James Arthur Brown v. J. D. Cox, Superintendent of the Virginia State Penitentiary

judgment City (Joel Hoffman, reverse and vacate the York “We Hillel New Gen., Lewittes, Atty. A. the district court. Samuel of Asst. Gen., Atty. Hirshowitz, New First Asst. briefly are Very reasons stated our appellant City, brief), on the

York involving the two-fold. Judges and Court Personnel. Legal Society Aid we hold McLaughlin, pro no se. court Section A. Michael acting Society since was not (Daniel Alterman, Rob- Reif L. James of v. law, under color state Lefcourt Kunstler, Boehm, Center M. ert William Legal Society, Aid Stephen Rights, M. for Constitutional 1971). (2nd relation to With City, Bron- Alvin J. Latimer, York New person- order directed at the Crisman, stein, Nancy Pris- National C. principle nel hold we that under C., Washington, Project, D. on comity known as federal district appellees. brief), for power court has to intervene City, Oliver, Jr., New York B. Lewis procedures internal the state courts. of Legal curiae, Aid of Association amicus The mandate is issue forthwith.” Attorneys City York. of New of Reversed. LUMBARD, TIM- HAYS and Before BERS, Judges. Circuit

PER CURIAM: appeal order

This is an from an for the

the United District Court States pre- York which Eastern District New

liminarily enjoined Legal Aid Soci- City ety from ac- New York acting cepting upon as- additional

signments felony in- the Su- cases BROWN, Appellant, James Arthur Kings County preme in New Court of average Superintendent COX, at- if of its J. D. York torneys caseload Penitentiary, Appellee. State exceeded The district ordered the of the Criminal No. 71-1089. also Clerk Kings Supreme Term of the Appeals, County, place States Court of calendar court’s Fourth Circuit. pro all motions inmates se filed Brooklyn House of Detention. Argued March order directed the administrator Decided June indigent Kings panel County defense attorneys endeavor make available to criminal await- defendants who are

ing grand jury or- action and it Legal Society

dered the Aid to continue represent until new such defendants assigned Supreme counsel were

Court.

Although the of this members panel sympathetic entirely were

court’s purposes the district sought judge accomplish or

der, felt we constrained to reverse law. from Our was delivered

the bench as follows:

agreed en banc court. The accordingly superseded earlier following opinion: background pro- The factual of this ceeding dispute. is not in At the time Meador, Prof. Daniel J. Charlottes- alleged of the commission of his offense ville, appel- (Court-appointed), for Va. robbery, petitioner years of the was lant. age. petition charging of him A with initially the offense was in filed the Ju- Shepherd, Jr., Atty. Robert Asst. E. and venile Domestic of (Andrew Miller, Atty. Relations Court of Va. P. Gen. (hereinafter Norfolk referred to Ju- Va., brief), appellee. of on for Gen. Court). affirmatively venile It does not appear the from Juvenile Court record Judge, HAYNSWORTH, Chief Before petitioner’s parents that either of was Judge, BOREMAN, and Circuit Senior ány present proceedings of the which WINTER, CRAVEN, BUTZNER, RUS- and it the followed conceded SELL, WIDENER, FIELD and Circuit guardian appoint did Court not li- ad banc, Judges sitting resubmission. en on represent tem or him. The counsel to petitioner Court found the Juvenile Judge: RUSSELL, Circuit DONALD purview the of the “within proceeding a habeas instituted and Court” referred tne "matter “to the This Virginia Department investiga- by prisoner, after exhaustion an Probation tion, for remedies, Jury to his in order secure be of state to made in Grand form.” outright Septem- im from a life sentence The release matter was continued until robbery investigation permit in the posed after conviction for ber to Corporation City September 3, of the of Nor On made. hearing relief.1 denied folk. The District Court Court conducted panel investigation by filed its appeal, made On the basis of remanding opinion,2 proceeded Department for the Probation and charges against required peti- in Kem transfer the such as was to (4th Maryland plen Corporation of of the v. State tioner Rehearing proceed- en banc City 428 F.2d 169. for criminal of Norfolk granted. rehearing, sought ings. On and made under TTieTransfer was Court, though 16.1-176, authority affirmance of District of Section grounds it,3 by stated Code.4 by opinion is re- District Court if committed The of offenses diction sucli however, ported adult; provided, at 819 an cer- not so court does event tify Cir., Reported 4th F.2d 1255 over, years age of or fourteen a child (1972). which, if com- charged an offense with Judge not have the able District did 3. The punishable by adult, be an mitted Kemplen, filed of our benefit peni- by confinement or death after his decision. some months twenty years period tentiary of life or a for attorney more, of or the Commonwealth’s courts; to other Transfer “§ 16.1-176. county, city to the if he deems or grand jury; presentment children un- may present interest, public excepted. (a) a child If der fourteen — jury of rec- grand charged years age or over is of fourteen a child ord, provided if further which, an if an offense committed age years who has older or fourteen previously punishable adult, confine- could adjudged within to come penitentiary after the court ment purview and domestic para- prescribed investigation an committing an of- for law relations court section, graph (b) character, indicating viciousness fense ju- discretion, may, retain its thereon which, if committed offense or an prop- certify for such child or risdiction punishable confine- adult, could appropriate proceedings er criminal penitentiary is subse- juris- having ment record authority peal thereupon indicted denied petitioner was The Guerry (1969) Corporation Pruitt v. robbery Va. the Norfolk for Continuing press January, his Court, pled S.E.2d claims, petitioner this habeas given commenced As a result life sentence. corpus proceeding begun by pe- District of habeas May a dismissal From conviction titioner petition by ap- the District he were, however, null declared sentence pealed to this Court. failure and void because guardian appoint a the Juvenile Court ad litem or counsel I. parents petitioner’s notify Petitioner raises two claims on ac- proceed- the transfer connection with he he count asserts is entitled however, ings.5 not, or- did First, urges to immediate release. direct- petitioner’s release but der the jurisdiction that the the Juvenile further ed detained await that he be to Court over him and his offense has nev- petitioner orders of Court. The the validly er been and terminated age. years this time was 23 order to it terminate and transfer valid thereafter, Shortly the jurisdiction Corporation Court, the a robbery, for the re-indicted same 1963 proper necessary. is transfer jury, tried and before found contends, however, He this late again imprisonment. to life date, sentenced years offense, ten almost the after contending He his second appealed, impossible it for the Juvenile Court trial was void re-trial as an meaningful because or other Court hold adult pro an offense committed nunc tunc transfer order juvenile with be inconsistent and, to effect such a transfer requirements the outright constitutional due circumstances, those release process equal protection. ap- only and proper remedy.6 The addition, is the In quently charged committing felony, tion of the law which is the cause of his attorney city being investigation

