IN RE WHITTINGTON

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Argument of Jack Supman

Chief Justice Earl Warren: No. 701, In The Matter of Buddy Lynn Whittington, Petitioner.

Mr. Supman.

Mr. Jack Supman: Mr. Chief Justice, may it please the Court.

This case is here on a writ of certiorari to review the judgment of the Juvenile Court of Fairfield County, Ohio, finding the petitioner to be a delinquent child.

I will describe pertinent facts and my co-counsel, Mr. Rezneck, will present the legal arguments.

Petitioner, Buddy Lynn Whittington, was charged with juvenile delinquency on the basis of a single act, the murder of a neighbor and family friend, 63-year-old Mrs. Gladys Willard on July 29, 1966 in the small village in Baltimore, Ohio in violation of the Second Degree Murder Statute of Ohio.

He was one week past his 14th birthday when the case arose.

This boy has consistently denied this crime.

He had never been in trouble with the law.

The District Court of Appeals found that there was an abundance of evidence as to Buddy Lynn Whittington's good character and reputation prior to July 29.

He was regular in attendance at school, church, Sunday school, and youth groups.

He had been obedient at home and at school, and subjected himself to the reasonable control of both his parents and teachers.

Mrs. Willard was reported missing on July 29th.

Many persons in the village, including the petitioner, engaged in a search for her lasting many hours.

Her body was discovered that evening by the petitioner and his father under the bed in petitioner's bedroom.

He was interrogated that night by the principal of law enforcement officials of the village and county, including the juvenile probation officer.

The defendant was interrogated in his home, which was under the exclusive control of the law enforcement officials from approximately 8:20 p.m. at home.

Although the total duration of the questioning is not established precisely by the record, probation officer Rutherford was specifically called after 10 p.m. to participate in an interrogation of this boy.

Buddy was given no warning as to his right to remain silent or to have the advice of an attorney.

While denying the crime, certain of his statements under the interrogation were used against him by the state in his trial to try to support his guilt.

He was formally arrested under a Juvenile Court warrant issued on the basis of a complaint charging him with being a delinquent.

The Juvenile Court judge issued this warrant after consulting with the Juvenile Court probation officer about the case.

The probation officer who is appointed by the Juvenile Court judge and works under the direction of the judge had interrogated the petitioner on the night of the crime, had accused petitioner of committing it, had participated with the prosecuting attorney and the police chief in the decision to bring the charge, executed the arrest warrant, and appeared as a witness against the petitioner at the trial.

There is no doubt from the record that prior to the filing of the complaint and the issuance of the arrest warrant, probation officer Rutherford consulted ex parte with Judge Hastings about the case.

On a motion to dismiss because of the fact that the judge had discussed the case with Rutherford, the Court called Rutherford as a witness and Rutherford said he had reported on his investigation to the judge.

The judge himself not only did not explain or testify as to the extent of the consultations but foreclosed further inquiry by us into what Rutherford reported about the case prior to the filing of the complaint and subsequently.

After the arrest, petitioner was put into solitary confinement in a cell in the Fairfield County Jail at adult penal institution.

Fairfield County does not have a juvenile detention facility.

The small cage-like cell had no light bulb and it merely contained a bed and a toilet.

Everyone agreed, including the judge that this jail was not a proper place of confinement for a juvenile, but the state took the position that it was the only place they had.

Mr. Kistler and I as his attorneys tried on several occasions by several motions to have him released on bond or in his parents' custody, or at least transferred to a detention home in an adjoining county pending the trial.

Justice Hugo L. Black: What's the status of this?

Has he been in jail?

Mr. Jack Supman: Yes sir, he's been in jail for 20 months.

Mr. Rezneck will go into more detail with that at a later time, or I could at this time, sir.

Justice Byron R. White: Has the grand jury taken any action?

Mr. Jack Supman: Yes, sir.

After the adjudication of the delinquency and the judgement of delinquency, and after we filed our appeals in the Court of Appeals and the State Supreme Court and after we filed our petition for certiorari, we attempted to obtain a stay of proceedings until this Court would have an opportunity to see if it would take the case.

Not having received it, the case then was remanded by the State Supreme Court down to the Juvenile Court, and it then did not retain the jurisdiction but bound him over to the grand jury which indicted him for murder.

This time first degree and the case is being held up subject to further order of this Court.

Justice Hugo L. Black: (Inaudible)

Mr. Jack Supman: Yes, sir.

Subject only to however that in order for the first degree murder or the indictment to stand, there must be adjudication and a file of judgment of delinquency.

And of course, Mr. Rezneck will explain why we're asking to have this judgment set aside.

And if it is, then this other indictment cannot stand because it is an absolute prerequisite in Ohio that for there to be a binding over and an indictment that there must be a valid judgment of delinquency.

Justice Byron R. White: Is he bound over as an adult? Is he imprisoned as an adult?

Mr. Jack Supman: He was bound over and he is still in jail.

And --

Justice Byron R. White: Well, is that assessment --

Mr. Jack Supman: Same jail.

Justice Byron R. White: Well, I know.

But what is the jail?

Is it one where they house adult prisoners or is it a special kind of --

Mr. Jack Supman: No sir, it was the same jail that he was returned to.

And after being there for 78 days, the Court of Appeals found this was an improper place.

But after -- and then, he was removed to the detention home in Columbus that we've been asking for previously.

Then after he was bound over, they've brought him back from the -- from the detention home and putting back in the same jail at solitary confinement.

However, in the last two or three months, the old jail which we maintained was in the records we show was improper has been torn down and there, he is in a -- again, in adult jail in Fairfield County but it's a newer jail, it's a different jail.

Justice Abe Fortas: How long did you say that this 14-year-old boy has been incarcerated?

Mr. Jack Supman: From August 5th until now, sir.

Justice Abe Fortas: Oh --

Mr. Jack Supman: In 1966, that's about 20 months.

Justice Abe Fortas: About 20 months.

Now, under pursuant to what sort of an order, which Court has he been confined?

Mr. Jack Supman: The original order was his arrest in the Juvenile Court.

Justice Abe Fortas: I understand that, but --

Mr. Jack Supman: And subsequent to that sir, after the finding of the delinquency and the binding over, then it would be -- he was then rearrested and this would be under the order of the Common Pleas Court of Fairfield County, Ohio from which we have appealed the binding over --

Justice Abe Fortas: Now, let's try to get this thing straightened out and for my benefit, if you will.

Mr. Jack Supman: Yes, sir.

Justice Abe Fortas: The Juvenile Court found that he was -- concluded that he was delinquent, right?

Mr. Jack Supman: Yes, sir.

Justice Abe Fortas: The Juvenile Court did not ever pass sentence, did it?

Or whatever they --

Mr. Jack Supman: Yes, sir.

The Juvenile --

Justice Abe Fortas: They can order with respect to his disposition --

Mr. Jack Supman: Yes sir, they did.

They did, sir.

Justice Abe Fortas: What was that order?

Mr. Jack Supman: Well, there were only two things the Court could have done.

They could have retained jurisdiction and for which he would have been subjected to imprisonment until he was 21 or within the sole discretion of the Juvenile Court, and this they did exercise.

They bound him over to the grand jury.

Does that answer your question, sir?

Justice Abe Fortas: Before that time, before the grand jury proceeding, what did the Juvenile Court -- what was the --

Mr. Jack Supman: Disposition?

Justice Abe Fortas: -- disposition?

Mr. Jack Supman: He did not retain the jurisdiction but then he bound him over to the grand jury.

Now, this was --

Justice Abe Fortas: When was that?

What date was that?

Mr. Jack Supman: This does not appear in the record because we appealed from the determination of delinquency, from the judgment of delinquency for the sole act of having committed this murder, we appealed --

Justice Abe Fortas: But I thought the Court ordered him to report to some diagnostic facility and it was while that order was in effect that you appealed, is that right?

Mr. Jack Supman: We appealed immediately from the finding or from the judgment of the delinquency.

And then the Court stated that he would be turned over to the Juvenile Center for examination, which the statute calls for in Ohio.

Justice Abe Fortas: What I want to know is for how long was he in that State and subject to that order before the grand jury indictments?

How long was this boy incarcerated prior to the time --

Mr. Jack Supman: The binding over?

Justice Abe Fortas: -- to the grand jury indictments, yes.

By the binding --

Mr. Jack Supman: Over a year, sir, until the Supreme Court -- until -- they did not take him for custody --

Justice Abe Fortas: -- over a year.

Now, at that time, there was no order of disposition directed to this boy by the Juvenile Court, except an order saying that he should go to the diagnostic center, is that right?

Mr. Jack Supman: Yes, sir.

He was at the diagnostic center for about six weeks, then he was returned to the same adult jail pending these appeals that we have had in the various Courts.

Justice Abe Fortas: And under what order of the Juvenile Court was he held after he was returned by the diagnostic center.

That's what I want to know because as I read this record, the only thing that happened here was that the Juvenile Court entered an order saying the boy was a delinquent, correct?

Mr. Jack Supman: Yes, sir.

Justice Abe Fortas: And then, the Juvenile Court ordered that he go to the diagnostic center, is that right?

Mr. Jack Supman: Yes, sir.

Justice Abe Fortas: Then the diagnostic center returned.

Mr. Jack Supman: Yes, sir.

Justice Abe Fortas: And the Court continued to hold on to the boy.

Now, pursuant to what order of the Juvenile Court, or can you --

Mr. Jack Supman: The Court had ordered to --

Justice Abe Fortas: -- juvenile procedure?

Can the boy be incarcerated on nothing more than a finding of delinquency without any after trial or finding of delinquency without any order for his disposition?

Mr. Jack Supman: The Juvenile Court in this case as the record will show upon his being arrested, they retained jurisdiction and they kept him incarcerated, although we filed many, many motions asking for his release.

And we filed --

Justice Thurgood Marshall: Where do we find the only order under which this boy was held in jail between the time that he got back from the mental observation period and the time he was indicted?

Now, where in the record or in the briefs do we find the order under which he was held?

Mr. Jack Supman: We asked for a transcript of the entire proceedings --

Justice Thurgood Marshall: Well, is it in there or resonant in there?

Mr. Jack Supman: At page 54 and there's no subsequent order which was filed on September 7th.

The cause has continued pending the investigation which Justice Fortas had referred to.

There's no subsequent order except that he is in jail, and I'm sure that there's no question as far as the prosecution is concerned.

Justice Byron R. White: And the state takes the position that in these circumstances, in these procedural circumstances, the boy was not entitled to bail, am I correct in that understanding?

Mr. Jack Supman: Yes, sir.

They maintained that even though he would -- if he had been 18 years old instead of 14, this is not a capital offense.

This would be second degree murder and if he had been 18, he would have been automatically entitled to bail.

But because he was under the age of 18 that it was completely discretionary with the judge.

He did not see fit to exercise it, and Mr. Rezneck again will go into the legal arguments as we have presented in our briefs.

Justice Potter Stewart: I misunderstood you there.

I thought it never dawned over to the grand jury on the charge of first degree murder.

Mr. Jack Supman: After he had been incarcerated for about 15 months without bond or bail when it was in the exclusive jurisdiction of the Juvenile Court, all during that time --

Justice Potter Stewart: First degree murder is not bailable, is it?

Mr. Jack Supman: Not as of right, no sir, but about the first 14 or 15 months, we were trying to get him out and we had a hearing, there were 10 witnesses.

There was no evidence to the contrary.

Without contradiction, these 10 witnesses consisting of the neighbors, the preacher, the superintendent of the Sunday school all stated that there was no fear, there was no danger in his being released.

And without any evidence to the contrary, the judge without any specific finding as to the reason for not putting him out on bail --

Justice Abe Fortas: When do you say this was second degree, this would have been second degree murder?

Mr. Jack Supman: The statute specifically says in violation – as if he had -- that he is alleged to have been delinquent in that he committed the defensive murder which is in violation of the second degree murder statute.

It's very specific in the briefs and the complaints and there's no question about that.

Justice Abe Fortas: That's because he was a juvenile?

Mr. Jack Supman: Well, they just -- if he had been an adult, he would have been under a second degree murder but as a juvenile --

Justice Abe Fortas: Why?

If he was an adult, if this crime had been committed by an adult, why would that have been second degree murder?

Mr. Jack Supman: Because it was not premeditated and I think that's our distinction in Ohio between premeditated -- between first and second.

Justice Thurgood Marshall: How do you know it?

How do you know it wasn't premeditated?

Mr. Jack Supman: We denied it and the defendant has denied it completely.

We say he did not murder this woman, sir, and he is always so maintained.

Justice Thurgood Marshall: Will that prove second degree?

