McKeiver v. Pennsylvania – Oral Argument – December 09, 1970

Media for McKeiver v. Pennsylvania

Audio Transcription for Oral Argument – December 10, 1970 in McKeiver v. Pennsylvania

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Warren E. Burger:

Number 128, In re Barbara Burrus.

Mr. Meltsner, you may proceed I think now I’m sure you’re ready.

Michael Meltsner:

Mr. Chief Justice, may it please the Court.

This case is here on writ of certiorari to the Supreme Court of North Carolina to review the court’s judgment that petitioners over 40 black youths between the ages of 11 and 15 were not entitled by the Sixth and Fourteenth Amendments to trial by jury in juvenile court proceedings held to determine whether they had violated state criminal laws.

Cases arose out of a conflict between black and whites in Hyde County North Carolina over the manner in which the county school board chose to implement this Court’s decision in Brown versus Board of Education.

As a result, almost the entire black population boycott at the public schools in 1968.

During the months of September through December, the petitioners were taken into custody by state police and charged with willfully, intentionally, and unlawfully impeding highway traffic in violations of the state criminal statute which at the time of trial provided a two-year maximum penalty for adults.

One juvenile was charged with willfully becoming disorderly and defacing school property in violation of two other state criminal statutes which at the time of trial imposed a maximum penalty of two years imprisonment for adults.

Petitioners were tried in several groups in the District Court of Hyde County — a court of general, civil and criminal jurisdiction sitting as a juvenile court.

In each case, with the exception of the one juvenile charged with disorderly conduct and defacement of property, a police officer testified to observing groups of black youths marching and singing, carrying signs, playing catch with the basketball, all in such a manner as to stop cars on a public road.

According to police testimony, the petitioners were warned that they were violating criminal law in order to disperse.

When they did not do so, they were arrested.

The trial judge found that each petitioner had committed an act for which an adult may be punished by North Carolina law was in need of care, protection, and discipline from the state and was thereby delinquent.

Immediately after finding petitioners delinquent, the court sentence each to a state institution for an indefinite term until released by the State Board of Juvenile Corrections or until reaching majority.

Thus, petitioners could have been incarcerated all from six to ten years respectively then the court suspended the sentence to probation.

On appeal, both the Court of Appeals and Supreme Court of North Carolina held that the Fourteenth Amendment does not give the juvenile a right to trial by jury and juvenile delinquency proceedings even though he may be incarcerated for many years as a result of an adverse decision.

Warren E. Burger:

Now, was there any commitment to incarceration of these petitioners?

Michael Meltsner:

The commitment was suspended by the trial court and later excised from the judgment by the Supreme Court of North Carolina in a technical modification of the terms of the judgment.

Warren E. Burger:

So they have never been confined?

Michael Meltsner:

No, all the petitioners were placed on probation.

Now, these petitioners’ submission that under Gault, Winship, and Duncan taken together juvenile tried for violations of state criminal law and subjected to incarceration for years is entitled to a jury trial unless the state shows, the state has not shown here that provision of trial by jury will compel the state to displace or abandon substantial benefits conferred on the juvenile by the juvenile court system.

This is a question which we believe is seen more clearly if we first put to one side certain matters which the court is not being asked to decide.

This case does not involve a jury trial where a juvenile does not want one.

No claim is made in this case.

The due process requires any change in the discretion of juvenile authorities to divert cases from court prior to trial for probation counseling action by private or public social agencies or physicians.

No claim is made which restricts the juvenile court’s freedom, the structured treatment or rehabilitation to the needs of the juvenile after he has been adjudicated a delinquent.

No issue was present of the right to trial by jury where the juvenile is not charged with criminal conduct, faced with the stigma with of the delinquency adjudication and subjected to what amounts to punitive incarceration.

And finally, no claim is made that petitioners were entitled to trial in a courtroom open to the public other than by reason of the presence of the jury.

In short, the discretion of the trial court to exclude the public which North Carolina law now confers is not affected.

Now, petitioners contend that far from harming the juvenile, jury trial enhances liability in fairness and protects against the erroneous convictions by ensuring compliance with the reasonable-doubt standard.

Byron R. White:

Mr. Meltsner, at that point and perhaps this is an unfair question, would you hazard a guess as to what would have happened have there been a jury trial at that time in North Carolina?

Michael Meltsner:

In this case?

Byron R. White:

Yes.

Michael Meltsner:

Well, that is as Your Honor suggests, it’s quite a guess but all I can say is that this is purely a good case for jury because the events from which the criminal conduct arose are the sort of events which blacks and whites are likely to perceive in a very different manner.

This case arose out of a racial clash in this community and so, well, I can’t for a moment predict what the jury would have decided.