the Commonwealth’s of the the before court. Such county, or if he deems it to be in the an need not include examination of the public interest, may, preliminary psy- physician after a child or or minor court, and domestic re- the in its discre- chiatrist unless tion, court, present requiring lations the case to the If so directs. the court grand jury investigation court, court of record. the is a such duty may investigation agency It shall the be of the Common- be made attorney notify providing probation wealth’s service under 16.1- § 205; and domestic relations within court three . . . .” days adjudication after final if he deems See, Peyton (1966), v. French 207 Va. necessary. action Thereafter, the court of record 73, 739; v. 147 S.E.2d Kent United the decision as to whether 541, States present grand or not jury case to 1045, 16 L.Ed.2d 84. shall sole discretion of interesting claim, 6. It when domestic relations court. jury merit, grand upon If found has resulted returns a true bill conflicting results from indictment two Circuits. one, it induced the to conclude court to such shall termi- specified given ages Kent nate .... retroactive The application. age in this Mordecai United section refer v. States 198, U.S.App.D.C. alleged child or minor at the 421 F. time of recognized 1133, 2d commission of the 1137. The other offense. “(b) that under some the claim In all cases circumstances under this section the may, Reagan would warrant release. v. unless such information Wilson is oth- (9th 1965), cf., prior 46; erwise available in- Cir. 354 F.2d from (9th vestigation report court, Powell v. Hocker to another require 10; (D.C. investigation physical, F.2d n. James Cox Va.1971), F.Supp. 24; person- mental and social Miller condition ality (D.C.Wis.1971), v. Quatsoe child or minor facts surrounding and circumstances the viola- 1276-1277. argues plen impractical. before would be one Cir- As put jeopardy and him in cuit Court has observed a similar Juvenile any case, Corporation of him in the a decision the criminal “[w]hen retroactive, consequence the constitutional law is made is barred under jeopardy. prohibition double is not to free all whose convictions are Normally hearings new affected. both contentions without We find new trials will be held in some or all merit. States, cases.” Mordecai v. pra, su- at 1137. As a matter of II. fact, this demand for immediate release dispute There between “is the kind ‘drastic relief’ which parties proposition over the that the supreme cir- identical order entered the Juvenile transfer inappro- cumstances in Kent deemed Domestic Relations 1963 priate.” Langlois (1967), Knott v. pe for failure to accord the was invalid Kent, R.I. A.2d 773. Thus procedural process due titioner and that petitioner’s for the foundation con- thereafter, the conviction on the basis of sentence, stitutional attack on his earlier petitioner’s guilty plea Corpo require petitioner’s release; did not ration invalid.7 state rather, providing after for correction of declaring court has so concluded in procedural infirmity in the transfer complete nullity.8 conviction a Had the proceeding it authorized a re-trial. And petitioner been a in 1968 when customary procedure this is the in situa- voided, jurisdic his initial sentence was posed tions such as that here. Habeas tion over his offense have been remedy exploited is not to a be Court, vested in the escape guilty pro- in order to trial but a hearing, could have held a new transfer guilty cedure intended secure to compliance pe conducted in full innocent alike a trial free of constitu- rights.9 titioner’s constitutional But the Only tional defect. when the Common- petitioner longer juvenile; was no a unwilling wealth is to afford the defend- Thus, was an adult. the Juvenile Court proper.11 ant such trial is release jurisdiction had no further over him and longer his offense10 and he could no be though, fairness,

