Congress pushing to repeal the jury trial right in the District of Columbia, now, I don’t know what reception that will get.

But there the Congress is taking up this matter.

In the name of heaven, can those legislatures that elected never to get in that tickle in the first place have violated Due Process of law?

I don’t think they have.

Thank you Your Honor.

Warren E. Burger:

Mr. Line?

William G. Line:

Mr. Chief Justice and may it please the Court.

A few comments would be in order on the point if I’m not making a direct appeal from the juvenile court, and it’s been pointed out that I did not attack the sufficiency of the evidence.

Of course the reason that is obvious.

The evidence is more insufficient to sustain conviction of what he did and appeal on the insufficiency of the evidence would have been close to frivolous.

The jury question was another matter.

When this boy’s mother told him to sign his father’s name to the check and that would have been established in front of a jury of citizens in the community, I believe that they would have exercise the pardoning power that jurors want to exercise.

Warren E. Burger:

Mr. Line, we might go we’re on that point.

Suppose that there were jury trial committed under the Nebraska statute and there were confronted with the situation of having the mother be entrusted with waiving or not waiving the jury trial.

Would you think that the situation would be a desirable one?

William G. Line:

Mr. Chief Justice, it’s obvious that there would be situations where the — that the child is adversary to the parent and it existed in the case.

The child is adversary to the father.

Warren E. Burger:

But you think as suggested by either Mr. Kuhlman or Mr. Scanlan that this might be a very, very large proportion of all the juvenile cases coming before the courts?

Parents who are not responsible people, parents who do not have a relationship with trust and confidence with the child for whom they would be called upon to waive of the jury?

William G. Line:

I think in — certainly.

I don’t know what the percentage would be, but it could — if it’s as highest as 25 or 30% of the cases, it’s substantial percentage and would present a problem.

In that case, it would seem to me that the responsibility would have to fall on the juvenile’s lawyer, who after all, is the lawyer for the juvenile, not for the parents.

I mean, if the lawyer sees a conflict of interest between juvenile and the parent, he’s got to go with the juvenile.

Now, if he is retained counsel and being paid by the parents to defend the child, there can be problems.

William G. Line:

On the other hand in that case, if they’re paying the lawyer to defend the child, they probably want the child to be defended and therefore there wouldn’t be the conflict.

The conflict could arise in the case of appointed counsel.

I could see where the parents would come in and say “We don’t want this child.

He given us a hard time and so forth.”

Then I think that it’s responsibility of an American lawyer and he’s had a lot of responsibilities for long, long time and I think he can successfully fill that one.

Warren E. Burger:

As a lawyer, as advocate or would he have to try to become a guardian ad litem?

William G. Line:

Oh, he might have to take on some guardian ad litem functions, but again I think that the average lawyer views his responsibility differently in dealing with a juvenile.

I think there is built in a vested adversarial feature about it.

I think that the average lawyer wants to do something for the child and doesn’t view in a hard core adversary fashion like you have to some adults.

As a matter of fact, I don’t even know that at least in our area that the adult criminal process is so intensely adversary.

As I said, we dispose of them by pleas of guilty and so forth.

On this business of court’s convenience and court administration, if the lawyers of Nebraska stop pleading people guilty, the system would seize function without many more judges, many more court houses and many more juries.

The criminal justice system in this country today, of course, functions on negotiation and I can’t see any real marked differences between the adult criminals system and the juvenile system because the end result can be very much the same.

To clear up any misunderstanding on a transfer statute, I mentioned the transfer statute as to me an example, the ultimate example of the end result of the process.

I would feel that Debacker was just as much deprived of its freedom, and would be just as much in a penal institution if he were in the training school at Carnegie.

I don’t’ think that that’s — I think this Court said that in Gault that the no matter how euphemistically the title, the training school is a penal institution.

So, I don’t think it makes any substantial difference.

It’s just that on the basis of a hearing with no statutory standard at the pleasure of Board of Pardons.

The end result of the juvenile court process can be after an adjudication of delinquency can be confinement in a penal institution, whether it’d be call the Morris Training School or the Man’s Reformatory.

I think, it’s basically a distinction without a difference, but as I say here is a boy in an adult penal institution with people who got there with constitutional rights.

Warren E. Burger:

Would you care to comment on Mr. Justice Stewart’s line of questioning I think to Mr. Scanlan awhile ago about whether there is a problem of a 16 or a 17-year-old getting a jury of his peers if the jury is 25 or older?