Mr. Jack Supman: In order to determine -- no, sir.

In order to -- the state is the one who initiates the indictment or the charge and it was they who charged him with second degree, if he had been an adult.

Justice William O. Douglas: May I ask you what you have brought up -- you brought up the question of bail.

Is that in our view?

Mr. Jack Supman: We have about seven points in the right to pre-hearing release is definitely one of the issues in this case because he was denied this.

Justice William O. Douglas: And you brought that up?

Mr. Jack Supman: Yes, sir.

Yes, sir.

We -- at this point --

Justice Thurgood Marshall: I don't see anything in this order that mentions murder.

The order under which he was held says is a minor under the age of 18 years, 14 years of age, and is a delinquent child, is set for the complaint?

And it said Buddy Lynn Whittington has committed an act which would be a felony committed by an adult.

That's the order of the Court.

Mr. Jack Supman: This is the general inquiry.

I think since we're getting -- since we have basically covered the facts at this time, if it may please the Court, Mr. Rezneck, would you like to get into the legal argument at this time?

Justice Thurgood Marshall: The real matter of fact in (voice overlap)

Mr. Jack Supman: Excuse me sir, with the finding of the Court that appears in the record that the Court in effect stated that at the conclusion of the evidence, we move to dismiss this case because there was no evidence.

And the Court stated in the record that it finds probable cause to believe that the defendant may have committed this act.

And then, the Court in its entry of judgment found him to be a delinquent, it did not say murder, but the charge -- originally charged which appears states specifically that he is charged with having many delinquent and that he did kill Gladys Willard.

Prior to the trial, we made various motions on various constitutional grounds and these all will appear in the record.

So these were all overruled.

The case proceeded to trial.

At the conclusion of the case, even though the motion to dismiss was overruled, the Court of Appeals in their finding, they applied the civil standard of preponderance of the evidence.

They stated the evidence contained in the record fails to disclose any thorough investigation by officials toward eliminating the possibility that Mrs. Gladys Willard may have been killed by some other person.

Mr. Rezneck.

Argument of Daniel A. Rezneck

Mr. Daniel A. Rezneck: Thank you.

Chief Justice Earl Warren: Mr. Rezneck.

Mr. Daniel A. Rezneck: Mr. Chief Justice, may it please the Court.

In answer to the question that's been raised here with respect to the specific charge against this boy, I would like to direct the Court's attention to page 12 of the record which contains the complaint that was filed in the Juvenile Court and it alleges that he is a delinquent child and that he unlawfully killed Mrs. Willard in violation of Section 2901.05 of the Code of Ohio, which is the Ohio Second Degree Murder Statute.

So that was the allegation upon which this case was tried --

Justice Abe Fortas: I wish you would address yourself to the procedural posture of this case.

I must confess that it's quite troublesome because whereas the character of view action by the Juvenile Court, Juvenile Court no longer has jurisdiction of this boy, isn't that right?

Mr. Daniel A. Rezneck: I understand that is correct, sir.

Justice Abe Fortas: The boy has been bound over to the adult Court.

There had been an indictment and first degree murder --

Mr. Daniel A. Rezneck: Yes.

Justice Abe Fortas: -- by the grand jury, is awaiting trial in the adult Court.

Now, how does that affect the procedural -- how does that procedurally affect the jurisdiction of this Court and if anything we can do about this case?

Mr. Daniel A. Rezneck: Well, we think that you do have a final judgment here under the test that this Court has laid down for finality that the juvenile proceeding and the adult criminal preceding are separate proceedings under the law of Ohio.

That you had a juvenile delinquency proceeding which was a trial on the merits of the delinquency charge and it has resulted in a final judgment adjudicating the boy to be a delinquent.

Justice Abe Fortas: Now, what was the judgment of those, just an adjudication of the boy as delinquent?

There was no order of disposition entered, was there?

Mr. Daniel A. Rezneck: There was not a final order of disposition, Your Honor.

There was what is called -- and the order recites a temporary commitment to the Ohio Youth Commission so that there was --

Justice Abe Fortas: For diagnostic --

Mr. Daniel A. Rezneck: For examination.

Justice Abe Fortas: -- work, and that's over, isn't it?

Mr. Daniel A. Rezneck: He was returned following that.

But the adjudication of delinquency gave the Juvenile Court power to act coarsely on his person, power to commit him, legal custody, physical custody of the boy under Ohio law passed thereby from his parents to the state.

Justice Abe Fortas: Now, suppose we agree with you entirely and I agree with you on everything you've asked us to do here.

What happens to the boy?

Mr. Daniel A. Rezneck: The judgment of the Juvenile Court is reversed here, Your Honor we believe that the indictment falls with it and that a motion to quash the indictment --

Justice Abe Fortas: How does that happen?

Did the grand jury have an ordinary, customary use of a grand jury proceeding?

Mr. Daniel A. Rezneck: Under the Ohio --

Justice Abe Fortas: -- indictment?

Mr. Daniel A. Rezneck: Under the Ohio statute, there is no criminal jurisdiction until there has been a valid certification of the boy by the Juvenile Court.

In other words, the Juvenile Court has exclusive criminal jurisdiction until it makes a transfer to the adult Court.

And we believe that if the judgment of delinquency, which is a prerequisite under Ohio law to a valid transfer falls that the indictment falls with it and it will be subject to a motion to dismiss in the Court of Common Pleas.

Justice Abe Fortas: Have you briefed that?

Mr. Daniel A. Rezneck: We have directed ourselves in the reply brief to the issue both of finality and to whether the possibility of certification should have any effect on the finality of the judgment.

And that we think we've demonstrated that under the decisions of this Court and the consequences which state law attaches to this judgment of delinquency -- that you do have a final judgment and that the Court is not being asked to do a useless thing here.

Justice Potter Stewart: The problem is the worrying I think of the Ohio statute, isn't it?

The 2151.26 of the Ohio Revised Code.

I'll read it all, that any case involving a delinquent child in the -- and in certain circumstances that gives the Juvenile Court the power to bind them over for trial on adult Court or to treat him as a juvenile.

But some of the juvenile judges in Ohio think that they are required to make a finding of delinquency before they can bind them over to the grand jury.

And in other counties, they don't feel obliged to make a finding of delinquency before they can bind them over to grand jury that Juvenile Court did.

And he made a finding of delinquency, and then he bound him over to the grand jury on the charge of first degree murder, is that right?

Mr. Daniel A. Rezneck: Well, I don't know what the --

Justice Potter Stewart: That is ambiguous and there's a bill now, I think as I understand it in the Ohio legislature --

Mr. Daniel A. Rezneck: Well, we don't admit that the statute is ambiguous, Your Honor --

Justice Potter Stewart: Well, some of the Juvenile Courts in Ohio, I must say changed their practice, to not feel obligated to make a formal finding of delinquency before they bind them over for adult.

Mr. Daniel A. Rezneck: The National Council so states, Your Honor.

But we think that statute is clear that he must be adjudicated a delinquent and that certification or binding over is simply another form of disposition, which is available to the Juvenile Court judge.

Once he's made a finding of delinquency so that this was in substance and to all intents and purposes a delinquency proceeding, which could have resulted in a variety of possible orders, among them certification, but there can be no question as to the finality of the judgment which was entered.

It had the immediate effect of adjudicating this boy a juvenile delinquent with all the attendant's stigma and it labeled him a murderer, had found that he had committed the crime of murder.

Will you call it delinquency or anything else?

Justice Potter Stewart: Now, he hasn't been tried on the crime of murder yet.

I think he's under indictment awaiting trial on the charge of murder in an adult Court.

Mr. Daniel A. Rezneck: As an adult, he has not been found to be guilty of the crime of murder.

He has been found by the Juvenile Court and the decision is to be confirmed by the Court of Appeals --

Justice Potter Stewart: And has been bound over to grand jury.

Mr. Daniel A. Rezneck: -- to be a delinquent by reason of having committed the act of murder.

So to all intents and purposes, he has been labeled with the stigma of a murderer.

We would point out that the certification of whatever happens to him now isn't going to undo that.

You have a separate proceeding here; a juvenile proceeding which has resulted in a final judgment of delinquency.

And whatever happens to him in the subsequent adult proceeding, you were still going to have this judgment of delinquency. You had incarceration pursuant to the judgment which lasted for a substantial period of time before the binding over took place.

So that there can be no doubt that this judgment acted coercively on this boy, not the parents.

Justice Thurgood Marshall: Do I understand you that with the indictment of the grand jury, if we reverse this case, the Juvenile Court takes over jurisdiction?

Mr. Daniel A. Rezneck: Well, they've lost jurisdiction by transferring the case --

Justice Thurgood Marshall: They had lost jurisdiction?

Mr. Daniel A. Rezneck: Whether they would be able to reassert jurisdiction by a new proceeding is another matter, but we do assert that we can get the indictment and --

Justice Thurgood Marshall: All we have before us is the holding of the juvenile judge sending him to the school or wherever it was to be examined.

Mr. Daniel A. Rezneck: I would say you have two things; you have a judgment of delinquency, and you have what is called a temporary order of commitment.

Justice Thurgood Marshall: That's all we have.

Mr. Daniel A. Rezneck: Those are the results of the Juvenile Court judgment.

Justice Thurgood Marshall: And that's all we can deal with.

Mr. Daniel A. Rezneck: In this particular case, that is right.

We are not raising questions as to the validity of the adult proceeding at this time.

That proceeding and any issues that may be raised therein are not now before this Court.

We're asking you to reverse the judgment of delinquency which was entered in the firm below.

And we believe that we are then entitled to take the appropriate procedural steps in the state Courts to have the adult proceeding dismissed.

Justice Byron R. White: Well, as I understand it though, Mr. Rezneck, it's not that clear that if you prevailed here and this Juvenile Court judgment were reversed that it follows that the indictment would be dismissed in State proceedings, does it?

Mr. Daniel A. Rezneck: We believe that under a fair reading of the State statute since a valid finding of delinquency is a prerequisite to transfer that the adult Courts would not --

Justice Byron R. White: But that still remains to be tested out.

Mr. Daniel A. Rezneck: Yes it does, Your Honor.

I cannot say any authority to you one way or another on that proposition, but I think that the statute is clear here.

That the whole framework requires that the adult Court receives jurisdiction only when the Juvenile Court has validly adjudicated someone as delinquent, and has validly transferred the case so as to enable the adult Court to act.

And we do submit that we can take a judgment of reversal on this Court and can get the adult proceeding dismissed.

Justice Byron R. White: I suppose this came about and you could not get it dismissed, would you have any basis to come here?

Mr. Daniel A. Rezneck: Well, since these questions have been raised and decided by the state Courts, we submit that they are properly here now and of course --

Justice Byron R. White: But my question is, if you try to get the indictment dismissed and failed in the state proceeding, can you conceive of any basis on which you could come here then?

Mr. Daniel A. Rezneck: Yes, on a double jeopardy basis perhaps, Your Honor.

This is an argument that we have raised in the motion to dismiss in the Court of Common Pleas because you have a state system here that seems to operate by adjudicating someone a delinquent after a trial, that provides for subsequent trial as an adult.

And we would think that this raises substantial double jeopardy problems, although they're not before the Court in this proceeding.

Justice Thurgood Marshall: The best I can gather from your petition for certiorari is that this may leave me in some doubt.

Your questions presented revolving entirely around the finding of the Court that he was delinquent.

Mr. Daniel A. Rezneck: And the procedures by which that finding was arrived --

Justice Thurgood Marshall: That's right.

It revolved entirely around that and that's the only thing you brought up to us in this case.

Mr. Daniel A. Rezneck: That is correct, Your Honor.

Justice Abe Fortas: Mr. Rezneck, when was the transfer from juvenile to adult Court made in connection with the proceedings before this Court?

Was the transfer made before the petition for certiorari was filed here?

Mr. Daniel A. Rezneck: I believe that it was, Your Honor.

I believe that after the Supreme Court of Ohio dismissed the appeal for one of a substantial question, substantial constitutional question that during that interim period before relief was sought in this Court that the Juvenile Court exercised authority to bind this boy over.

There was no stay at that point.

There had been a stay at Juvenile Court proceedings up until the Supreme Court of Ohio acted in it.

It was during that interim period that these further proceedings were able to take place.

We of course do take the position and we think it's clear on the record below that what you had here was a delinquency trial on the merits.

What took place here was agreed by everyone -- the lawyers, the judges, the reviewing Courts, everyone up to this point via delinquency trial on the merits.

It was not in the nature of a binding over proceeding or a preliminary hearing and this again was in accord with our view of the clear and unambiguous language of the Ohio statute as requiring an adjudication of delinquency after a trial on the merits before any further dispositional order can be entered.

