Earl Warren: Number 116 in the matter of application of Paul L. Gault et al appellant. Mr. Dorsen
Norman Dorsen: Before proceeding to the argument, Mr. Chief Justice and members of the Court, I would like to move the admission of the Assistant Attorney General of Arizona pro hac vice, Frank A. Parks.
Earl Warren: Is he admitted for that purpose?
Norman Dorsen: Application of Gault, Number 116. This case raises important constitutional questions concerning the extent which requirements of procedural fairness guaranteed by the Due Process Clause of the Fourteenth Amendment are applicable to juvenile proceedings. Appellants, the parents of Gerald Francis Gault claim in particular that the Arizona Juvenile Code on its face and is applied in this case is invalid and failing to provide the following basic protection. The right to effective assistance of counsel, the right to adequate notice of the charges of delinquency including time to prepare, the right to confront and cross-examine the complainant, the privilege against self-incrimination and the right to a transcript and meaningful judicial review. These issues which we do raise and pass on below will be taken up severely in due course. In this case, Gerald Gault at age 15 was committed for the period of his minority that is for up to six years to the State Industrial School in Arizona after juvenile delinquency proceedings consisting of two hearings in the Superior Court of Gila County, Arizona. This appeal is from a decision of the Supreme Court of Arizona in a collateral action. That Court affirmed a decision of the Maricopa County Superior Court which after a hearing dismissed the petition for habeas corpus filed on Gerald's behalf by his parents Paul and Marjorie Gault. Gerald is still in confinement and has been for two-and-one-half years. The facts are relatively simple and yet it is not possible to be confident about exactly what happened with the original proceedings. The reasons is that although there were two hearings leading to the determination of Gerald's delinquency and his commitment, a transcript was not made at either one. The facts accordingly are based on the habeas corpus proceeding in the Maricopa County Superior Court. At that hearing, it appeared without dispute that in the morning of June 8, 1964, Gerald Gault and a friend Ronald Lewis were taken into custody by the Sheriff's Office of Gila County as the result of the complaint by one Mrs. Cook, a neighbor of the boys about an allegedly lewd telephone call. Gerald at this time was on six months probation following an incident in February 1964. At that time he was with another boy who has alleged to have taken the wallet. The other boy was confined and Gerald was put on probation. After Mrs. Cook's complaint, the boys were taken to the local probation office pursuant to the Arizona Code. The probation officers Flagg and Henderson who have the authority of peace officers in Arizona decided to detain the boys for delinquency hearing. And Flagg interrogated Gerald at some length during the evening of June 8 and the morning of June 9. No notice of the detention or charges was left at the Gault home. Mrs. Gault who returned form work at 6 PM on that day, June 8 was informed by her older son, through neighbors, that Gerald was detained. And she then went to the detention home. There she was told by Probation Officer Flagg, “Of the general nature of the charges,” and that a hearing would be held the following day, June 9. No written notice of this hearing or the charges was given to Mrs. Gault at any time. On June 9, a petition charging Gerald with being a delinquent minor was filed by Probation Officer Flagg with the Juvenile Court. This is on page 80 of the record of the petition. This petition was filed pursuing to the Arizona Juvenile Code. In the Arizona Juvenile Code, a delinquent child is defined in Section 8-2016 in the appellant's brief on page 3A. Mrs. Gault did not receive notice of the petition and did not see it until August 17 when the habeas corpus hearing was held in Maricopa County. A juvenile referral report an internal Juvenile Court document prepared by the probation office for the Court charged Gerald with making lewd phone calls. This was prepared when Gerald was taken into custody on June 8, was completed after the hearings and filed with the Juvenile Court on June 15. It too was not brought to appellant's notice until the habeas corpus hearing on August 17.
Potter Stewart: Did you have to size the fact that none of these was given to Mrs. Gault, why would she be the one if you're writing your theory?
Norman Dorsen: Well, the suggestion has been made Mr. Justice Stewart that notice was given to Mrs. Gault. It is plain from the record that no notice of any time was given to anyone else in the family of Gault. And therefore I want to emphasize the extents on which the fact showed any notice of any kind to any member of the family.
Potter Stewart: To anybody?
Norman Dorsen: Right.
Potter Stewart: Well, how about the juvenile?
Norman Dorsen: The juvenile received no notice whatsoever as far as the record shows. There was discussion with the juvenile orally and he may have known the general tenor of the charges but the only notice that was given that was discussed in the record and discussed by the Supreme Court of Arizona with the oral notice given to Mrs. Gault on the evening of June 8. On June 9th, the initial hearing took place in Judge McGhee's chambers. He was the juvenile judge. Present with Gerald, his mother, his older brother Lewis and Mr. Flagg and Mr. Henderson, the probation officers. No one was sworn, no transcript was made, and neither Gerald nor Mrs. Gault was represented by a counsel or advised of any right to counsel. With respect to Gerald's conduct that led to a finding of juvenile delinquency, there was conflict at the habeas corpus hearing. As stated in the opinion of the Arizona Supreme Court at page 84 of your record, “There was a conflict in the testimony at the habeas corpus hearing concerning what transpired at the juvenile hearing. Mrs. Gault testified in response to the judge's questions of the juvenile hearing. Gerald said he dialed Mrs. C's number, asked her if it was such and such a number said, there was a friend of his who wanted to talk to her then handed the phone to Ronald who made lewd remarks --”
Speaker: I can't find it the page on the record?