dealt with that did Court. But that Fundamental right retry public’s not mean that he was “home free” and demands that the because, crime, petitioner must be released forthwith as as an adult for a petitioner contends, a reconstructed committed while he was a hearing contemplated by subject processes waiver as Kem- See, Ferguson Slayton (D.C.Va.1972), v. in 29 of Pitts.L. commentator U. F.Supp. 276, (1968) it thus: Rev. states try ju- inequitable as it is “Just recently essentially 8. This conclusion was restated the same of- venile twice for may Jones Va. v. Commonwealth fense in order that confinement age, 192 S.E.2d is of it continue after the child so may equally unjust is to have who one Cf., go Black v. United States have crime to committed a heinous 104, 107; U.S.App.D.C. merely 355 F.2d because he has reached free Md.App. 356, jurisdiction Ingram, age In Re 291 A. has of 21 and 2d 78. terminated.” States, supra, 10. See Kent v. See D’Urbano v. Commonwealth 831, 836-837, 1059: N.E.24 Mass. petitioner passed reasoning “However has now where the stated the be Court age guilty petitioner of 21 and the Juvenile hind the rule that a longer jurisdiction right pun escape can no exercise over habeas has no “to for (Italics added) pub price him.” ishment at the of the loss of (Tex. Hight pun right” To same effect: shall be Texas lic 483 S.W.2d ished. upon ju- system, remedy petitioner, conditioned for this on the facts * * 13 (Italics added) kind dicial determination some this case improperly petitioner been prejudiced opportuni- the loss Kemplen short, stands for the hearing, ty, properly in a conducted principle ordinarily that, while a recon opposed have a transfer from the Juve- appro structed transfer is Beyond question, in 1963. priate prior remedy where transfer or petitioner preju- have been so der of the Juvenile has been inval diced if at such would have it procedural process idated due likely would have been been a transfer grounds and the Juvenile Court has lost refusal refused. would have Such of the defendant reason peti- meant that in event could the age, of his each must case be considered subjected tioner form have been facts, and, on its own if some other rem beyond twenty-first restraint edy or determination will not result in fairly year. Only could be if said petitioner fundamental unfairness to the would have been transfer appropriate and more under the facts made, carried had a out of the case and will contribute to a more safeguards had, constitutional expeditious issue, resolution of the try would it procedure adopted. should be issue Faced with same adult. Kemplen, attempted to After a careful review of the prob- procedure whereby the fashion a case, facts of this are of we the firm might lem case be resolved requiring not a public interest and fairness to both the pro a nunc tunc waiver right just to a defendant’s individual required Kemplen. have no diffi We determination. culty finding legal moral and to a cer background Kemplen tainty That that no Juvenile ordinary case, which we held record in this would have denied circumstances, proceed on petitioner, a determination this is- in transfer. The a place ing in sue should the context a take of in the before the fil Juvenile Court pro ing robbery tunc in charge, reconstructed nunc of had his 1963 been by which the Trial Court would decide treated the Court as an judge “what the would made adult. Such a circumstance trans light probably in in- presumptively proper of all fer have done the in connection might charge against any subsequent formation then available rea- with the proffered by compe- sonably juvenile, have could been unless the estab But, public as the in in tent counsel.” lish “that would be Kemplen declares, remedy dispose plainly this terest matter in the Ju remedy only remedy, not the nor is it a venile and Relations Court.” Domestic inflexibly necessarily applied Moreover, petitioner’s gravity blindly The decision was in all cases. offense it would unrea was such that remedy point any careful out sonable to would assume that adopted proper case was “the have It must denied transfer.15 be re- Kemplen, supra, 428 F.2d at 178. case to the record for court of (4th See, also, proceedings, v. Pettibone in the of Woodall absence finding public 465 F.2d 53 . it would be dispose interest the matter 428 F.2d at 178. Juvenile and Relations Court.” Domestic 14. In Watts v. Commonwealth petitioner’s 346, 347, Va. S.E.2d The crime was described Virginia the Court stated that District thus: statute, Court, August 1963, petitioner when con- “On sidering prior juvenile Accompanied years age. the situation of a his offender, duty certify year friend, they planned girl “under old peti- transfer, retrial of the called, too, that, after age of guilty.16 petitioner’s of- after he twen- had attained pled The tioner pre- ty-three, not violative of Consti- fense, admission, was by his own shocking rights petitioner. meditated; tutional it involved acts aggra- felony brutality; of an it was which, character, if committed vated III. adult, an rendered him liable have would twenty years. to a sentence excess petitioner asserts a second The It Nor it an isolated transaction. He con claim for release. immediate similar robberies was one several tends that in 1968 violates conviction petitioner. committed jeopardy proscription double Obviously, imposition It Fifth this be a on Amendment.17 useless claim is to the earlier convic Trial inadmissible not related judicial Corporation That waste re- tion in the Court. of valuable time to nullity. plain declared a mand a recon- conviction has case as for a been pro structed nunc tunc It is of moment that no propriety did than federal so on rather of a transfer. Had the state Juve- initially grounds. ei not ordered is the same in transfer The result record, Equally on is