Kent v. United States

PETITIONER:Kent
RESPONDENT:United States
LOCATION:Juvenile Court

DOCKET NO.: 104
DECIDED BY: Warren Court (1965-1967)
LOWER COURT: United States Court of Appeals for the District of Columbia Circuit

CITATION: 383 US 541 (1966)
ARGUED: Jan 19, 1966
DECIDED: Mar 21, 1966

Facts of the case

Morris A. Kent Jr., a 16-year-old boy, was detained and interrogated by the police in connection with several incidents involving robbery and rape. After Kent admitted some involvement, the juvenile court waived its jurisdiction. This allowed Kent to be tried as an adult. Kent was indicted in district court. Kent moved to dismiss the indictment because the juvenile court did not conduct a “full investigation” before waiving jurisdiction, as required by the Juvenile Court Act. A jury found Kent guilty and sentenced him to serve 30-90 years in prison. The U.S. Court of Appeals for the District of Columbia Circuit affirmed, although it noted that the juvenile court judge provided no reason for the waiver.

Question

Was the juvenile court’s waiver of jurisdiction valid?

Earl Warren:

Morris A. Kent, Jr. versus United States.

Mr. Ehrlich.

Myron G. Ehrlich:

Yes sir, may it please the Court.

This case is here on certiorari to the United States Court of Appeals for District of Columbia Circuit.

I was assigned by the United States Court of Appeals to prefect the petitioner’s appeal from the District Court to that Court.

Mr. Arens represented the petitioner in the Juvenile Court.

I am here just as a public service representing an indigent without compensation and so is Mr. Arens who joined me in this petition for writ of certiorari.

The facts in this case if the Court pleases are that on — on or about September 5, 1961, the accused in this case was arrested by officers of the Metropolitan Police Department of the District of Columbia and he at that time have been a ward of the Juvenile Court for some two years.

It appears from the record that he was arrested because two years prior to that time, the police department had taken him without authority of the Juvenile Court to the police department and there had him fingerprinted at the time when he was 14 years of age and they discovered some fingerprints in the areas of these houses in which the accused allegedly broke in when he was 16 years old and they finally discovered that this 16-year-old boy was the boy whose his fingerprints were in the vicinity of two or three of these areas together with other fingerprints.

After they arrested him in this case, they questioned him for some four or five days, as I read the record, and on the second day of his arrest, his mother retained or asked Mr. Arens to come into Court and to represent the indigent accused who was then 16 years old.

Did he — did he make a confession?

Myron G. Ehrlich:

Yes sir.

He apparently made a confession which is not used in evidence against him.

Without warrant.

Myron G. Ehrlich:

No sir.

And on that confession, let me say that there was a search warrant issued and the discoveries is on to the search warrant would not be used in evidence against him.

However, his fingerprints taken when he was 14 years old compared to his fingerprints taken when he was 16 years old at a time prior to the time of waiver of jurisdiction or probably the principal — was the principal evidence against him upon which the conviction was based.

And of course it is our contention that they taking of the fingerprints when he was 14 and the taking of the fingerprints of him when he was 16 was in violation of the law of the District of Columbia and those fingerprints were inadmissible in evidence, and for that reason, we believe that there’s reversible error in this case for that reason alone.

Nevertheless, if I may go on, about a day or so after the accused was being questioned by the police almost continually.

Mr. Arens filed the first of his number of motions.

And the first motion asked the Juvenile Court to not to turn the accused or do something about the accused being in the hands of the police not to commit them to continually interrogate him.

Then in this — that motion was never heard, never answered and Mr. Arens filed another motion in the case and this was quite lengthy.

The second motion in this case, will the Juvenile Court to transfer immediately to the District of Columbia General Hospital Psychiatric Division for appropriate psychiatric observation to disclose his Social Service record to counsel and to hold a hearing immediately after the termination of the period of hospitalization if waiver of jurisdiction of this case was conflict as the condition preceding to any valid label.

Now the Court must remember that the — this Juvenile Court here, as well as all — every Juvenile Court of United States that I know and I think about, has the authority to waive jurisdiction under certain conditions.

Now, they also by act of Congress have the authority to provide Social Service records that I referred to for inspection under certain conditions and the conditions set forth in the statute states that such records or parts thereof shall be made available by rule of court or special order of court to such persons governmental and private agencies and institutions has — had a legitimate interest in the protection, welfare, treatment and rehabilitation of a child.

Nevertheless, neither one of Mr. Arens’ motions were ever answered nor was he — were they ever heard but about seven days after they arrested the accused he was — jurisdiction was waived to the United States District Court for the District of Columbia.

Earl Warren:

Mr. Ehrlich, may I interrupt to ask, where were these motions made, were they made in the Juvenile Court?

Myron G. Ehrlich:

In the Juvenile Court, yes sir.

Earl Warren:

Yes, they were.

Myron G. Ehrlich:

And they were in writing.

Earl Warren:

Yes.

Myron G. Ehrlich:

Mr. Arens apparently immediately appealed to what it — then was the Municipal Court of Appeals for failure of the Juvenile Court to do these things as contained in his motion.

And he also sued out a petition for writ of habeas corpus in the District Court.

The habeas corpus was issued, a hearing was held upon it and relief was denied.

The writ was discharged and Mr. Arens immediately appealed that writ of habeas corpus — I mean to deny — the discharge of it to the United States Court of Appeals for the District of Columbia Circuit and while that was standing also the Municipal Court of the District of Columbia ruled against Mr. Arens’ contention and he filed leave for — motion for leave to appeal to the United States District Court this affirmance by the municipal court of what the Juvenile Court had done.

Now, both of those appeals were heard together in the United States Court of Appeals for the District of Columbia Circuit and they decided, one, that habeas corpus would not lie and they indicated that habeas corpus was unnecessary because they said that the petitioner could file a motion to dismiss the indictment on the ground that he alleged in this habeas corpus petition.

And on the appeal from the ruling of the Juvenile Court that came up to the Municipal Court of Appeals the United States Court of Appeals decided that that was not an appealable order and therefore they would not consider it any further.

However, prior to the time that United States Court of Appeals decided that this could be done by a motion to dismiss the indictment, Mr. Arens, an able lawyer, said that he has had already filed such a motion in the United States District Court for the District of Columbia to dismiss on the ground he would not this — there was not a full investigation in the Juvenile Court, as required by law, he was not permitted to see the Social Service records of this indigent 16-year-old boy who would then a ward of that Court for some two years and there was no way in the world that he could rebut any ground that the Court may have had for waiving jurisdiction and so forth.

Both of those motions were overruled without any hearing of any type to District Court judge sitting there overruled both of the motions and the motion of Mr. Arens contained an alternative that is that under the statute a District Court judge is permitted to consider the case as the Juvenile Court judge and Mr. Arens asked in his motion that the indictment either be dismissed or in the alternative that the District Court sit as a Juvenile Court in this case.

Now, the District Court judge overruled that without a hearing with emphasis, and we say that the failure to give a hearing in itself is reversible error because how in the world could the District Court judge know whether or not he should sit at a Juvenile Court unless he hear some evidence in the case unless he hears some argument in the case.

Now, we say that the failure to do it and I may use authority for it, Judge Wright about Court of Appeals from the District of Columbia in a concurring opinion in a case decided, October 15, 1964, have this to say, “the trial court denied the defense motion that defendant be tried as a juvenile without holding a hearing to determine the legal and factual basis for the most.”

It says, “I agree that the conviction should be reversed.

I simply state my reasons,” and this is one of the reasons that Judge —

William J. Brennan, Jr.:

What’s —

Myron G. Ehrlich:

Wright —

William J. Brennan, Jr.:

that case?

Myron G. Ehrlich:

— name to this case sir is —

William J. Brennan, Jr.:

Is that in your brief?

Myron G. Ehrlich:

No sir.

I don’t think so, Brown versus the United States of America.

It was decided October 15, 1964 the number of it is 18487 in the United States Court of Appeals.

Now, after the District Court judge denied without hearing both of the motion filed in this case, the case went on to trial and in the trial of the case, apparently the principal defects of the accused was insanity.

Prior to that time, the accused had been sent to D.C. General Hospital for their report as to whether or not he was suffering from a mental disease at the time when he committed the act and two if he was — was the act a product of that mental disease.

The D.C. General Hospital asked to have doctors, go to report to the clerk as they must do under the DC code that the accused was suffering from a mental diseases at the time he committed the offense and that the act was a product of that mental disease.

Apparently, the United States Government to its prosecution was not content without appraisal of that diagnosis by the D.C. General Hospital staff and they asked the Court to have the accused sent to St. Elizabeths Hospital.

St. Elizabeths Hospital sent a report some 90 days later to the District of Columbia Court, the District Court with the same report that the accused was suffering from a mental disease and that the act if committed by him, the act with which he was charged, that they were the products of that mental disease.

Nevertheless, the Government proceeded to try the accused who had been indicted on three cases of house breaking, three cases of robbery and two counts of rape.

And as I have indicated, his principal defense was insanity.

He was found not guilty of a two counts of rape on the ground that he was suffering from a mental disease at the time he committed the offenses and that the acts if committed by him were the products of that mental disease.

And under our statute, an accused, if found not guilty under those circumstances has to be sent to St. Elizabeths Hospital until such time as the doctor superintendent certifies and the court is satisfied that he’ll be no longer dangerous to himself and to others.

Myron G. Ehrlich:

However, that same jury convicted him of the six counts, three of house breaking and three of robbery and the accused was sentenced to 90 years from the penitentiary, 15 years on each count, the maximum provided by law and 90 years in the District of Columbia is the equivalent of two life sentence, now, which means that he was sentenced to 90 years even though under the verdict of the jury on the rape charges, he is confined as a mental deficient in St. Elizabeths Hospital because the jury had decided that the acts were the products of a mental disease from which he was suffering at the time.

Earl Warren:

Mr. Ehrlich, may I interrupt you to ask when were the dates of the alleged rapes —

Myron G. Ehrlich:

In June.

Earl Warren:

— with reference to the dates of the burglaries and robberies that he has committed, were they in the middle of them or around that part?

Myron G. Ehrlich:

They were together apparently Mr. Chief Justice, he was charged in going in one house — breaking in one house and stealing a pocketbook and raping some persons who was in that particular place.

I would say that the two rapes and two of the alleged house breaking and robbery charges are acts for all — simultaneous — altogether.

Earl Warren:

Altogether?

Myron G. Ehrlich:

Altogether, yes.

Altogether.

What are the initial facts, I thought that the Court of Appeals considered that there was evidence to show that the robberies committed were (Inaudible).

Myron G. Ehrlich:

I haven’t got to that, we will get to that right now.

Go on then.

Myron G. Ehrlich:

Yes sir.

The issue of fact was only on the question of insanity sir.

Now, after St. Elizabeths Hospital sent to the Court, I mean they’ve said — said that the accused was suffering from a mental disease at the time he committed these acts — if the acts if committed by him are the products of this mental disease, the Government was not content and put the accused on trial.

Now, all of the doctors from St. Elizabeths Hospital and all of the doctors I think there were some dozen or more from DC General testified that the accused was suffering from a mental disease and the acts if committed by him were the products of those diseases.

However, one doctor who had agreed with the original report testified that the accused was then of unsound mind, that the accused was suffering from a mental disease at the time these alleged acts were committed.

However, if he — if the facts indicated that the accused went in to these premises originally for the purpose of committing robbery and not committing rape then he could not say that the acts were the product or the — of the mental disease but if the accused went into these premises for the purpose of committing rape first and then incidentally rob, then he could say that his acts were the product of that disease.

And one doctor testified to that and he was one of the dozen or more doctors who had previously certified the other way.

That was the only issue of fact involved apparently.

Now, unfortunately, the counsel, not Mr. Arens, who represented the accused at the trial, failed to raise any of these points and I must honestly say to the Court that all of the points that I have, have to be considered as plain error affecting the substantial right of this defendant.

Otherwise, we have no standing in Court at all.

