MCKEIVER v. PENNSYLVANIA

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Argument of Daniel E. Farmer

Chief Justice Warren E. Burger: We’ll hear arguments in number 322, McKeiver and Terry against Pennsylvania.

Mr. Farmer, you may proceed whenever you’re ready.

Mr. Daniel E. Farmer: Mr. Chief Justice and may it please the Court.

This case raises the same constitutional issue as to proceeding case in reverse raised.

The question is whether due process requires the right to jury trial in juvenile delinquency proceedings.

However, the facts in this case are somewhat different.

Both Joseph McKeiver and Edward Terry were tried after the date of this Court’s decision in Duncan versus Louisiana.

Both were 15-years old at the time of their trial.

Under Pennsylvania juvenile court law, both of them stood the risk of confinement until they were 21-years old.

So that at the time of the trial, a possible outcome was that they would be confined until they were 21.

Unfortunately, the institutions in which they risk confinement are far from being as attractive as those described for the State of North Carolina.

The worst of the institutions to which Philadelphia juveniles can withstand is a place called Camp Hill.

Camp Hill is a prison.

It has been described as a prison by Justice Hoffman of our Superior Court who for many years was an outstanding juvenile court judge.

Chief Justice Warren E. Burger: Well, returning to what Mr. Justice White raised in the previous argument that you heard, what’s the connection between the kind of institutions and the constitutional issue involved here?

Mr. Daniel E. Farmer: It seems to me that if it could be proven overwhelmingly that there was no punishment, that in fact the juvenile court was an exact parallel to the model of let us say a mental commitment proceeding rather than the stigmatizing for the commission of crime and punishment type of proceeding that it is, there might be some question as to the right.

Chief Justice Warren E. Burger: You don’t think confinement alone under the -- without more is enough to trigger the constitutional claim for a jury?

Mr. Daniel E. Farmer: I think it might be Your Honor but I don’t think I have to maintain that because I think it’s so clear from the -- both the facts in Pennsylvania and the materials found in the National Crime Commission, studies of our juvenile court system that in fact that it is not a genuinely rehabilitative system.

It closely approximate a system of finding out about wrongs and imposing punishments.

Joseph McKeiver was charged with robbery, larceny and receiving stolen goods.

These are felonies under the penal code of Pennsylvania.

Robbery carries an adult penalty of imprisonment for up to 10 years.

Larceny carries an adult penalty of imprisonment for up to five years.

Edward Terry was charged with assault and battery and conspiracy, those are misdemeanors which for an adult carry imprisonment penalties of up to two years.

One of the contentions made by the opponents is that juvenile court judges view their role in fact finding as something very different than their role when they are sitting as juvenile court judges.

But I respectfully direct the Court’s attention to page 16 of the appendix where the Court makes the finding and the Court says and I quote, “the Court adjudicates him delinquent of larceny and robbery, does not adjudicate the juvenile delinquent of receiving stolen goods”.

So its clear that the Court’s frame of mind as it approaches solely the fact finding issue is very much the frame of mind of a judge when he is trying the facts in an adult criminal case.

Chief Justice Warren E. Burger: Well, how could he do it any other way when there are multiple specific acts of delinquency alleged?

Wouldn’t the whole process be worse off if he didn’t pinpoint his findings?

Mr. Daniel E. Farmer: It might be, worse off Your Honor.

All I’m saying is that the process in the juvenile court, a fact finding is almost identical even in terms of the mental processes through which the judge must go with what the judge goes through in an adult bench trial for the same crimes.

Edward Terry was committed to a state correctional institution.

Joseph McKeiver was placed on probation.

Justice Byron R. White: Did I understand you to indicate that in Pennsylvania, there’s no effort in the juvenile court system to protect the juvenile from the stigma that many times attaches to the criminal trials or convictions of adults?

Mr. Daniel E. Farmer: Mr. Justice White, there is an effort to protect them, the results are somewhat spotty.

In Philadelphia, there is a serious problem created by the fact that the police maintain a parallel set of juvenile records over which the juvenile court exercises no control.

And so in cases that the police department deem to be serious, --

Justice Byron R. White: Well, yes, but the juvenile --

Mr. Daniel E. Farmer: -- they release the information.

Justice Byron R. White: The police can’t maintain a parallel set of records of what happens in the juvenile court because they don’t know.

Mr. Daniel E. Farmer: They do seem to know Your Honor.

When a juvenile is --

Justice Byron R. White: You said they were -- the police have a practice releasing them directly?

Mr. Daniel E. Farmer: In juvenile cases which the police consider major, the fact that a person has been arrested and charged and his past record appears in the newspapers and I’m a member of a bar association committee that’s trying to do something about that and as far as we can tell that information comes from the police, they don’t deny it but they won’t comply with the committee’s request to stop doing it.

Justice Byron R. White: Well, the police -- I mean in -- police make the arrest of juveniles all around the country and turn them over to the juvenile authorities and you’re just saying that in Pennsylvania they make a record of that?

Mr. Daniel E. Farmer: That’s right but their record also shows the past juvenile record of this particular juvenile and it also shows the dispositions.

Justice Byron R. White: Of arrest?

Mr. Daniel E. Farmer: Of convictions.

Justice Byron R. White: Now, how do they get the conviction?

Mr. Daniel E. Farmer: I don’t know how they get the convictions Mr. Justice White.

Justice Byron R. White: Well, what does the law require in Pennsylvania?

Mr. Daniel E. Farmer: You mean what does it require by way of police record keeping?

Justice Byron R. White: No, what does it require to terms of confidentiality of juvenile court record.

Mr. Daniel E. Farmer: The law states that juvenile records will not be open to indiscriminate public inspection but that the records may be seen by anyone having a “legitimate interest.”

Justice Byron R. White: Does that include the military?

Mr. Daniel E. Farmer: As far as I know it does.

Unknown Speaker: And it includes the -- if the -- if any other Police Department from around the country writes to Pennsylvanians, do you have a record, we have so and so in custody here for stealing a car, does he have a police record or does he have any kind of a record, will the juvenile record be given when they reply to that response?

Mr. Daniel E. Farmer: I believe it would if they sought that information from our Police Department.

Unknown Speaker: Well, how about from the juvenile court?

Mr. Daniel E. Farmer: I don’t know.

I know that employer’s demonstrating some kind of legitimate interest to get the information I know that --

Justice Byron R. White: Directly from the juvenile court?

Mr. Daniel E. Farmer: I believe that they can.

Justice Byron R. White: You have a separate juvenile court system don’t you in Pennsylvania?

Mr. Daniel E. Farmer: Yes, it is a separate division of our Court of common pleas which is the Court of general jurisdiction.