Norman Dorsen: They're on page 79, Mr. Justice Harlan in the referral report. Officer Flagg testified that at the juvenile hearing Gerald admitted making the phone call and using some of the obscene language. Judge McGhee testified that Gerald admitted using some lewd words. Following the hearing on June 9th Judge McGhee continued the case until June 15 because in his words, “I didn't know myself what I was going to do because I was not satisfied from the testimony there at that time.” Accordingly, Officer Flagg did some more investigating until the 11th, he testified, “I talked to Jerry more to see if he would tell me any more. I talked to Ronnie Lewis some more looking for a change of stories perhaps.” Gerald was returned home on June 11th or 12th. On that day Mrs. Gault received the note on plain white pages from Officer Flagg which said, “Mrs. Gault, Judge McGhee has set Monday June 15th 1964 at 11 AM as the day and time for further hearings on Gerald's delinquency.” Signed, Flagg. This was the only written notice of any kind that any member of the Gault family received concerning this matter prior to the determination of delinquency and a commitment of Gerald to the industrial school. On June 15th the second hearing was held. It was held in the presence of Gerald and both of his parents, Officer Flagg and Ronald Lewis, the other boy involved in the incident and Ronald's father. Again, neither Gerald nor his parents was represented by a counsel. At the habeas corpus hearing on August 17 there also was conflict about what happened at the Juvenile Court hearing of June 15, again, the words of the Supreme Court of Arizona, “It was a further conflict in the evidence of the habeas corpus hearing concerning the testimony at the second juvenile hearing.” Both Mr. and Mrs. Gault testified that no one accused Gerald of making a lewd telephone call, and also said that Gerald admitted nothing. But Judge McGhee said Gerald admitted making some of the lewd remarks although not the more serious ones. At this hearing Flagg supported the Gault's version stating that neither boy admitted making the actual remark. It should be noted that Mrs. Cook, the woman who had complained about the phone call was not present or called as a witness at either hearing. Officer Flagg had talked to her over the telephone on June 9th and Judge McGhee had not spoken to her at all when Mrs. Gault passed the judge during the hearing of June 15 while Mrs. Cook was not present saying that, “She wanted Mrs. Cook present so she could see which boy had done the talking, the dirty talking over the phone.” Judge McGhee answered, “She didn't have to be present.” On June 15th, Judge McGhee handed down an order containing no findings or facts. The order simply states that after a full hearing and due deliberation the Court finds that the said minor is a delinquent child. He ordered and says that the child's own good and the best interest of the state require that he be committed to the State Industrial School for the period of his minority unless sooner discharged by Due Process of law.
Speaker: You didn't say how old was?
Norman Dorsen: 15 years old. In his testimony at the habeas corpus hearing, the judge, Judge McGhee indicated that there were several bases for his decision. One was the violation of Section 13-37 of the Arizona Criminal Code which is contained in our brief in the appendix first page. This statute makes it a crime to use, “vulgar, abusive or obscene language in the presence of a woman or child.” A delinquent child is defined by the Juvenile Code reproduced to page 3A of appellant's brief as including the child who has violated the law of the state such as the section I have just quoted.
Abe Fortas: What's the penalty for the commission at that crime by that --
Norman Dorsen: Two months is the maximum penalty plus a fine.
Abe Fortas: And this boy got a --
Norman Dorsen: Up to six years Mr. Justice Fortas. Judge McGhee --
Speaker: What is this place? Is this a prison?
Norman Dorsen: Well, I personally have not been there but I can say it's a school where delinquent children are sent. The school was kept under the control of a board of supervisors. The boys were sent up there and sent up there for various offenses ranging from theft to a lewd telephone call.
Potter Stewart: Neglected children are also sent there, neglected juveniles?
Norman Dorsen: No, just delinquent children.
Earl Warren: It's a security institution?
Norman Dorsen: I believe it is. Yes, Mr. Chief Justice.
Abe Fortas: Why can't -- why can't they go home?
Norman Dorsen: They can't go home, that's pretty clear. They can't go home until there's minority, unless the Board of Governors of the State Industrial School will let them go home. The boy is in exclusive control over this board.
Abe Fortas: And his parents are deprived of it?
Norman Dorsen: That's absolutely right Mr. Justice.
Abe Fortas: This boy has -- does this boy has any record other than this first business which he was --
Norman Dorsen: He had no record of any kind except for the first allegation that I've mentioned except for the fact that the juvenile judge didn't mentioned at the time that he reached the decision as I was just about to mention that there was an earlier incident in 1962 having to do with a baseball glove that someone had suggested that Gerald had stolen but there was no hearing on this and the case was dropped because there was no material foundation for the claim.
Abe Fortas: Is there anything other than the judge's statement on that?