Now, when this case went to the jury, the District Court judge gave what in his charge in chief what he indicated to be his so-called “Allen” charge.

Now, from a reading of this, we say that it is coercive charge and it was a violation of the accused rights and that in and of itself, in our opinion and it is our contention that it is and constitutes reversible error because we say it is coercive, that it was given for the purpose of inducing a settlement, that indeed a settlement was made by the jury in this case.

They certainly settled it when they found the accused not guilty of two capital counts charging rape on the ground of insanity and found him guilty, therefore, not of unsound mind of six counts, three of house breaking and three of robbery at all of the offenses committed at the same time or at least one rape, alleged rape and robbery and house breaking was committed at one time and another alleged rape, had robbery and house breaking was committed at the same time.

So the accused in our opinion was injured by what we say is a coercive and improper charge by the District Court judge when he gave the so-called “Allen” charge in his charging chief to the jury.

Abe Fortas:

Does the record show how long the jury was out?

Myron G. Ehrlich:

Sir?

Abe Fortas:

Does the record show how long the jury was out?

Myron G. Ehrlich:

I think some five or six hours and that — I think about that long, yes.

Myron G. Ehrlich:

I must say to the Court that we contend and contend most seriously that this accused like any accused is entitled to a disagreement by a jury.

He’s entitled to that and he’s entitled constitutionally to that, a fair trial if the jury can’t agree, a whole trial jurors can’t agree, he’s entitled to a disagreement.

Now, we say it is not up to the Court to coerce into rendering a verdict one way or the other at least one way against him.

Now, finally I will say to the Court without going into minute details that we based our contentions in this case for a reversal on the fact that the Juvenile Court failed to accord the accused effective assistance of counsel, that they failed to permit him to look at the Social Service records so he could give him effective assistance of counsel.

That they gave him no hearing on this waiver, we say that that is the violation of the rights of the accused.

They gave him no hospitalization, we say that is a violation of the statute on psychiatric examinations for the purpose of attempting to discover whether or not they would waive or not waive jurisdiction over him.

They gave him no full investigation.

They gave him no hearing on the District Court on his motion to dismiss or consider themselves the District Court to consider itself a Juvenile Court.

William J. Brennan, Jr.:

Mr. Ehrlich, I gather as to all of these on this issue, could you suggest that there’s no imperfection in the record in the sense that these claims were not timely raised?

Myron G. Ehrlich:

No sir, they were timely raised.

William J. Brennan, Jr.:

They were?

Myron G. Ehrlich:

Yes.

William J. Brennan, Jr.:

When you said earlier that we have to search the record for plain error, you’re speaking only the criminal trial itself or (Voice Overlap) —

Myron G. Ehrlich:

Yes sir, yes.

William J. Brennan, Jr.:

— because I gather that if you prevailed on the point you’re now arguing, you’re asking not merely a reversal of the conviction, but that the conviction that he’d not be possibly retried?

Myron G. Ehrlich:

Yes.

William J. Brennan, Jr.:

Is that right?

Myron G. Ehrlich:

Yes.

William J. Brennan, Jr.:

It’s only if you fail on this that you’re asking for a retrial on the points that you say were not raised at trial, —

Myron G. Ehrlich:

Yes.

William J. Brennan, Jr.:

— is that it?

Myron G. Ehrlich:

The points that were raised below where the two motions in the Juvenile Court and that is to look to some social records to grant the boy a hearing, to get psychiatric examination of him and also raised below that motion to dismiss on the ground that the — he had not been accorded these things and the indictment should be dismissed off —

William J. Brennan, Jr.:

Well now, I’m not — rather that motion to dismiss, you mean the motion to dismiss the indictment?

Myron G. Ehrlich:

Yes.

William J. Brennan, Jr.:

That was made on these grounds in the trial court?

Myron G. Ehrlich:

Yes sir.

William J. Brennan, Jr.:

And that — by that I mean in the trial of this criminal charge in the District Court?

Myron G. Ehrlich:

Yes, of trier of the fact.

William J. Brennan, Jr.:

Well, were they preserved —

Myron G. Ehrlich:

Yes.

William J. Brennan, Jr.:

— appeal in the Court of Appeals?

Myron G. Ehrlich:

Yes sir.

William J. Brennan, Jr.:

Well, in that regard at least — or are you saying that proper objection was made to those issues at least as to this trial?

Myron G. Ehrlich:

Yes sir.

William J. Brennan, Jr.:

Are those properly before us?

Myron G. Ehrlich:

Yes sir.

William J. Brennan, Jr.:

It’s only the issues related to what?

The psychiatric testimony?

Myron G. Ehrlich:

Psychiatric testimony and the “Allen” — so-called “Allen” charge.

William J. Brennan, Jr.:

Neither of those was raised?

Myron G. Ehrlich:

No sir, they were not raised.

William J. Brennan, Jr.:

I see.

Byron R. White:

But if you — let’s assume prevail here, but only on the — on your theory, your right to a hearing matter prior to waiver and this would only mean that you would have to have that — there would be a hearing as to whether there would be a waiver and that you were granted a hearing and you didn’t prevail in the hearing there would still might be a waiver in a retrial.

Myron G. Ehrlich:

Well, there might and there might not be, Mr. Justice.

Byron R. White:

Well, that’s right, there might or there might not be but at least at that much.

Myron G. Ehrlich:

Yes.

There might be.

But again we’ve run into this proposition.

This case has been pending so long that this boy is now 21 years of age.

Byron R. White:

That’s right.

Myron G. Ehrlich:

Now the question is, does the Juvenile Court have jurisdiction or can the District Court reindict him.

I don’t think the District Court can reindict him.

I think the case —

Byron R. White:

If the — do you think the Juvenile Court mistakenly waives and before the error can be corrected, that he becomes 21, he’s not subject to the jurisdiction of either court?

Myron G. Ehrlich:

Well, I don’t — that’s a case a matter of first impression with me and I am not sure but I would say that if any court, if either court has jurisdiction, it would have to be Juvenile Court.

But I won’t say this if the Court pleases, we have a statute here which permits the Juvenile Court or the Board of Public Welfare any time up until a man is 45 years of age to send him to an institution.

We also have a civil commitment statute for people who have unsound mind.

And there isn’t any real necessity for this case to be tried as a criminal.

Byron R. White:

Mr. Ehrlich —

Myron G. Ehrlich:

Sir?

Byron R. White:

— when you move to dismiss and also move the Court, the District Court to sit as a Juvenile Court, you said there was a hearing but what was the content and the issues in that hearing, were you permitted to — were you permitted to present evidence at all?

Myron G. Ehrlich:

No sir.

Byron R. White:

Did you asked to?

Myron G. Ehrlich:

No, the judge overruled it without permitting a hearing.

Byron R. White:

Well, a while ago you said there was a hearing on the motion to dismiss the indictment and the motion to dismiss the Juvenile Court.

Myron G. Ehrlich:

No sir, I said it was set for a hearing.

Byron R. White:

Alright.

Myron G. Ehrlich:

There was — the court accorded the no hearing to the accused on either motion.

Byron R. White:

Were you permitted to argue at all?

Myron G. Ehrlich:

No sir.

I wasn’t the counsel in that case but I happen to be in the Court that day.

Counsel was not permitted to argue in either motion.

The judge says I overrule it with emphasis.

William J. Brennan, Jr.:

As the motion before is a different judge from the trial judge, was it?

Myron G. Ehrlich:

Yes sir.

William J. Brennan, Jr.:

Who tried this case?

Myron G. Ehrlich:

Judge Tehan.

Byron R. White:

What kind of motion did you file?

Myron G. Ehrlich:

There was a motion to dismiss on the ground —

Byron R. White:

Or was it just a pro forma motion, I mean, did you — what’s the practice do you — do you submit materials with your motion (Voice Overlap) —

Myron G. Ehrlich:

— (Voice Overlap) and there were affidavits.

Byron R. White:

— affidavits?

Myron G. Ehrlich:

The affidavits —

Byron R. White:

You presented the evidence?

Myron G. Ehrlich:

The affidavit is attached to this motion in this case.

Byron R. White:

That the judge examined?

Myron G. Ehrlich:

And there was no controversy.

No contraverting affidavits at all, no answer by the United States Government and the judge says, “I overrule it without a hearing, with emphasis.”

Byron R. White:

Does he have the material before him?

Myron G. Ehrlich:

He never looked at it.

Byron R. White:

Didn’t he —

Myron G. Ehrlich:

This came up to this manner, Mr. Justice.

We have a system in the District of Columbia that in which at 9:30 in the morning the assigned judge sends cases out to the other judge.

And this case came up, was on the assignment and the assignment judge on that day said, “I’m going to send this case out to a judge.”

And just at that moment the attorney who was then representing the accused get up and said, “There are two motions pending.”

He says, “What are they?”

They say a motion to dismiss or in the alternative to consider yourself a Juvenile Court.

He says, “Motion is overruled with emphasis.”

He never looked at it.

Byron R. White:

I see.

Myron G. Ehrlich:

And there was — let me say this, I am just reminded that there was an offer of proof made by the then counsel in that case and the Court wouldn’t listen to it.

Byron R. White:

I got it, yes.

Myron G. Ehrlich:

Now, a few more words with reference to committee, the examination of the Social Service record.

On December 8, 1965, in case number 19038, Black versus the United States decided by the United States Court of Appeals for the District of Columbia Circuit.

William J. Brennan, Jr.:

May I have the number.

Myron G. Ehrlich:

19038.

Byron R. White:

I see, what was the case?

Myron G. Ehrlich:

Black versus United States, December 8, 1965, the day prior to the day that this case was originally set for argument before this Court, the United States Court of Appeals for the District of Columbia with another panel decided that counsel in the Juvenile Court was entitled to look at the social records of the accused for the purposes which — we wanted to do it in this Kent case.

Now, here’s what the Court says, and as a matter of fact, the United States Court of Appeals indicates on page 3.

Now, they say this, Kent illustrates the need for counsel to develop information relative to waiver and they said in here as one of the basis for the decision in the Black case what kept the petitioner here attempted to do when he was in the Juvenile Court.

And the United States Court of Appeals for the District of Columbia reverses practically everything that another panel of the United States Court of Appeals for the District of Columbia said in Kent — in Kent, the case that we are arguing here.

Byron R. White:

Who were the judges in this panel?

Myron G. Ehrlich:

In this panel, it was Judge Bazelon, Fahy, and Leventhal.

In the other panel, it was McGowan, Washington and Danaher.

William J. Brennan, Jr.:

Now, do you think this — that those panels currently have their conclusions on statutory interpretations on constitutional grounds or what?

Myron G. Ehrlich:

I will read to the Court.

They said, we hold that the assistance —

William O. Douglas:

Where are you reading counsel?

Myron G. Ehrlich:

I’m reading from the Black versus United States decided December 8, 1965 at United States Court of Appeals from the District of Columbia.

William O. Douglas:

Is it in one of the briefs?

Myron G. Ehrlich:

No sir, this is an opinion.

William O. Douglas:

Yes, it’s not printed here?

Myron G. Ehrlich:

Number 19038, just decided December 8, 1965.

It’s in our supplemental brief, if the Court please.

William O. Douglas:

Thank you.

Myron G. Ehrlich:

The United States Court of Appeals in the Black case had this to say, we hold that the assistance of counsel and the equivocally important determination of waiver is essential to the proper administration of juvenile proceedings.

Disabilities resulting from conviction in the District Court are in sharp contrast to the effects of the Juvenile Court commitment which does not operate to impose any of the civil disabilities ordinarily imposed by conviction.

And the child is not deemed criminal by reason of an adjudication.

Treatment as a juvenile is not a statutory bounty which can be withdrawn later.

It is implicit in the Juvenile Court’s scheme that noncriminal treatment is to be the rule for the adult criminal treatment, the exception which must be governed by the particular factors of individual cases.

William J. Brennan, Jr.:

That sounds that this is placed in the interpretation of (Inaudible) implicit or not implicit —

Myron G. Ehrlich:

Yes sir.

