John Wayne Kemplen v. State of Maryland

Harrington it. Califor prejudiced nia, L. Chapman (1969); v. Califor Ed.2d 284 L.Ed. nia, rel. Jo ex (1967);

2d (2 LaVallee, seph cor

1969). By the habeas the time of transcript had been

pus par and the to the court available made more than included little ties. identity attempts learn the record agent Modesto of the undercover nothing would which

trial and disclosed aid conceivable have been it, would Even with

defense. decision tactical faced the have solely Moskowitz or not call fishing expedition, purpose for the Judge to do. As he elected not out, nothing in the Hays pointed helped defense transcript have would policemen impeach credibility of the trial; petition testified at who way suggested any other er has transcript could denial of the which the of his hampered effectiveness overwhelming In view of the

defense. Cadogan’s guilt, it is clear

evidence of produc of his in the denial error motion was harmless.

tion Wayne KEMPLEN, Appellant,

John MARYLAND, Appellee.

STATE OF

No. 13290. Appeals,

United States Court of

Fourth Circuit.

Argued Nov. 1969. May 22,

Decided

Rehearing Rehearing Denied and En July Bane Denied Yarbro, Joseph

Alan D. H. H. Baltimore, (Court-as- Kaplan, Md. signed counsel), appellant. O’Ferrall, III, Atty. Alfred J. Asst. Maryland (Francis Burch, Gen. of B. brief), Atty. Maryland, Gen. of on the appellee. SOBELOFF, Before BOREMAN Judges. CRAVEN, Circuit CRAVEN, Judge: Circuit primary question presented by The appeal may, a state enforcing laws, pro- its criminal elect to juvenile ceed if were he having adult without his hearing” “waiver in the court. not, We think and reverse the decision denying the district court habeas cor- pus Wayne Kemplen. relief to John According petition, peti- years tioner was old at the time of his February arrest 1965. The next day appeared, he counsel, without County, Juvenile Harford Maryland, for a determination of wheth- er he should tried as a or as an adult. parents and his were present hearing.” Kemp- this “waiver however, len was not, any informed of to retain counsel for the nor appointed was counsel for him court. court ordered its waived making specific findings fact.1 Petitioner judge signed merely investigation An of the facts and cir- stating: a form presented cumstances in the above custody. “[0]nce release from belated the Circuit as an tried has attached August the federal County on of Harford Court, it is not defeated "years’ to two was sentenced prior petitioner to com- release of the imprisonment in the Correc applica- pletion proceedings on larceny such and ma Institution LaVallee, of tion.” Carafas damage property. Because to licious 1556, 1560, record, 20 L.Ed.2d prior 88 S.Ct. his and this conviction (1968). corpus] stat- Patuxent “The [habeas to the Kemplen was ordered psy that ute does not limit the relief be by trial court Institution discharge granted applicant chological to of to determine examination delinquent.” physical custody. from mandate is Its “defective he was a whether respect that Kemplen broad with to the relief to refused Because 2 cooperate granted. testing provides be that at phychological ‘[t]he in * * * dispose as of the matter Patuxent, shall there without he remained justice require. 28 U.S.C. long past expiration law § of committal Id. at 1560. 2243.’” at now been released. He has his sentence. petitioner required to sought corpus is bear he habeas release Prior stigma continuing allegedly unlaw- courts, of and thereafter in the state relief legal simply ful conviction because the District Court. in the United States coming. remedy has been slow Be- affirming re- state trial court’s In cause of the disabilities and burdens application jection Kemplen’s of flowing conviction, petitioner from a Mary- corpus relief, state habeas judg- still has “a substantial stake Appeals Special assumed of land Court conviction,” of at ment Id. arguendo that In prevents appeal from that (1967), being moot. States, 383 U.S. Kent v. United (1966), 1045, 16 L.Ed.2d 84 were by are informed counsel that juve- Maryland’s applicable of Kemplen, years age, now 22 of has been proceedings,3 held but , continuously employed since his release apply retroactive- cases did not these from He Patuxent. has undertaken to Maryland hearing. ly Kemplen’s augment scanty through his education Hance, Md.App. 162, A.2d n extensive reading and is characterized The United States by “articulate, polite, his counsel as ' Maryland adopt- for the District Court any possibility terrified of future in- deny- approach order the same in its ed Kemp- Even carceration.” after release ing petition Kemplen’s for a federal writ urged pursue appeal len counsel his corpus. Kemplen