Justice Byron R. White: Is that throughout the state?

Mr. Daniel E. Farmer: No.

Chief Justice Warren E. Burger: Was that changed any in the recent constitutional revision of Pennsylvania?

Mr. Daniel E. Farmer: Mr. Chief Justice, the constitutional revision had this effect.

The County Court which was formally a court of general jurisdiction but limited civilly, those judges became judges of the family division of the court of common pleas.

So that the present judges of the family division are judges who used to be judges of a court of general jurisdiction but with limits on the jurisdiction.

The issue that seems to have drawn the most fire from the other side and which seems to be at the heart of this case is whether or not the grant of the right to jury trial will interfere in those distinctive features of the juvenile court process which hold out promise that the system may in the future become genuinely rehabilitative.

I would like to go through the juvenile court process step by step to persuade this Court that the bulk indeed almost all of the juvenile court process that relates to, its rehabilitative purposes will not be touched by jury trials which affect only fact finding.

Justice Byron R. White: What is your basic constitutional position, is it a -- is it a due process argument or are you saying this is a straight and simple criminal proceeding in the Sixth Amendment right rest upon it?

Mr. Daniel E. Farmer: Mr. Justice White, I agree that the standard to be applied in deciding the constitutional issue is whether or not fundamental fairness requires a jury trial in juvenile delinquency proceedings.

The heart of the argument on that point it seems to me is that every feature of the fact finding face in adult criminal cases which demands the right to jury there, it also appears in the fact finding face of the juvenile delinquency process.

Justice Byron R. White: But you weren’t -- you weren’t saying that this is a criminal proceeding and therefore the Sixth Amendment?

Mr. Daniel E. Farmer: No Mr. Justice White, that seems like an overly simplistic argument to me.

The fact finding -- the features of the juvenile court which distinguish and which hopefully will someday lead to it becoming a genuinely rehabilitative system are first that it has a socialized intake procedure, that is when an arresting officer comes in with an offense, he maybe able to make out that the crime was committed but an employee of the juvenile court may decide that there will not be a delinquency petition filed but the case will be adjusted.

The juvenile court judge has a broad range of alternatives available to him in terms of disposition of the juvenile prior to the hearing.

He could even begin the diagnostic and evaluative faces of the juvenile court process at that point and save some of the delay which the other side seems to be so worried about.

Finally, when we turn to the trial itself, there’s a great deal of talk from the other side about jury trials ripping out the socialized process of the juvenile court, jury trials interfering with the juvenile court judge’s ability to guide and mold the hearing.

Juvenile jury trials injecting formality into the hearing.

Those ideas have tremendous evocative power but when we turn to analyze them in detail, I think it can be seen that the -- those notions what the judge can actually do are not going to be adversely affected by agreeing of the right to jury trial.

In its brief, the national council to juvenile judges suggested as its only concrete meaning to guiding and molding by the juvenile judge that the juvenile judge will no longer be able to make findings of delinquency on hearsay evidence but 1202 in its right to confrontation and cross examination is now precluding findings of delinquency based on hearsay evidence.

Chief Justice Warren E. Burger: By hearsay I take it you’re referring primarily to the traditional type of hearsay that was used in juvenile court by way of the judge acting on reports accumulated by the social workers and others?

Mr. Daniel E. Farmer: Mr. Chief Justice, I’m not referring -- I’m referring to that kind of hearsay.

Chief Justice Warren E. Burger: You’re not limiting to that though.

Mr. Daniel E. Farmer: I’m referring to that kind of hearsay but the reports of the social workers and the probation officers, that kind of hearsay will still be admitted in the dispositive phase of the --

Chief Justice Warren E. Burger: Treatment, the treatment.

Mr. Daniel E. Farmer: The treatment phase, the evaluative phase just as they would if the right were not imposed.

Chief Justice Warren E. Burger: But not on the determination of delinquency?

Mr. Daniel E. Farmer: But not on the determination of fact.

The heart --

Chief Justice Warren E. Burger: But is it true -- would it be fair to say that that type of report was widely used over the years by juvenile courts on the fact finding process?

Mr. Daniel E. Farmer: That was the conclusion that was reached in Gault and we still have a problem in that regard even in Pennsylvania today because the court personnel handed juvenile court judge the social history folder of the juvenile and that oftentimes the judge just doesn’t seem to be able to keep his eyes off the interesting things in that folder while the fact finding hearing is actually in process.

That folder by the way is a very interesting folder because it’s stored by family so that when he opens that up, he sees the social history not only for the juvenile before him but for all his brothers and sisters.

Unknown Speaker: That happens in this case, and on the record?

Mr. Daniel E. Farmer: That’s exactly correct.

Chief Justice Warren E. Burger: Well, do you suggest that that’s not a useful part of the process?

Mr. Daniel E. Farmer: I suggest that it’s a very useful part of the dispositive process, it’s not at all a useful part of the fact finding process.

Chief Justice Warren E. Burger: In this respect then you would move it to be just like any other criminal trial?

Mr. Daniel E. Farmer: In the fact finding phase?

Chief Justice Warren E. Burger: Right.

Mr. Daniel E. Farmer: Well, I don’t think that the jury trial compels any necessity for the trials to be public.

I don’t think that the jury trial compels any broader release of the records of the juvenile.

I think it’s still possible to maintain what limited kind of privacy the juvenile court now was able to enjoy and have jury trials too.

Justice Byron R. White: Well, you’d still I suppose have a juvenile present when you’re choosing a jury and to the extent that you’re -- you need a large panel up there to get a jury while you’re going to have a lot of people knowing about the trial that’s going on?

Mr. Daniel E. Farmer: Mr. Justice White, one notion that occurred to me to solve that problem is to try the juvenile by his first name and last initial.

To return to the point of the judge’s discretion in the fact finding hearing, the heart of his discretion it seems to me the only real legitimate discretion he has left in the fact finding is this power to find that in fact the juvenile committed the act which would be delinquency but to abstain in the social best interest of the juvenile from entering on the record an adjudication of delinquency, a jury trial won’t change that.

As I envisioned it, the jury will return a piece of paper which says we find that the facts alleged in the delinquency petition are established beyond a reasonable doubt.

At that point, the judge is still free to make his own determination of whether the child’s best interest requires an adjudication of delinquency or not.

He could even suspend the adjudication of delinquency pending some probationary period.

That’s all the juvenile court judge can do now.

So there isn’t going to be any reduction of the judge’s ability to guide and mold the fact finding hearing in any legitimate way that he can do that now.

There is also a talk about formality interfering with rehabilitation in the opponent’s briefs.