William J. Brennan, Jr.:

— in the scheme?

Myron G. Ehrlich:

Yes.

William J. Brennan, Jr.:

Would you read that as —

Myron G. Ehrlich:

As a statutory right.

William J. Brennan, Jr.:

— statutory?

Myron G. Ehrlich:

Yes sir.

William J. Brennan, Jr.:

And the other title is a condition viewed as statutory?

Myron G. Ehrlich:

Yes sir.

William J. Brennan, Jr.:

They give us a conflict some time, is that it?

Myron G. Ehrlich:

I have to say, it’s attached in this conflict.

William J. Brennan, Jr.:

This isn’t anything in a way of supervisory powers (Voice Overlap) —

Myron G. Ehrlich:

No sir.

No.

Now, finally, I want to say to the Court in the panel contention that if in the cases decided by this Court, White against Maryland, Hamilton versus Alabama, which were decided on the need of counsel at critical stage in criminal proceedings —

William J. Brennan, Jr.:

Now, those are constitutional?

Myron G. Ehrlich:

Yes sir.

But whether the constitutional law or otherwise, it was necessary in the case of an adult or adults, we say it is all the more necessary in the cases of indigent juvenile, 16 years old or on.

And we say further, that it is a constitutional proposition, if investigating in Gideon against Wainwright, was entitled to a counsel in that case, we say the accused in this case is and was entitled to counsel at every stage of the proceeding.

Myron G. Ehrlich:

And we are well aware of the fact that many courts have indicated that the Juvenile Court is not a criminal court.

Now, whatever they say about it, whether or not it is a criminal court, the fact does remain that in this case whether you call it a criminal court or not a criminal court, the result of that action was that the accused, the petitioner in this case, received the equivalent of two life sentences, and we urge a reversal on all the ground alleged in our petition and in our brief.

Potter Stewart:

He got that criminal of two life sentences as the result of the trial in District Court at which he had counsel from first to last, isn’t that correct?

Myron G. Ehrlich:

Yes sir.

Well, not from first to last.

He had counsel in District Court in that trial.

Potter Stewart:

That’s what we’re talking about.

And it was the result of that trial, and only as a result of that trial, that he received the sentence to which you refer.

Myron G. Ehrlich:

But it was further, Mr. Justice, the result of the waiver in this case —

Potter Stewart:

Not, what if they were no —

Myron G. Ehrlich:

— they can’t (Voice Overlap) —

Potter Stewart:

What if they’re no were — were no criminal court — Juvenile Court?

Myron G. Ehrlich:

What if there were not?

Then I suspect he would have to be tried as an adult.

Potter Stewart:

And that’s what happened to him?

Myron G. Ehrlich:

That’s what happened to him.

But he was entitled not to be tried as an adult except under certain circumstances when he was 16 years of age for having committed an offense when he was 16 years of age.

He was entitled not to be tried as an adult.

You mean in the statutory or constitutional violation?

Myron G. Ehrlich:

In statutory.

The —

The statute which gives him that right also gives the Court the right to waive its jurisdiction.

Myron G. Ehrlich:

Yes, after full investigation.

Potter Stewart:

That’s right.

Myron G. Ehrlich:

And we say that the investigation was not full, that he did not received the effective assistance of counsel and was not permitted to receive it.

Earl Warren:

Mr. Gilinsky — or Mr. Arens, do you propose to argue now or in rebuttal?

Richard Arens:

I would argue in rebuttal, if it please —

Earl Warren:

In rebuttal.

Mr. Gilinsky.

Theodore George Gilinsky:

May it please the Court.

Theodore George Gilinsky:

The principal question which we feel is in this case whether constitutionally it was necessary to hold an adversary formal oral hearing or for that matter any kind of hearing at the Juvenile Court level under the particular facts to decide whether the Social Service facilities of the Juvenile Court were applicable to this particular defendant.

Now, the Government contends that once the Court, the Juvenile Court now, had completed the full investigation that it required by the statute and once the Court had taken all that —

William J. Brennan, Jr.:

Does the statute tell what not to investigate?

Theodore George Gilinsky:

No, it doesn’t.

It says after full investigation.

William J. Brennan, Jr.:

(Voice Overlap) problem is here of what investigation means?

Theodore George Gilinsky:

It may be a problem in certain cases —

William J. Brennan, Jr.:

Well, whether —

Theodore George Gilinsky:

Because —

William J. Brennan, Jr.:

— as I understand it to — always correctly and apparently those panels in the Court of Appeals seem to put a different content into the requirement for investigation, don’t they?

Theodore George Gilinsky:

I do not think so.

William J. Brennan, Jr.:

Alright.

Theodore George Gilinsky:

Let me first direct my attention to this point about the conflict.

Cases called Black as he said was handed down in December, as I read the case, it holds that a juvenile, in Juvenile Court prior to waiver is entitled to a lawyer.

It does not decide that he is entitled to a hearing.

It does not decide that he’s entitled to see the social records.

And for very good reason, because this boy, Black, did not have a lawyer.

William J. Brennan, Jr.:

But what does the lawyer doing — that have anything to do with it?

Theodore George Gilinsky:

Because that’s why they point in Black to what happened in Kent.

They say, “Now, look what a lawyer can do for you.”

In Kent, the lawyer did supply, did supply the Juvenile Court with a memorandum and some information as to his mental status.

So that — to say that the lawyer was useless, you see, Black says, “No, of course it wasn’t useless.

Look at Kent.”

But on the basis of that, I say there is no conflict in these decisions because what the panel was saying was —

William J. Brennan, Jr.:

I suppose we can give you more time —

Theodore George Gilinsky:

That’s right.

William J. Brennan, Jr.:

(Inaudible)

Theodore George Gilinsky:

In any event, I do —

William J. Brennan, Jr.:

(Voice Overlap) of this citation?

Theodore George Gilinsky:

No, there is none in — it’s a slip opinion.

William J. Brennan, Jr.:

(Inaudible)

Theodore George Gilinsky:

No, December 8, 1965.

William J. Brennan, Jr.:

(Inaudible)

Theodore George Gilinsky:

It was immediately prior to the — when this case was (Voice Overlap).

It’s a District Court.

Earl Warren:

What investigation did the Juvenile Court make before denying these orders?

Theodore George Gilinsky:

As a matter of fact, the District Court, of the Juvenile Court–

Earl Warren:

Criminal Court, I mean.

Theodore George Gilinsky:

— made a full investigation, Your Honor.

Let me start in the beginning.

Some two and a half years prior to this time, this young man was picked up for four house breaking charges, at that time, he was brought before the Juvenile Court, at that time he had a lawyer, and at that time a full investigation was made.

William J. Brennan, Jr.:

Why do you keep saying that?

Theodore George Gilinsky:

There’s no question about what it was.

William J. Brennan, Jr.:

What was done?

Theodore George Gilinsky:

Actually, what was done at that time was he was put on probation.

The report itself though is in this record.

The report itself is in this record and what it shows is this, it shows that the Juvenile Court had before it information.

First, as to the background of this boy, where he came from, broken home, interview with the mother, why the Social Service person at that time thought the mother was not able to give enough information, and why the Social Service went to the aunts and other people, to the principal of the school, found that this boy had an average intelligence, 101 IQ.

It lists in other words, this report lists that’s two and a half years before it, lists a number of things which were investigated.

I emphasize that he had a lawyer at that time and he was placed on probation, he was asked to, as I recall, to return the property and make restitution.

Earl Warren:

He was 13 or 14 years old?

Theodore George Gilinsky:

He was 14 years of age at that time.

Now, some two and a half —

William J. Brennan, Jr.:

Does the record show whether the lawyer he had at that time saw all this (Voice Overlap) —

Theodore George Gilinsky:

I don’t know.

No, it doesn’t show what he saw or what was discussed.

William J. Brennan, Jr.:

Do you know what the practice is in the Juvenile Court?

Does — is the lawyer allowed to see that?

Theodore George Gilinsky:

No, the lawyer does not usually see this and I will come to — that’s an issue of course in this case but there are reasons why lawyer does not always see this.

Earl Warren:

What are the reasons?

Theodore George Gilinsky:

Well, there are number of reasons because first of all the part of this information of course is hearsay, it’s not the kind of information which is developed.

It’s like a probation report on sense.

Earl Warren:

So the judge acts on hearsay but doesn’t give any chance to rebut the hearsay.

Theodore George Gilinsky:

Does not quite accurate in this case, Your Honor.

In this case, the — what happened as a fact in this case is that Mr. Arens, the day after the boy was picked up, went to the Juvenile Court and saw the social director and he asked to see the judge and the social director although he’s not saying that he couldn’t see the judge.

He said that he didn’t — most likely said the he didn’t think that it would help him.And you get this from Mr. Arens’ affidavits that are in the file.

However, there’s no question that the social director did tell Mr. Arens that we will delay the waiver, however, in order to allow you to supply whatever information you think the judge should have.

As a matter of fact, in the affidavits, Mr. Arens says that he did supply the Juvenile Court with a memorandum and with a letter for whatever kind of report it was from a doctor who had examined the boy in the receiving home.

Byron R. White:

From whom does the judge get advice on the — these waiver matters?

Theodore George Gilinsky:

Well, the other staff —

Byron R. White:

Who were they?

Theodore George Gilinsky:

They are staff probation officers, social workers, they also have test, a clinic doctor, and they also go the —

Byron R. White:

Is that a probation officer or lawyer or not?

Theodore George Gilinsky:

No.

They are — most of them are —

Byron R. White:

Is there any lawyers on the staff or juvenile judge?

Theodore George Gilinsky:

Well, no.

Not on his — not on the regular Social Service staff.

Byron R. White:

Social Workers?

Theodore George Gilinsky:

They’re mostly social workers.

Byron R. White:

Well, do you know who gives them advice on waiver matters, anyone of them or all of them?

Theodore George Gilinsky:

On legal matters, no, I don’t think they —

Byron R. White:

On waiver matters?

Theodore George Gilinsky:

They give advice on waiver matters, yes.

Byron R. White:

Which one?

Theodore George Gilinsky:

The social workers and the final report usually says what they think.

As a matter of fact, you find part of the final report in this case in the record because it was read by defense counsel at the trial, to add into the record.

So, you’ll find that the social worker recommended against it, that this case be waived.

There’s no problem.

Byron R. White:

And then what do you — why is that do you say that the lawyer for a juvenile offender isn’t entitled to see the social file — the social files?

Theodore George Gilinsky:

Well, the social files, the social records are the type of material — I don’t say they’re not always entitled to it.

I’m saying that the type of material that is found in social records is the type of material which unless there are some particular reason why the defense counsel or the petitioner’s counsel should see it, is not the type of material that should be made public, it should not be given to anyone.

William J. Brennan, Jr.:

But given to the lawyer?

I don’t —

Theodore George Gilinsky:

And as a matter of fact, the statute —

William J. Brennan, Jr.:

How does it get to the public if it was given to the —

Theodore George Gilinsky:

Well, there —

William J. Brennan, Jr.:

— juvenile’s lawyer?

Theodore George Gilinsky:

Well, I don’t know.

And there’s no reason why it couldn’t be made public then.

As a matter of fact, it happens.

The record (Voice Overlap) —

Byron R. White:

Or any more than a social (Voice Overlap) —

Theodore George Gilinsky:

As a matter of fact —

Byron R. White:

— the social workers have it.

Theodore George Gilinsky:

As a matter of fact what really happens, you see, in these cases, when they get to the District Court and they get to a district judge, he throws up his hands in court at the problem of deciding what to give to counsel and he actually gives in the whole file.

The whole file, he doesn’t distinguish —

William J. Brennan, Jr.:

You mean in this case?

Theodore George Gilinsky:

— and as a matter of fact that’s what happened in this case.

William J. Brennan, Jr.:

You mean —

Byron R. White:

In the District Court?

Theodore George Gilinsky:

In the District Court, he got the whole file.

Byron R. White:

— not the Juvenile Court —

Theodore George Gilinsky:

— not for a waiver.