Norman Dorsen: That's correct. There was nothing else beside the judge's statements. There was nothing in the record. Judge McGhee testified at the habeas corpus hearing that no time did he ever advised Gerald's parents that he was charged with violating the statute. Another ground, the second ground on which the judge --
Potter Stewart: He wasn't charged of violating that statute, was he?
Norman Dorsen: He was charged with being a delinquent because he violated that statute. That was the first ground that the judge stated. The second ground in which the judge considered the boy delinquent was that he was “habitually involved in immoral manners.” And in this he was referring to subsection D of Section 2016 of the Juvenile Code. The exact language of subsection D which is on page 3 of the appendix is “A child who habitually so deports himself as to injure or endanger the morals or health of himself or others.” Judge McGhee also testified at the habeas corpus hearing that there was “probably another ground too.” In connection with the ground of habitually involved in immoral manners at first mentioned of which was at the habeas corpus hearing. The judge said that he took account of an earlier allegation that Gerald had stolen the baseball glove from another boy and lied about it to the police.This allegation was contained in that probation office referral report but the incident was never made the subject of charges in Juvenile Court and no hearing was held according to Judge McGhee because of lack of material foundation
Abe Fortas: Is that -- is that in this record?
Norman Dorsen: It is not in this record. Judge McGhee testified to this but it's not in this record Mr. Justice.
Earl Warren: Is that what the judge referred to as habitually a --
Norman Dorsen: That's right.
Earl Warren: Habitually being involved in an immoral manner?
Norman Dorsen: He mentioned this fact Mr. Chief Justice.
Earl Warren: You have nothing -- nothing is comparable to what the happened in the incident case in the record, weren't they?
Norman Dorsen: That's correct. It is undisputed that the questioning and answers of Gerald by the Court at the two hearings led to his adjudication as a delinquent and his commitment. Judge McGhee testified as follows at the habeas corpus proceeding. Question: “Were any adult witnesses sworn and/or heard against the boy Gerald Gault?” Answer: “No, it was all in my mind, done upon the admissions of Gerald Gault and at no point was Gerald informed of a right to remain silent.”
Earl Warren: Whose testimony is that?
Norman Dorsen: That's the judge's testimony, Judge McGhee. After the habeas corpus hearing the Maricopa County Superior Court dismissed the petition, discharged the writ and remanded Gerald to the State Industrial School. The Superior Court did not write an opinion. An appeal from this decision, the Supreme Court of Arizona affirmed. In an extensive opinion starting at page 83 of the record it dealt with each of the constitutional claims there are the subjects of this appeal. The Court held as follows: First, regarding notice of charges, the Court ruled that young Gault received adequate notice because “Mrs. Gault in the exact nature of the charge against Gerald Gault from the day he was taken to the detention home.”
William J. Brennan, Jr.: What damage that does in the -- should I read the Supreme Court opinion in saying, its view is that that notice constitutionally as required.
Norman Dorsen: I believe so.
William J. Brennan, Jr.: Well, the issue I notice here is only as to the adequacy, is that it?
Norman Dorsen: Well our petition is that there was no adequate notice at all because there was no --
William J. Brennan, Jr.: But I mean the issue here is not, there's an issue before us where the Constitution is required or only on the adequacies of it.
Norman Dorsen: Well, whether it's the constitutional part and the adequacy, it seemed to me.
William J. Brennan, Jr.: Although, we start where the premise, the Supreme Court of Arizona agrees that it noticed that constitutionally is required.
Norman Dorsen: Well that's right and I think that's true. The Court also claimed --
Potter Stewart: Did the Supreme Court of Arizona hold that or didn't hold that assuming a notice is required; a notice was given to you.
Norman Dorsen: Well, the exact language is at the bottom of page 94 of the record and the top of page 95. We find the petitioners were not denied due process of law and the Court goes on to say Mrs. Gault knew the exact nature of the charge against Gerald from the day he was taken to the detention home.
Potter Stewart: So that would seem to imply that the Court thought that notice was a part.
Norman Dorsen: Yes, Mr. Justice. The Court also stated with respect to notice the following rule that would govern in the future that the infant and his parents or guardian will receive a petition only reciting a conclusion of delinquency. But no later than the initial hearing by the judge they must be advised with the fact involved in the case. If the charges are denied it must be given a reasonable period of time to prepare, that's at 92 in the record. Second, with respect to the right of counsel, the court below held although parents cannot be denied representation by retained counsel due process does not require that an infant have the right to counsel. The Court held further that Gerald was not denied due process because his parents “knew” they could have retained counsel. The Court also said that the parents and the probation officer may be relied upon to protect the infant's interest. Third, with respect to confrontation and cross-examination, the court below held there was no denial of due process because the relevancy of confrontation only arises with the charges of denial. The Court stated that the parents knew they could have called witnesses and cross-examined Probation Officer Flagg.
Speaker: Does the judge with the juvenile judge cross-examined him?
Norman Dorsen: Yes, he was. As far as I know but I do not believe that the record showed he was a regular member of the Superior Court of Arizona.
William O. Douglas: He's just sitting there?
Norman Dorsen: Sitting in his juvenile capacity pursuant to the Juvenile Code.
William J. Brennan, Jr.: There's no independent Juvenile Court in Arizona?