I think commonsense in the Scoldy (ph) opinion that cited in my brief makes it quite clear that if we’re limiting our look to the fact finding phase, there’s not going to be any rehabilitation during fact finding, formality or lack the formality in the fact finding phase has no effect really in rehabilitation at all.

Surely, half an hour being in the courtroom is not going to change behavior patterns which have been built up over a lifetime.

Chief Justice Warren E. Burger: Do you think there’s any constitutional obligation on the part of the state to give a different treatment, different in any respect to juveniles as compared with adult offenders?

In short, could the states simply say that we kind of wipe the juvenile statutes off the books and treat all juveniles as adults, the criminal process?

Mr. Daniel E. Farmer: I believe they could do that constitutionally, yes Mr. Chief Justice.

Justice Hugo L. Black: Could they do it then you -- I understood you’d argued this at all, the fundamentally unfair they couldn’t do it.

Could they do it?

Majority of the court will hold that it's fundamentally unfair?

Mr. Daniel E. Farmer: No, I don’t think they could Mr. Justice Black, but it seems to me that the rehabilitative notion of constitutional law that has appeared in some of the Circuit Court decisions is a notion of fulfilling a statutory promise, not whether or not there’s a priory affirmative duty under the constitution to rehabilitate children.

I’d like to turn to the question of delay because that’s one which is brought in as a strong argument that the grant of the right to jury trials will interfere with rehabilitation.

It’s argued that such a backlog will be created, that there will be a long gap between when the juvenile first enters the system and when the juvenile is tried and that the rapid changes in his personality will interfere with rehabilitation.

I think that the brief of the public defender of Washington DC shows quite well that the experience in the states granting the right statutorily has been that very few jury trials are requested.

In the District of Columbia, there has been a very special problem.

There had been a lot of request for jury trials and a serious backlog has been developed.

And the Congress worried about that backlog and in the belief that the backlog was created by the number of jury trial requests repealed the right to jury trial.

However, on page 17 of the amicus brief of the public defender of Washington, they cite a professional management study that was made at the District of Columbia juvenile court and the conclusion of that study was and this conclusion was not available to the Congress, the conclusion of that study was that contrary to the notion Congress had in its mind when they repealed the right that the reason there was a backlog was because there was not proper calendar control, not because there was a large number of request for jury trials.

So I think that in repealing the right to jury trial, Congress acted under a misapprehension of fact because it did not have that study available to them.

Chief Justice Warren E. Burger: Did that report on the District of Columbia show the correlation between the request for jury trials and the nature of the delinquency involved?

In other words, did it show that jury trials were demanded in the more serious cases and generally waived in the less serious cases?

Mr. Daniel E. Farmer: I have not seen the report itself Mr. Chief Justice, I have relied on the brief of the public defendant for my information about it and that’s not revealed in the brief.

Justice Byron R. White: Could I ask you to articulate perhaps what you think the jury trial will do to juveniles and their parents?

You’ve talked a lot about factual doing and what -- why aren't juvenile so interested in having a jury trial?

Mr. Daniel E. Farmer: The Duncan and Louisiana opinion as I read it, the reason that jury trials were found essential to fundamental fairness was that they were a protection against to use the language of the opinion, the compliant bias to eccentric judge, the over zealously corrupted prosecutor.

Justice Byron R. White: But in your own views, the juries contribute to accurate fact finding?

Mr. Daniel E. Farmer: That is my view Mr. Justice White and I think it’s supported by the research of Calvin and Zeizle in their book The American Jury which is cited in my brief.

Their conclusion was that in a significant percentage of cases, I believe 16% the difference in the factual --

Justice Byron R. White: Maybe 7%.

Mr. Daniel E. Farmer: Pardon me?

Justice Byron R. White: Maybe 7%.

Mr. Daniel E. Farmer: Perhaps it is.

The difference in the result between the jury and the judge was due to the jury having a stricter notion of what reasonable doubt required.

There are peripheral advantages, obviously having a jury solves the problem of the judge seeing this inadmissible evidence.

Justice Byron R. White: Well, you think you’ll get significantly different results in jury cases than with the judge cases in the juvenile court?

Mr. Daniel E. Farmer: Mr. Justice White, I’d answer that question this way.

I think if we looked at all the statistics of all trials, --

Justice Byron R. White: But as a lawyer in your prediction, your prediction, would you say you’re going to get significantly different results?

Mr. Daniel E. Farmer: Yes, especially in the case where in my judgment, I’d already limited the category cases to those where I had some affirmative reason for wanting a jury.

If I limit it to that category of cases, I’m very strongly convinced that there would be a sharp divergence in the result.

Justice Harry A. Blackmun: Specifically, do you think that you would have had different results in these two cases had there been jury trials?

Mr. Daniel E. Farmer: Yes Mr. Justice Blackmun, I think we would have -- let me review the facts of those cases very briefly.

Justice Harry A. Blackmun: They don’t whatsoever --

Mr. Daniel E. Farmer: Well, I think they’re such close cases that there is a high likelihood that they could have gone the other way with the jury, certainly in the case of Edward Terry where the judge approached the fact finding already knowing that the juvenile had been convicted on a previous occasion of burglary that knowledge would have been excluded from the purview of the jury and that in itself would be a strong reason for thinking that a different result would have occurred.

Chief Justice Warren E. Burger: What kind of factors would you take into account in making the decision, whether you would waive a jury or not wave a jury?

The age or the child, the kind of crime, I’m a little bit lost but you brought the subject and I wonder how you decide that issue?

Mr. Daniel E. Farmer: Well Mr. Chief Justice, I think some of the factors are really the same factors as would apply in an adult criminal case.

My notion about the disposition of the judge, the kind of judge that he was would be one of the factors.

Another one of the factors would be whether the evidence against the juvenile consisted entirely of police testimony.

Chief Justice Warren E. Burger: Well then, on your theory then, you got to make the choice of waiver of jury before you have the case assigned in large court as Philadelphia or Washington DC, you can’t be sure which judge you’re going to get until you’re assigned for trial and then you would have to have the right to waive, you demand the jury in the first instance and then waive that if you thought the judge would be better, a particular judge would be better?

Mr. Daniel E. Farmer: Well, my overall view about that Mr. Chief Justice is that in the interest of speeding the process and avoiding delay, there would be no constitutional objection to requiring the right to be exercised by a certain time we’re having at lost, that way, Mr. Specter’s concern about jury trial demands being used as last minute requests to delay trial and gum up the whole process would be met.

That of course would require you giving up the tactical advantage of knowing, being able to dodge a particular judge the way adult criminal defendants try to do but I don’t think knowing a judge, knowing who the judge will be and being able to dodge him by requesting a jury trial, is it all central to the constitutional issue here?

With the Court's permission, I’ll reserve the rest of my time for rebuttal.