I do think that the petitioners here would have felt that they had received the judgment of the community and found that that judgment more acceptable for that reason if it was adverse to them.

Byron R. White:

Under new laws, excuse me.

I was going to say you’d also hazard a guess then that had a jury trial been available that opportunity would have been taken in this case?

Michael Meltsner:

Petitioners made timely motions for a jury trial in the trial court.

Byron R. White:

I asked this because of the statements in the briefs that if a jury, a right to a jury trial were present that nevertheless the exercise of the right would or has been rather sparse in practice.

Michael Meltsner:

That is the experience of the juvenile courts in the 10 or 11 or so states which provide trial by jury has amply documented in the amicus brief of the District of Colombia Public Defender Service which survey the operation of those courts in 26 cities and towns in United States.

Byron R. White:

And you think this argument to batters the position that imposing a right to a jury trial will not overwhelm the juvenile process?

Michael Meltsner:

That is correct.

Byron R. White:

Alright.

Michael Meltsner:

That is correct.

Warren E. Burger:

Under state law, could these petitioners have been tried in criminal court under criminal penalties and (Voice Overlap)?

Michael Meltsner:

No, they could not.

Warren E. Burger:

They could not.

Michael Meltsner:

The juvenile court in North Carolina has exclusive original jurisdiction all minors up to the age of 16 and these juveniles that were between the ages of 11 and 15. When a juvenile is charged with a felony, Mr. Chief Justice, and his over the age of 14, the juvenile court may hold the hearing and waive jurisdiction to an adult court.

Warren E. Burger:

Then these petitioners could have been waived?

Michael Meltsner:

No, because the offenses were classified as misdemeanors under state law though they were subject to two-year penalties at the time of trial.

Now, the benefits which we claim flow to the juvenile from the availability of jury trial.

I will somewhat arbitrarily describe as benefits flowing first from Duncan case, second from Winship, and third a class of special juvenile court advantages.

Byron R. White:

Mr. Meltsner, could I ask you first before you go on.

Would anticipate that the jury trial you’re requesting would involve submitting to the jury only the question of whether the acts charged were committed or whether you would want the jury to decide the ultimate issue of delinquency or is there in North Carolina any difference between the two?

Michael Meltsner:

At the time of trial, Mr. Justice White, there may have been a difference but state law has been amended while this case was on appeal to make an issue of delinquency as I read the states’ statutes identical to the question of whether youth violated the state criminal law.

Byron R. White:

So under current law there if the act is found to have been committed its automatic — there’s an automatic conclusion of delinquency?

Michael Meltsner:

That is correct.

That is my —

Byron R. White:

Because in some places that isn’t so.

Michael Meltsner:

That is my impression, yes.

That in some basis the law was as it was in North Carolina that there is a vague and ill-defined class of offenses which judge can determine to be delinquency.

Byron R. White:

So there’s — but right now there’s no room for a judge saying he may have committed this act but he is not a delinquent child?

Michael Meltsner:

That is my impression — that’s the way I read the statute, it’s the question —

Byron R. White:

If there was room for that under the national — North Carolina law, would you insist that the jury be given the task of deciding on delinquency as well as the task of deciding whether the act was committed?

Michael Meltsner:

Well, I think that the jury would have to be charged as to the kind of conduct which it was finding the facts to determine a violation and certainly the jury could find specific facts and the judge could find the — could draw the legal (Voice Overlap).

Byron R. White:

So you would be content if the jury only had the task of deciding whether the act was committed?

Michael Meltsner:

Under your — let me take it back because I quite honestly Mr. Justice White hadn’t thought about this before, but now, my conclusion is not that.

My conclusion is that that the judge will have to define in advance in such a situation and such a state what delinquency means and if the jury will find the facts and also find the law as charged to the —

Byron R. White:

Yes, but delinquency in that situation may depend on a whole series of other facts that may depend on the whole juvenile crime.

Michael Meltsner:

I am not certain how that would operate because I don’ really know what —

Byron R. White:

But which you could say relevant in North Carolina —

Michael Meltsner:

I certainly do.

Byron R. White:

Under the present law, but not under the law at the time of trial?

Michael Meltsner:

I’m even unclear about the law previously because I cannot, unable to find any state court decisions dealing with the issue or construing the statute.

Now, it seems to me quite clear that the youth is as likely as an adult to profit from the protections enunciated by the court in Duncan against an arbitrary bias, corrupt or over zealous judge or prosecutor or a case hardened judge or a compliant judge one who perhaps seems to credit the least testimony because he has seen police officer testified so often against convicted defendants and likewise that the youth is also as likely as an adult to benefit from the common sense and community viewpoint of the jury.

In short, the jury is a check on the vast powers in the trial judge and no judge — no trial judge has more power than the judge of the juvenile court.

