DeBacker v. Brainard, 396 U.S. 28 (per curiam) (1969)

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U.S. Supreme Court DeBACKER v. BRAINARD, 396 U.S. 28 (1969) 396 U.S. 28

[Page 396 U.S. 28, 29]

Alfred L. Scanlan, by special leave of Court, argued the cause and filed a brief for the National Council of Juvenile Court Judges as amicus curiae.

Thomas C. Lynch, Attorney General, Albert W. Harris, Jr., Assistant Attorney General, and Derald E. Granberg and Gloria F. DeHart, Deputy Attorneys General, filed a brief for the State of California as amicus curiae.

PER CURIAM.

After a hearing before a juvenile court judge, appellant DeBacker was found to be a "delinquent child"[Footnote 1] and ordered committed to the Boys' Training School at Kearney, Nebraska.[Footnote 2] DeBacker did not seek direct review of his commitment, but instead sought state habeas corpus. The Nebraska District Court dismissed appellant's petition, a divided Nebraska Supreme Court affirmed,[Footnote 3] and last Term we noted probable jurisdiction over the present appeal, 393 U.S. 1076. Because we find that resolution of the constitutional issues presented by appellant would not be appropriate in the circumstances

[Page 396 U.S. 28, 30]

of this case, the appeal is dismissed. See Rescue Army v. Municipal Court, 331 U.S. 549.

1. Appellant asks this Court to decide whether the Fourteenth and Sixth Amendments, in light of this Court's decisions in Duncan v. Louisiana, 391 U.S. 145; Bloom v. Illinois, 391 U.S. 194; and In re Gault, 387 U.S. 1, require a trial by jury in a state juvenile court proceeding based on an alleged act of the juvenile which, if committed by an adult, would, under the Duncan and Bloom cases, require a jury trial if requested. In DeStefano v. Woods, 392 U.S. 631, we held that Duncan and Bloom "should receive only prospective application" and stated that we would "not reverse state convictions for failure to grant jury trial where trials began prior to May 20, 1968, the date of this Court's decisions in Duncan v. Louisiana and Bloom v. Illinois." 392 U.S., at 633, 635. Because appellant's juvenile court hearing was held on March 28, 1968 - prior to the date of the decisions in Duncan and Bloom - appellant would have had no constitutional right to a trial by jury if he had been tried as an adult in a criminal proceeding. It thus seems manifest that this case is not an appropriate one for considering whether the Nebraska statute which provides that juvenile hearings be "without a jury," Neb. Rev. Stat. 43-206.03 (2), is constitutionally invalid in light of Duncan and Bloom.[Footnote 4]

[Page 396 U.S. 28, 31]

2. Appellant next asks this Court to decide whether the preponderance-of-the-evidence standard for burden of proof in juvenile court proceedings, required by Neb. Rev. Stat. 43-206.03 (3), satisfies the Due Process Clause of the Fourteenth Amendment. However, at the appellant's juvenile court hearing, his counsel neither objected to the preponderance-of-the-evidence standard, nor asked the judge to make a ruling based on proof beyond a reasonable doubt. In explaining why he did not seek a direct appeal from the juvenile court's determination that appellant had committed the act upon which rested the delinquent child finding, appellant's counsel stated at oral argument before this Court:

"[I]t has been pointed out that I did not attack the sufficiency of the evidence.

"Of course, the reason for that is obvious. The evidence is more than sufficient to sustain a conviction of what he did. An appeal on the sufficiency of the evidence would have been close to frivolous." (Tr. 41-42.)

Later in oral argument counsel acknowledged that "[n]o matter what the standard was . . . [o]ur evidence just isn't insufficient." (Tr. 47.) And when specifically asked whether "[t]he evidence was sufficient even under a reasonable doubt standard," counsel responded: "Even under a reasonable doubt standard . . . ." (Tr. 47.)