Norman Dorsen: No, there is not. It's a section of the Superior Court and sometimes the case is just sent to referees.
Speaker: Who got this (Inaudible)?
Norman Dorsen: With respect to the privilege against self-incrimination, the court below noted the division of authority in state courts of whether an infant had the privilege against self-incrimination or a right to be advised with the privilege. The Court then held that the necessary flexibility for individualized treatment will be enhanced by a rule which does not require the judge to advise the infant of a privilege against self-incrimination. Fifth and finally, with respect to the right of transcript and appellate review, the Court held that there is no right of appeal from a Juvenile Court order and that there is no right to a transcript. The Court said that the Juvenile Court has discretion to order or deny the taking of the transcript. It is the position of appellants that Gerald Gault was deprived of his liberty without due process of law in the Juvenile Court of Gila County and that the judgment of the court below should be reversed. Before proceeding to these constitutional questions severely it maybe helpful if I very briefly outline some of the background of the Juvenile Court problem. Prior to the Juvenile Court movement which started in Illinois in 1899, juveniles were treated like all other criminals. At least all other criminal defendants except for capacity problems of mens rea it was subject to the criminal law and they received the existing safeguards.
Abe Fortas: But sir, what is the rule in Arizona if you Professor Dorsen as to the age of competency?
Norman Dorsen: I don't know. I believe it was a common law rule of seven but I'm not certain of that. Is that correct Mr. Parks? The Juvenile Court movement was a response to findings of social science, psychology, social welfare and to new theories of rehabilitation that flourished to the turn of the century. Accordingly, juvenile courts were established beginning in 1899 and now we find them in every state of the union. The proceedings in this juvenile courts are civil not criminal. The Court is theoretically engaged in determining the needs of the child and of society rather than adjudicating guilt and meeting out punishment. The Courts in the state are acting as parens patriae rather than prosecutors or judge, treating the child as with a firm but benevolent parents. But parens patriae and individualized justice led to proceedings in Juvenile Court had spent with certain traditional rights. In some states, Court have ruled that juveniles are not entitled to bail, to indictment, to speedy in public trial, to confrontation of accuses, to the privilege against self-incrimination and the right to counsel. But up late there has been increasing criticism by scholars and reexamination by courts. Questions have arisen to the fulfillment of the original goals of Juvenile Court movements and especially about the barter of alleged special treatment for constitutional protection. The climax came last year in Kent v. United States, summing up the present situation, the Court said as follows, “While there can be no doubt of the original laudable purpose of juvenile courts, studies and critiques in recent years raised serious questions as to where actual performance measures well enough against theoretical purpose to make power to the immunity of the process from the reach of constitutional guarantees applicable to adults. There was evidence in fact that there may be grounds for concern that the child receives the worse of both worlds. That he gets neither the protections accorded to adults nor the solicitous care and regenerative treatment postulated for children.”
William O. Douglas: It was not a constitutional decision.
Norman Dorsen: That's correct, Mr. Justice Douglas. And I would -- in the intent the Court did not decide these questions but they were specifically -- the Court specifically reserved and specifically reserved the question where the constitutional guarantees which would be applicable to adults must be applied in Juvenile Court proceedings. This case presents that issue in the five specific respects I've outlined above.
Speaker: How -- how long did you say Arizona statute had been on the books?
Norman Dorsen: I'm not certain. I think it was amended 1962 but I'm not sure of the exact date of enactment, yes.
Hugo L. Black: Many of the states do provide these safeguards.
Norman Dorsen: Many of them do, many of them do and in safeguards specifically some of them are provided by the statute and some are provided by court rule. For example, I was about to turn to the question of right to counsel and according to the legal aid, the National Legal Aid and Advisers Brief, 78% of the jurisdictions in which legal aid operate provide a right to counsel.
William O. Douglas: But doesn't New York have almost complete panoply by --
Norman Dorsen: That's correct, under the recent Family Court Act, New York has provided for the point of law guardians and they are specifically enjoined with responsibility of representing children's interest.
Hugo L. Black: Do you keep a record of it?
Norman Dorsen: Record is kept. The standards of the -- that have been promulgated jointly by the National Council on Crime and Delinquency by the National Council of Juvenile Court Judges and by the Children's Bureau of the Department of Health Education and Welfare also provide for these safeguards.
Abe Fortas: Mr. Dorsen, I have a question with you. Professor Dorsen have you seen a theoretical articulation of the basis for reading the Constitution of the United States so as to care about juveniles. What is the theoretical --
Norman Dorsen: I have seen some Mr. Justice Fortas and we submit that these are insufficient. The justifications are several. One is the justification of the therapeutic aid or the individualized justice that is to be accorded juveniles but of course in this case, we are not saying anything about what treatment juveniles should receive once they are determined --
Abe Fortas: I suppose to state passed the statute applicable to the handouts which attract the whole of these and the state declared that narrowing the state as parens patriae of adults and nobody is going to be sent to jail they're just going to be send to industrial homes and there they will be well fed, well shod, and well clothed but they can't get out. Now, how do you -- how would one dispose with that and distinguish that from the case turn I suppose we'd all agree on and that is no excuse for depriving of people of constitutional guarantees. Now, what is the basis for distinguishing between that and in the case of juveniles? The Arizona statute goes up to page 21.