And I would therefore like to address myself to the procedural issues than which we contend to arise with respect to a Court's power to adjudicate someone, a delinquent face on a charge of a law violation.

Justice Thurgood Marshall: Do you think you have a right to have a delinquency judgment review in this Court?

Mr. Daniel A. Rezneck: Yes, Your Honor.

Yes, yes we do, Your Honor.

This has been held to be a final unappealable judgment by the State Courts of Ohio.

And furthermore, the consequences that attach to the judgment of delinquency under the law of the state meet to test for finality which this Court has laid down in determining its own jurisdiction under the jurisdictional statute.

In other words, you had immediate and enormous consequences on this boy from the delinquency adjudication itself, namely an order of commitment and the delinquency adjudication, which banned --

Justice Potter Stewart: In this case, as you tell us, as you read the Ohio statute in this case, the finding of delinquency was a necessary condition precedent to binding them over to the grand jury for trial on a charge of first degree murder.

And that's what the result of the delinquency finding was in this case, isn't that true?

Mr. Daniel A. Rezneck: Yes, sir.

Justice Byron R. White: Is that order exactly over here?

Mr. Daniel A. Rezneck: No, it is not.

Justice Byron R. White: Well, why is it that (Inaudible)

Mr. Daniel A. Rezneck: I believe it's contained in the State's opposition to certiorari.

I believe that they bring it to the Court's attention, so that it was before this Court at the time that the --

Justice Byron R. White: Was there an order entered by the District Court?

Mr. Daniel A. Rezneck: I assume that there was but it's not part of the record and it is not in the record before this Court.

In other words, it was not brought up in the record, which we have here from the Juvenile Court.

Justice Byron R. White: How long was involved between the finding of delinquency and the order of transfer, about 15 months?

Mr. Daniel A. Rezneck: I believe that the -- would you indulge me for just -- just one --

Justice Byron R. White: Well, just approximately.

I don't want to take --

Justice Byron R. White: I'm not sure that it was quite that long, Your Honor. I think it was on the order of approximately a year before the indictment --

Justice Byron R. White: About a year, Alright.

Now, was the Juvenile Court inhibited by a stay during all of that period from entering the order of transfer?

Mr. Daniel A. Rezneck: Only until the Ohio Supreme Court acted.

The Juvenile Court proceedings were stayed but after the Ohio Supreme Court dismissed the appeal, at that point, there was no further stay against Juvenile Court proceedings.

And it was thereafter that the transfer and the binding over ensued.

Justice Byron R. White: Well, the question really in my mind, one of the many procedural questions here to my mind is whether the Juvenile Court intended initially that this finding of delinquency to be the prelude to a transfer to the adult Court.

I suppose there's nothing from which we can get any light on that is there?

Mr. Daniel A. Rezneck: Well, the record is certainly ambiguous about that and due to the fact that the Juvenile Court in effect made conflicting statements on the point.

But we don't think that the subjective intent of the Juvenile Court, whatever that may have been, would be relevant because the point is, that this was a delinquency trial.

It was treated as a delinquency trial by everyone involved.

It resulted as it must in the Ohio Law in our view in a judgment of delinquency.

And therefore, for review purposes, it should be treated just as if he had made some other order of disposition such as sending the boy to the industrial school until he was 21, or entering a temporary order of commitment, which can be indefinitely renewed until 21, which is another power of the Court.

In other words, the Juvenile Court has a whole panoply of disposition orders.

Justice Abe Fortas: Well, maybe.

But on the other hand, maybe somewhat like the verdict of guilty and no sentence being imposed.

And I'm considering a case at that juncture you see.

Mr. Daniel A. Rezneck: Well, we think that the adult criminal cases that are dealt with sentencing are distinguishable for several reasons.

One being that, it's simply as a matter of form, you don't have a judgment in a criminal case until you have the sentence entered and here we do have what is called the judgment which was reviewed as a judgment and healthier judgment by the Ohio Court of Appeals.

Furthermore, you have a difference in the way juvenile and adult Courts operate in the sense that a Juvenile Court, once it adjudicates someone a delinquent, it has a continuing supervisory jurisdiction over a juvenile and can make dispositional orders of a temporary nature and it may modify them from time to time.

In other words, it has a kind of continuing authority that an adult criminal Court does not have.

Justice Byron R. White: Mr. Rezneck, why is it the final order -- why do you say their final order is the delinquency finding?

You don't need to rest on that.

Why is the final order, the order of binding him over?

Once that's done, once that order is entered, the Juvenile Court loses its jurisdiction -- that's a disposition.

That is one of the dispositions possible in the Juvenile Court.

Are you suggesting that there's any problem with our reviewing?

It may be reviewing an order of a Juvenile Court binding over to the adult Court?

Mr. Daniel A. Rezneck: No, I think certainly not and I think the question is precisely the same.

Justice Byron R. White: Of course, this doesn't have to be on the record, that --

Mr. Daniel A. Rezneck: That is true.

The questions, the constitutional issues raised would be precisely the same in our view.

And we think furthermore that there is an advantage, a distinct advantage from the standpoint of judicial administration.

In reviewing the case at this point because as this Court will recall in Kent versus United States, where you did not have a review of the transfer letter until after the adult criminal trial had taken place.

Justice Byron R. White: Let's assume that the standard in Ohio for binding over from the Juvenile Court to the Adult Court was -- it's certain that he's alleged to have committed a certain kind of crime and there's probable cause to believe that he committed it.

And orally in his oral announcement, it sounded like that's the way the judge was going in this case.

Mr. Daniel A. Rezneck: At that particular moment in time --

Justice Byron R. White: At that particular moment -- it says delinquent.

But if that were the standard and the Juvenile Court had this hearing, which might be called a preliminary hearing of some kind – then bound him over, do you think you would have the same constitutional question?

Mr. Daniel A. Rezneck: If this were in fact a preliminary hearing and if the Ohio statutes provided for a proceeding in the nature of a preliminary hearing, which they do not, then I think we would have a different constitutional question.

Justice Byron R. White: What would that be?

Mr. Daniel A. Rezneck: That would be whether there was fair notice of the nature of the proceeding in view of the fact that the --

Justice Byron R. White: But you wouldn't have all these other questions?

It wouldn't --

Mr. Daniel A. Rezneck: If it were not in delinquency --

Justice Byron R. White: It would hardly be relevant at that time?

Mr. Daniel A. Rezneck: That is, if it were a delinquency trial, If it were not a delinquency trial on the merits --

Justice Byron R. White: But it was just a proceeding to determine where they should be bound over.

Mr. Daniel A. Rezneck: If the state law provided for such a proceeding, yes, that is correct, Your Honor.

Justice Byron R. White: Yes, but the state law does provide for -- you yourself conceded that it provides for some preliminary consideration before being -- before binding over.

Mr. Daniel A. Rezneck: Well, we think it provides to a more --

Justice Byron R. White: Do you think it goes on and says that there must be a full scale delinquency trial?

Mr. Daniel A. Rezneck: Well, we think that that's a necessary reading of the statute.

Justice Potter Stewart: Well, I know you think it is, but what if you're wrong?

Mr. Daniel A. Rezneck: Well, if we're wrong on that, we haven't been told so by the state Courts because we think that the state Court in this case reviewed this as a delinquency judgment and I've held up that he was charged with delinquency and he was adjudicated to be a delinquent, and we would take that to be conclusive of what the nature --

Justice Potter Stewart: What if you're wrong?

Mr. Daniel A. Rezneck: Well, I think that the only persons who could tell us that would be the state Courts and --

Justice Potter Stewart: What if they told you that you were wrong?

Mr. Daniel A. Rezneck: Then we would have a different constitutional issue raised than the ones that we are raising here.

Justice Potter Stewart: Yeah, that's what I thought.

Justice Byron R. White: Mr. Rezneck, incidentally, if really what's before us is this turnover of judgment, if that's really the -- and we would agree with you on any of our arguments.

That's the order that has to be reversed.

What then would be the impact of that kind of reversal upon indictment?

Mr. Daniel A. Rezneck: Well, if --

Justice Byron R. White: Do you still have to go to the Ohio Courts then to have the indictment dismissed?

Mr. Daniel A. Rezneck: Well, I think as a matter of form, we would have to make a motion to dismiss the indictment and profit the judgment of this Court, to give the Courts below a basis for doing that.

But we think there would be no difficulty in getting that done.

Once you notice -- once you knock out --

Justice Byron R. White: Do you still would be open to the Ohio Courts to say notwithstanding the judgment turning him over to the adult Courts has been reversed by the Supreme Court of the United States.

The indictment is nevertheless a good indictment.

Would that be open to this Court --

Mr. Daniel A. Rezneck: Yes, Your Honor, I think it is still open to the --

Justice Byron R. White: But you said also that even if reversing the order turning over necessarily involves our crossing the bridge of deciding what the Ohio statutes really mean in terms of what's necessary for a turnover.

Mr. Daniel A. Rezneck: Yes, we --

Justice Byron R. White: Because if we give it a -- if we read it differently than the way you read it, then the order might be valid.

Mr. Daniel A. Rezneck: Well, I want to say Your Honor it isn't just my reading of it.

It's the reading of the Ohio Court of Appeals in this very case, which said this boy is alleged to be a juvenile delinquent.

This is an appeal from a judgment of juvenile delinquency.

We uphold it under preponderance of the evidence test.

We reject other constitutional claims because this is in the nature of a juvenile delinquency proceeding --

Justice Byron R. White: -- I know, but if all that had to happen -- if the order in the review is the turnover order and if all that had to happen under the Ohio statutes was X but they happen to do X plus Y, and did X plus Y wrongly but did X correctly, I'm not so sure we should reverse the order.

Mr. Daniel A. Rezneck: Well, I think we should still have notice that they were proposing to do X.

And what we had noticed was -- what we had notice of it was this was a delinquency trial on the merits.

Justice Hugo L. Black: Is there some certification procedure in the Ohio statutes from this Court to the Ohio Courts?

Mr. Daniel A. Rezneck: To get a ruling on -- from the state Court on the matter of state law, I'm not aware that there is a statute of Ohio that enables you to do that.

But again, we do submit that this particular question is really foreclosed by the decision of the Ohio Court in this very case, holding that this is a final judgment of delinquency.

I don't have very much time left to argue the merits here, but I would like to indicate what our views are on the assumption which we think is undeniable on the record and under the statutory framework here, that this was a trial of delinquency, no different from any other trial on the merits of a charge of delinquency.

And here, we would submit to the Court that first, this was a proceeding in which the charge of delinquency was based solely upon the violation of a state criminal statute and a serious state criminal statute at that of murder.

This was not a case in the Court below so held in which an adjudication of delinquency could have been upheld on any other ground.

And this was a proceeding which as I've already outlined carried various serious consequences for the juvenile, a possibility of seven years incarceration in a state institution, the stigma of being labeled a murderer and a juvenile delinquent, and the possibility of certification as an adult, which in fact came to pass here.

And we would submit that if you look at what happened below that you will see that this was a Court which although it purported to be a Juvenile Court was functioning with all the harshness and all the stringency of a criminal Court.

That this is a Court for example which has the power to commit juvenile delinquents in certain instances directly to the state reformatory, which is an adult penal institution.

And the whole pattern of the proceeding below is like a criminal trial that charge arraignment of plea, and a trial there is absolutely no indication on this record, that the Juvenile Court here was functioning as Juvenile Courts under their theory are intended to function, namely with therapeutic concern for the individual, with a view to his treatability, to his possible rehabilitation.

In other words, this Court acted upon this boy with all the harshness that a criminal Court would have acted but without some of the most important safeguards that any criminal defendant would have had, and --

Justice Byron R. White: Well, actually, that's kind of a modest statement, isn't it?

If I correctly understand your argument, that is to say that an adult -- it is argued and it's submitted here that an adult would have been entitled to bail and that was denied to this boy, is that right?

Mr. Daniel A. Rezneck: Yes, sir.

Justice Byron R. White: And if you regard this as a preliminary hearing prior to grand jury proceedings, for some reason there may have been the fault of the various stays that were obtained that this boy was incarcerated for 15 months before the matter was in and submitted on the grand jury, maybe 12 months, whatever it was, is that right?

Mr. Daniel A. Rezneck: Yes.

He still should have had bail during that period.

He would be entitled to it.

Justice Byron R. White: And the finding here was the finding of probable cause, is that right?

Mr. Daniel A. Rezneck: Well, I would hesitate to call that a finding, Your Honor.

The original statement by the Juvenile Court judge which is indicative of the standard of proof he was applying was probable cause, but his finding is one of delinquency.