No.

And that was at the time — and now let me go (Voice Overlap) —

William J. Brennan, Jr.:

That’s interesting, why is it that the district judge will do that and the Juvenile Court judge feels he can’t?

Theodore George Gilinsky:

It isn’t that the juvenile judge feels that he cannot.

I don’t find —

William J. Brennan, Jr.:

Well, this practice is not —

Earl Warren:

What does he feel?

Theodore George Gilinsky:

Because that I mean —

William J. Brennan, Jr.:

Well, this practice is not (Voice Overlap) —

Theodore George Gilinsky:

That’s right.

William J. Brennan, Jr.:

Well, why?

Why if the district judge couldn’t do it, why wouldn’t he do?

Theodore George Gilinsky:

I think the statute — well, there are two things.

One, the statute does make a distinction as to records.

The statute says that lawyers and parties are entitled to court records.

The statute does not say that the lawyers are entitled to social records.

Now, this is a statute in the District of Columbia, passed by Congress and then make this distinction in their —

William J. Brennan, Jr.:

Well, you mean they make it in the sense that states affirmatively that the lawyer may have the court record but silent as to what shall be the case (Voice Overlap) —

Theodore George Gilinsky:

Well, no it’s not quite that silent because if you read the history and we have outlined it in our brief, you will find that the reason to prompt the part about the social records would put in to the statute was that that then juvenile judge at the time felt that she could not give social records to anyone.

And what happened was when a juvenile was sent to some agency, the agency didn’t have the background, didn’t have the test that had been made, the social records that had been made, the studies that had been made for this boy so that the agency was in a sense, in a position where they would have to duplicate these records in order to rehabilitate this boy.

Byron R. White:

Did this request for the social worker has ever actually reached the judge?

Theodore George Gilinsky:

I assume so.

There’s no way to tell in this record.

Is there any (Inaudible)?

Theodore George Gilinsky:

Social records?

Yes.

Theodore George Gilinsky:

That’s difficult to tell because it never — what has happened in District of Columbia on social record is a panel composed partly of the judges in Black have said that District Courts — District Courts, not Juvenile Courts, should go through the record and determine on these questions which parts of the social record should be given to counsel in particular cases.

But as I said to Mr. Justice Brennan as a matter of fact what happens when the case gets back to the district judge he says, “Well, I’m not qualified to distinguish between these records and what actually happens is they thought they have to give him the whole file.

Earl Warren:

Always?

Theodore George Gilinsky:

As far as I have — in any every case that I ever found that’s what happened.

Earl Warren:

Now, he we’re suppose to take judicial notice now?

Theodore George Gilinsky:

No.

Earl Warren:

What are we —

Theodore George Gilinsky:

I don’t think —

Earl Warren:

Where we left that?

Theodore George Gilinsky:

I don’t think you have to take judicial notice of it, all I can say is that this particular case, in this particular case what happened was at the time of the hearing and I’d like to talk about whether it was a hearing, the defense counsel was actually given physically all of the social records in this case.

In the District Court?

Theodore George Gilinsky:

That’s right.

Earl Warren:

At the trial?

Theodore George Gilinsky:

No, this was prior to trial.

William J. Brennan, Jr.:

But after the waiver?

Theodore George Gilinsky:

And as a matter of fact you’re right.

At trial also, counsel asked for (Voice Overlap) —

William J. Brennan, Jr.:

But this was all after the waiver, Mr. Gilinsky?

Theodore George Gilinsky:

Well, not.

Now, there are — one of the things that counsel has brushed over here is another part of the problem about waiver in the District of Columbia.

And that’s this business about the motion to dismiss.

Now, there was no question that the Court of Appeals when this case went out on habeas corpus as well as from the District of Columbia Municipal Court at that time, that judges of the Court of Appeals told counsel, “Well, you can go back and you can raise this issue at the District Court level and you can have a hearing on this.”

But they pointed out that you also must recognize that you’re not dealing with someone new when you’re dealing with this petitioner because he was in front of the Juvenile Court for some two to two and a half years.

So, that it isn’t just a blank kind of investigation.

Abe Fortas:

Mr. Gilinsky, is there removable — is there removal of order or waiver by the Juvenile Court to review them in the sense that is it possible as a matter of law that the District Court or the Appellate Court to which set aside the waiver of jurisdiction under the District of Columbia law?

Theodore George Gilinsky:

Well, we’ve never really answer that question because it has never happened that way —

Abe Fortas:

Well, that’s involved here because —

Theodore George Gilinsky:

– it’s involved here.

What happened —

Abe Fortas:

Well, what — excuse me, what is the Government’s position?

Theodore George Gilinsky:

There is an alternative.

William J. Brennan, Jr.:

In this case?

Earl Warren:

Is there any procedure authorized for doing that?

Theodore George Gilinsky:

There is — well, in the Court of Appeals in the District of Columbia said that this is the way to do it.

There — but as I was going to say, there is a alternative in the statute namely that the District Court itself– the District Court itself can consider itself a Juvenile Court.

And therefore, the District Court itself can handle the matter as a Juvenile Court matter.

But what happens in the thrust of the matter?

That sounds to me like a — although there may not be a direct review of the suit in a way they found in the district — by the Juvenile Court, (Inaudible).

Theodore George Gilinsky:

Well, I think if I explain —

Well what did the District Court do with these cases, in fact that everything was out in the Juvenile Court?

Theodore George Gilinsky:

Yes, we cited a case on our brief where this is happened in the District —

(Inaudible) send the case back to Juvenile Court.

Theodore George Gilinsky:

As I say, that’s never been decided either.

They’ve handled it themselves as the Juvenile Court and they will have to send it any place else.

They can constitute themselves a Juvenile Court.

Abe Fortas:

Let me see if I can relate to your points, excuse me.

Let me see if I can make my point and get your view on it.

Is there any right whatever the procedure might be as you understand the law, whatever form the attack might be made, is there any right on behalf of a defendant, the juvenile whereas a juvenile — to insist that he be tried as a juvenile and not be tried as an adult or is the determination of the Juvenile Court to waive jurisdiction followed by the refusal of the District Court to constitute itself a Juvenile Court for purposes of that trial, is that final and beyond attack?

I want to state it again because I have appreciated very much your views.

Is there any right on behalf of a juvenile to insist that he’d be tried as a juvenile rather than an adult offender?

Theodore George Gilinsky:

I have to take this in two steps.

First of all, I think as a matter of constitutional law, there is no right to be tried any other way than the Constitution would apply.

Statutorily, there can be rights that you can gain by statute of course and which have to be applied as a matter of due process.

In this case, the right is that the juvenile not be waived unless — this is statutory right now, unless there’s a full investigation.

I would assume although I have never seen any case that if the Court — the District Court found a case where there was no investigation at all and thus — though they we’re not quibbling about what is a full investigation.

They would say that this had been an arbitrary, unfair, then they even say unconstitutional waiver.

At that point, one of two things I think could happen either they would decide, as I say, to handle it as a Juvenile Court themselves and that as far as I read the statute means the full power of Juvenile Court either they try the case —

William J. Brennan, Jr.:

As a juvenile?

Theodore George Gilinsky:

— as a juvenile, and that has happened here —

William J. Brennan, Jr.:

And do whatever in the way of (Voice Overlap) —

Theodore George Gilinsky:

Send him to a training school, put him on probation, whatever the powers of the Juvenile Court.

Or they could and in turn say as send it back and have an investigation made.

As I say that has not happened, it is not clear in some of the District Court’s opinions and Court of — particularly in the District of Columbia that some of the district judges have said that they’re not sure if they can send these cases back to the Juvenile Court.

That’s happened here in the District of Columbia and of course that’s why you get this kind of fuzziness.

Abe Fortas:

Alright, but when —

Theodore George Gilinsky:

But in this case there was a hearing and that’s what I’d like — so that we know and it wasn’t as counsel says there was no hearing because if you read this record, as I read the record, you will find that what happened was when he got to the District Court, the judge — what Mr. Ehrlich is talking about when he says emphatically denied, that was a statement made by judge at one time but there’s also another spot in the record which he overlooks and that’s on February 8, 1963 when the only matter before the district judge was the question of dismissing the case and at that time, the very first thing that defense counsel, that’s trial counsel now, says to a district judge is, “Well now the first thing I want is the social records.”

And the district judge says, “Well I’ve anticipated you, I have the right here because we’re going to have this hearing, here they are.”

So then the next thing is, the Court says, “Now, what do you plan to do?”

That was Judge Tehan?

Theodore George Gilinsky:

No, this was not Judge Tehan.

Theodore George Gilinsky:

It may have been, there were two or three judges pretrial here and I’m not certain which judge this was but I can give — this was the transcript you will find at the —

William J. Brennan, Jr.:

It’s only one copy (Voice Overlap) —

Theodore George Gilinsky:

No, there isn’t, it’s another matter.

I better explain their —

William J. Brennan, Jr.:

There’s only one copy of transcript here?

Theodore George Gilinsky:

No, there are more than one copy of the transcript in the record in this Court and unfortunately they’re not paginated the same.

The transcript which the Government cites in its brief you will find in a blue folder and it’s not — there are other transcripts which are bound there and the reason for the difference in the pagination is some are daily transcripts rather than official court transcripts.

(Inaudible)

Theodore George Gilinsky:

They are exactly the same except for the pagination, it may differ about 15 pages.

So, if you — you have to find the citation that —

William J. Brennan, Jr.:

I haven’t seen anything that’s (Voice Overlap) —

Theodore George Gilinsky:

That’s what I’m explaining —

William J. Brennan, Jr.:

(Voice Overlap) this high or what —

Theodore George Gilinsky:

The affirmative is this — yes, it’s rather —

William J. Brennan, Jr.:

Well, that’s —

Theodore George Gilinsky:

That’s not the one that we cite.

Now, we’ll make it clear now.

It’s —

Byron R. White:

Which one it said?

Theodore George Gilinsky:

This is part of — this is also part of a transcript and part of a daily record and it’s the same transcript, I don’t mean the same, because they have difference in wording.

I haven’t compared it word by word, but generally it’s the same.

But you’d find in another transcript which we have marked and — in any event on page 16 —

William J. Brennan, Jr.:

I will have — has each side used a different transcript now, do we have to read them both?

Theodore George Gilinsky:

Well, I’m not certain.

Byron R. White:

We still haven’t got a blue one.

Theodore George Gilinsky:

No, that one you have in your hand, it was taken out of the files.

That one that you had Mr. Justice White, that one you had in your hand is the one that we used as the main transcript.

Now, there are some additions to that.

Byron R. White:

Where do we find this hearing, this one, what was the page and period?

Theodore George Gilinsky:

Page 16 — 16, 17, 18, 19, 20, 21, 22, February 8, 1963.

Theodore George Gilinsky:

Oh what actually happened at this hearing, I think that —

Byron R. White:

(Inaudible) of the hearing?

Theodore George Gilinsky:

Well, that’s why I was going to explain what happened because, the judge who seizes, well now you have question before me is whether you have a full investigation.

You’ve got the file, now what do you want to show?

The counsel said, “Well, I’d like to put the mother of the young man on the stand to show that she was not spoken to very much.”

Well, the judge at that point says, “But that isn’t going to show that there was not a full investigation and of course the Court of Appeals had already told.

The Court of Appeals had already told counsel that you’ve got to remember that this is a case which have been before the Juvenile Court for some two and a half years.

So that you’re not going to find it just suddenly, a full investigation had been a lot of material —

William J. Brennan, Jr.:

But now whose investigation is the district judge talking about when he says, “That’s not going to prove there hasn’t been a full investigation?”

Theodore George Gilinsky:

I think —

William J. Brennan, Jr.:

Whose investigation?

Theodore George Gilinsky:

— he was talking about the whole file.

William J. Brennan, Jr.:

I know, but I would suppose the statute would require that he make an investigation.

Theodore George Gilinsky:

He had it and he had looked at it.

It’s very clear he had looked at it.

Byron R. White:

Yes, but the Court said specifically here, he wasn’t about go behind the Juvenile Courts judge.