Norman Dorsen: Page 18.
Abe Fortas: 18.
Norman Dorsen: There are statutes. California for example goes up to 18 to 21.
Abe Fortas: Yeah, alright, 18. Now, what is the basis for saying that an 18-year-old boy can be deprived of constitutional guarantee and parens patriae theory. But that state couldn't go through the parens patriae formula and prior to that are constitutional guarantees.
Norman Dorsen: I have seen no satisfactory explanation.
William J. Brennan, Jr.: But what about this one Mr. Dorsen. I noticed one of the brief here that that was fundamentally speaking now on a legal concept. Basic right of the juvenile is not the liberty that was --
Norman Dorsen: No, we reject that.
William J. Brennan, Jr.: I know you reject it but isn't that -- doesn't that sum up the legal concept upon which some of these rights are denied?
Norman Dorsen: I -- I think it may if I understood exactly what it meant I could be sure, well it's obviously --
William J. Brennan, Jr.: Well, it seems to me that this brief suggested many of it, that it means that there are special problems of the child class interest with building on the notion that the basic right of the pupil is custody, whether he is a juvenile delinquent or not the children of all of these is supposed to be in custody with the parents, if that's the notion which support these different treatment, is that supposed to be it?
Norman Dorsen: Well, I think that argument might well be, Mr. Justice Brennan.
William J. Brennan, Jr.: Yeah, but isn't that the argument?
Norman Dorsen: Well, I must confess that it may well be. I do not understand it because I -- no matter how many times one says parens patriae I think there is a small --
William J. Brennan, Jr.: No, you don't have to understand it.
Norman Dorsen: But that may well be --
William J. Brennan, Jr.: That is the argument.
Norman Dorsen: That is the argument that the Ohio Juvenile Court judges made --
William O. Douglas: I though that came from the idea that the state standing with you to the parents?
Norman Dorsen: That's correct.
William O. Douglas: To parents.
Norman Dorsen: That's correct.
William O. Douglas: Natural parents along with that they get beyond humanitarian scriptures that can control a child to confess in a room, stand on the corner, the state can't. That's the idea.
Norman Dorsen: I guess that is it. It's of course --
Potter Stewart: But as offspring, it's also part of it, it's a quid pro quo. You don't -- I suppose at common law you could take an 8-year-old boy and put him to trial before a jury and convict him and sentence him to be hanged and give him all -- do all the constitutional rights of trial by jury and the cross-examination and the rest of it. They decided to remove that in the courts of the Criminal Courts and set up the alternative procedure.
Earl Warren: We'll recess now.
Norman Dorsen: Mr. Chief Justice, in connection with the question of justification for the procedures in this case whether considered from the point of view of custody, treatment, therapeutic gain. Appellants would like to stress to the Court the very important and in our view a very sharp distinction between the determination of delinquency and any custodial obligation that the state may take after the child has been determined to be delinquent. There's no inconsistencies in our view between having the kind of protections that we are suggesting are required by due process and the finest custodial and treatment processes in the country. Just two weeks ago the Supreme Court of New Jersey unanimously reversed a juvenile's case in determination of delinquency and Judge Proctor in a very careful opinion said assuming a juvenile is not entitled to all the constitutional requirements of the criminal trial, we firmly believe he is at least entitled to a fact-finding process which measures up to the essentials of due process and a fair hearing. And in this connection it might be worth knowing that New York and its recent statute has specifically provided for two distinct hearings a determination of delinquency hearing and a disposition hearing and similar standards are suggested by the Children's Bureau of the Department of Health Education and Welfare, the Juvenile Court judges and the National Council for Crime and Delinquency.
Hugo L. Black: How far does New York go in amending constitutional rights?
Norman Dorsen: Well, New York provides with an appointive right to counsel and provide for the privilege against self-incrimination and provide the facts upon which the delinquency is alleged to have occurred or brought to the attention of the child and they provide --
Hugo L. Black: In writing?
Norman Dorsen: In writing, in writing.
Hugo L. Black: They have an open hearing?
Norman Dorsen: No, not an open hearing, closed hearing.
Byron R. White: Or rather a jury trial?
Norman Dorsen: No jury trial Mr. Justice White.
Hugo L. Black: A right of review?
Norman Dorsen: A right of review.
Hugo L. Black: Now, why do you have the burden?
Norman Dorsen: Bergen, New York is by a preponderance of the evidence. In Arizona it's by clearing convincing evidence. Confrontation is permitted and required in New York. In fact, they go so far as to say specifically in the statute that a confession made out of the Court is not admissible as the soul basis for finding delinquency.
Speaker: It may have had an effect to that.
Norman Dorsen: Correct.
Speaker: In New York, New York law is not (Inaudible).
Norman Dorsen: That's correct. In fact there was an earlier case in 1972, the Lewis case which was in the sense overruled by the recent changes in New York law.
Hugo L. Black: How do they reconcile not giving a counsel have civil rights? They can change it like this?