And the case was reviewed by the Court of Appeals on the basis that this was a finding in a judgment of delinquency applying civil standard.

Justice Byron R. White: The judging of delinquency based upon a recital that there's probable cause to believe that the boy was delinquent, is that correctly recalled?

Mr. Daniel A. Rezneck: That's not in the journal entry.

The journal entry simply recites that the Court finds him a delinquent.

The probable cause language came at the conclusion of the adjudicative hearing, and it was adverted to by the trial judge at that point.

But the journal entry when it actually came out and that is the judgment, stated that the Court finds him to be a delinquent and the Court of Appeals below reviewed it specifically on that basis that you had a judgment of delinquency and they upheld it on the civil standard.

We would point out that if this boy had been one week over 18 instead of one week over 14 at the time when this case arose, he would have had the rights if he had been charged with the same offense, second degree murder, to a standard of proof beyond reasonable doubt, to an impartial triar of fact, including trial by jury if he desired it to the protections of Miranda versus Arizona, to right to bail in advance of trial, and freedom from cruel and unusual punishment.

But because he was a juvenile and he was charged with what the state chose to label juvenile delinquency in the Juvenile Court, he received none of these protections which have been deemed fundamental for persons accused of criminal offenses.

And we submit that as this Court made very clear in Gault Case, when you have that kind of gap between the procedures, particularly procedures which go to the reliability of the fact finding process, that wide a gap between juvenile and adult proceedings that requires more than mere verbiage to bridge the gap.

Justice Hugo L. Black: Mr. Rezneck, is there anything that this boy -- any benefit that this boy got as a result of his classification as juvenile?

Is there anything that you can think of?

Mr. Daniel A. Rezneck: If it certainly does not appear on this record and I don't know of any, Your Honor.

He was treated worse than an adult criminal would have been treated because of the method of his confinement.

Justice Hugo L. Black: So he was sent to a place for a diagnosis, mental examination.

I suppose that in Ohio, an adult is -- there's that sort of a procedure for adults, isn't there?

Mr. Daniel A. Rezneck: Well, I assume there's a pre-sentence investigation in cases and that you could receive the same kind of examination by the appropriate officers concerned with sentencing.

Justice Hugo L. Black: So that so far as you know, this boy by reason of being a juvenile, 14 years old, received not more but less protection and less consideration in the State of Ohio than it would have if he were an adult, is that right?

Mr. Daniel A. Rezneck: Yes, and we think that's absolutely clear on the record, that no adult defendant would have been treated in the fashion that this boy was.

The --

Justice Byron R. White: (Inaudible)

Mr. Daniel A. Rezneck: Well, he was exposed here to a potentiality as a juvenile of incarceration for up to seven years.

Under the Ohio Criminal Statutes, a second degree murder, the crime of which he was charged, carries a life sentence but there's eligibility for parole after a period of ten years under the State's statute.

So in either case, you're dealing with a very substantial period of incarceration which lay ahead of this boy as a result of the juvenile proceeding.

Justice Byron R. White: (Inaudible)

Mr. Daniel A. Rezneck: As I read the statute, it's ten years before you're eligible for --

Justice William O. Douglas: And no probation?

Mr. Daniel A. Rezneck: No, I don't believe the statutes forbid -- I'm not sure on that point, Your Honor but they provide for life sentence and then say there shall be eligibility for parole --

Justice William O. Douglas: But Mr. Rezneck, if there had not been a turnover here, the maximum penalty would have been the seven years, would it not?

Mr. Daniel A. Rezneck: The maximum penalty that the Juvenile Court could impose on him, that's --

Justice William O. Douglas: Well, I know.

If the Juvenile Court have not turned him over, could he been prosecuted as he's now being prosecuted?

Mr. Daniel A. Rezneck: No.

Justice William O. Douglas: That's right.

So seven years was the maximum, wasn't it?

Mr. Daniel A. Rezneck: Yes.

Justice William O. Douglas: Whereas if this indictment is still good and it's a first degree murder charge, if he's convicted, what's the penalty?

Mr. Daniel A. Rezneck: Death, Your Honor.

Justice William J. Brennan: And the Juvenile Court, when it commits -- say it decided the constitutional right of this young man, because he's delinquent, what would the order be?

Mr. Daniel A. Rezneck: The order could be a permanent commitment to the youth commission --

Justice William J. Brennan: I mean, without any flexibility in the youth commission at all.

They just have to hold him until he's an adult.

Mr. Daniel A. Rezneck: They can come back to the Juvenile Court if they think he's rehabilitated for example and asked that he be released.

There are other types of temporary commitment orders which could be entered under the Ohio statute.

To address myself to the point Justice Brennan just raised -- well, I see that my time's up, but seven years incarceration on unfair fact finding procedures, it seems that would be a clear denial of due process even though he might have received a more substantial sentence as an adult.

We have raised here the -- as our first question for review by this Court, the standard of proof in juvenile delinquency proceedings, which we think clearly does raise an issue of constitutional magnitude because it goes to the very reliability of the guilt determining process to the prerequisite on which any further action rest, mainly an adjudication that the boy has committed the act charged and is in fact in law a delinquent.

And we maintain that the standard which was applied below both in the Juvenile Court and by the reviewing Court is unconstitutional, and attested by a proper permissible constitutional standard that this judgment of delinquency cannot stand.

We submit that the civil standard is not a tolerable constitutional standard where personal interests involve a possible loss of liberty and reputation are involved as they were in this case.

Justice Potter Stewart: Well the limit is, Mr. Rezneck of the situation where the charge of delinquency depended upon evidence of conduct which committed by an adult would be a felony?

Mr. Daniel A. Rezneck: Well, that is all there is before the Court in this case. Certainly, we would differentiate proceedings such as neglected dependency which don't involve any misconduct by the child with respect to the standard of proof.

And the Supreme Court of Illinois just recently wanted to invalidate the preponderance test on constitutional grounds and law violation cases, sharply differentiated neglected dependency cases, so that particular was not here.

We are dealing here with a law violation case --

Justice Byron R. White: But wouldn't you extend it certainly to any charge of committing conduct which would expose him to loss of liberty.

Mr. Daniel A. Rezneck: The implications of Gault is that it would apply --

Justice Byron R. White: I won't argue that, yeah.

Mr. Daniel A. Rezneck: If I were in this case, I would, but it's not in this case now.

Justice Abe Fortas: That Gault was specifically limited, wasn't he, Mr. Rezneck, the situations where the charge was something that in the case of an adult would amount to the violation of law.

Mr. Daniel A. Rezneck: The particular basis for the delinquency adjudication there was an act which would be criminal and it is argued that we're dealing with a law violation case in that sense.

An act which would be criminal and commitment by an adult, that is entirely appropriate to look to the safeguards for persons accused of crime in determining the constitutional procedures in the juvenile Courts.

I think when you get to this area of conduct which is unlawful only for juveniles such as truancy or incorrigibility.

You earn something of a gray area there.

And as I said, that particular issue is not presented by this case because this is a pure criminal law violation case and the Court below so found.

Chief Justice Earl Warren: Recess.

Argument of E. Raymond Morehart

Mr. E. Raymond Morehart: Mr. Chief Justice and may it please the Court.

I'm the prosecuting attorney of Fairfield County, Ohio and such represent the county and the state in this matter.

First, I would like to elaborate little on the facts of this case as I believe them to be.

It was on the 29th of July of 1966 that Gladys Willard disappeared.

She was, I think, 63 years of age at that time.

She was last seen at eight o'clock in the morning by the petitioner here, Buddy Lynn Whittington.

And from that time on, we have not been able to find anyone who saw Gladys Willard alive after that time.

At approximately sometime between 7:30 and 8:30 of that evening, she was found dead in the Whittington home under the bed of Buddy Lynn Whittington in his room.

And she was under that part of the bed which was nearest a window and away from the door.

Now, this was a small room and there was not much space between the head of the bed and the foot of the bed.

Chief Justice Earl Warren: Who found her, Mr. Morehart?

Mr. E. Raymond Morehart: Mr. Whittington, the father of the defendant.

That's true.

His son was with him at that time in the house.

He went in the house to look under the beds for her.

He had made a search of the house before and now he went back to look under the beds for this woman and he found her under the bed of the defendant Buddy Lynn Whittington.

She was lying on her back under the bed.

Her dress was pulled up around her waist and her pantie was pulled down part way over her body.

Her teeth -- her false teeth was lying beside her and her eyeglasses was lying beside of her.

Her hairnet was lying beside of her and her shoes were off.

The coroner --

Chief Justice Earl Warren: What was the cause of death?

Mr. E. Raymond Morehart: The cause of death was due to asphyxiation from strangulation.

And in addition to that, she suffered, I think, four or five broken ribs.

She had hematoma of the scalp indicating that she had been hit over the head, and the coroner estimated later that she had been dead approximately 12 hours.

He also said that she had been in this position for a length of time due to the livor mortis of the body that was apparent then.

An autopsy was made of this woman, and they gave us the cause of death as I have previously stated here.

In addition to that, the contents of her stomach revealed, according to the pathologist who performed the autopsy that she had died within one and a half to three hours after she had consumed the food that was then in her stomach.

Now prior to this time, we had ascertained the time when she had eaten this food.

So I mean this was learned later as to what the contents of the stomach disclosed.

We had learned that she had eaten breakfast at a quarter to six and that she had a dry wheat cereal for breakfast.

And that this food was consistent with what the pathologist found to have been nearly digested.

And that it was he said from one and a half to three hours after she had ingested this food -- after she had taken this food which would then place the cause of death or the time of death some place between probably 8:00 or 8:30 or a little after 8:30 within those limits -- this would also be in line with what the coroner found to have been the time of death.

Now, when she was -- of course the authorities recall.

And the chief of the police of the village of Baltimore which is a small village of approximately 2500 population, and there's only one policeman there and he is called the chief of police.

The sheriff's office was called and I was called as prosecuting attorney.

And later then the Juvenile Court officer was called a photographer was called to make pictures which is our usual procedure.

A number of questions were asked -- I think everybody around there was questioned including the neighbors who were there and there were a lot of people.

The folks were probably in a small town something like this happens you have quite a bit of difficulty keeping people out.

The neighbors were questioned.

Mr. Whittington and his -- not Mr. Whittington, but Mr. Willard and his son who was living with them were questioned.

Their families which lived next door to them were questioned.

Mr. and Mrs. Whittington and Whittington boy were questioned.

This is a question he was referred to here.

They were questioned that night concerning what had happened.

No one was accused of anything.

No one was arrested.

No one was taken into custody.

And the statement I think is in air when they said that the premises of the Whittington's were under control of the police.

They were in control again so far as they would not permit anyone else in the premises.

That's true.

But at no time Mr. Whittington was told they had to stay there or that they could not leave.

So I don't think there's any question that either any of the Whittington's or Buddy Whittington, the petitioner here, was not in custody.

He was not taken into custody and he was not taken into custody until almost a week later which would have been the 5th of August when a warrant --

Chief Justice Earl Warren: I wonder if you can tell us what the actions of the defendant were during that day up to the time that his father -- he found the body and located the body let's say in the bedroom.

Mr. E. Raymond Morehart: As near as I can tell you, the defendant said that -- you see, he was at home this day and his parents left to go to Canton to visit some relatives.

My understanding is, this was the first time he'd ever been left alone.

And he was left there because he was going to summer school.

And he was supposed to be at school at 8:30.

Now, he did not go to school that day.

And the reason he gave for not going to school was that he had contracted a stomach ache of some kind.

And he said that he spent the time in on his bed playing the record player.

I believe the statement was that he made.

He said that he was around the house all morning until sometime after 12 o'clock, when a lady who was Mrs. Willard's sister came to look for her because they had an appointment to go to town that day, and when she didn't show up after so long a time she came to look for her.

Justice William J. Brennan: Where would the town be, Lancaster?

Mr. E. Raymond Morehart: That's true, yes.

Justice Abe Fortas: Well, he said he saw Mrs. Willard came at the back door to return some curlers.

Mr. E. Raymond Morehart: That's true.

Justice Abe Fortas: And that was about eight o'clock in the morning.

Mr. E. Raymond Morehart: That's true.

That is true.

Justice Abe Fortas: And the curlers were found in the kitchen by the police.

Mr. E. Raymond Morehart: That is what the chief of police testified to the day – I believe on the table or a chair.

I don't recall -- at the present time.

And after this time that when Mrs. Goodrich who was the sister, came to the home and she fixed the time at somewhat after 12 o'clock that day, she came to the home to inquire about her sister because she thought this is where the people lived that her sister frequently went berry picking with.