Theodore George Gilinsky:

That’s what he said.

Byron R. White:

The full investigation at the end of the file —

Theodore George Gilinsky:

That’s right and he looked at the file —

Byron R. White:

And it’s just the same and said that once the Juvenile Court makes that decision, I’m not going to second guess then.

Theodore George Gilinsky:

Well, that may have been but I don’t —

Byron R. White:

Well —

Theodore George Gilinsky:

I don’t read the record that way.

Byron R. White:

I’m not going behind that —

Theodore George Gilinsky:

That’s right.

Byron R. White:

— with references to testimony.

Theodore George Gilinsky:

That’s right.

Now, because what kind of testimony was defense counsel going to put in?

See, that’s important thing.

He wasn’t going to say that this was (Voice Overlap) —

Byron R. White:

Let me ask you something?

I think Mr. Justice Fortas really asked you this, does District Court have the power or the contrary of the statute if the District Court says, “Yes, there was a full investigation.

But here are the facts that were out the same facts the Juvenile Court judge did and I just disagree with them.”

Theodore George Gilinsky:

Yes, it does have that power.

Earl Warren:

Under the statute?

Theodore George Gilinsky:

It’s in the statute and it’s been gone —

Earl Warren:

The District Court has that power to second guess the Juvenile Court.

Theodore George Gilinsky:

That’s right.

It’s in the statute.

Byron R. White:

Well, can the District Court exercise any such power here?

Theodore George Gilinsky:

The District Court said, they would not do it in this case.

Byron R. White:

That’s right.

Abe Fortas:

Well, Mr. Gilinsky, I’d like to ask you the following question on that.

The concurring opinion of Judge Washington states that it is a fair inference from the record before us, and one of the reasons why the Juvenile Court waive jurisdiction was because appellant was seriously disturbed and the Juvenile Court lack facilities adequately to treat him, do you remember that?

Theodore George Gilinsky:

Yes sir.

Abe Fortas:

Now, I beg your pardon.

My question is whether the Government’s opinion that would be illegally proper consideration.

Theodore George Gilinsky:

I think in Juvenile Court situations, there would be, because as a matter of fact the proposed standard Juvenile Court Act which is a model act for the entire nation has that as one of the criteria, namely that the facilities are not available for treatment.

So, I see no — but I think there’s an evident — there’s an added point here.

It isn’t just facilities or buildings.

It’s also the fact that the Juvenile Court can only administer this rehabilitation until the juvenile reaches 21.

As you read the social record and as counsel would have it at the trial, this is a case where the young man will have to be treated of great — much longer than 21 —

Abe Fortas:

I understand that Mr. Gilinsky but will you please come in on this.

As I gather from your previous statements, the statute provides a right and the right being that a juvenile is entitled to be tried before the Juvenile Court.

Now, that right can be overcome if after full investigation and subject to the review by the district judge or in the statute, the Juvenile Court waives jurisdiction, am I right this far?

Theodore George Gilinsky:

Yes.

Abe Fortas:

Alright, now, if the Juvenile Court waives jurisdiction, let us suppose it waives jurisdiction solely because there are no adequate facilities to treat a mentally disturbed juvenile and your opinion is that a lawful waiver or lawful basis of labor, is there anything in the statute or in the laws that specifies that as an appropriate basis for waiver of jurisdiction?

Theodore George Gilinsky:

Are you asking me what are the criteria, the standards?

Abe Fortas:

No, I don’t — I agree to that, I’m asking you whether Government’s position that this particular criterion is a legally proper criterion upon which the Juvenile Court can act and that’s involved in this case as I read it.

Theodore George Gilinsky:

Well, that may be involved in this case because of — because as you say, one of the concurring judges says that this could have been one of the bases.

The counsel stated that (Inaudible) promulgated by the (Inaudible).

Theodore George Gilinsky:

That’s right, it’s one of the factors.

But not, not exclusive.

Theodore George Gilinsky:

Oh no, not an exclusive one but as one of the factors, yes.

Earl Warren:

Could it be the exclusive factor?

Theodore George Gilinsky:

Well, I think that’s a hard question because it may depend on the facts —

Earl Warren:

I thought it was, that’s why I asked you.

Theodore George Gilinsky:

I think it depends on — no, I think it depends on the factual problem that the Juvenile Court has.

In other words, what I’m saying is there may be cases where an investigation would disclose other facilities or where there may be other reasons.

But this particular case under any of the standards does not seem to fit so that — and that’s why I read the opinion of the Court of Appeals saying well, it may have been better to add these but under any of those standards that we have been able to find, there was nothing wrong with this particular waiver.

And as we say in our brief there are times to when it may be necessary under particular factual situation even to have informal hearing at the Juvenile Court level and the Court of Appeals, I mean the District of Columbia Courts have recognized that you can’t have such an informal hearing in a particular factual case.

But I don’t see that there’s any constitutional necessity for every case and I certainly don’t see under any of the standards that it was necessary in this case.

William J. Brennan, Jr.:

Mr. Gilinsky, are you familiar with this opinion of the New Jersey Supreme Court decided December 20th, State versus Loray, L-O-R-A-Y?

Theodore George Gilinsky:

I did —

William J. Brennan, Jr.:

I know it’s not in your brief.

Theodore George Gilinsky:

No.

William J. Brennan, Jr.:

The reason I ask is that I wanted to — if there’s any other opinion where anything like — this appears which identical case with this one —

Theodore George Gilinsky:

Well, —

William J. Brennan, Jr.:

— in which it was held that the failure to provide a hearing and counsel, so the lower court held at least, was constitutional effect that’s required the setting aside of the subsequent judgment of conviction, has anyone else to your knowledge taken the view or expressed —

Theodore George Gilinsky:

Well, —

William J. Brennan, Jr.:

— that this is a constitutional matter?

Theodore George Gilinsky:

No.

The —

William J. Brennan, Jr.:

Incidentally, the Supreme Court in this instance found that it didn’t have to decide that because they agreed that there had to be counsel and a hearing for reasons of fundamental —

Theodore George Gilinsky:

Fairness —

William J. Brennan, Jr.:

— fairness —

Theodore George Gilinsky:

Right.

William J. Brennan, Jr.:

— which didn’t reached apparently and then they said that they did not allow the — as I read this, the conviction to be set aside but require a new referral hearing and follow the Jackson-Denno technique, retaining the conviction and so the awaiting of the outcome of the new referral — of the referral hearing that was ordered.

But is there at much in the way of you express this is a constitutional —

Theodore George Gilinsky:

No.

William J. Brennan, Jr.:

— problem?

Theodore George Gilinsky:

None.

As I — not fairly committed with the New Jersey problem and you written some of the cases in the Juvenile Court field.

New Jersey is one of the states, as far as I know it’s the only state that for a long period of time as said there should be hearing on waiver.

William J. Brennan, Jr.:

We call it referral here —

Theodore George Gilinsky:

Referral.

William J. Brennan, Jr.:

— and I’m away 10 years from that but they never thought it have a constitutional basis on that.

Theodore George Gilinsky:

Well, that would — there was no reason for — I suppose to even get to this issue and there’s no reason for the District of Columbia to get to this issue either because they can decide he can have lawyers as they have.

William J. Brennan, Jr.:

Well, I would suppose if the full investigation contemplates provision for lawyer and a hearing that that can be — that — I was frankly what I’ve never heard of Black in full that you just mentioned or that Mr. Ehrlich mentioned it that that certainly strikes me as a reading of full investigation as embodying a right of counsel and the right of hearing.

You don’t think so.

Theodore George Gilinsky:

Well, I know it doesn’t involved (Voice Overlap) —

William J. Brennan, Jr.:

Well, it doesn’t say it constitutionally but as a matter of the interpretation of full investigation, you don’t think so?

Theodore George Gilinsky:

I think more than that.

It says as I recall it says somewhere in here that they’re not deciding the question which is here, which has to do with the hearing there.

They’re not going to decide the case that’s here.

William J. Brennan, Jr.:

Well, do you start to say that New Jersey is the only one where they couldn’t have?

Theodore George Gilinsky:

New Jersey is half of the states now.

New Jersey which has a referral process, has long had hearing and required by law, by court decision, the model act, which came out in 1959, the model act in 1959 also suggests that there’d be hearing but it has other things that we do not have.

The particular District of Columbia Act which came in 1938 was patterned after the then model Juvenile Court Act which did not have any provision for hearings.

And you’ll find that the bulk of the states do not.

Now, the problem with the states is this, first of all a great number of states have no referrals, no waivers, there’s no — nothing at all in this area.

Secondly, a great number of states stop at age 16, for instance New York, and other states stopped at age 16.

So the bulk of the problems that we’re dealing with never really bothers.

Many statutes illuminate, and this includes by the way the Federal Juvenile Delinquency Act and there is such a thing.

Illuminate those cases which involved capital crimes or crimes which could be punished by life imprisonment because this on its face almost, you see, and that you’ll find this also in New Jersey —

William J. Brennan, Jr.:

This late case involved a murder — involved a murder conviction.

Theodore George Gilinsky:

That’s right.

So that you find as this in many of the states that as soon as they say, as soon as you find this, this fact but then you have a cause for waiver.

Now, defense counsel was not going to show that — and this is why I was getting back to the hearing though was not going to show that this young man did not fit under any of the criteria.

He was not going to take the position that the rape in this case had not occurred.

Theodore George Gilinsky:

Well, he was not going to say that there had not been a long history with this young man, he was not going to say that this was not a capital crime, he was not — in other words, he was not going to show the District Court any of the usual things which one would think about in terms of criteria.

And that’s why Mr. Justice White, you find for what you say the short hearing because what counsel was proposing to do the district judge said that would not affect the question of whether or not the statute had been complied with.

And we think that actually as you read the record and you read the report, the first report even — and see what happened in this case, you see that this is not the kind of case which the Juvenile Court can handle regardless of whether you handle — whether you think of this in terms of a mental case or whether you think in terms of a criminal case.

In either event, in either event, this was the kind of problem which deserved a hearing in the district — federal district court where they have a complete facility.

Now, let me add another factor to the facts, there was a competency hearing.

Counsel is not quite correct as to what the hospital had to say and the records are here.

What happened was this, the district — the D.C. General Hospital which is a local hospital in District of Columbia said that they had no opinion, no opinion as to whether or not he was mentally ill at the time of the crime.

No opinion and that’s in their letter.

They said, however, that he was mentally incompetent to stand trial which is a different matter.

When this case got to the St. Elizabeths, the report from St. Elizabeths over the signature of doctor — then Doctor Overholser, was superintendent, said that this boy was competent to stand trial.

There was a hearing on this issue.

Two psychiatrists testified, and only two testified, they both said, they both said, that this young man was competent to stand trial.

Now, you can read the record in various ways, in slang here and maybe it wasn’t quite this much, but this I think is clear in the record and this is the finding of the district judge prior to trial.

Earl Warren:

What did they say about his competency at time of the commission of the offense?

Theodore George Gilinsky:

They said that they thought he was mentally ill.

At the trial, this is the next stage, at the trial, we had the evidence of all of these psychiatrists and it is not that one-sided.

What happened was this.

At the trial the facts of the particular crimes became evident.

In other words, the fact was that the petitioner would go into this — into a particular house and he would rob the victim, find the wallet, get the money, and in one case he just happened to see the woman and she wasn’t fully dressed and at that point he raped her.

Now, when the facts of the crimes were brought to the attention of the psychiatrists, you do not find the unanimity that counsel would lead you to believe is in this record.

What you find is that many of the psychiatrists and these include people at St. Elizabeths, Doctor Dobbs and others feel that — well, he may have been rational, fully competent and knew what he was doing when he went in to rob these victims.

But when he happened to see this woman, his mental condition may have contributed to the rape.

Earl Warren:

They say may have or did?

Theodore George Gilinsky:

May have and did.

You find both.

Earl Warren:

I beg your pardon?

Theodore George Gilinsky:

You find both, so that what we say is the verdict of this jury is fully supported by the evidence in this case.