Norman Dorsen: Well, of course there is a question about that and for example to take the -- example, Mr. Justice White mentioned there are certain problems of confidentiality that would seemed to be applicable in the case of the child. So there might be a justification for keeping such a proceeding.
Hugo L. Black: From that plus the reverse on that up that those hearings that I was then thinking about some of the other things.
Norman Dorsen: Well, of course, those haven't been tested yet.
Hugo L. Black: Where did they go from there?
Norman Dorsen: They go to an appellate court through the New York Court system.
Hugo L. Black: (Inaudible)
Norman Dorsen: Yes.
Byron R. White: Is there a trial de novo on that?
Norman Dorsen: No, trial de novo although some states have provided a trial de novo.
Byron R. White: In New York?
Norman Dorsen: Not in New York.
Byron R. White: Is there a transcript?
Norman Dorsen: There is a transcript.
Hugo L. Black: What's left of it?
Norman Dorsen: Pardon me?
Hugo L. Black: What is left on the juvenile system as it was conceived through other -- all federal constitutional right that we suggest?
Norman Dorsen: Well, we would suggest that the best part namely the opportunity for the state in the case where a child has been properly determined to be a juvenile to do what it can, to treat him, to take care of him, to rehabilitate him. And we're suggesting that the procedures --
Hugo L. Black: But could they do that differently to the way they did?
Norman Dorsen: I -- I think that only in the sense that children are in a more formative stage and that the theory of a childcare has been that a child can be brought along in a different way than adults can be.
Hugo L. Black: We might distinguish between them just like in the federal system, years ago (Inaudible).
Norman Dorsen: That is true. Unfortunately the system has developed in many states up to three quarters of the states, it's still possible for juveniles to be referred to regular prisons in the company of adult criminals and this is pointed out in the Health, Education and Welfare study on page 71.
Abe Fortas: Mr. Dorsen, your -- I beg your pardon. Your theory here applies only to the delinquency part of the work of the Juvenile Court.
Hugo L. Black: That's correct Mr. Justice Fortas. There are two other sections in the Arizona Code as there are in several other states neglect and dependency, the first where the parent is found to be in fault in some way and the second where it was nobody's fault.
William J. Brennan, Jr.: Now getting back to this (Inaudible), would your position carry those cause?
Hugo L. Black: Well, of course that question is not presented here and therefore I am not --
William J. Brennan, Jr.: I suppose that we can answer some of the questions honestly without thinking about some of these others.
Norman Dorsen: I am not urging that position in this case.
William J. Brennan, Jr.: Well, how do you distinguish that?
Norman Dorsen: Well, I would distinguish it apart from the fact that the record doesn't present the question from the point of view that the child's special sensitivities to publicity, special stigma that might attach to a child, the child's disorientation before a the public.
William J. Brennan, Jr.: Or his parents knew and demand a public trial that being a constitutional argument of public trial.
Norman Dorsen: I'm not sure how I would decide that case.
Abe Fortas: I might --
William O. Douglas: You might have to think about it.
Norman Dorsen: I have thought about it and I would now urge the Court to take the position that a public trial is required.
Abe Fortas: Mr. Dorsen, how much is left to this confidentiality of the juvenile proceedings? The -- the draft authorities have accessed the juvenile records.
Norman Dorsen: That's correct.
Abe Fortas: Don't -- does the FBI have access to it as a matter of fact?
Norman Dorsen: As a matter of fact, the recent Harvard study cited to the fact that the FBI is given all reports of delinquency or at least a large number --
Abe Fortas: And the police authorities and the same jurisdiction have access to it?
Norman Dorsen: As far as I know they do even though the Arizona Code purports to protect the juvenile by providing for destruction of all records within two -- or after two years following his release from confinement.
Abe Fortas: I wondered whether all these business about confidentiality of this record really isn't confidentiality for purposes of taking the parents and criticism and if it really has -- if there's really much left of it so far as the child is concerned.
Byron R. White: Mr. Dorsen would you apply the same idea to all the state in the hearing of the Juvenile Court you say on a delinquency and -- are you speaking technically of the hearing on delinquency or would you include hearing on disposition?
Norman Dorsen: I would not include the hearing on disposition. This case of course does not present that question. It would depend upon which aspect of the hearing on disposition are you referring. For example, I should think that there will be certain types of evidence, social studies of the child's family that would be relevant in the dispositional hearing that wouldn't be relevant with the determination of delinquency. And I would permit that evidence to be introduced.
Byron R. White: But it certainly would have the right to counsel.
Norman Dorsen: Absolutely.
Byron R. White: But you wouldn't call for a confrontation or things like that.
Norman Dorsen: Well, I think the way I would put it myself would be that no fact that the judge is taking account of in determining whether to dispose the child one way or another should be left undisclosed to the child in his counsel.
Byron R. White: But in terms of the procedure for establishing --
Norman Dorsen: I don't think I would go that far.
Byron R. White: You wouldn't go for the -- then you would identify the same rule to the preliminary hearing that in some states they might have a preliminary hearing to determine whether to file or not.
Norman Dorsen: Well, I don't think I would although there are problems about that because of the right to counsel problem. For example in this case --
Byron R. White: Well, but don't you have to think about these things in deciding this case.