This was the time when blackberries arrived.

And she came there to inquire.

And after that, she went to another place, another neighbor of Mrs. Willard.

And Mrs. Goodrich and her husband and this neighbor went out the place to where they were known to have picked blackberries and they searched for Mrs. Willard.

In fact, the defendant here joined in that search later in the afternoon, through the brambles and places where they were known to pick blackberries in search of her.

And they kept up the search including some people from the Boy Scouts and so forth of the community there who came in to look for her, and they kept up the search until dusk.

And being at that time here that it was, of course, the days were raw.

And it was shortly after this that the Whittingtons' came home I think about 7:30 if my memory serves me correct.

And it was sometime after this that the search was made at the house and she was found.

Now, as I said before on the -- about seven days afterwards, this was the 29th of July.

And about seven days afterwards on the 5th of August, a warrant was issued for the arrest of Buddy Lynn Whittington.

This complaint, what we call a complaint in the State of Ohio where it involves a juvenile, was sworn to by the chief of police of the Village Baltimore and was filed with the Juvenile Court of our county.

On the basis of that complaint, a warrant was issued and he was taken into custody.

Justice Byron R. White: Juvenile Court has a separate Court with a separate judge in Fairfield County.

Mr. E. Raymond Morehart: The juvenile judge is a separate Court but it has -- he is also the probate judge.

But our statute provides that he must have a separate Court to hear cases of juveniles which our Court does have.

I mean separate apart from the probate Court.

Justice Byron R. White: Separate Court room.

Mr. E. Raymond Morehart: Yes, that's true.

Justice Byron R. White: And he is the same judge as the probate judge.

Mr. E. Raymond Morehart: That is true.

Justice Byron R. White: And then there's a different judge as Common Pleas judge, there are two judges.

Mr. E. Raymond Morehart: That is true.

Now, on the same date, the 5th of August, Buddy Lynn Whittington was brought into custody, and was taken into custody, and was brought before the probate judge.

Justice Hugo L. Black: Was the probate judge a lawyer?

Mr. E. Raymond Morehart: Oh yes.

Yes indeed.

When I say a probate judge, I should say juvenile judge in this case.

He is the same person but he is the juvenile judge.

Oh yes.

Yes indeed sir.

Justice Hugo L. Black: They are all lawyers in Ohio?

Mr. E. Raymond Morehart: They are at the present time, although I think there is a Grandfather Clause and I am not sure whether there is any left of not anymore who may not be lawyers.

There was a day when it was not necessary but as of the present time, that is true.

They are required to be.

On the same date, he had counsel who registered in that Juvenile Court as representing Buddy Lynn Whittington.

That was Mr. Supman and Mr. Kistler here who have represented Mr. Whittington since that time, and they went on record as being his counsel as of that day.

Justice Thurgood Marshall: Mr. Morehart, is Whittington been release or has been out of custody at anytime that date until now?

Mr. E. Raymond Morehart: Yes sir.

Justice Thurgood Marshall: When was he out of custody?

Mr. E. Raymond Morehart: When the juvenile judge finally had a hearing in which he was bound over to the Common Pleas Court.

Our statute provides that the judge shall if he binds him over, he shall fix bond for his reconnaissance at the next term of the Common Pleas Court.

The bond was fixed.

He was released until such -- until the time when he indicted by the Grand Jury.

Justice Thurgood Marshall: How long is that?

Mr. E. Raymond Morehart: It was about not right on.

I think that he was -- the actual order of transfer I think went on April the 24th of 1967.

The Grand Jury met in May of the next term of the Common Pleas Court Grand Jury met in May.

He was indicted and after he was served with the indictment, he was taken into custody because he was indicted for the crime of murder in a first degree.

Justice Thurgood Marshall: So is that less than a month?

Mr. E. Raymond Morehart: Yes sir.

Now --

Justice Byron R. White: He was out less than a month after the proceedings had been transferred to the adult Court.

Mr. E. Raymond Morehart: That's true.

Justice Byron R. White: So that when he was an adult, he could get out. But when he was treated as a juvenile, he couldn't get out, is that right?

Mr. E. Raymond Morehart: That is true.

Now --

Justice Byron R. White: Is that what your law provides?

Mr. E. Raymond Morehart: No sir.

Our law gives the juvenile judge all kind of authority.

The law says -- our statute says that the juvenile judge when the person is arrested on a complaint, he shall be brought before the Court.

And the law says that the juvenile judge may release into the parents.

He may place him in the foster home. He may place him in the hands of a probation officer or he may detain them.

Justice Byron R. White: How do you explain that seeming anomaly?

It's the same boy isn't it, 14-year-old boy.

The offense is the same regardless of its technical designation under the -- as a juvenile offense or an adult offense, the Act he is charged with is the same Act namely the murder of Mrs. Willard.

Now, how do you count for the fact that as a juvenile, he was kept in children's file and immediately, he is given the status of an adult and he is out on bail?

Mr. E. Raymond Morehart: Because the only thing I know is that that's what our statute serves, to judge.

The only thing I know is that that's what the statute says that our judge shall do.

Now, if it was to be argued that the Court maybe abused its discretion and not releasing him to his parents or somebody else.

That's what's on the record but the judge you said that at the time and on these motions for bails, the judge said that this was not a popularity contest, and he had a duty to protect the people of the State of Ohio and he owed a duty to this boy.

That's what the judge said.

That was what the judge said at that time.

Justice Abe Fortas: The Common Pleas judge who released him on bail after the transfer --

Mr. E. Raymond Morehart: Could he have?

Justice Abe Fortas: Did he?

Mr. E. Raymond Morehart: No.

Justice Abe Fortas: After the transfer of Buddy Lynn Whittington from the Juvenile Court to the Adult Court and the Common Pleas judge acquired jurisdiction over him, didn't he?

Mr. E. Raymond Morehart: That's true.

Justice Abe Fortas: And he was released on bail?

Mr. E. Raymond Morehart: He was released but the bond was fixed by the Juvenile Court.

Justice Abe Fortas: By the Juvenile Court.

Mr. E. Raymond Morehart: By the Juvenile Court.

Justice Abe Fortas: What I want to know is the Juvenile Court judge didn't have anymore authority under the -- after the boy became an adult as a technical matter, did he?

And he had when the boy was a juvenile.

Mr. E. Raymond Morehart: Well, our statute says that if he transfers him to the Common Pleas Court that he must fix bond.

Justice Abe Fortas: He must --

Justice Hugo L. Black: So he had no discretion.

Mr. E. Raymond Morehart: He had no discretion then.

I don't think he had any discretion at all because the statute --

Justice Abe Fortas: Even though he is transferred on what turned out to be a first degree murder charge.

Mr. E. Raymond Morehart: Well, you'll understand.

It is true that the specific Act that he was charged within a Juvenile Court if it were not the Adult, would constitute second degree murder.

Justice Abe Fortas: I understand that.

That's the way the complaint read.

Mr. E. Raymond Morehart: That's true.

Justice Abe Fortas: And then he got the benefit of the Juvenile Court procedure as transferred to the Adult Court, released on bail which had been denied to him as -- when he was getting the benefit of being treated as a juvenile and then he was indicted for first degree murder.

Mr. E. Raymond Morehart: That's right.

And of course under the indictment for first degree murder, he is not subject to bail in the State of Ohio.

Now, let me say one thing further here, that this boy – a hearing after this boy being a delinquent, was held on September the 2nd of 1966.

This was a very short period of time after the warrant had been issued for his arrest and of course there were --

Justice Byron R. White: Excuse me Mr. Morehart but may I ask, we don't understand that you're able to present more evidence to the Grand Jury than you're able to produce before the juvenile judge.

Is this what explains the indictment for first degree?

Mr. E. Raymond Morehart: That is true.

We knew some things at the time the Grand Jury witness had did, that was not known at that time that this affidavit was filed -- complaint was filed in the Juvenile Court.

That is correct sir.

Justice Abe Fortas: Was the petition of the Juvenile Court to transfer Buddy Lynn Whittington to the Adult Court?

Mr. E. Raymond Morehart: A petition to do so?

Justice Abe Fortas: Yes.

Mr. E. Raymond Morehart: No sir.

Justice Abe Fortas: Well, how did that come about?

Mr. E. Raymond Morehart: This came about because the discretion given to the Juvenile Court.

The Juvenile Court under 2151.26 which you quote earlier of the Juvenile Court Act says, that if the Court finds that he has committed in that which would be a felony that's committed by an adult.

After he makes a thorough investigation and after he causes a mental and physical examination to be made, he shall then transfer at the Common Pleas Court or he may retain it and dispose of it as a juvenile.

Justice Abe Fortas: I understand that but are you now telling us that nobody, no state official requested the judge to transfer Buddy Lynn Whittington from a status from the jurisdiction of the Juvenile Court to the Adult Court?

Mr. E. Raymond Morehart: No sir.

I'll tell you that that's true.

I don't know of anyone.

Justice Abe Fortas: Why didn't the judge transfer him before?

Mr. E. Raymond Morehart: He couldn't do so.

He was restrained from doing so by the Courts of Appeal.

Justice Abe Fortas: During that entire period?

Mr. E. Raymond Morehart: That's right.

That's true.

You see this from the time that this was heard on September 2nd until April, this had been in the Court of Appeals and it also been in the Supreme Court of the State of Ohio.

And after the Supreme Court refuse then to take jurisdiction and hear it on its merit that the Supreme Court of the State of Ohio, they granted a further extension of 20 days time and which tied the hands of the juvenile judge as far as binding was concerned.

And it was only when this Court refused to issue a further stay of execution that the juvenile judge was permitted to act --

Justice Abe Fortas: Was the juvenile judge's finding of delinquency presented to the Grand Jury?

Mr. E. Raymond Morehart: No.

No.

Justice Abe Fortas: You went before the Grand Jury made an independent case.

Mr. E. Raymond Morehart: That's true.

That is true.

The juvenile judges finding -- it cannot be considered in any other Court under our law.

Justice Byron R. White: And what he found the Buddy Lynn Whittington committed this act and then he ordered it instead of -- he ordered him to go to the --

Mr. E. Raymond Morehart: Juvenile Diagnostic Research Center.

Justice Byron R. White: -- which is an additional proceeding to finding him over.

Mr. E. Raymond Morehart: That is true.

Justice Byron R. White: And while he was there, the appeal was taken.

Mr. E. Raymond Morehart: That's right.

The appeal before this Court right now.

Justice Byron R. White: You're suggesting that if there hadn't been an appeal at that moment and then he had come back to -- he had come back to Diagnostic Center, the judge would have found him over then.

Mr. E. Raymond Morehart: He would have ruled on it one way or the other.

Justice Byron R. White: Now is your order to bind over appealable in your state?

Mr. E. Raymond Morehart: Yes it is.

Justice Byron R. White: Is that a final order in your appeal?

Mr. E. Raymond Morehart: I think that it is and I maintain.

And I have maintained in my brief that the order appeal from here is not a final order.

And I argue that in the Court of Appeals.

Justice Byron R. White: Let's assume that an appeal had not been taken until Buddy can get back to the Diagnostic Center and he had been bound over.

And then there was an appeal.

Mr. E. Raymond Morehart: That's right.

Justice Byron R. White: And the appeal was to challenge the order to bind over.

Mr. E. Raymond Morehart: That's right.

Justice Byron R. White: Now, would you suggest that what questions then would have been relevant or what questions could have been opened?

Wouldn't the same questions that had been opened that are now here?

Mr. E. Raymond Morehart: That's true.

I think the finding of under our statute it makes the finding of the juvenile judge that a person is delinquent.

It is an appealable order.

Justice Byron R. White: Do you think that even though the finding that he committed this act and the finding that he is delinquent are made only as a preliminary to binding over?

Could it be that -- let's assume that some -- let's assume that he was not permitted cross-examination for example at that theory.

Mr. E. Raymond Morehart: All right.

Justice Byron R. White: Now, if there was an appeal of the order to bind over after it was entered and it was challenged in the Ohio of course on the basis that they then proceed -- that the denial of procedure of due process in those proceedings.

Would that kind of a point be open in your Ohio court?

Mr. E. Raymond Morehart: Yes sir.

That is true.

Justice Byron R. White: And open here if they brought it up here.

Mr. E. Raymond Morehart: I think that is true.

Justice Byron R. White: So that -- is that really quite -- the order now has been entered, has it?

Mr. E. Raymond Morehart: That's true.

But it is not before this Court because the appeal was taken before, you see.

Justice Byron R. White: Taken before the entry of that binding?

Mr. E. Raymond Morehart: That is true that's why I say -- it was not fine order from the Court of Appeals but the Court of Appeals wouldn't listen.