v. State habeas hope “in the favorable result (D.Md.1969). Maryland, F.Supp. would remove the conviction from his Thus, record.” the result that we reach MOOTNESS something today apparently mean petitioner4 and will more than a petition for habeas judicial futility. corpus moot his relief is rendered mere exercise legisla Maryland recently adopted investigation well as an guarantees previous tion that counsel traverser record See, undersigned, having Art. 26 a waiver nile at made been (1957), Maryland day Anno. Code 70§ is ORDERED this 8th Mary (Supp.1969) February, Rule amended Juvenile County Procedure Rules of land Harford named traverser of the above Carolina, v. North F.2d Hewett Cf. charged he offense with which 1969) (Haynsworth, * hereby waived. concurring). Judge, Chief 31B, Anno. 2. Article Code authorizes indeterminate deten- sociopaths. tion for certain principles of constitutional in the context JURISDIC- OF JUVENILE WAIVER relating process and the assist- to due TO COUNSEL RIGHT TION: ance of counsel.” Id. at AND TO NOTICE significant 1055. These references ques- counsel Collateral appear Kent in Gault: also en- tion * * * In notice of the offense titled to reasonable charged requirements prepare time to we considered the for a reasonable juris- hearing.” valid “waiver the “exclusive” for the diction of the Juvenile deciding Kemplen was not en- District of Columbia so that charged of the offense titled to notice could tried the adult criminal and to advice his 1965 Although court of the District. our hearing, waiver the district rea- language decision turned of rights if soned that these were made statute, emphasized we the neces- applicable proceeding to a such Kent sity requirements “the that basic of States, 541, 86 S.Ct. v. United 383 U.S. process due be satisfied fairness” 1045, (1966), and In re proceedings. 553, in such U.S. at [383 Gault, (1967), 1, Gault, 86 S.Ct. at In 1053.] re they retroactively. should 12, U.S. at 87 S.Ct. at 1436. disagree. We * * * In Kent v. United States Supreme stated Gault Court we stated that the Juvenile Court that “neither the Fourteenth Amend- Judge’s power of exercise of the Rights ment nor the Bill of is for adults parens patriae state as not unlim Gault, 13, supra, alone.” at at S.Ct. ited. said that We “the admonition factually precise holding 1436. The of ‘parental’ relationship function in a is Gault that a is must be accord- procedural not an invitation to arbi including process, rights ed full due 555, tariness.” [383 U.S. at 86 S.Ct. at counsel, proceed- notice at those 1054], respect With to the waiver ings by which it is determined whether the Juvenile Court to the adult court However, “delinquent”. he is “the lan- of over an offense com guage opinion that of exhibits [Gault] youth, mitted a we that said “there spirit specific transcends is- system place is no in our of law for ** sues there involved *.” In re reaching a result of such tremendous Urbasek, 716, 38 Ill.2d 232 N.E.2d ceremony consequences without —with favorably quoted in United out assist effective Costanzo, States v. F.2d counsel, ance of without a statement 1968). Indeed, the Court [383 reasons.” U.S. at 86 S. length quoted opinion Gault at from its Ct. at We 1053.] announced with re States, supra, in Kent United in order spect proceedings to such waiver emphasize breadth its intention ** * while do “We not mean implement process due hearing indicate that be held proceedings. The Kent decision was require must conform with all of the based the “Juvenile Court Act [of District and the ments of a criminal trial or even of Columbia] deci hearing; sions of the United usual States Court of administrative but we Appeals hearing for do District hold that Columbia must measure Circuit,” up v. United 383 U.S. essentials of due at at and held S.Ct. that a fair treatment.” U.S. at [383 juvenile was entitled to have S.Ct. at counsel and We reiterate 1057.] * * * safeguards procedural requirement other view at waiver jurisdiction hearing. part That is result was Due Process Clause “required by said to be statute read Fourteenth Amendment our proceedings affecting the Gault, U.S. at must Constitution. rights It substantial of adults.6 is also at “appointment of clear that counsel for an guiding requires “the The child indigent stage every required is of a every step in the of counsel hand proceeding where substantial him.” [Powell rights of a af- criminal accused 45, 69, Alabama, Rhay, Mempa fected.” (1930).] Just 77 L.Ed. * 19 L.Ed.2d 336 States United Kent v. must consider agreement with our indicated claims in this context. Appeals for the States Circuit of Columbia There no is for essential assistance directly comparable adults proceedings, so purposes of waiver