the rule of such a ther clear basis the Com- event.18 attorney voiding monwealth’s would have had that the of the 1964 conviction apply authority a new for transfer attack is bar collateral Corporation prosecution Corporation Court. In the same offense.19 for the must, petitioner’s jeopardy opposition to claim it is fair to assume double proceed therefore, transfer would not have been successful. find its basis Moreover, ings Such the circumstances in Court. the Juvenile were had transfer denied claim based Court, raises, either in one commentator the Juvenile Court or Cor- poration Court, finding aptly separate conceptual observed, of abuse “two application problems,” (1) discretion have been in order. “whether difficulty jeopardy Accordingly, protection have no double we context;” concluding appropriate here that a reconstructed point required (2) at- transfer what “at Cf., also, evening ques- petitioner. Brooks rob bus driver on girl pe- S.E.2d tion. The hoarded the hus Boles 151 W.Va. (D.C.Tex. Broadway v. Beto titioner followed. Petitioner concealed 526 and approved paper bag and, 1971) 827, 459 in a when hatchet 338 Court, however, poclcet pay Virginia reaching as if his in his to F.2d 483. The including proceeded fare, proceeding, the hit driver to bus found the entire hatchet, perma- nullity. rendering guilty plea, thus damage making him in- nent brain appear record that 17. It does from not capable performing any work for in the District claim raised this (467 1256, of his life.” F.2d at balance improper to dis- not be Court. It would 2) n. such fail- account of miss claim on That, however, respectable authority, 16. line ure to below. Under raise it Yeager litigation. (3d merely require of- further Smith v. representative 124, 126-127, reason, determined to 459 is that we have F.2d For proceeding. guilty idea, adequate this entered after in this resolve the claim advice, legal have been deemed any infirmity (1896), in waiver of the transfer Ball 163 18. U.S. United States proceedings. See, also, 1192, 662, 671-672, 41 L.Ed. Wilhite 16 v. United S.Ct. (1960) U.S.App.D.C. 279, States 281 108 300. 642, (opinion by then Circuit (1964), Judge Burger). holding, it had 19. v. Tateo U. Such United States 1587, adopted by Courts, 463, 466, L.Ed.2d S. 84 S.Ct. validated the first would have conviction * * * proceed- procedures juvenile have “no effect on the dis in a taches proceedings juvenile ing”.20 to that are tinctive prior employed adjudicatory hear to the by cases, influenced In a number of “ ing” compel and ‘will the States to not opinions Gault, it was in Kent and displace any abandon or of the substan rights as all constitutional assumed that ” 26 juvenile process.’ tive benefits of the applied in of adults the criminal trials Concurring case, in Justice Harlan that juvenile applicable A courts. are to “ expressed t the view is [I] leading to this effect great importance, my pro view, in that (D.C.1958), 168 F. States v. Dickerson constitutionally cedural not be strictures 221, U.S.App.D.C. Supp. 899, rev. 106 imposed jeopardize el that ‘the essential that in Kent 271 F.2d 487.21 It is true creating purpose’ ements of the juvenile in State’s proc required procedural due Burg courts.”27 Chief Justice proceedings in Gault ess waiver Stewart, dissent, er and Justice extending by supplemented to it Kent great voiced concern that the decision juvenile right notice of imposing proof such a strict standard right right counsel, charge, might unduly restrict right witnesses, confront and the courts. Later self-incrimination.22 Winship Recently, process Pennsylvania it found “due that McKeiver v. imposed 1976, on the fair treatment” 403 U.S. S.Ct. holding beyond requirement proof that L.Ed.2d courts guarantee during provided adjudica jury of a a reasonable doubt tory stage juvenile proceedings.23 applica- in the Fifth Amendment proceedings courts, case, ble em- But in latter phasized point out, anew it never been careful to it had done ear rights Kent,24 held lier in did not “that all constitution- its conclusion “ ally assumption entirely assured to accused of crime an adult ‘rest[s] juvenile proceedings are to enforced or made available are “crimi also all delinquency pro- prosecutions,” subject to the nal to con hence ” 25 ceeding opinion).”28 empha (emphasis stitutional limitations.’ It ruling its proceeded sized was intended to enunciate the Court then Note, Jeopardy Winship (1970), Double In Re 397 U.S. 358 Justice, Wash.U.L.Q. 702. at 25 L.Ed.2d 368. 90 S.Ct. favorably in 21. This case is commented on this to indicate do not mean “We but in 5 Howard L.J. 246 a Note held [in in Minn.L.Rev. 1253 a similar Note re- with all of the must conform court] quirements the commentator added at 1257 even a criminal trial or warning hearing; observation: but of the usual administrative problem “A created the conclusion must measure we do hold that jeopardy applies process up that double due to the essentials of necessity (383 of de- at fair treatment.” U.S. ciding 1057) to waive whether at question the criminal court before Winship, supra, n. may guilt hinder is determined 90 S.Ct. procedure juvenile cor- desirable ' See, 366-367, system.” 90 at rectional 26. U.S. at S.Ct. 397 course, comments, as as Of these well 1074. preceded McKeiver, dis- Dickerson itself See, 375, at 27. at 90 S.Ct. 1078. 397 U.S. later, have cussed and their conclusions substantially by that undermined See, 541, and 91 28. 403 at 533 S.Ct. U.S. Jeopardy Note, decision. Double Ju- at 1980 and 1984. 703, (1971 Justice, supra, venile at Wash. unique Por a discussion of con- U.L.Q.) juvenile courts, as stitutional status of Kent, Gault, reflected the decisions 22. In Re Gault 1 at 31- 387 U.S. McKeiver, see, Note, Winship Parens and 18 L.Ed.2d 527. 87 S.Ct. 630 ascertaining emphasized extent con- It should in the