William G. Line:

I don’t — adults will do fine.

I mean, if — from my stand point, if wanted a — I had to anticipated a — if I got a jury in this case of adults, I don’t believe that a juvenile is entitled a teenage jury.

And again, I think, I think that’s a decision that the lawyer makes, one of the first things that you do when you — are defending an adult.

If you think do you hear the facts, you investigate the case, will a jury give him a run for his money.

You may not feel quite that way about a juvenile because you might feel of his need for treatment and as his guardian ad litem you might be a little more inclined to involve of yourself in the process.

I mean, if an adult criminal defendant says “I want a jury”, why, he has one.

You don’t want to attempt to talk to him out of it, because every time you plead the man guilty, you’re running a risk of an accusation and confidence when he gets incarcerated and things don’t took go well.

So, but that’s a routine part of the perils of the profession and it is compensated by its advantages.

So no a jury of his peers I submit would be satisfied by jury of adults.

Potter Stewart:

Mr. Line, I’m looking at the record here.

I don’t see that you raised in the trial in the juvenile court this question of burden of proof or the degree of proof?

William G. Line:

No, I did not raise that in a juvenile court Mr. Justice Stewart.

Potter Stewart:

And does it appear that the county, that the juvenile judge applied any standard of proof other than proof beyond the reasonable doubt?

You are just relying on what the statute does?

William G. Line:

On the statute, right.

I — he didn’t — he never articulated a standard and —

Potter Stewart:

He didn’t say one word?

William G. Line:

He didn’t say.

Potter Stewart:

And you did not object on that ground?

William G. Line:

No, on that ground, I didn’t.

I objected to the statute and as a matter of fact, the deprivation of the jury and standard of proof are together.

Byron R. White:

And besides, the quantum of the evidence in this case as far as the judge passing on it is concerned is that you said it didn’t worry you too much?

William G. Line:

No.

I mean it’s – it’s —

Byron R. White:

No matter what the standard was, it was —

William G. Line:

No matter what the standard, that would fit a reasonable doubt standard, that evidence just doesn’t insufficient.

Potter Stewart:

Well, is yours statement along those lines beginning of your argument today that that let me look at this record and to wonder if you would objected to that?

That was of course discussed and decided by the Supreme Court of the State?

William G. Line:

That was decided by the Supreme Court.

Potter Stewart:

But, I wonder if it really is in this case?

William G. Line:

Well, in the second case that they talk about, the Douchcut case mentioned in the amicus curiae brief, there with obvious shades of division still burning deeply and they said, we won’t get into it again.

Under this record, we will just apply it, under this record why the evidence was sufficient and then, they —

Potter Stewart:

The evidence was sufficient even under beyond a reasonable doubt standard?

William G. Line:

Even under a reasonable doubt standard, and I believe the dissenting justices in that case dissented only basically, I did — we even talking about it again and then in the second case, Geiger case, it was a rerun of a Debacker case and the lines formed up again with the three to four division.

Hugo L. Black:

Do you think an infant (Inaudible) juvenile court could’ve waive the right to be represented by lawyer?

William G. Line:

Could he have waived the right to be represented by a lawyer?

Hugo L. Black:

Yes.

William G. Line:

Ah —

Hugo L. Black:

And if so, would it be him or his father or his mother and at what age could he do it?

William G. Line:

I think there you’re getting into extremely touchy grounds.

I suppose that in extremely intelligent, they’re no.

The intelligent juvenile could waive a lawyer.

Hugo L. Black:

But to end that trial to determine whether or not he is sufficiently intelligent?

William G. Line:

Well it, that opens up a Pandora’s Box, ah —

Hugo L. Black:

Most of it does.

William G. Line:

[Laughter attempt] I think Mr. Justice Black that from the practical standard, even the prosecutors today, are not trying to get juveniles to waive the right to a lawyer.

Hugo L. Black:

I understand it but it could come up, isn’t it?

William G. Line:

It could come up.

I’m not prepared to tell this Court that a 16-year-old that can under no circumstances make an intelligent waived for a counsel.

It could cause some thorny problems later.

Hugo L. Black:

Suppose he is being tried for murder?

William G. Line:

I doubt he would be permitted by our courts — our court of general jurisdiction, knowing him personally is being is when permitted, I don’t believe.

That would be his kind of own ad hoc determination in that case, but I don’t will he will permit a juvenile to waive counsel in such a serious matter.