And the judge who the youth gets in exchange for his right to jury trial is a judge who is not the miracle worker of juvenile court theory.

He is not a specialist.

In North Carolina, he is elected, he serves the court of general, civil and criminal jurisdiction and he need not even be a lawyer.

This conforms to the national experience survey of the President’s Crime Commission in 1967 showed that 75% of all juvenile court judges spent less than one quarter of their time in juvenile court, 20% were not lawyers, 20% had no college training whatsoever and one-half had no college degree and 80% had no regular psychologist or psychiatric help in their courts.

Byron R. White:

Mr. Meltsner, help me in another respect, to what extent does the North Carolina juvenile court have, what shall I say, jurisdiction over juveniles, can they put them on probation or under one control or another, how long until 21?

Michael Meltsner:

Probation until 21, yes.

Byron R. White:

So that the younger — the alleged defender is the longer his possible probation?

Michael Meltsner:

That’s correct.

Byron R. White:

And if a boy is 20, he has less risk than one who is 16 so far as duration of control is concerned?

Michael Meltsner:

Under North Carolina law as it presently exist now, the youth is subject to the jurisdiction of the court until he is 21 except incarceration will terminate at age 18.

Unless the State Board of Juvenile Correction certifies that the youth is in a special program, a vocational training program so should be kept.

So the extent of the sanction does vary with age although the juvenile courts topped jurisdictional age as 16.

So there’s always going to be at least two years which the youth will be subject to some form of sanction.

Michael Meltsner:

Certainly, the youth is benefited by having a jury administered the reasonable-doubt standard which this Court held he was entitled to in Winship.

Reasonable doubt was formulated as a standard to be administered by the jury and it is plainly a higher burden for the prosecution to persuade 6 or 12 men to a subjective standard of certainty.

In addition to the weight of numbers, the jury gives content to reasonable doubt by making sure that men with different backgrounds and perspectives and outlooks concur in the result.

Now there are certain benefits which the jury trial gives which I think are specially seen in juvenile court because the juvenile judge is bombarded with inadmissible evidence.

Evidence that come to him if he holds the waiver hearing which I mentioned before or evidence which comes to him by reading social reports describing the youth’s family and background which North Carolina law explicitly permits him to see before adjudication, before he has made a final determination of delinquency by Section 7A-285.

These reports are that the access of the judge has to these reports is easy because he even hires and fires the man who accumulate the information of the probation officers.

A second reason why the jury trial is in especially appropriate protection for the youth juvenile court is that the juvenile judge has traditionally seen himself as acting on the needs rather than the deeds of the child.

Thus, he is more likely to see a finding of delinquency as a prelude to treatment rather than punishment and I would submit, it will be more difficult for him to hold the balance true when applying the reasonable-doubt standard.

It simply easier to convict given human nature when you believe that some good called rehabilitation is presently practiced by the States is a benefit to the youth and will follow adjudication of delinquency.

Now, it is said in answer to these benefits that making jury trials available to juveniles who wish them —

Thurgood Marshall:

Mr. Meltsner, who would be the parents for the 14-year-old?

Michael Meltsner:

Your Honor, no such question of that sort is involved here, but we think the juveniles have as much right to mature competent understanding jury as anything else.

Thurgood Marshall:

The two of people could be their parents.

Michael Meltsner:

Well, the — this Court —

Thurgood Marshall:

I say that position but what you mean is the regular jury panel that’s sitting in say the criminal court uphold that?

Michael Meltsner:

That’s correct, yes.

Thurgood Marshall:

But where would the trial will be held, in the juvenile courtroom?

Michael Meltsner:

The District Court involved here is the court of general, civil and criminal jurisdiction.

Thurgood Marshall:

Could you have it right in the juvenile court like some states do?

Michael Meltsner:

Oh!

I think that’s a matter for the State to work out in the easiest and most flexible manner to hold a trial.

Thurgood Marshall:

Only when requested?

Michael Meltsner:

Correct.

Thurgood Marshall:

But with the same judge?

Michael Meltsner:

There is no reason why it could not be, there’s nothing in the federal constitution in which —

Thurgood Marshall:

Well, the reason I say that is you went into great detail about all the non-lawyer judges all right.

That I never — I couldn’t imagine with that view of the State.

Michael Meltsner:

Well, it has to deal with the kind of judge who was trying cases in juvenile court while some defendants may want a jury.

Thurgood Marshall:

Yes, but I mean in this particular case, you don’t want as to get a new judge too, do you?

Michael Meltsner:

No, we don’t ask them.

Thurgood Marshall:

We take the one that you want in this case.

