Mempa v. Rhay

PETITIONER: Jerry Douglas Mempa
LOCATION: Spokane County Superior Court

DECIDED BY: Warren Court (1967-1969)
LOWER COURT: Washington Supreme Court

CITATION: 389 US 128 (1967)
ARGUED: Oct 11, 1967 / Oct 12, 1967
DECIDED: Nov 13, 1967

Evan L. Schwab - for the petitioners
Stephen C. Way - for the respondents

Facts of the case

Jerry Douglas Mempa pleaded guilty to joyriding, and he was placed on probation for two years and the imposition of his sentence was deferred. Four months later, the county prosecutor moved to revoke Mempa’s probation based on his involvement in a burglary. During the revocation hearing, Mempa was not represented by counsel, nor was he asked if he wished to have counsel appointed for him. Mempa pled guilty to the burglary charge, and the court revoked Mempa’s probation and sentenced him to ten years in prison. Mempa petitioned the Washington Supreme Court for a writ of habeas corpus and claimed that he was denied his right to counsel during the proceedings revoking his probation. The Washington Supreme Court denied his petition.


Does the absence of counsel during a post-trial proceeding for revocation of probation or imposition of deferred sentencing violate the Sixth Amendment as applied to the states by the Fourteenth Amendment?

Media for Mempa v. Rhay

Audio Transcription for Oral Argument - October 12, 1967 in Mempa v. Rhay

Audio Transcription for Oral Argument - October 11, 1967 in Mempa v. Rhay

Earl Warren:

Number 16, Jerry Douglas Mempa, petitioner versus BJ Rhay, Superintendent, Washington State Penitentiary.

Mr. Schwab.

Evan L. Schwab:

Mr. Chief Justice Warren and may it please the Court.

I am representing the petitioners Jerry Douglas Mempa and William Walkling in both case number 16 and case number 22.

We filed a joint brief covering both.

These cases present a virtually identical issue to this Court, namely, whether or not the Fourteenth Amendment confers the right to counsel during probation revocation proceedings and at the sentencing which follows.

The Washington Supreme Court held that these petitioners did not have a right to counsel when they were held into a hearing which was presided over by a superior court judge where they were opposed by a deputy prosecuting attorney and were the basic issue with their continued eligibility for freedom.

We are asking this Court to reverse those decisions.

Since they present identical issues with only differences in facts, we ask leave of the Court to consolidate these cases for argument.

My opponent Mr. Way joins in this request.

Earl Warren:


Evan L. Schwab:

I would like to add half an hour for each case, giving an hour for me and then give Mr. Way an hour on this too.

Turning to the facts first in number 16, Mempa versus Rhay, when Jerry Douglas Mempa was 17, he was arrested in charge with the crime of burglary.

An attorney was appointed to represent him and he entered the charge -- excuse me.

This was joyriding.

It was a burglary charge in Walkling.

He was charged with joyriding, which in the State of Washington essentially is stealing a car.

People in this age bracket frequently are involved in this offense.

An attorney was appointed and the matter came on for trial and he pleaded guilty.

Mr. Mempa was sentenced to 30 days in the county jail as a condition for a deferred sentence on the charge of joyriding and such was not entered.

The order which was entered by the superior court judge is what we call in Washington, an order of deferred sentence.

It's also called probation in State of Washington.

He was placed under the supervision of the Washington State Board of Prison Terms and Paroles and this is prior to obey their rules.

Four months later, Jerry Mempa was arrested and brought back before the court on the prosecutor's motion to revoke the probation which had been granted earlier.

He was still 17 years of age and he was accompanied to the hearing only by his stepfather.

He was not asked if he wanted an attorney.

He was not asked to have an attorney and nothing was said about the attorney who had represented him four months earlier.

The prosecutor read the motion to revoke probation in the matter -- then got underway.

The court asked Jerry Mempa if he had been involved in this alleged new violation of probation which in this case was burglary.

He answered in the affirmative.