test for what be adjudica- requirements appeal “su- stitutional are be under there was juvenile process. imposing per-imposed” tion in the con- on the Juvenile Court namely, petitioner. one, That finement or restraint test a two-fold right jurisdic- application course, is Of had that court taken whether necessary petitioner’s tion the achievement of “funda- offense for final disposition adjudication will dis- and mental fairness” whether it made an system.29 might rupt juvenile rep- confinement, court It it commitment that, a said under the established resents what has been described test balancing specific McKeiver, jeopardy need for the attach and a “the protection prosecution juvenile later as an constitutional State’s maintaining independent, in the criminal would violate interest an adult court system.”30 juvenile justice benevolent “fundamental fairness”. A number Applying test, not found cases have held.32 But that was so jury trial, requirement for a in the Juvenile course petitioner, obligatory after made under Fifth Amend- in this The case. adults, Corpo- hearing, criminal was transferred to ment trials strengthen all, greatly, latter at was that “would if ration Court not adjudication juve- fact-finding function, which alone made an [of guilt would, pro- petitioner’s imposed punish- contrarily, nile court] juvenile question court’s ment on thus vide an attrition of the him. The applying unique estab- ability whether, the test assumed to function in a case is hearing, right jury McKeiver, The lished in a waiver manner.”31 to a resulting testimony, accordingly imposed proceed- not with or without ings juvenile proceedings to the transfer of the courts. Statutory Vagueness him under the [Texas] trol afforded Patriae and indicted, tried, Act, Court, Juvenile Yale Juvenile 82 L.J. 745 748- (1973). after the identical offense convicted of ’ ” * * * age he roaches the of 17.” See, 550-551, 403 U.S. at 547 and also, Superior See, M. S.Ct. 1976. County (1971), 4 Cal.3d Shasta Cal.Rptr. 752, 664, 668, P.2d but (1972). Note, 24 Stan.L.Rev. cf., Gary In J. Re Steven commentator, recognizing while Cal.Rptr. 185, 189; Cal.App.3d by MeKeiv- this is the rule as illustrated er, Winship, (Colo.1971), People in Interest of P.L.V. Kent, critical G-ault and In these latter both of 490 P.2d cases, of the conclusion stated the Court. had dismissed the Juvenile Court at 1987. acquittal charges was deem and such jeopardy. (5th 1968) ed Hultin v. Beto recently summar- A commentator F.2d 216 is illustrative the line of ized issue thus: cases adjudicatory if which hold there is follow “It would therefore seem to followed actual guarantee against commitment, if double that jeopardy pro- applicable attaches. being ceedings dis- case, charged now context subsequent cussed, delinquency crim- court, it would bar testi prosecution decision mony juve whenever the charge, inal taken on is made after confessed, to waive Court ad began evidence judged him and committed him to (cid:127) peti- delinquency youth merits of the institution until he was One year later, tion. he was tried and convicted majority have of courts “The the criminal court for the same offense. have concluded the issue attack, considered In a collateral his conviction prosecution subsequent does voided, the criminal stating: the Court protection violate “ jeopardy.” adjudged double ‘A cannot “be Jeopardy Rudstein, in Juvenile custody delinquent Double child and held 266, Proceedings, M.L.Rev. 301 such, and, regard 14 W. & to how without (1972). may respond guidance and con-