Norman Dorsen: That's right. I think you do because I think that in this case for example even before the hearing there was a question of when the child was going to admit or deny the charges and in particular with respect to his right of counsel as the record here. I think very dramatically demonstrates, when this child did not deny the charges against him at the first opportunity according to the Supreme Court of Arizona he lost the right at that point to an adjudicative hearing. And naturally we would say that this was a critical stage of the proceeding and he would be entitled to counsel.
Byron R. White: I think it will come up all the time whether or not there's been an event in the complaint against somebody against some child in the question of whether to file or not and the -- would you say that the probation officer or whatever or the social service worker who's determining whether the form of petition or the report should be filed -- should talk to the child at all?
Norman Dorsen: No I wouldn't say that. But I do recognize Mr. Justice --
Byron R. White: What would you say? That he should talk to his parents?
Norman Dorsen: I should say he should --
Byron R. White: But his counsel should be there.
Norman Dorsen: Well, that's right although I'm not taking that position in this case. I'm taking the position in this case that at the core of the hearing process which this case demonstrates, the counsel is certainly necessary and the amount of prejudice that this record seems to me to show regarding the rights of this boy seems to me to be conclusive on that point.
William J. Brennan, Jr.: Well, Mr. Dorsen did you think of it as a constitutional right?
Norman Dorsen: That's correct.
William J. Brennan, Jr.: And now, can you suggest how we would distinguish in terms of the times when an adult is entitled under the case that requires a counsel -- the case of the children?
Norman Dorsen: I'm not so sure, I could suggest the distinction although it is clear not only because the question wasn't raised but because the question in this case could not have been raised.
William J. Brennan, Jr.: Mr. Dorsen, well you couldn't say that but you can't limit this case here, that this case --
Norman Dorsen: Well I've answer the --
William J. Brennan, Jr.: How do you -- well it reads that to me.
Norman Dorsen: Well, I tried to answer you by saying that I can think of no distinction if there is a delinquency procedure --
William J. Brennan, Jr.: Can you think of a distinction if we say that that the child would be counseled by any adult who would be playing that right and the rights of public trial?
Norman Dorsen: Right. I tried to show a possible distinction. Mr. Justice Fortas pointed out that there may be problems in the formulation I made.
Abe Fortas: Probably, Mr. Dorsen there agrees what is a public crime and that one might very well take position that the trial so to speak of a juvenile in the judge's chambers with nobody there but the juvenile and the judge would be a constitutional and offensive but that perhaps a trial from which the general newspaper reporters and general public were excluded might not be constitutionally offensive and somewhere in there, isn't that possible?
Norman Dorsen: I think it is and similarly in connection with --
Hugo L. Black: How is it possible for you to judge it, how is it possible?
Norman Dorsen: Well, I think --
Hugo L. Black: This is the question that the man is entitled to a public trial. How is it possible except for the conception to draw a distinction between a boy that's 19 and somebody who's 23.
Norman Dorsen: Well, I would not draw that distinction Mr. Justice Black.
Abe Fortas: Do you think --
Norman Dorsen: I would not -- I would like to comment if I may --
Speaker: I would suppose you draw the fundamental test because the context of whether this constitutional fairness and whether it's a fundamental fairness or a child given that he is given?
Norman Dorsen: I'm proj -- I would say that I might draw though of a child -- between a child of eight and a man of 21. I might think of a way in which that the proceeding --
Hugo L. Black: Well, I suggest if we stick to the word of the Constitution and forget the word fundamental fairness, what would you do?
Norman Dorsen: Well that would present a hard question. I would like to comment though on a question Mr. Justice Brennan and Mr. Justice White raised because I can think of a possible ability in terms of having welfare workers or probation officers who are insulated from the delinquency hearing who are insulated from the adversary system dealing with the boy in a preliminary stage without his lawyer. And we have to see that system but it is possible for me to conceive of the system without welfare worker especially if the boy is not with his parents dealing with him on a confidential and private basis. But that would be a very specially constructed system and I would have to see it before I want to --
Byron R. White: Well, Mr. Justice Brennan's question about a public trial I don't suppose that in terms of the public constitutional rights of public trial that the defendant in nature -- the senior defendant and the prosecutor, the court room can be locked up. And if the press wants in, the press gets in and what we can say about that and it feels more a important thing, so both the parents, the child and the Court wants to have it closed, somebody else's like they take a man because no, we don't want to close.
Norman Dorsen: Well that is the hard question that Mr. Justice Harlan and Mr. Justice Black have expressed the opinion and I could see a distinction being made between an 8-year-old boy and a 17-year-old boy. That is as far as I can go at this time because I'm just not sure if I would --
Abe Fortas: Well, there is some opinion to the effect that even on the case of adults you don't have a television camera in the courtroom and make it a public trial, isn't that right?
Norman Dorsen: That's correct. Well, (Inaudible) case disposed of that.
Hugo L. Black: And that you would say would abide to the judge or to the head or --
Norman Dorsen: I certainly would say it would. Well they'd be --
Hugo L. Black: You don't give, do you?
Norman Dorsen: Pardon me?