it is Gault] now [as we hold is much more than a the determination equally essential “preliminary hearing establishing mere ** delinquency *. probable cause for the initiation of fur at 1448. ther action.”7 true that under juvenile judge law the Supreme must Thus charged language ap determine that the child from Kent taken broad constituting felony de act parently adopted or a its rationale misde jurisdiction and meanor before he Gault waive of Gault. Whether cision courts;8 however, to the adult he Kent, together, a constitu also form taken judge, juvenile determines much more. waiver imperative “[T]he investigation, may after full in his How dis proceedings not self-evident.5 is jurisdiction unques cretion waive and order it such do make ever, Kent and Gault regular pro juvenile child held for action tionably court under the that clear person’s procedure ceedings young that would if follow such act that affect rights up acts had been committed an adult.” measure “must substantial 54, Maryland 26 fair Art. Anno. process and Code § of due the essentials (1957) repealed, 30, 1969, treatment,” 87 Acts ch. 432 2.9§ By deciding issue, juve- 1445, the waiver the manner as in the same requirement F.Supp. Stanley Peyton, See, g., con- and that v. 292 5. e. Peyton, rights (W.D.Va.1968) of confrontation v. stitutional Cradle 209 right against (1967) ; 243, cross-examination 156 S.E.2d 208 Va. 874 Cal.Rptr. juvenile Harris, 876, in a de- self-incrimination attach Cal.2d re linquency proceeding. (each holding (1967) 319, v. 434 P.2d 615 1968). propor Costanzo, of constitutional that Kent is not Supreme Court has The United States not relied and that Kent was tions recently decision), authority re- that the Constitution held for the Gault quires application Commonwealth, of the same standard 412 S.W.2d v. Smith proceed- proof (treating in (Ky.1967) both adult criminal of ings Kent as a con juvenile proceedings. requiring retroactive decision stitutional Winship, Supreme Note, also, application). 90 S.Ct. (1970). Whittington, 25 L.Ed.2d 368 comment in In Court’s 20 L.Ed.2d U.S. Maryland, Contra, Kemplen remand, F. “Upon 7. (1968) : such (D.Md.1969). Supp. 8, may, course, at 11 also consider Ohio court questions any, impact, raised if on the Maryland, Superintendent intervening etc. v. Cal 8. petitioner order man, requiring 101 A.2d 207 203 Md. him to face Juvenile Court courts.” in the adult trial Maryland Statutes, at least until recent- ly, provided courts shall held that a standard of 6. This court has juveniles proof over those un- have exclusive re- lesser than that years age quired who have violated der the of 18 in for conviction an adult or have en- the state proceeding the criminal laws of due violates the constitutional Supreme careful ac- been whether determines nile court cused, sentencing require guilty, convicted receive non- if found carried in strict- juvenile from adult defendants be out punitive aas rehabilitation compliance agencies Amend- or10 est with Fourteenth service the state’s social process requirements. ment due In hold- The state as an adult. will be sentenced stage ing that argues in Sixth Amendment not a critical that this sentencing But, determining process. counsel extends to the guilt offender nothing state court of a convicted adult critical more can be seems us stage sentencing determining and that critical than to the accused quot- proceeding, determining process the Court guilt the criminal there will be in Townsend from its decision adult-type ed trial. The Burke, con- can in dire result guilty (1948): ac- “In coun- L.Ed. sequences indeed might changed sentence, to sel decides not have If the cused.11 keep only steps jurisdiction, but he could have taken to see can detained he majority. conviction and sentence were 26 § he Art. until reaches predicated repealed, or mis- on misinformation Anno. Code reading records, requirement But, jurisdic- of court if Acts ch. § court, play of fair which of counsel absence tion is adult waived to prisoner. withheld from this be incarcerated much accused longer, Mempa gravity at 1255.” depending Rhay, and, offense, be a if offense the felony, rights rationale of citi- This lose certain his applies no zenship. less a waiver renders the Kemplen, proved For to be a susceptible sentencing stage very critical likely more be based on misinfor- year him. He received a two presence. mation without counsel’s prison than com- active sentence rather special importance Counsel of at waiv- training reha- mitment a for school to provide er because he can Furthermore, bilitation. his conviction juvenile judge with the information pro- triggered as an adult commitment background prior about the child’s and ceedings Mary- against him the under may record which be unavail- otherwise Statute,12 Delinquency land Defective practice able in due the tremendous to by juve- now which authorizes incarcer- load carried indeterminate understaffed agencies.13 nile courts and social service sociopaths. for ation certain 1969), subsequent plea unacceptable gaged legally which held that other certain by juvenile guilty Maryland waives denial of conduct. Art. 26 and §§ to his counsel at repealed, Code Acts Anno. ch. 432 2.