631 court, guilt nile’s falls within the criminal provision What Ju- innocenee.34 In of the Fifth Amendment. venile is with at this concerned necessary stage resolving issue, amenability is is “the child to of the hearing place out the waiver mark rehabilitative measures available system. occupies court, necessity the guarding safe- of both would where such nile lar acts provide ronmental rehabilitated without tified. nized justice But fending juveniles, whose warranted an sary general pattern Juvenile Courts were act, types type respond for the Accordingly, in so it established of doing factors, assumption of there would be informal, largely non-adver- juveniles. proceeding, child, in connection with assumption that juvenile” to deal with rehabilitation, of behavior warranted legislature recog- “a dual If the established to whereby model many cases background not be system and envi- “particu- could assump- taint. juve- they jus- of- of tried as an adult or court is venile waiver ment of the upon ing liminary hearing liminary nile neither ly, it has been stated that “in criteria for decision which the determine whether the the heinousness of the “limited to one “A under the waiver statute finding the basis of required required nature of the public of appropriate nor authorized” at a to observe.” since its juvenile delinquency comparable put court.” from the conduct alleged person question which should be within the treat- purpose ^[37] to the offense.” ^[36] charged cases child, should be to a and the Actual- juve- is to com- pre- pre- ju- ^[35] rehabilitory control tion is, course, necessary It for the Ju- State,” retained then the Juvenile venile Court to have it at the before jurisdiction to establish and undertook waiver some information on the treatment which form of commitment or gravity and It nature the offense. accomplish rehabilitation. engage only inquiry must “an hand, the other should On alleged into the facts of the offense but conclude that rehabilitation Court unlikely par- question also into the whether the successful, it should waive patriae plan procedure ens is desirable juve- favor particular case.”38 It was nile in criminal court. information, Indeed, without such provision make that determination difficulty complying court would have hearings included for waiver requirement that the of Kent establishing legislation incorporate transfer order “a statement system.33 motivating the waiver the reasons do not involve the resolution The real issues in the waiver juve- including, the relevant facts.” course, (Italics added) a statement ^[39] (1959). fact, v. the Court Muse See, Note, 33. the Juvenile Waiver (D.C.Va.1971), Slayton (1968). 333 1149 68 Col.L.Rev. 1010, 1007, that a stated waiver Peyton (1967), See, 208 Va. 34. Cradle v. “comparable under the statute 877, 243, 874, cert. denied 156 S.E.2d preliminary hearing to a given which would 2296, 945, L.Ed.2d 88 S.Ct. U.S. an adult.” 1407. Jeopardy Cf., Note, and the Double (Iowa California’s 35. Waiver Jurisdiction v. Halverson State (1972) Shornhorst, Courts, See, also, 765, Stan.L.R. 874 N.W.2d 769. Rudstein, Jeopardy in Ju Double Jurisdic- The Waiver of Juvenile Court Proceedings, Revisited, & M.L.Rev. venile W. Kent 43 Ind.L.J. tion : (1972). Pee States 107 U.S. 29 N.J. State v. Van Buren App.D.C. 47, 554-556, 150 A.2d 652-653. Applied Note, Jeopardy at 1057. to Juve- Double See, also, Proceedings, v. Tate United States 43 Minn.L.R. Corporation Court, and in it, tion on the the Juve- facts before Without some being step preliminary intelligently vital pass on stead nile could offense”, proceedings, should be construed alleged in the “the seriousness aggres- creating the Fifth a bar under in an whether it “was committed subsequent trial of Amendment for juvenile sive, violent, premeditated or willfull * * * Corporation persons against or manner proceedings in would effect transfer so- property,” well as “the very completely purpose maturity” juve- frustrate phistication and system. juvenile scope of the court previous his- and and his “record juvenile no mean either that It would were tory.” these circumstances All tried in the criminal authorizing could ever be trans- considered pro adult, as an since a transfer courts in Kent. fer as mandated ceeding jeopardy such trial would bar juvenile grounds; or, plain hear entire that the waiver It is evidence, system ing, a vital would have be abolished with or without integral court pro step incorrigibles, procedural a few serious lest crimes, system. escape punishment juvenile As as adults. court cesses designed prompted fairness one Court such it to achieve considerations Such juvenile. improper public for “not to the and to the to conclude that it is both hearing jeopardy, and to conduct To hold that it constituted the Juvenile Court applicable determining apply or not to the rules before whether to it adult, jeop jurisdiction. on the merits of waive To hold criminal trial pre effectively juvenile point ardy would would undermine attached at investigation contrary system full informal court clude the spirit the minor and the of McKeiver. There is in the interests of thought any Congress community nec in either Kent or Gault for warrant essary salutary remedial to achieve such conclusion. the Court While' system.”41 juvenile explicitly purposes hold that waiv of a court Kent did not hearing testimony on the factual er with Ill.App.3d People Wilson (in germane, issues it indicated were directly point. 287 N.E.2d offense) cluding gravity appealing from a There a was thereby constitute would not imposed by the criminal court sentence preventing trial of the transfer, juvenile divi- after transfer from the it is inconceiv basis urged conviction was sion. He that his indicated would have able that hearing, since, he had void in the waiver proper that a conducted jeopardy. put been constitutional process regard procedural due Dismissing claim, the Court said: subjects in its directed to the indicated hearing “The divi- opinion, of hav if the result purpose sion held for the of effec- ing have such a tuating a removal of the case to a trial subse unconstitutional make pursuant Ill.Rev. criminal division ba quently 702-7(3). in the criminal court Stat.1969, 37, par. All ch. testimony If such taken at that of the transfer order. sis goal, thereby solely directed at that conferring jurisdic waiver, instead ” interests of the state’ fare and the best U.S.App.D.C. F.2d circumstances, waiver, 433-434. “explicitly justified in the waiv- (Ind.1972), must be 290 N.E. In Atkins v. State er order.” 441, 443, transfer of held that 2d au- is to be to criminal at 1060. 383 U.S. “only thorized when the States v. Dickerson determines after full U.S.App.D.C. 491- range dispositions available within 492, reversing juvenile system adequate are not particular ‘the child’s wel- case to serve enabling judge fact, support to make an intelli- Toth seems to the result gent regard. Thus, in decision ease, reached here. In that it was held adjudicate was not held to discharged after one had been delinquency, defendant’s military service, but was from the he could not judge satisfy military tried court martial the case should have been removed. criminal offense in committed while proceedings juve- military in Because the service. But Justice Black ‘adjudicatory’ specifically not in division were declared that the fact nature, discharged were not soldier was not amenable (287 213) military processes barred.” N.E.2d at preclude did not in the criminal courts for his of- This distinction between the transfer fense. This is with our consistent con- adju- or certification and an clusions here. Since the was dicatory dispositional proceeding twenty-one, over the Juvenile Court had Wilson, stated ac- to deal with him he but Virginia practice. cords with the In plainly was amenable to trial Peyton, supra,42 Cradle v. criminal court as an adult for an offense dealt with this distinction between juvenile. committed him while a confinement order or- and the transfer Virginia. der courts A Affirmed. “imposes