Chief Justice Warren E. Burger: Very well.

Mr. Specter?

Argument of Arlene Specter

Mr. Arlene Specter: Mr. Chief Justice, may it please the Court.

Starting with the decisions in Gault, Winship and Duncan, I would submit to Your Honors that there is implicit in the rationale of those cases, the conclusion that jury trials are not required for juvenile proceedings.

That in Gault, this court said that due process of law does not require displacing the substantive benefits of the juvenile court process and this Court further said that the features of the juvenile court system are not to be impaired by constitutional domestication.

I think that what the Court referred to as it amplified its opinion and rationale in Gault was precisely this issue which is here today.

And the same import was present in the Winship opinion with the language that there was to be no effect on the formality, flexibility or speed of the juvenile court process and as the juvenile court process is taken up and come to groups with, it is precisely those factors reserved in Winship which militate against the jury trial.

The same thing I submit to Your Honors is President Duncan, one of the footnotes, there is a reference to the conclusion that there is to be no widespread change in the criminal process in the state and that this Court could encompass and envision an entirely fair process without the juries.

I think that brings us right to the central question which is presented in this case as to what the difference would be if there is a jury trial I suppose to a bench trial in the juvenile process and I would suggest to Your Honors that there would be a great loss in the intimacy of the proceeding, if you have a jury trial.

Yesterday, the question was raised in the North Carolina case as to whether the matter would be public.

I would submit to Your Honors that if you have 12 jurors who come into a courtroom to try the issue of fact that he would have more public participation than is present in most criminal trials, say in the city of Philadelphia, the audience is --

Justice Potter Stewart: What is this matter that Mr. Farmer addressed himself, the police having a duplicate set of records which in any event are released and so?

Mr. Arlene Specter: I think that Mr. Farmer is referring basically to the cases where juveniles are treated as adults.

We’ve had a wave of gang killings in the city of Philadelphia and where there is a determination that those juveniles should be tried as adults because we think the consequences should be long term confinement, the standard approach has been a certification to an adult court.

The police --

Justice William J. Brennan: Is that made by the juvenile judge?

Mr. Arlene Specter: That is made by the juvenile judge, yes Mr. Justice Brennan.

There maybe other records of arrest where they are processed initially by the police but there has been no issue in the city of Philadelphia raised at any court to my knowledge that the police are making any improper disclosure of any juvenile court records.

Justice William J. Brennan: Do they have access to the juvenile court records?

Mr. Arlene Specter: No Your Honor, they do not have any access to the juvenile court records.

Justice William J. Brennan: So they don’t know whether the -- whether he’s been adjudicated or not do they?

Mr. Arlene Specter: That is correct.

The police records do not contain the disposition of juvenile cases.

In fact, the police records customarily don’t even contain the disposition of adult records.

The police are not equipped by and large to have those dispositions.

Sometimes they do or don’t in adult records but they do not have them in juvenile record cases where the case was tried to the juvenile court.

Justice Byron R. White: But they necessarily have arrest records because they make the arrest?

Mr. Arlene Specter: Yes Your Honor they do.

When they take a juvenile under custody they do have a record of that but they do not --

Justice Byron R. White: Is that a public record?

Mr. Arlene Specter: No sir, it is not a public record.

It is a record which is customarily not disclosed.

Justice Byron R. White: If I wanted to hire a young man and was interested in knowing if he had an arrest record, and I wrote the police up there, would they tell me whether or not he had an arrest record?

Mr. Arlene Specter: I think they would not.

Justice Byron R. White: Or would they say it’s none of your business?

Mr. Arlene Specter: I think they would not, I know that they should not.

I would not represent to you that there is no way that it can't be found out but I think the standard --

Justice Byron R. White: Well, that’s true of almost anything?

Mr. Arlene Specter: Yes sir, yes sir.

The point that I would make as emphatically as I can that in Philadelphia, as in most big cities, there’s a super abundance of litigation and quite properly so as to the proper role of the police and the proper rights of juveniles and adults as well and there has been no question raised by a very active defenders office, community legal services and bar association about any improper disclosure by police of juvenile records and we have --

Justice William J. Brennan: How about the military, do they have access to --

Mr. Arlene Specter: I think that they do not Mr. Justice Brennan, but again, that is largely a negative inference on my part because no one has challenged it.

I know of no occasion when someone has complained about the military obtaining a record and I know of no such request and I think it would be the procedure of our juvenile court not to let anybody have those records because I think that would be an improper disclosure under our juvenile court law.

But this entire area of disclosure of records has just not been raised or litigated on the Philadelphia scene and we have raised and litigated virtually every -- many, many issues involving the allegation of improper police conduct.

Returning if I may, to the central question as to just what kind of a trial you have with the jury as contrasted with the judge alone, I would submit to Your Honors that there would be at least four factors which would come into play here.

As I would characterize them, the factor of intimacy, the father figure, the general flexibility and the aspect of speed.

With respect to the question of intimacy where there is a bench trial and a judge dissents and the juvenile is before them, there is a straight line between that judge and that juvenile and it is vastly different when you bring a jury into a courtroom.

As soon as the jury is in the courtroom, then there is the immediate import of the tactics of acquittal and quite properly so under our judicial system, the thrust of the lawyer for the defense is to do everything he can to secure an acquittal.

When there is a proceeding before a judge alone, lawyers respond very differently and so do those who are there to be adjudicated.

There is much less emphasis upon excluding material and now I’m talking about material which may properly be before a judge.

A judge has much wider latitude in accepting competent evidence that may go before a jury because of its possibly prejudicial effect.

It is a much more understandable proceeding for a juvenile when he is in a more informal circumstance.

I think that it is a consequence even for a lawyers and certainly for juveniles and certainly for other defendants that when a jury comes into a box and sits in the room, there is an immediate electrifying effect in terms of what that defendant does in an adult trial.

In terms of how he responds if there is an occasion noted, the side bar conference, there are waives that go before -- between a defendant in an adult trial and a jury and certainly, it is a very formalizing effect to have that jury present for a juvenile to know that those men are to judge him and are to pass upon this question in terms of his very basic reaction.

Justice Thurgood Marshall: Mr. Specter, assume that the juvenile’s lawyer explains all of that as eloquently as you have and the juvenile and his parent said we still want it, you wouldn’t give them?

Mr. Arlene Specter: No Your Honor I would not.

I would think that it is in his best interest that he not be tried by a jury.

Justice Thurgood Marshall: Well, he says I appreciate all of that but I’d rather take my chances on convincing one of 13 than not convincing one.

Mr. Arlene Specter: Well, there --

Justice Thurgood Marshall: Then why should he be denied then?