Justice Byron R. White: Well, how long after the review was sought here was a bind of order --

Mr. E. Raymond Morehart: After the review was sought here?

Justice Byron R. White: Yes.

Mr. E. Raymond Morehart: Just as soon as this Court refused to issue a state of execution further, the Juvenile Court then had a hearing and bound him over.

Justice Byron R. White: Well now, before we agreed to review this case, I forgot what date that was.

Could anyone tell us about this bind over order?

Could you tell us the opposition for the petition for review?

Mr. E. Raymond Morehart: I don't know where to -- I forget what was said there that -- I don't remember.

Justice Byron R. White: But in any event, no one sought to appeal the binding rule.

Mr. E. Raymond Morehart: Yes they did.

It's still pending in the Court of Appeals of our county.

Justice Byron R. White: So that order has been appealed.

Mr. E. Raymond Morehart: That is true.

Justice Byron R. White: And that's the one you say that if it were brought on that, we can review and get to the same questions that the petitioner now reads.

Mr. E. Raymond Morehart: In my opinion, that is a final order.

Justice Byron R. White: Except -- perhaps -- Maybe some of those questions might come up but at least we would have jurisdiction to review that order.

Mr. E. Raymond Morehart: I think that is true.

Justice William J. Brennan: Now let's see, you say that the appeal from the bind over order pending in what Court?

Mr. E. Raymond Morehart: In the Court of Appeals of our county, the Fifth District Court of Appeals, Fairfield County.

Justice William J. Brennan: And that has not been --

Mr. E. Raymond Morehart: That has been stayed pending the outcome of this case.

In fact, there are three appeals in this case pending in the Court of Appeals of Fairfield County.

Justice William J. Brennan: You may now recite it.

Mr. E. Raymond Morehart: Sir?

Justice William J. Brennan: What are they?

Mr. E. Raymond Morehart: One is an appeal from the bind over.

The second one is an appeal for the failure of the County's Court to dismiss the indictment.

And the third one is the refusal of the Common Pleas Court to fix bond on the first degree murder charge.

Those three appeals are pending in the Court of Appeals at the present time.

Justice Byron R. White: So he is presently incarcerated?

Mr. E. Raymond Morehart: Yes he is.

Justice Byron R. White: After indictment he was --

Mr. E. Raymond Morehart: That's right.

Justice Byron R. White: His bail was cancelled.

Mr. E. Raymond Morehart: His bail was cancelled because he was indicted for first degree murder.

And that is not bailable under the laws of our state at the present time.

Justice William O. Douglas: Is every indictment for first degree murder appealable?

Mr. E. Raymond Morehart: No, an indictment is not.

I do not believe so.

Justice William O. Douglas: What is more than happening in the indictment and the arrest?

Mr. E. Raymond Morehart: Nothing.

In fact, he has not even fled to the --

Justice William O. Douglas: And how could that be possible to be a final judgment with the meaning of our statute?

Mr. E. Raymond Morehart: I don't think that it is.

Justice Potter Stewart: I thought you said there's a motion to dismiss the indictment but it was denied.

Mr. E. Raymond Morehart: There is a motion to dismiss.

Justice Potter Stewart: And there's an appeal from the denial of the motion to dismiss.

Mr. E. Raymond Morehart: Yes, a question -- that's the final order but the --

Justice Potter Stewart: Why is there a motion to dismiss and the denial of that motion?

Justice William O. Douglas: I misunderstood you.

I thought you said that that would be a final judgment.

Mr. E. Raymond Morehart: No, no, I do not think so sir.

Justice William O. Douglas: I am sorry.

Justice Byron R. White: You used the bind over to --

Mr. E. Raymond Morehart: That's right.

I consider the bind over under our statutes of being the final order -- an appeal.

Justice Byron R. White: MThat isn't here.

It's still in the Ohio Court.

Mr. E. Raymond Morehart: That's right.

That's in the Court of the --

Justice William O. Douglas: The bind over be it more than just an -- the result of an arraignment of the preliminary hearing holding it -- I don't understand how you distinguish between those two, between the arrest under the indictment and the bind over order.

Mr. E. Raymond Morehart: I distinguish it on this basis, sir.

As you know or may not know but in our state you cannot appeal in a criminal case from a jury verdict.

The appeal is from the judgment and sentence of the Court.

Now, you may have several intermediate --

Justice William O. Douglas: What finally sees a federal question -- final judgment in the federal sense?

Mr. E. Raymond Morehart: I beg your pardon?

Justice William O. Douglas: We're concerned with a federal meaning of the word final.

Mr. E. Raymond Morehart: Yes, I think that is true and I --

Justice William O. Douglas: Otherwise we don't have jurisdiction.

Mr. E. Raymond Morehart: Well, I think that this is what we're arguing here that there is in that jurisdiction.

Justice William O. Douglas: But I'm talking about that why you think there would be a final judgment in case of the bind over because nothing has happened there except an indictment and the under arrest.

Mr. E. Raymond Morehart: There's nothing more after the bind over for the Juvenile Court to do.

You see, he is disposed off the manner.

He is bounded over to Common Pleas Court or he has made other disposition.

Suppose for instance that he had not bounded over to the Common Pleas Court which he did not have to do, he could then do number of other things.

He could place him on probation under our law or he could sentence him to the Youth Commission.

Now if he is sentencing to the Youth Commission, he loses jurisdiction.

Our Juvenile Court does under our law.

He loses jurisdiction. The Youth Commission, the Ohio Youth Commission can turn him absolutely scratch free within 30 days if they want to do that.

Justice William O. Douglas: Well, there's nothing more that the Juvenile Court can do now in this case.

Mr. E. Raymond Morehart: That's true when he binds him over, to my opinion, that's a final order.

He is through but he was not through when he made -- when this entry went on because he ordered him to the -- which he was required to do for physical and mental examination and for investigation and the causes continue --

Justice Abe Fortas: Excuse me.

I beg your pardon.

Your Ohio Supreme Court entertained an appeal I suppose.

They have some requirement of finality.

Mr. E. Raymond Morehart: Yes.

Justice Abe Fortas: Your Ohio Supreme Court entertained on appeal from the precise judgment or order or whatever it is that we have for us, is that right?

Mr. E. Raymond Morehart: They didn't entertain the appeal.

They dismissed it because of a no constitutional question at all so they did not hear it.

Justice Abe Fortas: But your intermediate Court or whatever --

Mr. E. Raymond Morehart: The Court of Appeals.

Justice Abe Fortas: The Court of Appeals.

Mr. E. Raymond Morehart: They overruled my motion to dismiss because there's not being a final order.

That is true.

Justice Abe Fortas: And they have decided that for state purposes at any rate, this is a final order.

Mr. E. Raymond Morehart: And that I think they were wrong.

Justice Abe Fortas: And what you're saying thus is that, they were wrong and we ought to overrule them on that question of state law or I suppose you'd have to say that as a matter of federal law, this is not a final order.

Mr. E. Raymond Morehart: That's our contention.

Justice Abe Fortas: Even though the transfer order, the binding over order was self --it didn't involve any additional findings, did it?

Mr. E. Raymond Morehart: Oh yes, it had to.

This Court does.

Sure it did.

This is -- that's when the Court makes his decision as to whether the bind over --

Justice Abe Fortas: What if the Juvenile Court fined that it hadn't found in connection with the delinquency.

Mr. E. Raymond Morehart: No, it didn't find anything more in that regard.

Justice Abe Fortas: That's what I'm talking about.

I'm saying what makes you with the binding over order where any findings made by the Juvenile Court in addition to the findings that are before us right now.

Mr. E. Raymond Morehart: Well, the Court -- the Court found based upon the investigation of the Juvenile Diagnostic Center that this boy was not mentally ill.

Justice Abe Fortas: Is that in the record?

Mr. E. Raymond Morehart: No, it won't be because this was afterwards you see -- this was afterwards.

Justice Thurgood Marshall: Do you have magistrates in Ohio.

Mr. E. Raymond Morehart: Sir?

Justice Thurgood Marshall: Magistrates hearings in Ohio?

Mr. E. Raymond Morehart: Yes, we do sir.

Justice Thurgood Marshall: Well, suppose the magistrate binds the man over Grand Jury --

Mr. E. Raymond Morehart: Yes sir.

Justice Thurgood Marshall: Would that be a final order?

Mr. E. Raymond Morehart: It would be a final order but it would not be an appeal of an order in our State.

Justice Thurgood Marshall: Well, what's the different between that when the Juvenile Court binds him over?

Mr. E. Raymond Morehart: With that, I think there's nothing -- there's no difference.

I quite agree with you that that would be a final order --

Justice Abe Fortas: Don't your statute to provide that a juvenile has a right to proceedings in the Juvenile Court?

Does your statute say that or doesn't?

Mr. E. Raymond Morehart: I didn't follow you sir.

I'm sorry.

Justice Abe Fortas: Does the Ohio Statute provide that a juvenile has -- who is charged with an offense or whatever magic language you use that he has a right to be proceeded against in the Juvenile Court in the first instance?

Mr. E. Raymond Morehart: Yes, he does have.

Justice Abe Fortas: And so that here what's happened is a necessary and an adjudication of delinquency that according to your adversary anyway was necessary before the child could be deprived of his right to be preceded against in the juvenile and not the Adult Court.

Mr. E. Raymond Morehart: Under our statute, the Juvenile Court has original, exclusive jurisdiction over all juveniles.

And a juvenile in our State is defined as the person being under the age of 18 years.

Our statute also says that a child cannot be found guilty of a crime in the Juvenile Court because he can only be charged with being a delinquent child in the Juvenile Court.

That's all.

The statute also gives our Juvenile Court exclusive, original jurisdiction over neglected, crippled or dependent children as well as delinquent children. It's all covered under the same statute.

So that if a person is charged with a crime -- for instance, suppose a 17-year-old child would be charge with a crime like in a Municipal Court or Police Court and if you brought it to the attention of the authorities that he was under 18 years of age, that would have to be immediately transferred to the Juvenile Court of the residence of the dependent.

Justice Abe Fortas: As my understanding, what we're dealing with here maybe a finding and an order by the Juvenile Court which in effect deprives the child of a right given to him under Ohio Law namely, the right to be tried in the juvenile and not in the adult Court.

Mr. E. Raymond Morehart: No, no, it doesn't deprive the child of that right because the child or no one else has any as you say so except the Juvenile Court in cases of a felony.

Justice Abe Fortas: I think I understand you but the point is, there has to be a Juvenile Court proceeding first before the child can be tried in the adult Court.

Mr. E. Raymond Morehart: That's right.

That is true.

Justice Potter Stewart: Mr. Morehart may I ask, if the turnover order were before us and if we were to set it aside, what would be the effect upon the indictment?

Mr. E. Raymond Morehart: My opinion is that it would vacate the indictment unless of course, the ruling of this Court will be such as to say that the juvenile court out of the state of Ohio were unconstitutional.

If that we're true then I suppose it would be the juvenile where he was before that time, which would be the same as any other individual.

Justice Potter Stewart: Subject to indictment.

Mr. E. Raymond Morehart: That's right.

I assume that to be true.

Justice Potter Stewart: But apart from that --

Mr. E. Raymond Morehart: Apart from that.

Justice Potter Stewart: On the hypothesis I gave you, the indictment would be invalidated and I gather this time would require a brand new Juvenile Court proceeding under whatever standard we set or to govern such procedures which might stand in up again I take it in a disposition which was a turnover order.

Mr. E. Raymond Morehart: I assume that to be true. Now, that is my understanding of the law at this time.

Yes sir.

Justice Hugo L. Black: Did I understand you to say a while ago that the question of vagueness is upon in the Court of Appeals -- the right to be.

Mr. E. Raymond Morehart: Well, only in the Common Pleas Court from the indictment and not in the Juvenile Court.

That is true.

Justice Potter Stewart: Is it pretty well settled in Ohio?

It used to be at my understanding was at least there used to be that the area of the first degree murder actually indicted the first degree murder that don't have any right to bail.

Mr. E. Raymond Morehart: I know of no case in where they've held that if you have a right to bail on a first degree murder charge.

That's true.

That's my opinion of the law.

Yes sir.

I at this time -- now, we have said in our brief and we have argued here that the Juvenile Court -- that a person charged in a Juvenile Court that is a -- a juvenile is not entitled into a trial by jury.

Our statute in the State of Ohio provides that the juvenile judge shall hear the case informally against any child, not only delinquent but any neglected or crippled child.

He shall hear this informally as possible giving of course the defendant the right to be represented by counsel.