In other words, the evidence does show that it is possible for the jury to find that the defendant not guilty by reason of insanity on the rape charges and nevertheless guilty of the house breaking and the robbery.

William J. Brennan, Jr.:

Now, what does this mean, if those stand, Mr. Gilinsky, he — by reason of the findings on the rape counts will be at St. Elizabeths, how long?

Theodore George Gilinsky:

Would be there until he recovers.

William J. Brennan, Jr.:

Which might mean for life?

Theodore George Gilinsky:

It might mean for life.

William J. Brennan, Jr.:

And meanwhile, he’s getting credit on the sentences —

Theodore George Gilinsky:

That’s correct.

William J. Brennan, Jr.:

— for the time he’s there.

Theodore George Gilinsky:

That’s correct.

William J. Brennan, Jr.:

Is he under treatment there?

Theodore George Gilinsky:

That’s correct and he’s not —

William J. Brennan, Jr.:

And if they discharge him as what — cured to whatever it may be, is that what it would be?

Theodore George Gilinsky:

Well —

William J. Brennan, Jr.:

If he were discharged.

Theodore George Gilinsky:

We have put in our brief a section on sentencing although it is not raised because we feel that this Court should know about the problem.

The problem of relief is this, there is no question in our minds despite what cases petitioner cited in supplemental brief that the Juvenile Court does not have any jurisdiction after the age 21.

The fact is that this young man is now in St. Elizabeths Hospital.

There is a statute, there is a statute in the District of Columbia and I suppose because only the District of Columbia has this kind of verdict even in the federal courts, you don’t find this any place else.

District of Columbia has a statute which the Board of Parole can go back to the district judge and say to the district judge, this boy, this young man has now been rehabilitated.

Now, we think that he is now — you could not let him out and you can change the sentence.

The statutes specifically provides that for the district judge to change the sentence at that time —

William J. Brennan, Jr.:

Changing it, so that is — he can —

Theodore George Gilinsky:

I assume he can eliminate —

William J. Brennan, Jr.:

— resentence?

I see.

Theodore George Gilinsky:

I assume he can eliminate it.

William J. Brennan, Jr.:

Or discharge him in a parole or probation or something?

Theodore George Gilinsky:

Discharging him completely, completely.

So there’s a peculiar problem of course in the District of Columbia but there’s an answer to it that is peculiar also.

William J. Brennan, Jr.:

What required the sentencing — what was it?

30 to 90 years?

Theodore George Gilinsky:

Five to 15 years —

William J. Brennan, Jr.:

On each fix count.

Theodore George Gilinsky:

— each count.

William J. Brennan, Jr.:

To run consecutively.

Theodore George Gilinsky:

To run consecutively.

Now, I think it’s hard for me to put myself in place of the district judge, I don’t have the probation report, I don’t know what he was thinking of.

He’s very well could’ve had in mind however this particular statute realizing that this — that this was not that kind of a sentence but was the kind sentence as a result of all these crimes having him been found guilty.

It’s also important I think that this — at the time of sentencing, the defense counsel — the defense counsel said to the judge whatever sentence you give to this defendant and it may be 30 or 40 years, that was defense counsel talking, had it run concurrently or with the time he is pending in St. Elizabeths.

As a matter of fact at the time of sentencing, defends counsel said, “He may very well spend a lifetime there.”

So that what the judge was doing really if you — as you read the sentencing, he is saying, “I’ll agree with defense counsel.”

The Government made no recommendation.

It said absolutely nothing about the sentence.

The defense counsel did say this at the time, of course, defense counsel was aware that this was not all there was to this case.

So that on the matter of sentencing, we feel that the statute as applied in this particular case is the safety valve, can easily be applied and this is the kind of case for — as a particular problem in the District of Columbia.

Potter Stewart:

Mr. Gilinsky, if there had been no waiver and the Juvenile Court had determined what the jury of the District Court did eventually determine, i.e. that this — that this man is insane.

What could the Juvenile Court have done about it?

Theodore George Gilinsky:

I think the Juvenile Court would have a difficult problem because they could not have treated them themselves.

What they could have done is transfer the case out really of both Juvenile Court and District Court.

And by that, I mean this, they would’ve found that someway, and this has happened, to have a young man committed by the Mental Health Commission.

Potter Stewart:

Civilly committed?

Theodore George Gilinsky:

Civilly committed.

I know of no case that they have done where they had this kind of factual background.

In other words, I — and I can understand why that the mental — furthermore, the Mental Health Commission also doesn’t like to be treated as the kind of place to handle criminal cases that can’t be handled criminally.

And as always this hiatus of who has jurisdiction, a different setup under the District of Columbia Board of Welfare —

Earl Warren:

Couldn’t the Juvenile Court have continued his probation after a commitment to the St. Elizabeths, let’s say to the general hospital and held him and under the jurisdiction of the Court during his entire juvenile status?

Theodore George Gilinsky:

Yes sir.

Earl Warren:

Well, why wouldn’t that be satisfactory here?

Did they want — do they insist on this young man going there for life for wanting to be able to take care of him and keep in some kind of an institution for life?

Theodore George Gilinsky:

No, it seems that the problem that the juvenile judge faced that he was faced with a young man who was of average intelligence, he wasn’t sure which way it would go whether he was criminally responsible for all of these offenses, and also whether there was some mental problems here.

But from the evidence —

Earl Warren:

Well, that’s not what I’m talking about.

I thought there was a mental problem, why couldn’t he have continued him on probation as long as he was in the mental hospital.

Earl Warren:

If he wasn’t in the mental hospital, then he could find some other disposition of the case, but if he was mentally ill as all these doctors indicated, why couldn’t the judge have taken care of it in that manner?

Theodore George Gilinsky:

Well, I think what you’re asking now is whether or not the juvenile judge could’ve held the kind of hearing —

Earl Warren:

No, I’m asking —

Theodore George Gilinsky:

— it was actually held at the District Court level.

Earl Warren:

— I’m asking just precisely what I said, could not the judge in the Juvenile Court have kept him on probation provided he was restrained during his mental illness in one of the hospitals?

Theodore George Gilinsky:

I honestly cannot say that he could because it seems to me that when he became 21 that the Juvenile Court would’ve been done.

Earl Warren:

Well, then that’s what I ask you, was everybody in this case determined that this young man should be sent away for the rest of his natural life, is that why he got 90 years?

Theodore George Gilinsky:

Well, I don’t — the 90 years, I’m not — I cannot —

Earl Warren:

The equivalent of two life terms?

Theodore George Gilinsky:

Well, as I say, I cannot answer why he got the 90 years.

The problem —

Earl Warren:

But you tried to explain it very — very meticulously why the judge probably did this, why do you say now you can’t?

Theodore George Gilinsky:

No, I explained why the judge could have given this young man 30 or 40 years because —

Earl Warren:

Minimum?

Theodore George Gilinsky:

As I read the defense counsel said, he may be defense counsel —

Earl Warren:

Well, let’s don’t talk about the defense counsel.

What was the sentence in this case?

Theodore George Gilinsky:

The sentence in this case is twofold.

Earl Warren:

Yes.

Theodore George Gilinsky:

There is no sentence in regard to the mental problem.

Earl Warren:

No of course.

Theodore George Gilinsky:

This is statutory.

What happened — that sentence was five to 15 years on each count, that’s 30 to 90 years.

Earl Warren:

Right.

The minimum is 30 and the maximum of 90?

Theodore George Gilinsky:

That’s correct and that —

Earl Warren:

What is the minimum and maximum for a life term?

Theodore George Gilinsky:

In the federal —

Earl Warren:

In the federal system, that’s what we’re dealing with.

Theodore George Gilinsky:

We have a statute which says that regardless of the lengths of the sentence after 15 years, a defendant is eligible for parole.

Earl Warren:

I didn’t ask you that.

I asked you what is the minimum and maximum on a life sentence?

Theodore George Gilinsky:

We have — in the federal system, generally we do not have minimum and maximum.

Earl Warren:

No, I know.

But isn’t there some time a minimum at which they can ask for parole, can they ask for parole the next day after they agree on a life imprisonment?

Theodore George Gilinsky:

They can ask for a parole in 15 years on a life sentence.

Earl Warren:

That’s the earliest?

Theodore George Gilinsky:

Right.

Earl Warren:

That I didn’t know.

May I ask you this Mr. Gilinsky?

Is the juvenile, before the Juvenile Court in the District of Columbia entitled to a lawyer?

Theodore George Gilinsky:

As I read the case, there’s no question about it.

He is entitled to a lawyer.

Earl Warren:

Alright, if he is, what is his lawyer entitled to do for him?

Theodore George Gilinsky:

As I read the case which the counsel has cited this morning, they say that lawyer is entitled to do just exactly what the lawyer did in this case, namely, supply the juvenile judge with information which the lawyer thinks would aid the juvenile judge in making a determination on waiver.

Earl Warren:

Now, as I understood Mr. Ehrlich, Mr. Arens made two motions that were very vital to this defendant in the Juvenile Court and that neither of them were ever passed upon by the Juvenile Court.

Theodore George Gilinsky:

As far as I know, that’s correct.

Earl Warren:

Now, is that giving a man the right to counsel?

Theodore George Gilinsky:

I think they’re tied together, Your Honor.

In other words, I think what I’m saying is this, that the fact he made a motion didn’t add anymore to what he wanted.

Earl Warren:

Oh, he made affidavits.

Theodore George Gilinsky:

Yes.

Earl Warren:

The affidavits were attached to it.

Theodore George Gilinsky:

But the juvenile judge had this information, the question really is whether he was entitled to a hearing.

Earl Warren:

No, no, no (Voice Overlap) —

Theodore George Gilinsky:

Because that’s what he asked for in the motion.

Earl Warren:

I know and both of them didn’t apply to that though.

He asked for certain — he asked for certain documents, as I understand it —

Theodore George Gilinsky:

Yes there is.

Earl Warren:

— somewhat — alright (Voice Overlap) —

Theodore George Gilinsky:

Then he asked for documents also.

Earl Warren:

As I understand Mr. Ehrlich, the judge never responded to those two motions.

Theodore George Gilinsky:

That is correct.

Earl Warren:

There was nothing — there were no response made to it and no action taken.

But now, I asked you, is that giving a man a right to counsel if you say he can make motions but the judge doesn’t have to decide them?

Theodore George Gilinsky:

Well, I do not read the cases as saying that you can — that the purpose of the lawyer is to make motions in the Juvenile Court.

This is not a criminal case.

The purpose of the lawyer and the purpose of the transfer is not to decide a critical issue in the criminal case.

The purpose of the transfer is to decide what kind of facilities are available in the Juvenile Court unlike cases that had been cited here today such as the White and others which talked about a critical stage in a criminal case.

Nothing at this level is that — is a critical stage because this petitioner is entitled to a preliminary or an indictment and all of the regular rights that you find in ordinary criminal cases.

What happened was there was a decision made that the facilities or that the fact that he had committed seven sexual offenses was not the type of matter that the juvenile judge — well, that he could handle.

Earl Warren:

That means that in those circumstances, the lawyer has no right to appear before the Juvenile Court, has no right to make any motions in favor of his client and has no right to have them decided?

Theodore George Gilinsky:

I’m not saying that they can be an arbitrary transfer.

Earl Warren:

No, I didn’t ask you that.

But isn’t he entitled to —

Theodore George Gilinsky:

He is not —

Earl Warren:

— to some response?

Theodore George Gilinsky:

He is not entitled to the social records —

Earl Warren:

I didn’t asked you that, isn’t he entitled —

Theodore George Gilinsky:

— in that motion.

Earl Warren:

Isn’t he entitled to a denial of it then?

Theodore George Gilinsky:

Well, I think what happened, I don’t know because there’s no provision for motion and such in Juvenile Court.

What seems to happen here was that judge was — the juvenile judge is concerned with the transfer.

He is looking at the social records.

This is the thing that he is making up his mind on and in those records he finds what Mr. Arens has supplied to him.