Mr. Arlene Specter: Because we must formulate a system which may not respond to his personal wishes or which may not respond to his personal likelihood of beating the ramp if that is undesirable for him as an individual and undesirable for society as a general rule?

Justice Thurgood Marshall: But he could, well, he wouldn’t object to waive at all of them pleading guilty would you?

Mr. Arlene Specter: I object to it if it was not well found in, if there was no evidence behind it.

Justice Thurgood Marshall: Well, I would say that a lawyer that’s as good as you are and has explained to do what?

Mr. Arlene Specter: There is a great deal that has to be ascertained beyond his mere decision to plead guilty.

We have to --

Justice Thurgood Marshall: Well, do you still have the Pennsylvania the possibility of a jury and has equity proceeding?

Mr. Arlene Specter: We have the possibility of advisory juries --

Justice Thurgood Marshall: Why?

Mr. Arlene Specter: -- but that is discretionary and have equity trials --

Justice Thurgood Marshall: Why couldn’t we have a jury in the juvenile court, we move in six or 12 seats, extra seats and put a jury in that side and the jury’s sole job is to find fact, is this person delinquent or not?

All of the rest of his beautiful thing that you do for juveniles, the juvenile judge still does, what’s wrong with that?

Mr. Arlene Specter: I would submit to Your Honor that the juvenile would get less under that system and I would move ahead to part of my Duncan argument in responding directly to Your Honor.

Justice Thurgood Marshall: That’s right.

Mr. Arlene Specter: That a juvenile gets more under the current juvenile system than he would get under the jury determination and as Your Honor formulated that question, an advisory jury to make a determination that he is a delinquent and that’s the critical question, not did he commit the act but is he in fact delinquent, and under the current juvenile system, a juvenile gets more because he is not subject to confinement or subject to training or subject to an adjudication as a delinquent on a mere finding that he committed a specific act.

Every adult is, that is an adjudication of the delinquency but the juvenile is not.

Justice Thurgood Marshall: But the judge could still say that I don’t think that he is delinquent, I don’t think he deserved to be punished?

Mr. Arlene Specter: Mr. Justice Marshall, I don’t think he can do --

Justice Thurgood Marshall: (Inaudible)

Mr. Arlene Specter: I would say that that cannot -- if this court says to the states that a juvenile has a constitutional right to have a determination of did he do it or did he not do it, that you cannot then separate that out from a determination as to whether he’s a delinquent, that’s going to be the very next case when a judge makes a determination that he is a delinquent on a factual finding that he committed the act.

Then there’s going to be the question, oh no, that’s the ultimate question in this case and that is a question for a jury.

It is fundamentally unfair to let the judge make that determination and then we become involved in the impossible issue of charging a jury on what the factors are to constitute a delinquent status.

It is possible, difficult but possible, we’ve done if for centuries to charge a jury as to making a factual determination.

Did he commit the larceny or did he not commit the larceny.

But as soon as you move from that question to a judgment, did he in fact become a delinquent as a result of this complex circumstances, you are moving away from what a judge has to do and to what a jury has to do.

A jury returns a verdict.

Justice Thurgood Marshall: Let me cut back now.

A jury just found the fact that he committed the larceny, I don’t think that changes your argument at all, would it?

Mr. Arlene Specter: The jury finds the fact that the juvenile in fact --

Justice Thurgood Marshall: (Inaudible)

Mr. Arlene Specter: Committed the larceny.

Justice Thurgood Marshall: You know.

Mr. Arlene Specter: Yes sir.

Justice Thurgood Marshall: That’s all?

Mr. Arlene Specter: Yes sir.

Justice Thurgood Marshall: Then he goes to the judge to decide whether he’s delinquent?

Mr. Arlene Specter: Well, if you are to accord --

Justice Thurgood Marshall: Save my hypothetical?

Mr. Arlene Specter: I’m sorry I didn’t hear you sir.

Justice Thurgood Marshall: I’m trying to save my hypothetical.

Mr. Arlene Specter: Well, I think that you can fashion the system to try to give the juvenile, a benefit of the verdict and then to try to preserve something for the judgment of delinquency but I think -- I think that when you do that, you make it infinitely more difficult for the judge then to say in the face of that verdict that this juvenile is not delinquent.

After all, in the fact finding process, the judge has a great deal of discretion to put it perhaps overly bluntly, he can hide behind a finding that there is not proof beyond a reasonable doubt.

He can base his decision for those witnesses who have been there, that he does not believe or tends to weigh or finds on burden of proof that the Act was not committed.

So that when he makes the adjudication that the juvenile is not a delinquent, he has a much easier time doing that if he is not faced with a verdict from a jury that the act in fact was committed.

Justice Byron R. White: Well, Mr. Specter, in Pennsylvania as a matter of fact -- isn’t a the adjudication of delinquency automatic when it’s found that he committed the act?

Mr. Arlene Specter: Mr. Justice White, I don’t think so.

I don’t think so because --

Justice Byron R. White: In Pennsylvania?

Mr. Arlene Specter: The judge sits, no sir, it is not.

The judge sits and he makes the determination as to what’s happened in the case and very frequently, he will make an adjudication that he is not delinquent.

Now, he does not put on the record or does not articulate or speak out as to what facts he has found.

Justice Byron R. White: Well, in Pennsylvania, when a juvenile judge tries a young man for committing an act which would be a felony committed by an adult, does he at that time have the probation officer's report on the young man?

Or the juvenile court officers report on the young man?

Mr. Arlene Specter: He should not, he should not have that --

Justice Byron R. White: Well, does he?

Mr. Arlene Specter: -- report.

I think he still does to some extent because we are still learning from Gault.

Justice Byron R. White: But when he -- he surely then.

If you say it’s a two states process, he must have the report after he finds he committed the act and before he decides whether he’s delinquent?

Mr. Arlene Specter: I do not think that it is -- that the juvenile court judge can properly have his background before he makes an adjudication of delinquency.

I think that --

Justice Byron R. White: Well, then what difference would it make whether it was a jury question or a judge question?

Mr. Arlene Specter: Because, the issue is raised at that stage without regard to his prior record.

I think that the judge can take the --

Justice Byron R. White: On delinquency?

Mr. Arlene Specter: Yes sir.

I think --

Justice Byron R. White: Separate determination?

Mr. Arlene Specter: No sir, I think that the question of his record is to come into play when he decides what the disposition is to be and I don’t think he can have, he can have his prior record before him when he makes a determination of delinquency.

I think that is going too far at stage of the proceeding.

Justice Hugo L. Black: Is it possible for him to find delinquency, that he’s guilty of delinquency without also finding he had been guilty of some kind of conduct that is prohibited by law?