Warren E. Burger:

Mr. Line, I think this problem of jury of peers is still presents a problem even though you as counsel in a particular juvenile case would not regard it as a problem.

What do you think the constitution means by a jury of peers?

This is a term which has come back into currency in recent years are very peer conscious in our society at the moment.

What do you think it means in this context?

William G. Line:

A representative sample of the adult community as the typical Nebraska jury is.

Warren E. Burger:

Well, the Constitution doesn’t say an adult jury it says a jury of peers, if I remember the language.

William G. Line:

That is correct.

It’s still however it seems to me the peer — I’m sorry to confess that in the study a lot of practicable, I never attempted to define it before.

Warren E. Burger:

We know what it’s meant in the society in which — from which it was drawn.

It meant that a nobleman was entitled to be tried by nobleman and the gentleman by a gentleman and a peasant by a peasants and so forth, I’m not sure that’s the precise classification, but enters the general idea.

Now, what you think about of teenagers who would well press a moment to being peer conscious might — one of them might demand you as his counsel that he wanted a jury of his peers, that is to say, a jury composed of people less than 18 years of age?

William G. Line:

Well Mr. Chief Justice, I would tell him to forget it.

It would be my initial reaction to [Laughter attempt].

Warren E. Burger:

You can see it post conviction attack on your effectiveness as counsel right there.

William G. Line:

I can and I would be — I guess, I would brace myself for the consequences.

The — a couple of other points there was I think Mr. Justice Stewart questioned whether a boy could be committed for two years right before his 21st birthday, and I think the answer to that would be no.

William G. Line:

I believe our statute would be construed that there’s a total loss of jurisdiction over a juvenile when he becomes 21.

One thing that should be made clear, under the Nebraska Juvenile Court Act there is no statutory requirement that the proceedings be closed now to the public.

And there is no protection against publicity of the juvenile court proceedings other than the newspapers, since the public responsibility, it is the psychiatric reports, medical reports, probation officer reports are closed.

But if it could happen that a juvenile proceeding could get as much publicity for all practical purpose as an adult criminal.

William J. Brennan, Jr.:

Mr. Line, may I open up with you again the question of retroactivity?

If we were able — were to say that we ought not reach the question here because at any event, DeStefano — how would you pronounce that — would deny this appellant a jury trial but were agree with you that the have to be reversal on one of the other grounds burden of proof was the case maybe, what do you conceive would be the situation on retrial and matter of the jury trial?

William G. Line:

Are you asking me Mr. Justice Brennan whether the Nebraska Supreme Court might change its mind or —

William J. Brennan, Jr.:

No, I just that — we say, we can’t reach issue of jury trial there.

Since at any event, I couldn’t apply and we don’t decide the issue of jury trial in juvenile court proceedings because Bloom and Duncan were not retroactive.

William G. Line:

Well possibly, a —

William J. Brennan, Jr.:

But we do reverse —

William G. Line:

Yes.

William J. Brennan, Jr.:

— for example as premise one of the other grounds so there has to be a retrial?

William G. Line:

Depending on how you said it.

Perhaps, a fifth judge in Nebraska Supreme Court might —

William J. Brennan, Jr.:

I see.

William G. Line:

— change his mind.

But really Mr. Justice Brennan, I don’t think — yesterday, that retroactivity was going to — I don’t think retroactivity is —

William J. Brennan, Jr.:

Well I know, what y our argument is?

William G. Line:

Well —

William J. Brennan, Jr.:

I’m just — the premise is that we don’t agree with you?

William G. Line:

Yes.

Well, it would depend on how you said it and what hints the Nebraska Supreme Court might get from the opinion, but since you are familiar whether the argument, it just seems to me that that you’re not going to say until this case, whether a juvenile court case is is in fact a criminal prosecution, and that that —

William J. Brennan, Jr.:

Yes, I know, you know Mr. Line that in Miranda warning area we have said that on retrial, the Miranda who did not apply.

William G. Line:

Well, that is correct.

To me, the distinction is that there, you’re talking about criminal cases have always been criminal cases.

The unique feature of this case —

William J. Brennan, Jr.:

Well, that’s your basic argument?

William G. Line:

That’s my — that’s my basic argument.

Warren E. Burger:

Thank you Mr. Line.

Warren E. Burger:

The case is submitted.

Gentlemen, we thank each of you for your submission.