Michael Meltsner:

Well, we come now to the specific harms which are caused according to the State by introducing a jury trial, a juvenile court and I will run through them a very quickly the phrase used in their brief I believe is “it will rob the juvenile court of informality, flexibility, and speed.”

Well, now, informality only appears informal as the system presently is operated to the officials involved.

The youth feels that is in the presence of a quite formal and authoritative process to quote Dean Paulsen, “he knows that he is in court not in school or in a doctor’s office.”

Formality is difficult thing to measure but as long as the finding of delinquency can rest only on evidence given under oath by witnesses subject to cross-examination and confrontation and as long as reasonable-doubt standards apply.

It seems to me that the certain amount but it is absolutely necessary to detach fact finding.

And this goes to what I think is the essence of this case by virtue of this Court’s decision and state law juvenile courts now have an adversary fact- finding system indistinguishable from the one the court considered in Duncan and Bloom and apply the jury of —

Potter Stewart:

Mr. Meltsner, are you urging primarily the Sixth Amendment guarantee or due process?

Michael Meltsner:

I believe Your Honor that it’s a due process question informed by the incorporation of the Sixth Amendment.

Potter Stewart:

Informed by because I heard you said earlier did I not, you felt the jury trial could be accorded without opening the courtroom to the general public?

Michael Meltsner:

That is true.

That is position. (Voice Overlap)

Potter Stewart:

So, I gather it’s more nearly a due process than the Sixth Amendment?

Michael Meltsner:

Yes, Your Honor.

Byron R. White:

So, you’re not saying that the criminal proceeding throughout purposes subject to all the requirements of the Sixth Amendment?

Michael Meltsner:

Certainly not.

Certainly not, only that the fact-finding stage is such that the same logic which required trial by jury in Duncan applies here and that the States have not presented any reason why it should no to “Duncan” alternative guarantees and protections have been provided in this process, to take the place of the jury trial.

Hugo L. Black:

May I ask you to repeat, how much you say you’re limiting your claims?

Michael Meltsner:

Mr. Justice Black, our primary claim is based on this Court’s decision in Winship and if the standard used there to determined whether a reasonable doubt applied to juvenile court proceedings likewise requires trial by jury.

Hugo L. Black:

What about the right to counsel?

Michael Meltsner:

That was decided in Gault.

Hugo L. Black:

Well, which one do you think are left out?

Michael Meltsner:

Well, certainly the right to public trial is one that is left.

I think that as it now stands the fact-finding stage of juvenile court proceedings is an adversary proceeding as the same as takes place in any adjudication where someone can be imprisoned and stigmatized.

Hugo L. Black:

Do you think that a juvenile can be given any different trial under the Constitution who is charged with an offense for which he can be sent to confined for 10 years and an adult here?

Michael Meltsner:

Sir, we make no claim that he cannot in this case.

Thurgood Marshall:

Not — make no —

Michael Meltsner:

We make no claim that he cannot in this case.

We believe the sentencing or dispositional stage alone and make no claim that the State can’t decide that because someone is younger he should be potentially incarcerated for a longer period of time.

Warren E. Burger:

Could the public be excluded going back to Justice Brennan’s question?

Warren E. Burger:

I’m not sure, I see a conflict between what you’ve responded to Mr. Justice Black and Mr. Justice Brennan.

Michael Meltsner:

Our position is the public can be excluded under the very standard which we say here gives us a right to jury trial because including the public, maybe, that’s not this case but it maybe harm to the juvenile.

And if it is, then perhaps under due process test, public can be excluded but that is not the issue in this case.

Our primary argument is that this process does not harm the juvenile giving him a right to jury trial.

It doesn’t delay proceedings as the public defenders service’s brief has shown.

Even if there is some delay, I think the court has crossed that bridge in Baldwin where it applied right to jury trial in the busiest court in the United States of America with the biggest backlog and said that administrative convenience is — would not inhabit its doing so.

And finally, I think that in the way such delays our court system has already are complicated and are certainly not cause by jury trial and given the fact that delay the jury trial is an essential protection because it gives the defendant in a close case, the case that stirred community passions to a fresh fact finder, to someone who look at his case and not just treated as another bit of material on the assembly line.

I would like to reserve my time.

Byron R. White:

Mr. Meltsner, do you think the next case however will demand the public trial?

Michael Meltsner:

Certainly, this Court will have to decide that question at sometime but nothing decided in this case it seems to me can possibly affect the decision of that issue.

Byron R. White:

Must we decide this as a criminal proceeding?

Michael Meltsner:

If you decided as a criminal proceeding for all purposes, yes.

That is correct.

We do not ask the Court to do that.

Thank you.

Warren E. Burger:

Counsel, I think we’ll not ask you to start for two minutes.

We’ll get in the morning in fresh.