Given this commendably forthright explanation by appellant's counsel, this case is not an appropriate vehicle for consideration of the standard of proof in juvenile proceedings.[Footnote 5]

[Page 396 U.S. 28, 32]

3. Appellant finally asks us to decide whether due process is denied because, as it is claimed, the Nebraska prosecutor had unreviewable discretion whether he would proceed against appellant in juvenile court rather than in ordinary criminal proceedings. The record shows (1) that appellant did not make this contention before the juvenile court judge; (2) that appellant raised the issue in his habeas corpus petition but that it was not passed on by the Nebraska District Court; (3) that appellant did not press the District Court's failure to consider this issue in his appeal to the Nebraska Supreme Court, and made only passing reference to the issue in his brief to that court; and (4) that the opinions of the Nebraska Supreme Court did not pass on the issue, or even refer to the contention. Given the barrenness of the record on this issue, in the exercise of our discretion, we decline to pass on it. So far as we have been made aware, this issue does not draw into question the validity of any Nebraska statute.[Footnote 6] Therefore, it could not standing alone, be subject to review in this Court by way of an appeal. See 28 U.S.C. 1257 (2). "[I]nsofar as notation of probable jurisdiction may be

[Page 396 U.S. 28, 35]

that decision, yet this Court treats these equal deprivations with clearly unequal justice. I cannot agree to such refusals to apply what appear to me to be the clear commands of the Constitution.

[Footnote 1] Neb. Rev. Stat. 43-201 (4) provides that: "Delinquent child shall mean any child under the age of eighteen years who has violated any law of the state or any city or village ordinance."

[Footnote 2] The State charged that appellant "unlawfully, feloniously and knowingly [had] in his possession and custody a certain false, forged and counterfeited bank check . . . with the intent . . . to utter and publish said false, forged and counterfeited bank check as true and genuine, knowing the same to be a false, forged and counterfeited bank check, and with the intent then and there and thereby to prejudice, damage and defraud . . ., well knowing the same to be falsely made, forged and counterfeited, contrary to the form of the Statutes in such cases made and provided, and against the peace and dignity of the State of Nebraska." App. 1-2. It is undisputed that such acts constitute the crime of forgery under state law. Neb. Rev. Stat. 28-601 (2).

[Footnote 3] Neb. Rev. Stat. 43-206.03 (2) provides that juvenile hearings "shall be conducted by the judge without a jury in an informal manner . . . ."

[Footnote 4] Linkletter v. Walker, 381 U.S. 618, 640 (1965) (dissenting opinion); Johnson v. New Jersey, 384 U.S. 719, 736 (1966) (dissenting opinion); Stovall v. Denno, 388 U.S. 293, 302, 303 (1967) (dissenting opinions); DeStefano v. Woods, 392 U.S. 631, 635 (1968) (dissenting opinion); Halliday v. United States, 394 U.S. 831, 835 (1969) (dissenting opinion); see also Desist v. United States, 394 U.S. 244, 254 (1969) (concurring in judgment).

[Page 396 U.S. 28, 38]

of the charges against him, the right to counsel, the right to confront and cross-examine witnesses, and the privilege against self-incrimination.

Since the decision in Gault, lower courts have divided on the question whether there is a right to jury trial in juvenile proceedings. Those courts which have granted the right felt that it was implicit in Gault. Nieves v. United States, 280 F. Supp. 994 (D.C. S. D. N. Y. 1968); Peyton v. Nord, 78 N. M. 717, 437 P.2d 716 (1968); In re Rindell, 2 BNA Cr. L. 3121 (Providence, R. I., Fam. Ct., Jan. 1968). Those who have denied the right have reasoned either that jury trial is not a fundamental right applicable to the States or that it is not consistent with the concept of a juvenile court. People v. Anonymous, 56 Misc. 2d 725, 289 N. Y. S. 2d 782 (Sup. Ct. 1968); Commonwealth v. Johnson, 211 Pa. Super. 62, 234 A. 2d 9 (1967). Duncan and Bloom have negated the former reason. Whether a jury trial is in conflict with the juvenile court's underlying philosophy is irrelevant, for the Constitution is the Supreme Law of the land.

Given the fundamental nature of the right to jury trial as expressed in Duncan and Bloom, there is, as I see it, no constitutionally sufficient reason to deprive the juvenile of this right. The balancing of the rehabilitative purpose of the juvenile proceeding with the due process requirement of a jury trial is a matter for a future Constitutional Convention.

The idea of a juvenile court certainly was not the development of a juvenile criminal court. It was to have a healthy specialized clinic, not to conduct criminal trials in evasion of the Constitution and Bill of Rights. Where there is a criminal trial charging a criminal offense, whether in conventional terms or in the language of delinquency, all of the procedural requirements of the Constitution and Bill of Rights come into play.

I would reverse this judgment.

[Footnote *] This has been my position with respect to all comparable constitutional decisions. See, e. g., Desist v. United States, 394 U.S. 244, 255-256 (dissenting opinion); DeStefano v. Woods, 392 U.S. 631, 635 (dissenting opinion); and cases cited therein.

[Page 396 U.S. 28, 39]

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