§ 31B, Maryland (1957). 12. Art. Code Anno. 14, Maryland judge adjudication by juvenile Article 31B Code Section 10. “No provides any oper- Anno. that Article 31 shall the status child any person application impose any disabilities, shall have no civil nor ate to juvenile by involved in a case shall be deemed a criminal child juvenile judge adjudication.” court “unless Art. 26 reason of such jurisdiction (1957). in the case Maryland shall waived Code Anno. § adjudicated may and so that be heard aimed at statutes are regular protection court.” of the and rehabilitation punishment. parte child, Ex its juvenile judges About Cromwell, one-third of the A.2d 232 Md. pro- no (1963). in the in 1965 had staff available and bation or social work psychologist. procedure had no 11. This view of the waiver 80-90% Gault, n. importance guilty juvenile at dem- its error of seems to onstrates what us Baker, (10th Cir., Acuna 418 F.2d subject dealing by court, he is waived statutory framework penal A contemplates sanctions. to the usual juvenile offenders age eighteen counsel at accused is entitled to are under the those any point at which in a criminal action juveniles and that treated as to be only or its a defense lose he must assert waived is to be Alabama, found, exer Hamilton v. an benefit. offender is where the 157, 7 L.Ed.2d 114 judicial discretion based of sound cise facing ju- possible thorough A waiver of investigation, to be no entitled to subject rehabilitative venile less an unfit un the ac advice counsel. sel measures.14Co presumably marshal informa can cused stated, we hold For the reasons suggest his client and tion favorable to Amendment, applied to that the Sixth re schemes for to the court alternative Amend the states the Fourteenth disposition. “The child’s habilitative ment, requires al accused be plan, for a search advocate should represent and lowed to retain counsel to per range plans, perhaps hearing concerning him a advise welfare court that suade the juvenile jurisdiction waiver of over community safety of the and the child or, indigent, accused if the accused be waiver.” Haziel without can be served rep appointed there that counsel be (D.C. him. resent advise Cir.1968) (interpreting child, parents, and In order that statute). Columbia oppor have a reasonable need advocates all cases children “[I]n tunity prepare the child’s case as guard speak their inter for them and waiver, they due demands ests, disposition particularly deci when given adequate nature notice of the disposition are made. sions date, proceeding, and the its stage opportunity at which the arises charges See, g., to be considered. e. Cole plans treatment offer individualized Arkansas, danger inheres in which the day one 92 L.Ed. 644 Arrest on power court’s coercive next, knowledge adequate of the cir comport require does not with this cumstances.” circumstances, jus ment. Under such Na quoting from the n. unconstitutionally If tice can be swift. Report. Commission tional Crime our hold counsel insured ing value, adequate above is to be of juvenile jurisdiction waiver The guaranteed. notice must be likewise proceeding be viewed as also Gault, supra. so hold. pro- only point in ceeding “de- where he could assert RETROACTIVITY fense” that he was a when the juve requires that a Since due a offense was committed that he was given right a nile to counsel at be proper subject rehabilitative concerning hearing the waiver of is, effect, treatment. Juvenile in status given and that he be youthful a basis which offender adequate notice of such a we plead responsibility for can diminished further must decide whether this rule his unlawful If he can show that extrapolated act. Kent from and Gault should retroactively15 petitioner, be not be should see, retroactivity Gault, waiver fundamental idea behind On * * * g., Heryford Parker, provisions v. “there are e. 396 is that retroactive) ; 1968) (Gault position (10th youths who are not in a Cir. some Peyton, F.Supp. (W. Stanley specialized v. 209 treatment from benefit ” * * * D.Va.1968) (Kent youths. Cohen, Gault not retro The Standard Harris, 876, Proceedings, active) In re Cal.2d in Proof Juvenile (1967) Cal.Rptr. 319, 567, 434 P.2d 615 Mich.L.Rev. today hearing place prior rule that we announce took