The right to summon witnesses of course and the right to cross-examination, and that statute now provides that an appeal shall be made.

And we have always assumed that that would include the right to make a transcript or a record of the proceedings.

Justice Abe Fortas: Mr. Morehart, apart from the question of ultimate penalty, what are the benefits apart from the question of ultimate penalty, what are the benefits that Buddy Lynn Whittington received by reason of being tried in the Juvenile Court as against what would have happened to him in the Adult Court?

Mr. E. Raymond Morehart: Well, if he would have been in the Adult Court until such time as he was indicted by the Grand Jury for first degree murder.

He would have been eligible for a bond because he hadn't been an adult.

Justice Abe Fortas: I would have been an advantage of his being as an adult.

Mr. E. Raymond Morehart: That's true.

Justice Abe Fortas: And so that's one thing on the deficit side is so far as the Ohio Juvenile Court system is concerned.

Mr. E. Raymond Morehart: That is true --

Justice Byron R. White: He could have been released in the Juvenile Court too.

Mr. E. Raymond Morehart: He could have been.

Justice Byron R. White: Wouldn't the discretion have been the same?

Mr. E. Raymond Morehart: No, I don't think the discretion would have been the same to be fair with you and honest with you, because I think a person charged with only a second degree murder and our State Courts as an adult is entitled to bail.

Now, it's a question then whether or not he would be a lot better off as a juvenile because the Court could release him without bond if he wanted to.

He could release him to his parents.

He could release him to another custodian.

Justice Abe Fortas: What you're telling us and we can pass to the next one is that if he had been an adult and he had been charged with exactly the same thing under Ohio and had been charged with second degree murder.

Under Ohio law, he would have had a right to bail.

Mr. E. Raymond Morehart: That is true.

Justice Abe Fortas: Whereas being a juvenile, he was at the mercy of the judge.

Mr. E. Raymond Morehart: That's right.

Justice Abe Fortas: And he did not get bailed.

What submits the advantage of the Juvenile Court procedure for this boy?

Mr. E. Raymond Morehart: The fact that he was now -- in this individual case, I suppose that you would have to say that it was disadvantage if he was being held when he could have been released to parents or probation officer or to someone else.

That's true and I suppose each individual case would have to depend entirely upon the merits and upon the judge as he saw fit.

Now, if the judge abused the discretion, there is always an appeal from that.

Justice Abe Fortas: Is there anything you can say that this boy got -- any benefit he got, any protection he got as a result of being processed or whatever you want to call it in the Juvenile Court as against being given the rights under our constitution in an adult Court.

Mr. E. Raymond Morehart: Well from a practical standpoint, he was not held like an adult would be.

He was not confined in an adult jail.

Justice Abe Fortas: That is not what the record -- what the opinion below says.

Mr. E. Raymond Morehart: Well, he was not confined in a -- he was confined in the jail but not where they keep other adults.

Justice Abe Fortas: That is contrary to what I've seen somewhere in this record.

Mr. E. Raymond Morehart: And he was not held in solitary confinement at no time.

Justice Abe Fortas: Would you say that that isn't true?

That statement is made here.

Mr. E. Raymond Morehart: And they will find that the record is close.

His mother testified in one of this hearing that she was permitted to see the child at anytime or she and her husband that he had a television set in the room where he was.

And that he had magazines to read if he wanted to read that.

Justice Abe Fortas: Where did this curious misapprehension that I can't spot it at the moment.

What's the basis of these curious statements in the papers before us?

Number one that the boy was kept along with adult prisoners, number two, that for a prolonged period of time, he was kept in solitary confinement.

Mr. E. Raymond Morehart: I know of no such thing and I --

Justice Abe Fortas: You know that does appear.

Mr. E. Raymond Morehart: That does appear and there is no basis for it that he was ever sentenced or kept in solitary confinement.

If ever he was alone is because there was no other juveniles to be confined with him and of course you can't go out on the street and arrest juveniles just to have company for someone that's there.

Justice Abe Fortas: Now, this boy was not put in a special juvenile facility was he?

Mr. E. Raymond Morehart: It was a juvenile facility session we had at that time which is in upstairs over what our county jail is.

Justice Abe Fortas: Is that the eighth floor facility?

Mr. E. Raymond Morehart: No sir, this is the second floor.

We only had two floors.

Now since that time, our commissioners have built a new jail and I assure you that it's been necessary for years and years and he is confined in different quarters now --

Justice Abe Fortas: Are there any other benefits that this boy received by reason of the Ohio Juvenile Court procedures?

Justice Potter Stewart: Well, he wasn't arrested for a crime in the first place, was he?

Mr. E. Raymond Morehart: No sir.

Justice Potter Stewart: He wasn't charged for the crime.

Mr. E. Raymond Morehart: No sir.

Not under our law.

Justice Potter Stewart: He got no criminal record --

Mr. E. Raymond Morehart: That's right.

That is true.

Justice Abe Fortas: Well apart from words what actually happened to the boy here, was he given any procedural rights that he would not get as an adult?

Mr. E. Raymond Morehart: No.

I assume not any procedure right that an adult would not receive.

I think if that is true.

But now of course since that he has been transferred by the Juvenile Court to the Common Pleas Court then of course he is immediately closed with all the rights that an adult would have.

Justice Thurgood Marshall: Why?

Mr. E. Raymond Morehart: Sir?

Justice Thurgood Marshall: Why?

Mr. E. Raymond Morehart: Because he has been transferred to the Common Pleas Court and there he will be treated as an adult.

Justice Thurgood Marshall: Just because he was trying to refer it from Court to the other that he is the exact same person --

Mr. E. Raymond Morehart: He is the exact same person but he is not charged with a crime before he was caught.

Justice Thurgood Marshall: That makes it better.

He gets more rights having been charged with crime.

Mr. E. Raymond Morehart: No, I don't think that it makes it better.

I don't think so at all.

I think that he had a lot of rights.

Now you may say that the Juvenile Court abused the discretion in this case, and maybe that is true.

Maybe he should have been released.

Justice Potter Stewart: (Inaudible)

Mr. E. Raymond Morehart: Well, after the body was discovered, then the police who had been there and had gone home for dinner was recalled back of course.

And some of the emergency squad were there.

And the sheriff's office was called.

And they came there and I suppose at some place, they got there maybe around nine o'clock or a little after that time and they proceeded to make an investigation to call.

The coroner was called of course.

Pictures were made of the body and of the room where the body was found.

Questions were asked, both of Mr. and Mrs. Whittington in their own home and of the boy with the parents there at that time.

In fact another stranger was there.

I happened to be there at the time, and another person whom I do not know.

I assume that it might have been a relative.

I do not know up to this day.

I don't know.

The boy was never to my knowledge, has never been talked to by an official since that time by an officer.

But it is our --

Justice Thurgood Marshall: How about a probation officer?

Mr. E. Raymond Morehart: Sir?

Justice Thurgood Marshall: How about the probation officer?

Mr. E. Raymond Morehart: I don't think that he has ever talked to him since that time sir, at least not about the experience.

I have no knowledge sir.

Justice Abe Fortas: Well, what was the basis then for the arrest warrant?

Mr. E. Raymond Morehart: The basis for the arrest warrant was the fact that this boy was here and he admitted that he had been here all the time.

And when we find out the cause of death from the pathologist and learned some more information about that fact, we assume that it had to be this boy that committed this crime.

Justice Byron R. White: He what?

I didn't --

Mr. E. Raymond Morehart: I say that we assume that it had to be the boy who committed this crime.

That was the basis for a warrant issue or complaint being filed in the Juvenile Court by the chief of police.

Could I reserve -- I would like to reserve the rest of my time to Mr. Green.

Chief Justice Earl Warren: Very well.

Mr. E. Raymond Morehart: Thank you.

Chief Justice Earl Warren: Mr. Green.

Argument of Merritt W. Green

Mr. Merritt W. Green: Mr. Chief Justice and may it please the Court.

Actually the turn of events here today is somewhat different that I had anticipated and I had intended I believe to pursue the line that I pursued when I was here in the Gault Case just to talk about the -- whether or not constitutionally, you can reasonably classify within the area of adults and minors.

And it's indicated to me by the Court's interest in this other factors that the philosophical problems that might be involved and the difference between children and adults may not be the thing that's foremost in your mind this time.

Aside from the particular facts in this case, I suppose that there is this overlaying questions as to -- role of the state the life of a child.

How much authority must or can the state have in the -- over the child's life.

In other words I have differences between children and adults such as to permit the procedures which are substantially different.

Chief Justice Earl Warren: Well Mr. Green, I have read your brief on behalf of the National Counsel of Juvenile Court judges.

I would like to ask you to address yourself to a question that I had put to Mr. Morehart.

Now, what did this boy, Buddy Lynn Whittington, get in terms of protection?

What if anything did he gets in terms of a protection of the state that he would not have gotten if he were tried in the adult Courts?

Mr. Merritt W. Green: Well, we would have to assume at the outset because of the wide latitude given to the statute.

And almost universally followed that the judge is admonished almost the statute to release the child from custody to his parents or anybody else.

Chief Justice Earl Warren: But he didn't get that did he?

Mr. Merritt W. Green: That's right but I would say that we would have to assume I believe that because of either of the climate in the area or the nature of the crime with which he was charged, the Court in its wisdom whether it was right or not, felt that it would be better for Buddy Whittington to be retained in the custody of the Court or one of its officers.

Justice Abe Fortas: Yes.

Now that the boy had been an adult or instead of being permitted to the discretion of the Juvenile Court judge, he had been an adult charged with second degree murder.

He would then have had a right to bail regardless of the --

Mr. Merritt W. Green: There's no question about that under our law.

Justice Abe Fortas: Alright, is there anything else that -- this boy.

Mr. Merritt W. Green: This particular boy, I presume you could say, because of the entanglements of legal procedures that followed, nothing accrued to his benefit but that doesn't make the statue in it of itself unconstitutional.

Justice Abe Fortas: Well, you tell me what could have accrued to his benefit once we pass this debate about what the judge might have done that he didn't do with respect to the release.

Mr. Merritt W. Green: We'll have to make an assumption too that he came from a home that obviously to the Court indicated that to go back in that home it maybe the wrong thing for him.

Justice Abe Fortas: I know nothing in this record.

Mr. Merritt W. Green: That's right.

I said it Mr. Justice Fortas.

Justice Abe Fortas: Let's don't assume that.

Let's talk about this boy.

Mr. Merritt W. Green: This particular boy had nothing accrued to him that I can see on this record.

Actually, one of the things and I must say this, that's happened and this case has spent too much lowing in the case.

Justice Abe Fortas: Maybe too much lowing at the wrong time and maybe not enough lowing in terms of basic structure.

What would you say to that Mr. Green?

Mr. Merritt W. Green: The first part, I would say it was true.

Now I don't believe the basic structure in it of itself is the fault of any mishandling or any injustices done to Buddy Lynn Whittington.

Because you would almost have to assume that this is a routine matter of denying release from the custody of the Court to any juvenile who comes before the Court.

And I don't think there's any justification.

All the statistics available to the Court or this record to say that this was a routine handling Mr. Justice Fortas.

Justice Abe Fortas: Do you disagree with the constitutional principle that provides for a right to bail?

Mr. Merritt W. Green: No, by all means, I do not of course the constitutional principle is I believe stated in that.

It's about that no person shall be required to give excessive bail.

But I say and I only say this that I'm not contending that there should be two set of rules on the constitution, one for youngsters and one for adults, or that the constitution doesn't apply to everybody.

But I am suggesting that you can't properly create classifications taking into consideration the people for whom you're established in the classification.

It's not on -- to all of those children in the law have always been considered in a different like in adults.

Contracts for instance.

Like if you could just go on and name all of those things where children for reasons emotionally, biologically, mentally or whatever the reason maybe are distinguished from the adults and the different -- the law applies differently to them.

After all, the theory of the Juvenile Court's Law -- the Juvenile Court's trying to do.

I think the philosophy is there.

They're trying to find out when somebody or some youngster becomes entangled in the law what caused them to be entangled with the law?

And what can we do to either prevent him from going on to life occurring or what can we do to rehabilitate him as if he started?

Justice Abe Fortas: Is there anything like that happened here so far as this record shows?

Mr. Merritt W. Green: You mean as to this boy?

No.

Because he was prevented --

Justice Abe Fortas: What happened here?

Mr. Merritt W. Green: Sir?

Justice Abe Fortas: What happened here in effect was an effort by the Juvenile Court to find out whether this boy committed the offense.

This terrible crime with what he was charged in substance if not in words.

And when it had for that purpose and without any of these attempts that we all talk about in connection with the Juvenile Court, to find out what kind of boy he is, what makes him take and what's the best thing to do with him, isn't that so?