confinement order sentence will, confinement” and under the author- BOREMAN, Judge Senior Circuit already cited, jeopardy. ities constitute (dissenting): hand, On the other “a certification order appeal This originally considered transfers the case to another court for panel consisting Haynsworth, original determination whether the ac- Judge, Boreman, Chief Senior Circuit cused child shall be confined.” In such Judge, Judge. and Russell, order, Circuit I finding the Court makes “no designated to write for the court guilt, only innocence or [Cradle’s] and, period after an finding extended juvenile] consid- should [the study, prepared eration and I and sub- stand trial on the merits another opinion mitted accepted which was court.” adopted by panel. Brown v. We reach a similar conclusion Cox, (4th Cir., 1972). 467 F.2d 1255 all, case. After the waiver Subsequently, the court decided to re- held, Judge as the order Judge hear the ease banc and Russell very stated, in this ease in the nature of designated to write for the court. Jury” hearing, a “Grand was similar to My colleagues joined original who preliminary hearing in the criminal opinion persuaded approve have been courts and no more amounts to Judge accept Russell’s on re- within the intendment the Fifth hearing. preliminary Amendment than does a hearing in the criminal courts Nor do After my- careful consideration I find Quarles anything we find unpersuaded in Toth v. self disagreement. and in dissenting simply 76 S.Ct. 100 L.Ed. my I adhere to petitioner, expressed cited original panel that would views de- contrary cause a cision, result. As a matter 467 F.2d 1255. exposition Q-ault Virginia This procedure decision concluded that its must extent, retroactive. To the de- considered authoritative. cision has not been sustained federal See, 156 S.E.2d 876-877. proceedings. habeas Cradle v. Cox (D.C.Va.1971), But See Collins v. Loisel 262 U.S. its construction of the law and 43 S.Ct. 67 L.Ed. 1062.

Case Details

Case Name: James Arthur Brown v. J. D. Cox, Superintendent of the Virginia State Penitentiary

Court Name: Court of Appeals for the Fourth Circuit

Date Published: Jun 28, 1973

Citation: 481 F.2d 622

Docket Number: 71-1089

Court Abbreviation: 4th Cir.