whose designed merely prophylactic one of those decisions. announcement deter the authorities from unconstitu- Walker, 381 Linkletter v. Ever since Compare, actions the future. 1737, 1731, 618, 629, 85 S.Ct. States, Desist v. United 394 U.S. L.Ed.2d 601 established (1969) (eavesdrop evidence S.Ct. prohibits nor neither “the Constitution retroactive); v. exclusion not Johnson retrospective requires for deci effect” Jersey, New 384 U.S. 86 S.Ct. expounding constitutional new sions (1966) (Miranda and 16 L.Ed.2d 882 trials, affecting rules retroactive); Linkletter Escobedo not retroactivity or Court has viewed Walker, 381 U.S. v. S.Ct. nonretroactivity of such decisions as (1965) {Mwpp 14 L.Ed.2d 601 exclusion- As considerations. function of three ary concerning illegally rule seized evi- recently them most summarized retroactive). dence not Nor a rule is it Denno, v. 388 U.S. Stovall application extra-judicial events 1967, 1970, 18 L.Ed.2d that “can and often have been con- guiding criteria reso (1967), “[T]he ducted in the scrupulous of counsel with absence implicate (a) question lution of the preju- fairness and purpose to served the new the standards, dice to Denno, v. the accused Stovall (b) re the extent 293, 299, liance law enforcement authorities (1967) (right lineup to counsel at standards, (c) on the old retroactive). Rather, it is a rule to justice the administration of effect on insure the fundamental fairness application new retroactive process by juvenile jurisdiction standards.” youthful over a offender is retained or among presence the waived. Foremost these factors is We think that of coun- purpose sel at the be served the new con- essential process. stitutional fairness of that rule. Desist v. United Neither judge, probation officer, nor nor parent adequate 1033, 22 is an L.Ed.2d 248 substitute for a attorney duty trained whose mar- is to The constitutional amendment shal all the facts favorable to rehabilita- procedural from which a is derived juvenile. tive treatment as a is not alone determinative. Stovall v. Denno, supra. very There is a real dan- 18 ger that, with- (1967); States presence out the of counsel for the ac- 1969). Miller, 406 F.2d 1100 cused, juvenile jurisdiction will be “Each constitutional rule criminal waived on the basis unreliable un- procedure functions, has its own distinct true “The information. to counsel background precedent, its own and its (Gideon at the Wainwright, trial impact own on the administration of 799) justice, way which these fac (Douglas appeal California, inevitably vary tors combine must U.S. L.Ed.2d S.Ct. Accordingly the dictate involved. 114) (1963), and at the other ‘critical’ retroactivity we must determine ‘in each stages proceedings, the criminal by looking peculiar case’ to the traits of (Hamilton ” Alabama, 52, 82 v. 368 U.S. specific question.’ the ‘rule in John (1961) 114) have S.Ct. L.Ed.2d Jersey, son v. New retroactive, since the all been made S.Ct. 16 L.Ed.2d 882 ; retroactive) (Gault (Gault retroactive) ; Pey (1967) Smith not 2d 1 Cradle v. Commonwealth, (Ky. ton, (1967) 412 S.W.2d 256 208 Va. v. S.E.2d 874 (Gault applicable 1967) (Kent retroactive) to the states Marsden v. retroactive). Commonwealth, 352 Mass. N.E. disrup- right in- The third consideration is must almost ‘denial holding retroactivity deny tion which a variably trial’.” Arsenault fair likely Massachusetts, to visit the administration v. justice. do not that a believe As holding retroactivity in- here noted, would be the waiver ignore disruptive require so as to us point deed a “critical” prison plight juvenile. now in adult proceedings It can of those systems may prop- who have never been to determine as a be viewed adult, subjects course, juvenile dis- or er for such incarceration but what statutory right guilty youthful is whose to be treated as position offender of a hearing constituting juveniles ignored or have been because to take as a they plead only opportunity has to lacked an advocate. We an accused effective probable responsi- have not been advised of the of his diminished the defense serving young persons bility Supreme juvenile. number adult The Court were sentences who without that for adults the has ruled juvenile jurisdiction hearings over them in retroac- when counsel at similar Rhay, number, it 89 was waived. Whatever their McConnell tive. (right compared to the number is small indeed retroactive); Wainwright, sentencing of those to whom Ar- Gideon counsel at 83 S.Ct. 792 ac- Massachusetts, senault appear (1968) (right pre- Nor corded relief. does it to counsel S.Ct. 35 remedy (a liminary the extreme of Gideon new defenses must where trial) retroactive). only possible forfeited, pleaded is the for or relief unconstitutionally teaching put that no who was demands Gault Thus, required juveniles. over adult criminal court. less be by the district courts fashion various rem- forth “foremost” criterion set procedures the vari- Supreme edies to suit determination of retroactivity mili- prospectivity here and to fit or ous states within the circuit retroactivity. particular facts Some solu- tates in favor of cases. suggested by tions have been the Su- the extent of The second criterion is preme Kent v. practice old rule “reliance” supra. Others, not inconsistent with au and law enforcement Kent, may devised district that counsel have It is true thorities. judges. allowed, appoint much less seldom been juveniles ed, represent proceedings Having applied the criteria set courts. See Supreme Court, forth we hold supra. Nevertheless, because the rule in In re inherent Gault Amendment, the constitu Fourteenth guaranteeing juveniles progeny, and its basis Gideon notice and to counsel waiver of “person” not the uses the word word jurisdiction hearings will be coming “adult,” should Gault retroactively Wayne Kemplen’s to John is also unforeseeable.16 have been great important reliance to note that The decision of the district court placed upon the now de had been as well reversed and the case is to that remanded allowing practice critical funct findings court for If fact. the facts proceed alleged, are found to be as defendant could ob counsel where the represented by was not counsel at his Long standing reliance is none. tain hearing or that of that notice clearly enough in not overbalance hearing inadequate, was then district critical to counsel at a dividual’s proceed court point him. to fashion in a criminal action relief not reported the remarks Dean Monrad G. of Law Cr.L. See of School at 6 University Virginia Paulsen in Kent v. ordered with inconsistent supra. States, United Ralph FARESE, Appellant, Thomas remanded. Reversed America, UNITED STATES of REHEARING FOR