And he can decide for that, (a) do we need a hearing, do I need some further information after all he’s an experienced man with the facilities in the district?

Do I need some further information or do — or is this sufficient, is this a full enough investigation to say that the juvenile facilities are not adequate to handle this or the motions did not say — the motion did not say either that the juvenile, not committed the crime, he did not — in other words, what I’m saying is the motions did not go to the criteria which the juvenile judge had to make up his mind upon.

So, whether the judge actually denied them or not, and I don’t find this in the record at all, I — it makes no difference on the question of transfer because these problems are problems whether or not the facilities are there.

Certainly, I find no constitutional reason for a hearing.

Abe Fortas:

Mr. Gilinsky, may I briefly ask you — can I ask you a very brief question about another face of this matter.

Abe Fortas:

As I understand the fingerprints taken from this man when he was 14-year-old boy in 1961.

He was apprehended for some offense, his fingerprints were taken and at the trial in the District Court here as I understand it, expert witnesses testified that those fingerprints matched the fingerprints found in the victim’s apartments.

So that what you have here, as I understand, is the use of fingerprints taken from a juvenile, that’s number one at a subsequent trial in the District Court.

Number two, I get the impression that the question and answer for such as to convey the information to a jury that the — this man had been convicted in effect have been found by the Juvenile Court to have committed the offense, and my question to you is this, assuming that that objection have been made and that this testimony had been admitted over objection at the trial in the District Court, do you concede that that would’ve been reversible error or is it your position that it would not have been?

Theodore George Gilinsky:

Well, my answer is no, it would not be, but I think I must correct the statement of facts —

Abe Fortas:

Yes.

Theodore George Gilinsky:

— because those are not the facts.

The fact is in this record that this juvenile was picked up on the basis of fingerprint — latent fingerprints that were found in the apartment of a woman who was raped.

Abe Fortas:

No, that’s not what I’m talking about.

I’m talking about page 42 of your brief, the top.

Theodore George Gilinsky:

42?

I guess I’ve been too expansive in the brief.

What actually happened was this —

Abe Fortas:

Well, you wrote it, I didn’t.

Theodore George Gilinsky:

What actually happened was this, at the trial — the Government put on the expert witness, and in the course of — as to the fingerprints, and into the course of that, the expert witness had a number of photographs of other prints.

Defense — at that point, no objection was made to the use of them as comparison prints.

It did not say that they were — the prints were taken at an arrest and there was no evidence of that in the record of the print.

The record at trial I mean does not say that.

The arrest comes in because we know pretrial how these fingerprints came about.

In other words, pretrial the Court was informed that the prints were obtained because the juvenile had been picked up previously and arrested.

But at the trial what happened was, they merely made a comparison, and at the trial defense counsel stipulated that these prints were the prints of the defendant.

So, the —

Abe Fortas:

Well, we’ll take the transcript but that is not what is stated in your brief that page 42 says, you say that expert witnesses testified that the impressions found at the victim’s apartments matched those taken after petitioner’s 1961 arrest.

Theodore George Gilinsky:

I agree with you.

This is not and I agree with you, we have to take to what the record says rather than what the brief says.

Earl Warren:

Mr. Gilinsky, it’s quite apparent from some of the colloquy that we’re going to have some difficulty with the transcript in this case and you speak of some documents, counsel speaks of others, and you say that there are discrepancies between them.

I wonder if you and counsel for the petitioner cannot get together and do something about this to simplify the manner for us, can you not stipulate this what we should consider and so forth and in what connection?

Theodore George Gilinsky:

I can do that.

Earl Warren:

You could do that Mr. —

Theodore George Gilinsky:

I could — we can do it —

Earl Warren:

Will you do that Mr. Gilinsky?

Theodore George Gilinsky:

Oh yes, yes certainly.

Earl Warren:

Very well, if you will — if you will do that, then supply us with it at your earliest convenience — very well.

Mr. Arens.

Richard Arens:

Mr. Chief Justice, may it please the Court.

This case provides tragic illustration of the consequences of one-sided secret inquisitorial determinations of fact —

Earl Warren:

Mr. Arens, if you gather — it’s two — about three minutes to two, if you’d rather start at after lunch, you may do so.

Richard Arens:

That’s a good one.

Earl Warren:

Would you want to do that?

Richard Arens:

I will.

Earl Warren:

Very well, we’ll return.

Mr. Arens, you may proceed with your argument.

Richard Arens:

Mr. Chief Justice, may it please the Court.

I believe Mr. John Locke who remarked, “He who judges without acquainting himself to the utmost that he is capable, cannot acquit himself of judging amiss.”

Mr. Arens, I beg your pardon.

Richard Arens:

This — “He who judges without acquainting himself to the utmost that he is capable cannot acquit himself of judging amiss.”

I believe the statement is attributable to John Locke are no fond to dissenters.

I believe this case is replete of instances in which judgment after judgment was handed down concerning an adolescent boy, founded upon inadequate information.

I ask plea to reconstruct the facts as briefly as possible within the Juvenile Court setting.

Two major motions were filed.

One objecting to continue with police interrogation of petitioner, the second asking for his hospitalization to determine his mental state for a hearing at which it was offered to prove that the petitioner was amenable to the treatment resources available to the Juvenile Court and that he would respond to them within the jurisdictional time span available to the Court and to petitioner.

William J. Brennan, Jr.:

That is before he gets to reach 21?

Richard Arens:

Before he reach 21.

We offered significantly and specifically to comply with the criteria contained in policy memorandum number 7, then in effect in the Juvenile Court in which the suitability of the Juvenile Court for treatment was one of the standards decisive of the determination as to whether waiver was or was not to take place.

Our psychiatrists who have briefly examined the individual petitioner had formed but a tentative opinion.

This opinion was to be sure transmitted to the Juvenile Court.

It was to the effect that the petitioner was suffering from a severe form of mental disorder, the exact nature of which could not be defined or described without further studies, that hospitalization was essential to provide further information on that, that the psychiatrists’ preliminary impression was that the juvenile in question might be amenable to treatment under Juvenile Court hospices but that further studies were necessary to pinpoint that particular allegation.

That psychiatrist in fact offered to recommend a treatment situation to the Juvenile Court.

All of these offers, Your Honors please, were spurned at no time was the psychiatrist heard by the Juvenile Court; at no time was further information sought from Government’s psychiatrist in a hospital which routinely receives juveniles for a study in the District of Columbia; at no time was counsel heard formally or informally in chambers or in court.

Seven days after his arrest and without benefit of any arraignment or appearance before a judicial officer which would have been a short term and as a matter of right had he been an adult.

Richard Arens:

Morris Allen Kent Jr. was transferred to the jurisdiction of the District Court to stand to trial under the adult procedures of the District Court by an order which provided no comments, no explanation, no statement of reasons whatsoever.

In the District Court, there was no hearing of any kind —

Abe Fortas:

Excuse me, Mr. Arens, was there — I’ve forgotten.

Was there a hearing or argument before the transfer order was entered?

Richard Arens:

There was no argument in the Juvenile Court, Mr. Justice Fortas, any nature whatsoever.

The papers were left unanswered.

Even the Government did not receive an opportunity to file response of pleadings in this case.

Now, may I add, if Your Honor please, that what might conceivably have been remedied under statute in the District Court was left on remedy.

There was no hearing on the District Court upon the basis of the motion to dismiss setting forth the significant deficiencies within the Juvenile Court procedure followed in the instant case.

We have set forth in the motion accompanied by uncontraverted affidavits that defendant at that particular time had been mentally ill that his mental illness had been neglected by Juvenile Court authorities, that no inquiry concerning the nature of this mental illness was made at the time the matter was brought to the attention of the Juvenile Court.

The Juvenile Court could not know what the state to this particular individual was, that vital social records relied upon by the Juvenile Court in the action of waiver were denied to counsel who as consequence did not know what to explain, supply, or refuse.

When this of course —

William J. Brennan, Jr.:

What is it that you’ve given to the defense counsel in the District Court which Mr. Gilinsky referred to?

Richard Arens:

That is completely correct, Your Honor.

The social record in the Juvenile Court was handed to the counsel at the District Court hearing, if it be called a hearing, in which no evidence was taken, in which offer of evidence concerning former counsel, relatives, and psychiatrists was spurned in which no inquiry was made as to whether this particular individual —

William J. Brennan, Jr.:

Well, what opportunity did the defense counsel have in the District Court to do anything with file that was (Inaudible)?

Richard Arens:

He asked for a hearing at which he would have substantiated the allegations contained in the uncontraverted motion —

William J. Brennan, Jr.:

Did he make any —

Richard Arens:

— in the affidavit.

William J. Brennan, Jr.:

— application directed expressly to the file?

Richard Arens:

I believe, Your Honor, that he asked for a hearing in which the testimony of specific people was offered.

He mentioned former counsel, he mentioned relatives, I believe, he mentioned doctors as well.

The District Court did not pause to conduct a hearing.

At the same time, it did not proceed in such haste as not to note that private psychiatrist have been secured to an otherwise indigent defendant and that this involved the situation in which it, meaning the District Court, and I quote from the transcript to the District Court had a suspicion that this presumably be unfair to the case of psychiatric experts outside the ranks of the public hospitals was stimulated activity and the judge was concerned about the activities of the National Institute of Health and if that was so, somebody was going to get in serious trouble.

And the judge thereupon directed trial counsel on the eve of trial to advice him fully as to the nature of the psychiatric expertise made available to the defendant.

And defense counsel proceeded under the poll of intermissions of legal impropriety in the defense of a capital case.

The matter can be summed up very briefly.

The Juvenile Court waiver was based upon secret evidence.

The petitioner demanded but did not secure social records, a determinative factor in the waiver which he had a right to see under District of Columbia statutory law.

Byron R. White:

Mr. Arens, what kind of a hearing would you suggest that they had in the District Court, in the Juvenile Court before the waiver?

Richard Arens:

I believe that the question concerning his mental competency should have been determined.

Certainly, we have prima facie evidence of mental unsoundness.

Byron R. White:

What is the — I’m not talking about the issue, what kind of a hearing?

Richard Arens:

It might well have been an informal, in camera hearing at which counsel would’ve had an opportunity to explain —

Byron R. White:

Was this the face — the face to face meeting with the judge and an opportunity to say what you wanted to say if that satisfy what —

Richard Arens:

It is conceivable although I do not propose during the —

Byron R. White:

What kind did you want in this case?

Richard Arens:

In this particular case, I wanted an opportunity of determining whether these social records of Juvenile Court were in fact clear as to lack of mental illness on the part of petitioner.

It has been suggested by the Court of Appeals in the concurring opinion by Judge Washington that the logical inference was the Juvenile Court was well apprised of petitioner’s rapidly deteriorating mental state.

Byron R. White:

Do you think there should be an evidentiary hearing?

Richard Arens:

I believe Mr. Justice White, the situation may arise and this was such a situation in which an evidentiary hearing concerning the petitioner’s mental state was indeed in order.

Byron R. White:

Who would the — if this would be a full adversary hearing, then and who was on the other side?

Richard Arens:

The Government of course would be in a perfect position represented by corporation counsel to challenge allegations of the lack of competency of this defendant to participate in the waiver proceedings in which by judgment to the United States Court of Appeals he is in fact in type of the counsel yet how can counsel meaningfully maintain contact with someone who is in fact incompetent.

Byron R. White:

But what — in the District Court, when you make the motion to dismiss or a motion for the District Court to act as a Juvenile Court, what rules should the District Court follow?

Let’s assume that there is a hearing, all the hearing you won, what should’ it be directed to?

Richard Arens:

It should’ve been directed to determine on the basis — the uncontraverted allegations of this particular case.

Byron R. White:

(Voice Overlap) to be determined whether the — just whether the Juvenile Court went to the right procedures or whether or not the Juvenile Court was right on the merits —

Richard Arens:

Mr. Justice White, —

Byron R. White:

— or both?