Mr. Arlene Specter: I think he must find the underlying prohibited conduct before making a determination of delinquency, the judge would have to do that.

Justice Hugo L. Black: Whether you call it delinquency or not call it delinquency, in any instances the purpose of the Court is to find out if he is engaged in some conduct that violates the law?

Mr. Arlene Specter: Correct.

Justice Hugo L. Black: Is it necessary in every case of the jury?

Mr. Arlene Specter: Indispensable as a matter of fun -- as a matter of the Gault requirements before there can be an adjudication of delinquency.

I would --

Justice John M. Harlan: Was your argument was that – would you happen to say (Inaudible)

Mr. Arlene Specter: Precisely Mr. Justice Harlan, for a wide variety of reasons, that judge can believe that the act was committed but can conclude that the interest of the juvenile, the overall interest to the system.

Justice John M. Harlan: The very essence of this law of special procedure, is that why you – you have to called criminal procedure or penal procedures or anything you like, that’s the, at least theoretical consideration behind the whole thing?

Mr. Arlene Specter: I think that’s the critical question, that’s the broader benefit which the juvenile gets that he cannot get if there is a jury present.

Justice Hugo L. Black: Suppose you have two persons up before the Court, one of them is 20 years, 364 days old, one of them is 21 years of age who committed the same acts, you mean that under the law, they could be treated differently by reason of that one day as difference in age?

Mr. Arlene Specter: Yes Mr. Justice Black, I’d say precisely that, you have to draw a line somewhere and that’s the line.

Justice Hugo L. Black: Yeah.

Mr. Arlene Specter: If I might --

Chief Justice Warren E. Burger: But suppose we draw that same line now in another area and many other areas, one would be on the liability of an infant for his contracts, is that as I assume that’s true in Pennsylvania?

Mr. Arlene Specter: Yes sir.

Chief Justice Warren E. Burger: Of course its totally different area, several?

Mr. Arlene Specter: There are enormous numbers of – varies in the law Mr. Chief Justice where the juvenile gets different consideration, different treatment.

Chief Justice Warren E. Burger: He doesn’t get drafted for one thing and if he gets over age 26 or something like that, then he doesn’t get back to it again?

Mr. Arlene Specter: Then he gets social security at 65.

There are many differences on ages in our entire system and with a rational basis they are upheld.

Everybody is not treated the same, you must have a cut off line and that line is the age.

Chief Justice Warren E. Burger: The question though then is whether that’s a rational basis when it comes to the administration of penal law, I’ll use that term to get away from criminal?

Mr. Arlene Specter: We’ll, let me move in response to that if might, skipping parts of the argument because of the time problem into this issue of promptness which I submit shows that the juvenile gets a much better treatment the way the court systems work in practical consequences.

In the city of Philadelphia, we are able to deal with our juvenile problems in a much better manner because we do not have the jury trial as a matter of the administration of criminal justice contrasted with the administration of criminal justice for adults.

For example, in the first 10 months of 1970, we have tried slightly less than 13000 adult cases contrasted with slightly less than 11000 juvenile cases.

We have 25 judges on an average trying those adult cases.

We have five judges on an average trying those juvenile cases.

Justice Hugo L. Black: Do you think that has anything to do with deciding constitutionality of the thing?

Mr. Arlene Specter: Mr. Justice Black, I think it does and I think it does --

Justice Hugo L. Black: What do you tell them?

Mr. Arlene Specter: I think that it has to and I would move over to what Mr. Justice Douglas said in Debacker versus Brainard when he pointed out that the juvenile court have not come along as everyone had hoped that it would because there was not the kind of a municipal budget to handle the problem.

And I think that when you evaluate the juvenile system and say that it is a horrendous system and point to the faults of it, I will not stand here and say that it is a perfect system but I will say that if you compare it to the adult system, it is vastly preferable.

I will not argue that the schools are models for juveniles.

In Pennsylvania, although I think it’s irrelevant to this in any event but they are vastly superior to the prisons for the adults.

That when you come down to what happens as you dispose in a big city like Philadelphia of 11,000 juvenile cases and 13,000 adult cases, we have a backlog in Philadelphia on the adults of almost 6,000 cases contrasted with 1,400 for juveniles where we are current.

We can give a juvenile and adjudicatory hearing in two weeks in the city of Philadelphia.

Not all are tried at the first listing but they’re tried promptly.

On the adult side, they go on for six months, 12 months, or even 18 months.

We have in confinement in the city of Philadelphia today on the adult side 1,885 adults awaiting trial.

We have juveniles, 249 on a system where about half fit in as adults and about half fit in as juveniles, so that the practical consequence of this juvenile system is that you get the juvenile to Court in a hurry by comparison to the adults and if there is any juncture where rehabilitation and the accurate of the fact of a prompt trial, never mind where he is sentenced, where he’s sent, but the curative effect of a prompt trial, it is certainly in the formative stage of a young man's life, 15 or 16 where its done very promptly, much more important to give him that kind of immediate hearing and immediate determination than it is someone who is much older.

Unknown Speaker: If I’m not mistaken, many people who oppose trial by jury at all work for adults or anybody else, well, the main arguments is that it cost too much.

Mr. Arlene Specter: Well, I do not believe, it would be appropriate under our constitutional form of Government to make any shift from the traditions on adult trials, I think that they are arms length proceedings, it is deeply ingrained in our system and I think an adult is entitled to a jury trial.

I think that one day they will presented to this Court the conflict on the constitutional right to a speedy trial, with the constitutional right to a jury trial and I would suggest to Your Honors here this morning that the establishment of priorities is a matter which must affect all deliberative bodies.

It would be preferable to keep out the question of priorities in the determination of constitutional issues but it is something which is just implicit.

We have in our system today a juvenile court responding to an inquiry made earlier by Chief Justice as to our new system.

Our juvenile court now is a part of our overall court system.

If we have jury trials in the juvenile courts, there must be necessarily a movement of judges from the adult courts into the juvenile courts so that the system will become more aggravated.

We have been attempting in Philadelphia for the last four years to get 30 additional judges for the city of Philadelphia urgently needed.

And because of state financial problems, we cannot get those judges for the City of Philadelphia.

This maybe irrelevant in terms of the theory of constitutional law but it’s a very major practicality.

We have in Pennsylvania today a mandamus action brought by the Philadelphia City Courts against the Philadelphia City Council, to compel the council to put up $4,000,000.00 to run the Courts and we have gotten the judgment in the lower court and it is now on appeal to the Supreme Court and there is a ticklish issue of division of responsibility as to whether the Courts can compel a legislative body that provide more judges and necessarily to increase taxes, but that is where we are in the City of Philadelphia.