ON PETITION Appellee. Maryland’s No. 25343. Although think denied, rehearing petition for should be Appeals, United States Court of unsympathetic ex not we are Fifth Circuit. gener attorney pressed perplexity her April remedy regarding proper on re al decision to our adhere mand. juvenile waiver counsel in a retro- accorded must range activity. delimiting the Without open by

of remedies left Kent v. proper we think the

remedy petitioner, on the facts for this will be the reconstruction failing Maryland courts, or Court, the United States bearing the waiver

circumstances on pro question and a nunc determination judge

tunc or what light probably have done

would information then available that

all the

might reasonably proffered been

by competent counsel. represented

If was counsel his waiver or if hearing inadequate,

notice of that

both, these factors will not entitle alone

him to relief from But his conviction. one him novo

either will entitle de whether,

determination “waiver was Kent,

appropriate.” supra, 565, 86 If

S.Ct. 1045. the court finds inappropriate,

waiver was must conviction be vacated. He again tried because he has served

his full If adult sentence and is over 21. ap

it finds that order was

propriate made, despite when lack proper lack of notice and/or his adult conviction and relief will stand

will be denied. sugges-

Upon poll the court Judge Bryan rehearing banc,

tion for en

voted favor the other members against.

the court voted petition rehearing, and for re- banc, en is denied.

Case Details

Case Name: John Wayne Kemplen v. State of Maryland

Court Name: Court of Appeals for the Fourth Circuit

Date Published: Jul 10, 1970

Citation: 428 F.2d 169

Docket Number: 13290

Court Abbreviation: 4th Cir.