Richard Arens:

— the first question of course is to whether or not the Juvenile Court did waive properly, could the District Court applied jurisdiction in the absence of a proper waiver since exclusive jurisdiction of children put in that particular (Voice Overlap) —

William J. Brennan, Jr.:

Well, Mr. Arens, why since the district judge might constitute itself under the statute, a Juvenile Court judge, why would not the reason for the hearing be that the end that they’re be determined whether in fact he should be tried as a juvenile or as an adult?

Why wouldn’t that be the purpose of that hearing?

Richard Arens:

Mr. Justice Brennan, I believe you supplied — you had a further reason for a hearing which I believe —

William J. Brennan, Jr.:

I know that.

Let’s see.

What I’m trying to get to is the same — the same answer with Mr. Justice White before and that is what would be the purpose, this is the new idea to me, I must say.

The referral court being able to constitute itself with the same kind of court as the referring court but that’s what our statutory scheme is.

Now, if the hearing in the Juvenile Court, for the first instance, was the only to the end that they’re be determined whether he could be tried as a juvenile or tried as an adult, why would not that be also the end of a hearing in the District Court?

Richard Arens:

I believe this is certainly a valid end of a hearing in the District Court.

I do not believe that it’s the only valid end because if the Juvenile Court has not properly divested itself a jurisdiction, I do not believe the District Court could probably (Voice Overlap) —

William J. Brennan, Jr.:

Well, I must say you leave me cold with that argument since — since — if I understand the statute, the district judge can constitute itself as a Juvenile Court —

Richard Arens:

That —

William J. Brennan, Jr.:

— I don’t see that — then you’re right back in the Juvenile Court for a practical purposes and you now get a hearing on the question whether or not this —

Richard Arens:

You would —

William J. Brennan, Jr.:

— (Voice Overlap) the charge.

Byron R. White:

You would never — the District Court would never sit as a Juvenile Court if what you say is true because it reviewed — if it reviews the wavier and found it invalid or improper, there would’ve been a valid waiver and automatically, no jurisdiction in the District Court on your argument.

Richard Arens:

Well, that is my contention, Mr. Justice White.

There was no valid waiver in this case.

Byron R. White:

(Voice Overlap) read that provision under the statute.

Richard Arens:

No, I believe given the valid waiver, the District Court has a new opportunity of rectifying existing substantive as distinct from procedural or jurisdictional error.

It may assume jurisdiction —

Byron R. White:

I know but if there wasn’t — if there wasn’t a proper waiver, that if the Juvenile Court judge made the wrong decision on the waiver, there wasn’t a proper waiver and the District Court never acquired jurisdiction?

Richard Arens:

I would distinguish between a substantive error which is subject to correction and the fundamental procedural error which deprive the Juvenile Court of any authority whatsoever to transfer —

William J. Brennan, Jr.:

Well, suppose in fact on your motion to dismiss the District Court had constituted itself a Juvenile Court had conducted a hearing and reached the conclusion that this Kent was to be tried as a juvenile, would you be here?

And they tried him as a juvenile.

Richard Arens:

I should’ve been here, Your Honor.

William J. Brennan, Jr.:

You’d still be here.

Richard Arens:

I don’t know whether I would have been, but I should’ve been.

My moral duty would have been to insist upon the jurisdictional invalidity of all District Court proceedings given the invalidity in the Juvenile Court below.

William J. Brennan, Jr.:

Well, I must say I don’t think you have to go that far.

Richard Arens:

I rely upon the fact, if Your Honor please, the Juvenile Court did not disclose the social records.

And the statute specifically provides that it is required to do such for all interested persons, a person is legitimately interested in the welfare of the child.

Is it farfetched to assume that the lawyer representing a child has this legitimate interest even though he’d not be mentioned by name in the legislature and the legislative history upon the subject that we have alluded to in our brief is what clear, cut, and explicit.

Byron R. White:

Well, the statute certainly doesn’t prevent the district — the juvenile judge from letting the lawyer see it.

Richard Arens:

The statute directs the disclosure of the social records to all persons legitimately interested in the welfare of the child and I submit, if Your Honor please, that the boy’s lawyer was precisely such a person.

Byron R. White:

Or is it — did the District Court ever get to juvenile judge view of –?

Richard Arens:

I have no way telling Your Honor.

All I can say is that a motion was properly filed from disclosure of these records.

Byron R. White:

Did any one ever said he was precluded to see it?

Richard Arens:

I was informed of it —

Byron R. White:

Of who?

Richard Arens:

— apprised by court officials and this is without precedence.

I cannot ask for their authority in making these particular statements nor can I made authority of representations to this Court as to what usual Juvenile Court practice is or although it is my impression that Social Service records are generally regarded this confidential and immune from the scrutiny of trying lawyers.

They are secret evidence and they were, if Your Honor please, secret evidence upon which the fate of this child determined and —

Abe Fortas:

(Inaudible)

Richard Arens:

Mr. Justice Fortas, if you want I’ll make one moment.

I will comply with your request for me to rely into this.

Yes, it’s referred to on page 4, D.C. Code in Section 11-929 (b) as it was cited at that time.

A revised section substantially identical, said the records made by officers of this Court referred to social records shall be withheld from indiscriminate public inspection except that such records shall be made available, shall be made available by rule of order, special order for such person et cetera who have a legitimate interest in the protection, welfare, treatment and rehabilitation of the child.

I appreciate the Court’s comment.

(Inaudible)

Richard Arens:

Yes Your Honor, I believe in Black decided on December 8, the afternoon before this Court has scheduled argument in this case the first time, the suggestion was at least strongly made that counsel on waiver proceedings is entitled to peruse the social records of his client.

Byron R. White:

You’re going to leave — I hope you leave a copy of that recent decision.

Richard Arens:

I regret to say it is still unreported but available in slip sheet form and I most certainly will comply with your wishes, Mr. Justice White.

Byron R. White:

Thank you.

Richard Arens:

Yes.

Finally, it is clear that —

Potter Stewart:

The Court — the Court of Appeals said that and I’m quoting, “The counsel apparently did not press the matter of a personal interview with the Juvenile Court judge,” is that an accurate characterization of defense?

Richard Arens:

I’m implying the statement, if Your Honor please, an affidavit form saying that I have inquired as to whether interview with the Juvenile Court would be useful.

I was told by the Social Service director according to the affidavit which is far to the record of this case that it was doubtful if it could be arranged than it would probably serve no useful purpose.

The impression which I gleaned and which I set forth in the affidavit was that I was wasting my time in addressing myself to stopping the waiver which appeared to be appending in this particular case.

I submit too that unconstitutional, as well as statutory grounds, there was no effective assistance of counsel on the Juvenile Court level or whatsoever.

Clearly, the petitioner is 16-year-old child and an admitted victim of mental illness was without counsel when questioned by the police.

Clearly, since the Juvenile Court relied on its social records which were unavailable to counsel it is clear that counsel was no more affective in urging countervailing consideration than he would have been had he presented an argument to a jury in the course of the trial in which he had not been an attendance at the time of taking the testimony.

This is ineffective assistance of counsel, and I do not believe effective assistance of counsel can be rendered under these circumstances.

And as a matter, it’s not whether the determination of effective assistance counsel within this setting be constitutional or statutory, though I strongly submit that the constitutional dictate of fundamental fairness urges the recognition of effective assistance of counsel in a critical stage, the most critical stage of the Juvenile Court proceeding.

Chief Judge Bazelon referred to the most awesome decision confronting the Juvenile Court, the decision of waiver, the a critically important act for the child who may be abandoned as ‘incorrigible’ and for the society which had thus —

William J. Brennan, Jr.:

Was that in Black, Mr. Arens?

Richard Arens:

That, Your Honor, is in Watkins.

William J. Brennan, Jr.:

Watkins?

(Inaudible)

Richard Arens:

No Your Honor, I do not leave this language is on the de novo bench.

William J. Brennan, Jr.:

Do you read that as a constitutional ground or?

Richard Arens:

I believe that the statutory right to trial by juvenile, having been secured, it cannot be arbitrarily, capriciously or erratically removed from that child certainly not under the circumstances outlined in this case.

I would finally point to the failure to fulfill the statutory requirement prerequisite to waiver.

Could there be a full investigation in which there was no knowledge as to the exact mental stage of the boy who according to the Court of Appeals was entitled to effective assistance of counsel.

I do not believe it’s possible, the Juvenile Court with knowledge of a schizophrenic mental condition have directed the removal of that boy from the shelter of a juvenile receiving home into the company of adult criminals.

And I believe the most plausible inference is the Juvenile Court had no knowledge of the severely deteriorating mental state of the petitioner, who was subjected to the awesome experience of trial as an adult under the circumstances which have been outlined by this Section.

Abe Fortas:

Mr. Arens, excuse me.

On page 5 of your brief, you refer to the protracted incommunicado interrogation by police, I — that was before the waiver order was entered.

Richard Arens:

That’s right.

Abe Fortas:

Is there anything in the record that shows that?

Richard Arens:

Your Honor, I asserted that I have been informed that the boy was interrogated incommunicado during the first two days of his detention, I assume not what (Voice Overlap) —

Abe Fortas:

There’s nothing in the record on this?

Richard Arens:

Yes, Your Honor, there is.

There is my affidavit.

I demanded to see my client in Juvenile Court.

I was told I could find him at the juvenile receiving home.

I was offered a brochure as to how to reach the juvenile receiving home.

When I reached the juvenile receiving home, I was informed that my client was undergoing a second day of interrogation at Metropolitan Police Headquarters.

Abe Fortas:

Yes you mean — is there — did you endeavor to prove up this point in the District Court trial?

Richard Arens:

Your Honor this particular point, if my recollection is correct and I rely upon an unprinted record and the recollection which may be fallible.

This particular point was relied upon in the motion to dismiss the indictment in the accompanying affidavits.

Abe Fortas:

If this (Voice Overlap) —

Richard Arens:

And I ask plea to correct myself because it has been the long time since these records have been listed on for peruse, but this is my recollection.

Abe Fortas:

Were you the trial counsel in the District Court?

Richard Arens:

No, Your Honor, I was not the trial counsel in the District Court.

Abe Fortas:

But there’s nothing in the printed or type — there’s nothing in the typewritten record before us that would substantiate the statement?

Richard Arens:

No, Your Honor there is only the motion to dismiss the indictment which are filed in the District Court with accompanying affidavits which I believe have been totally uncontraverted.

Probably, this may not be important but I’m interested why was the motion for rehearing en banc withdrawn?

Richard Arens:

It was counsel’s judgment that this case was best heard in terms of constitutional perspective by the highest court of the land, in a matter which was totally without impression and which have not yet been decided authoritatively by any influential tribunal.

William J. Brennan, Jr.:

Mr. Arens, may I ask you, have you seen this a way of (Inaudible)?

Richard Arens:

I regret to say I have not, Your Honor.

William J. Brennan, Jr.:

But I wonder if I could ask you this, suppose we will agree with you that there should’ve been — I’ll use old statement on this waiver language, a referral hearing, what do you think the New Jersey Supreme Court solution which is, not to set aside this criminal conviction but rather direct a new referral hearing and if the result of that hearing is the finding that waiver was proper after a full inquiry and then the conviction stands.

This is unrelated of course to the errors that are urged in the trial itself.

Richard Arens:

I believe this would be constitutional and satisfactory.

Many of the rights urged upon the Supreme Court is properly belonging to the petitioner have seen vindication at the hands of the Court of Appeals in other cases since the decision in the Kent case.

The Court of Appeals has declared lawyers to be entitled to seeing relevant record within the possession of the social workers of the Juvenile Court.

Lawyers have been declared entitled to be present and children have been declared entitled to effective assistance of counsel in the Black decision.

We ask for the declaration by this Court that a child has a constitutional right of assistance of counsel in Juvenile Court proceedings encompassing waiver and including the right to the inspection of Juvenile Court social records which form a significant basis of the decision of waiver by the Juvenile Court.

We ask in sum, the Court declare the children as well as adults are entitled to certain unalienable rights within Juvenile Court proceedings.