And if we have the necessity for juvenile jury trial, I’m not going to say to you that its going to overwhelm our system because that might be placing the issue of finance is too high but I will say to you is that it will leave the juvenile in much worst shape than he is today because when there is an opportunity for a jury trial, it becomes to a large extent a device for delay which is used with total propriety by a defense lawyer to get the case continue.

We have a practice in Pennsylvania of having the waiver signed at the time of trial, must be signed by the trial judge before whom the case goes.

We could not under our practice have a waiver in advance, and the question is to whether the case will be bench trial or jury trial is determined when the defendant is called before that specific judge and the decision is made as to whether the defendant can get is more likely to be acquitted by that judge.

We have in the city of Philadelphia along the 13,000 cases we’ve tried this year, only 226 jury trials, less than 2% of our cases in adult court are tried to a jury.

It is estimated that between 30% to 50% of the cases there is a demand for a jury trial and it is made as a tactical device and no one and I do not now quarrel with that tactical device.

But if it is present in the juvenile system, it will necessarily I submit to Your Honor result in great delay.

Justice Hugo L. Black: Well, would there be any likelihood that the percentage would be any greater by asking a child by jury among the juveniles and the adults?

Mr. Arlene Specter: Mr. Justice Black, --

Justice Hugo L. Black: Did you say 226 of what now?

Mr. Arlene Specter: 226 jury trials --

Justice Hugo L. Black: Adult court?

Mr. Arlene Specter: -- adult court out of almost 13000, less than 2%.

Justice Hugo L. Black: Is there any reason to think that there be any more than that?

Mr. Arlene Specter: No sir, I would --

Justice Hugo L. Black: You rule out that (Inaudible)

Mr. Arlene Specter: No sir, I would predict there would be very few jury trials but its present would be a great delay because when a case is called, it would be continued because there is not a jury available.

When a judge has a list of say 20 cases, we have them in our Philadelphia adult courts.

The judge may dispose of 12 cases on that list if he tries them on a bench trial.

If the jury demand is made, that case is put over, its put over and its put over and its over until its continued 6, 8, 10, 20 times, so that the opportunity for demand will result in great delay.

Justice Byron R. White: Mr. Specter, 2% of your adults actually go to trial court jury?

Mr. Arlene Specter: Yes Mr. Justice White.

Justice Byron R. White: And it follows from that argument like it does in the juvenile -- in the context of the juveniles that you should dispense with jury trials in the adult cases?

Mr. Arlene Specter: No Mr. Justice White, I do not say that.

I think that our traditions are too firm in terms of according an adult criminal defendant the right to jury trial and --

Justice Byron R. White: In short you think that that 2% that want the jury isn’t important enough consideration to retain the right?

Mr. Arlene Specter: Yes, I do.

I think -- I think it is important enough and I think that the distinctions between the adults and the juveniles for the other reasons that I have given justify the difference in treatment between adults and juveniles in terms of our entire tradition, and I would close on just that note.

Justice Hugo L. Black: Do you suggest there’s (Inaudible) that twice when you’re referred to the value of jury trial, at least thrice, you will not say this just because it’s under constitution, you said it's good because it's tradition.

Mr. Arlene Specter: Mr. Justice Black, had I selected my words with perhaps more amplification, I would have rested it on the constitution, I think it is in the constitution because if it is in our tradition and I think our constitution has embodied the tradition of our concepts of fundamental fairness and justice.

Justice Hugo L. Black: Do you think the course of the constitution, I’m not talking more about this issue.

You think of course that the constitution should be enforced where it costs much and a little?

Mr. Arlene Specter: Yes I do, I do, but I think necessarily that when there is an extension of constitutional right, as the constitution is interpreted differently in different eras of that, there is a necessary balancing process that this Court must undertake and that it necessarily involves the issues of priorities and I would put it in terms of the juvenile being treated worst under a modified system as opposed to the present system.

Chief Justice Warren E. Burger: Thank you Mr. Specter.

Mr. Farmer, you have about five minutes.

Rebuttal of Daniel E. Farmer

Mr. Daniel E. Farmer: Thank you.

Mr. Justice White, you asked whether or not a finding that the crime had been committed automatically led to a conclusion that the child was delinquent, the answer is a bifurcated one.

If you read the words of the juvenile court law, the answer is yes.

Justice Byron R. White: That’s what I though by reading the law.

Mr. Daniel E. Farmer: But the clear practice of the juvenile court is otherwise.

The juvenile court has created for itself a category which they call and I quote “determined.”

And when they write determined across the juvenile delinquency petition, it means that facts were found but for sociological reason, the juvenile is not being adjudicated a delinquent.

Justice Byron R. White: And when the judge does that, it’s because after he has found the facts, perhaps he has some other information?

Mr. Daniel E. Farmer: That’s correct and there’s no reason why that couldn’t happen with the jury trial.

Justice Byron R. White: Yes, yes, but now as a matter of practice in the Pennsylvania, does the judge have the juvenile’s record before he makes the determination of fact?

Mr. Daniel E. Farmer: It is handed to him and some of the judges look at it, not every judge looks at it, it’s up to the --

Justice Byron R. White: But at least he has it once he’s made the finding of fact?

Mr. Daniel E. Farmer: There’s a little pile of them beside the bench when the juvenile’s case is called, the clerk hands up the folder to the judge.

Justice Potter Stewart: Mr. Farmer, is it possible for the juvenile judge to find that the young man or woman did not actually do this act on which he is now being charged but nonetheless make a finding that the young person is a delinquent?

Mr. Daniel E. Farmer: It’s not possible Your Honor.

Justice Potter Stewart: That’s not possible.

And while I’ve interrupted you, let me ask you another question.

There was a talk in previous colloquy about a plea of guilty, are there formal pleas in a juvenile?

Mr. Daniel E. Farmer: There are --

Justice Potter Stewart: -- court?

Mr. Daniel E. Farmer: There is a pretrial hearing in which pleas of guilty are received and they are bargained for and one who pleaded guilty is received at that pretrial hearing, a disposition is made right at that point.

Justice Potter Stewart: Now, is that guilty of being a delinquent or guilty of yes I did steal the money but nonetheless, I ask you not to find me a delinquent?

Mr. Daniel E. Farmer: Since the plea of guilty always results in a disposition, I can only assume that in fact he is pleading to the legal conclusion of an adjudication of delinquency.

Mr. Specter spoke about four factors that a jury trial were going to interfere in intimacy and the role of the judge as a father figure and special informality.

The record in this case is entirely reflective of the practice of the juvenile courts and the Court will look in vain in that record for any special intimacy between the judge and the juvenile or any father figure role playing by the judge.

As far as fact finding is concerned, it’s like a criminal -- an adult criminal bench trial pure and simple.