Mr. Merritt W. Green: No, I don't think that's true Mr. Justice Fortas.

Justice Abe Fortas: Where do you find that in -- where do you find anything else in the record?

Mr. Merritt W. Green: Well, his finding at the start, saying that there has been a murder committed.

There has been a killing.

The Court made these findings and said that it maybe that Buddy Whittington may have done.

And then along came -- in that same finding, he ordered the boy to be sent to the Youth Commission in Columbus for the various tests.

Now, it wasn't until after that on the basis of all these tests and a complete investigation the statute says.

That then he makes his determination whether he wants to keep him in giving this treatment that I'm talking about, or whether he wants to having found that the boy committed that backwards committed by an adult would have been a felony.

Not necessarily it's a felony.

But then he makes a determination whether he should make the boy available to -- the resources of community or whether or not he should be tried as an adult.

So you see this part of it was cut off really by the State of this record.

I should point out that one statement of fact that it's apparently little different.

And that is that the time between the hearing in September and he was bound over because I really truly believe that this was a preliminary matter.

It was only about seven months.

I think it was from September.

Justice Abe Fortas: In your brief, you referred to that as shameful incarceration of this boy.

Mr. Merritt W. Green: I believe shameful treatment.

Justice Abe Fortas: Shameful treatment.

Mr. Merritt W. Green: That's right.

The point was that -- I don't believe that he followed the system.

You see because from the time this boy had a hearing one month after he was arrested.

And I think the record would show that that delay even, some of it is on at the request of the boy's lawyer.

And from that time on, the Court was stopped, prevented from acting.

Until after this Court in preparation for filing a petition refused to stay any longer than the Grand Jury.

Justice Thurgood Marshall: At which state the juvenile judge could have left it in the juvenile authority?

Mr. Merritt W. Green: At that time, yes.

That's right, Your Honor.

That's right.

Justice Byron R. White: Another question that I will -- thank you for your attention.

Thank you very much.

Chief Justice Earl Warren: Mr. Rezneck.

Rebuttal of Daniel A. Rezneck

Mr. Daniel A. Rezneck: Mr. Chief Justice, and May it please the Court.

If I may say just one further word on the finality question, I would just like to specify the dates here for the Court that the petition for certiorari was filed on April 11, 1967.

And the binding over order of the Juvenile Court was on April 24, 1967.

And it occurred during this period of time when there was no longer a stay in effect as to further Juvenile Court proceedings.

Justice Byron R. White: That's before we acted on the petition, wasn't it?

Mr. Daniel A. Rezneck: Yes, you granted.

Justice Byron R. White: Any reason why we weren't asked to act down the petition in respect to the turnover.

Mr. Daniel A. Rezneck: Well, at that time, the turnover -- when certiorari was filed for the turnover, the transfer order had not been entered.

Justice Byron R. White: No, but after it was and before we acted on the petition, it was a long interval before we acted on the petition.

Mr. Daniel A. Rezneck: I believe that the record will show that there was a request for a state --

Justice Byron R. White: You have said that and I've looked for it with no success.

Mr. Daniel A. Rezneck: Well, it's not in the current record that I have here but it maybe in the file.

My understanding is that there was an order by this Court which denied the stay of further proceedings.

Justice Byron R. White: We denied a stay?

Mr. Daniel A. Rezneck: Yes you did.

So you have this in the regular period when these proceedings were unable to go forth below.

With respect to the question of finality, I would like to direct the Court's attention to a decision by this Court in the case of New York Ex Rel Bryant v. Zimmerman, which we've decided on page 5 of our reply brief which involved a petition for writ of habeas corpus in advance with trial by someone who was under indictment.

And the petition for habeas corpus was denied at the State Courts and review was sought in the Supreme Court of United States while they were still depending indictment in the State Courts.

And this Court held that that was a final judgment.

That the habeas corpus proceeding is independent, adversary and both adapted, and directed to the enforcement of a most important personal right and to entertain that appeal.

And we think that the same situation prevails here with the juvenile proceeding which was an independent proceeding and which did end in the adjudication of delinquency with very serious consequences for the juvenile.

We think Mr. Morehart is simply asking this Court to reverse the decision of the Courts of Ohio as to the appealability of this order under state law.

With respect to the evidence --

Justice Byron R. White: But it is a separate question for finality with its final progress.

Mr. Daniel A. Rezneck: Yes and I believe in that question, you look at the incidents of the judge --

Justice Byron R. White: What would have happened in the Juvenile Court if the Court had decided when the -- when it was permitted to go forward that it wouldn't -- that the Court would not turnover.

What order would have been --?

Mr. Daniel A. Rezneck: Well, it would have had a variety of dispositional orders open to it.

Justice Byron R. White: But it's still a disposition order to be entered.

Mr. Daniel A. Rezneck: Well, there was a disposition order here, there would have been a further order which could have been still temporary in nature or which could have been a permanent commitment, which could have been probation, which could have been a fine.

They have this continuing jurisdiction and they could modify their orders even from time to time so that --

Justice Byron R. White: But there are still in this case necessarily -- at least another order had to be entered one way or another.

Mr. Daniel A. Rezneck: There's no specific provision of course requiring the Court to do that or even setting a time limit within which the Court --

Justice Byron R. White: Once the diagnostic center send it back -– is that the statute there?

Mr. Daniel A. Rezneck: Well a statute doesn't say to the contrary that there is no provision in the statute which is comparable to the provision of the federal criminal rule.

Justice Byron R. White: A common sense would indicate that perhaps there was another order coming.

Mr. Daniel A. Rezneck: I would have thought that the judge would have to do something or else it would be susceptible to habeas corpus.

On the evidentiary point which Mr. Morehart had talked about, I would like to just direct the Court's attention to page 271 of the record which is a critical passage in the Court of Appeals opinion.

The Court below affirm this judgment by the use of the civil standard but they also had at the statement which we submit must have been considered with great care that the evidence contained in the record fails to disclose any thorough investigation by officials toward eliminating the possibility that Mrs. Gladys Willard may have been killed by some other person.

Mr. Morehart says that he assumes that the boy did it and I submit that that is all you have here in assumption and not based on any tolerable standard of guilt when liberty and reputation are at stake.

And that is not a sufficient basis to impose the kind of sanctions that are available here.

Justice William O. Douglas: -- you understand it under which the judge decided that the man is a delinquent man.

Mr. Daniel A. Rezneck: As I understand in Ohio, he is entitled to do on a basis of a preponderance of the evidence as if it were an ordinary garden variety negligence of --

Justice William O. Douglas: What must they prove about it to prove that he a delinquent?

Mr. Daniel A. Rezneck: In this case where the violation of a criminal statute was involved, they must simply prove by a preponderance of the evidence that he violated the criminal statute.

And that's sufficient to adjudicate in the delinquent.

Justice William O. Douglas: What's the standard to bind over an adult to a Grand Jury for a trial?

Mr. Daniel A. Rezneck: The state statute I believe refers to substantial and credible evidence.

2937.13 says that the Court while weighing the credibility witness shall not be required to pass on the weight of the evidence.

Any finding requiring the accused to stand trial on any charge shall be based solely under presence of substantial credible evidence thereof.

Justice Abe Fortas: On the presence of substantial --

Mr. Daniel A. Rezneck: Yes sir.

Justice Abe Fortas: Without weighing it.

Mr. Daniel A. Rezneck: Yes which is even a lower standard than the preponderance standard?

Justice Abe Fortas: Mr. Rezneck, Mr. Morehart challenged the statement that's been made about a boy being confined and along with adult and being in solitary confinement.

What do you say to that?

Mr. Daniel A. Rezneck: I'd like to direct the Court's attention on the first point on the adult confinement to page 253 of the record which is the journal entry of the District Court of Appeals, which ordered Buddy released from the confinement, and in which he was then held in the adult jail.

After a personal view and I said from our view, we find that Buddy is confined in a portion of the jail used for adults and that an adult is now in fact confined in an adjoining cell in the same room.

Justice Abe Fortas: That was after a personal viewing by the Court.

Mr. Daniel A. Rezneck: That was personal viewing by the Court of Appeals.

With respect to the solitary, it was repeatedly asserted and never denied in motions for release to the Court that he was being held in solitary.

There's no evidence that anyone else was confined with him and any other juvenile and I would direct the Court's attention to the testimony of his mother that's up here.

It's at page 99 of the record in which she was asked to have an opinion as to what continued and enforced incarceration in that cell as to whether it would affect Buddy's mental well being.

And she answered, “Yes sir.

I think anybody being penned up like that by themselves for as long as he has been – or as long as he might have to be.

I think even myself or even an adult that would work on your mind it couldn't help but do that just penned up there all day long.”

And then she said in response to a further question.

Well, when he sits there all day long, sometimes he doesn't say much when we go in.

I think his mind might be dulled by being there.

There's nothing for him to do, just sit there.

It would affect your mind to or anybody's.

So we think that there's an ample predicate.

Justice William J. Brennan: May I ask you one more question about those two pieces of evidence?

Suppose they are both truth or suppose he was kept in solitary confinement –- suppose he was kept in a place that had -- what effect should that have on our view of the finding that he was a delinquent?

Mr. Daniel A. Rezneck: Well, I realized that this creates a problem as to what remedy would be affected at this time after he has been found to be a delinquent.

Justice William J. Brennan: Would that authorize us or justify us by setting aside the judgment finding that he is a delinquent.

Mr. Daniel A. Rezneck: We think that it would, Your Honor but for the denial of a fundamental constitutional right --

Justice William J. Brennan: That is a denial of the fundamental constitution right you would say.

That's the way he's kept in jail.

Mr. Daniel A. Rezneck: You're right.

Justice William J. Brennan: Do you think that should set aside the finding that he is a delinquent.

Mr. Daniel A. Rezneck: The right to be from cruel and unusual punishment such as this boy was projected to as a fundamental constitutional right.

Justice William J. Brennan: Now we should order him completely released at all time because he was kept in a solitary confinement.

Mr. Daniel A. Rezneck: We think it should invalidate the proceedings against him with respect to whether he can be retried.

We think that question turns on the resolution of the standard of proof and the sufficiency of the evidence under a constitutional standard.

Justice William J. Brennan: So what is the efficiency of the proof of the question of delinquency had to do with where he is kept in jail.

Mr. Daniel A. Rezneck: Those two questions are not related Your Honor.

I'm not saying that because he was subjected to cruel and unusual punishment that he cannot be retried.

I think that he could be retried if that were the only ground that we had.

I am saying that I think the procedures carried on below are sufficiently --

Justice William J. Brennan: That's kind of -- when is it addressed?

Mr. Daniel A. Rezneck: Well, it's our last argument, Your Honor.

I hesitate to call --

Justice Abe Fortas: Well Mr. Rezneck, it has been urged before us in this case and it's been otherwise urged that the State has a burden of showing that the classification of children for purposes of various applications of its laws is a reasonable one and in terms of justification of denial of certain rights, certain constitutional rights.

And it's been urged that for the State to bear that first, it's got to show a wide range of factors to indicate that the classification is reasonable.

And among those factors is the question of what the State does with respect to the child.

It makes it reasonable for the State to classify the child separately and differently with respect to the administration of its law of offenses including their things of which juveniles are charged.

And from that point of view, it's urged that the question of facilities or no facilities available for special treatment of juveniles is relevant to the constitutional question.

The State that to you not to reflect my own view on it because I don't at the moment have a view on that but as making quite relevant, as an argument, that would if valid to make quite relevant to the question of what does the State do with respect to juveniles to justify the separate classification in this separate system of jurisprudence, that it can be so called.

Mr. Daniel A. Rezneck: I would certainly say that the State is going to try juvenile's criminals, confine them as criminals, and punish them as criminals that it cannot obey constitutional obligations by -- pardon me?

Confine them as criminals, punish them, impose punishment on them as criminals that it can't.

Justice Byron R. White: Do you think it's relevant on the issue of whether or not this delinquency judgment -- to base it in that finding in anyway on whether this fellow was brought and was kept in jail.

Mr. Daniel A. Rezneck: We think our arguments that go to the invalid fact finding procedure will amply dispose off this point and will show the invalidity of the juvenile delinquency adjudication, Your Honor.

We're not relying on the punishment factor solely to invalidate the delinquency of finding.

Justice Hugo L. Black: (Inaudible).

Mr. Daniel A. Rezneck: No it does not Your Honor.

Justice Hugo L. Black: (Inaudible)

Mr. Daniel A. Rezneck: The record is silent on that.

For these reasons, we pray that the judgment below be reversed.

Thank you very much.