Mr. Justice Brennan asked what the law of England was.

On page 19 of my brief at footnote 24, there is a citation to the act in England which provides for the right of jury trials where the juvenile is over 14 and is charged with an indictable offense as an act of delinquency.

Mr. Specter and I are in square disagreement about what the police records are.

Justice William J. Brennan: Where does he try these cases?

Where he demands jury trial, he’s not tried before the magistrate court, is he?

Mr. Daniel E. Farmer: It is the Magistrate’s Courts Act Mr. Justice Brennan but I don’t know exactly what the mechanics are of which court he’s tried in.

Mr. Specter and I are in square disagreement about what the police records contain.

Mr. Specters says they don’t record dispositions, that's just wrong.

On page 21 of the brief, there is a citation to a study undertaken for National Institute of Mental Health by the distinguished criminologist Celine and Wolfgang, that study uses as its source of statistics, the police records because the juvenile court records were not made available to professor Celine and Wolfgang, so that if it weren’t true that the police records recorded all the facts of a juvenile’s history, that study which you see cited at page 21 of the brief would not be possible.

Thank you Your Honor.

Chief Justice Warren E. Burger: Thank you Mr. Farmer and Mr. Specter.

The case is submitted.

Print this transcript Transcript: 

Argument of Michael Meltsner

Chief Justice Warren E. Burger: Number 128, In re Barbara Burrus.

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

Mr. Michael Meltsner: Mr. Chief Justice, may it please the Court.

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

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

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

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

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

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

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

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

When they did not do so, they were arrested.

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

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

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

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

Chief Justice Warren E. Burger: Now, was there any commitment to incarceration of these petitioners?

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

Chief Justice Warren E. Burger: So they have never been confined?

Mr. Michael Meltsner: No, all the petitioners were placed on probation.

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

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

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

No claim is made in this case.

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

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

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

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

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

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

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

Mr. Michael Meltsner: In this case?

Justice Byron R. White: Yes.

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

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

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

Justice Byron R. White: Under new laws, excuse me.

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

Mr. Michael Meltsner: Petitioners made timely motions for a jury trial in the trial court.

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

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

Justice Byron R. White: And you think this argument to batters the position that imposing a right to a jury trial will not overwhelm the juvenile process?

Mr. Michael Meltsner: That is correct.

Justice Byron R. White: Alright.

Mr. Michael Meltsner: That is correct.

Chief Justice Warren E. Burger: Under state law, could these petitioners have been tried in criminal court under criminal penalties and (Voice Overlap)?

Mr. Michael Meltsner: No, they could not.

Chief Justice Warren E. Burger: They could not.

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

Chief Justice Warren E. Burger: Then these petitioners could have been waived?

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

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

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

Justice Byron R. White: Mr. Meltsner, could I ask you first before you go on.

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

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

Justice Byron R. White: So under current law there if the act is found to have been committed its automatic -- there’s an automatic conclusion of delinquency?

Mr. Michael Meltsner: That is correct.

That is my --

Justice Byron R. White: Because in some places that isn’t so.

Mr. Michael Meltsner: That is my impression, yes.

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

Justice Byron R. White: So there's -- but right now there’s no room for a judge saying he may have committed this act but he is not a delinquent child?

Mr. Michael Meltsner: That is my impression -- that’s the way I read the statute, it’s the question --

Justice Byron R. White: If there was room for that under the national -- North Carolina law, would you insist that the jury be given the task of deciding on delinquency as well as the task of deciding whether the act was committed?

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

Justice Byron R. White: So you would be content if the jury only had the task of deciding whether the act was committed?

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

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

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

Mr. Michael Meltsner: I am not certain how that would operate because I don’ really know what --

Justice Byron R. White: But which you could say relevant in North Carolina --

Mr. Michael Meltsner: I certainly do.

Justice Byron R. White: Under the present law, but not under the law at the time of trial?

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

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

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

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

He is not a specialist.

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

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

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

Mr. Michael Meltsner: Probation until 21, yes.

Justice Byron R. White: So that the younger -- the alleged defender is the longer his possible probation?

Mr. Michael Meltsner: That’s correct.

Justice Byron R. White: And if a boy is 20, he has less risk than one who is 16 so far as duration of control is concerned?

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Justice Thurgood Marshall: Mr. Meltsner, who would be the parents for the 14-year-old?

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

Justice Thurgood Marshall: The two of people could be their parents.

Mr. Michael Meltsner: Well, the -- this Court --

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

Mr. Michael Meltsner: That’s correct, yes.

Justice Thurgood Marshall: But where would the trial will be held, in the juvenile courtroom?

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

Justice Thurgood Marshall: Could you have it right in the juvenile court like some states do?

Mr. Michael Meltsner: Oh!

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

Justice Thurgood Marshall: Only when requested?

Mr. Michael Meltsner: Correct.

Justice Thurgood Marshall: But with the same judge?

Mr. Michael Meltsner: There is no reason why it could not be, there’s nothing in the federal constitution in which --

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

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

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

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

Mr. Michael Meltsner: No, we don’t ask them.

Justice Thurgood Marshall: We take the one that you want in this case.

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

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

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

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

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

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

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

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

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

Mr. Michael Meltsner: That is true.

That is position. (Voice Overlap)

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

Mr. Michael Meltsner: Yes, Your Honor.

Justice Byron R. White: So, you're not saying that the criminal proceeding throughout purposes subject to all the requirements of the Sixth Amendment?

Mr. Michael Meltsner: Certainly not.

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

Justice Hugo L. Black: May I ask you to repeat, how much you say you're limiting your claims?

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

Justice Hugo L. Black: What about the right to counsel?

Mr. Michael Meltsner: That was decided in Gault.

Justice Hugo L. Black: Well, which one do you think are left out?

Mr. Michael Meltsner: Well, certainly the right to public trial is one that is left.

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

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

Mr. Michael Meltsner: Sir, we make no claim that he cannot in this case.

Justice Thurgood Marshall: Not -- make no --

Mr. Michael Meltsner: We make no claim that he cannot in this case.

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

Chief Justice Warren E. Burger: Could the public be excluded going back to Justice Brennan’s question?

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

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

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

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

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

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

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

I would like to reserve my time.

Justice Byron R. White: Mr. Meltsner, do you think the next case however will demand the public trial?

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

Justice Byron R. White: Must we decide this as a criminal proceeding?

Mr. Michael Meltsner: If you decided as a criminal proceeding for all purposes, yes.

That is correct.

We do not ask the Court to do that.

Thank you.

Chief Justice Warren E. Burger: Counsel, I think we’ll not ask you to start for two minutes.

We’ll get in the morning in fresh.