Hugo L. Black: If they don't have it here, they will wait.
Norman Dorsen: That is right.
Hugo L. Black: It has not been held --
Norman Dorsen: It is not held and this case doesn't present it. There was no request for it. The facts of this case though -- well, I would like now in the few minutes remaining to me to address the Court's attention to because this record as I tried to state it as well as I can does show that this boy was prejudiced in countless ways not only because of the absence of the counsel but because at no time was either he or his parents informed that the specific charge upon which the judge ultimately made a decision. If a lawyer were present for example, the lawyer would have tried to establish exactly what the charge was.
Abe Fortas: As a matter of fact, we still know -- I'm still not clear. Are you Mr. Dorsen?
Norman Dorsen: Well, a judge -- I don't think it was entirely clear, because he said at one point that on page 61 of the record that there was probably some other ground for the decision.
Abe Fortas: Yes, sir. And the determination of delinquency as I understand it taken the account not only a specific incident had issue but also the lawyer's record?
Norman Dorsen: That's correct.
Byron R. White: And we -- and all we have here is these main remarks to what you refer.
Norman Dorsen: I also think it's important to stress --
Potter Stewart: If that is correct, it doesn't make that quite different from the conventional criminal trial? The determination of delinquency depends not on specific acts of misconduct but only upon those in reference to it, the totality of this previous record does not that make this whole --
Norman Dorsen: I would think so --
Potter Stewart: -- administration. That's entirely different burden from a criminal trial where it's generally considered prejudicial to bring in anything about this previous conduct except the specific misconduct of which he is charged.
Norman Dorsen: Well, I think it makes it different but I don't think it makes it substantially different and the reason I don't think so is that if certain facts which are alleged to be true by the state are going to be taken account in determining whether a boy is going to be judged as a delinquent and his freedom taken away, those facts should be stated in advanced specifically and a few times where a preparation for the case can be made. In this case, the notice was given at 7:30 or 8 o'clock in the evening of June 8 and the hearing was the next day.
Abe Fortas: As I understand Mr. Dorsen, the theory is that there are specific incidents from which the finding of delinquency has to be made not some general amorphous reaction to the boy. But in this particular case, as I understand it, there was one immediate incident named the telephone call. There was this reference to the purse taking by the boy's companion at which Gault in the south was present and then there is this vague reference to an incident involving a baseball glove.
Norman Dorsen: That's correct.
Abe Fortas: And that's it, isn't it?
Norman Dorsen: That's correct, that leads in their brief --
Abe Fortas: And then there's nothing in this record that illuminates what that baseball glove incident was and nothing beyond their words of the report with respect to the first taking.
Norman Dorsen: That's correct. We -- in our brief, we'll rest in our brief and this privilege against self-incrimination point and the point related to --
William J. Brennan, Jr.: Mr. Dorsen, I might just have given up what was the material is, it's possibly here, or this were not to miss the appellant as to how far this progression within the states either by statute or court decisions?
Norman Dorsen: Yes. The brief of the National Legal Aid has its good compilation I believe it has been made in this field.
William J. Brennan, Jr.: At least we have state briefly how extensive this would be?
Norman Dorsen: Well it does. The -- the legal aid brief points out with respect to some of the items that have been raised this morning that 78% of the jurisdictions give a right to counsel, 89% provide confrontation of witnesses and 70% of privilege against self incrimination. And almost 90%, I believe, a right to an appeal and comparably 5% which is in other words, this is a -- it has come to be recognized over the past few years and if you discover the criticism and the work of the courts that these rights are essential there are no way you can be consistent with the therapeutic and dispositional aspects of the juvenile proceeding that the specific facts as Mr. Justice Fortas stated are those that have to be rebutted. There are lawyers as essential or more essential in juvenile cases than it is with adults. Even under the rule of Betts v. Brady under the fundamental fairness Betts v. Brady, it was well established by this Court in the merely and other cases that the age of the defendant was a pertinent fact that you take into account in deciding whether it was fundamentally unfair not to provide him with a lawyer. Our position --
Earl Warren: Do you know how many states if any provide the counsel if they're unable to obtain them themselves? Is that in your brief?
Norman Dorsen: It isn't -- it is --
Earl Warren: If it's in the brief, don't bother. And go right on with your argument.
Norman Dorsen: I would like to answer if I can. 74% according to the Legal Aid in appendix page 10A of the Legal Aid brief, 74% provided it, if the child --
Earl Warren: On the states?
Norman Dorsen: Of this --
Earl Warren: The courts -- the courts required that, do they?
Norman Dorsen: That's right. And of course in this case Mr. Chief Justice it's very plain that even though the Supreme Court of Arizona said that Mrs. Gault knew of her right to retain counsel, that is far from providing the right to counsel that we believe the Constitution requires. First of all, it's Gerald Gault's right -- we're trying to point that Mr. Justice Stewart alluded to this morning. Secondly, the right we believe is required by the Constitution is the right to assign counsel if the boy can't afford it. Instead, the Supreme Court of Arizona said that the parents or the probation officer can be -- can act as a counsel. Now, of course if the parent himself were before the Court is a defendant, he would be entitled to a lawyer because on the theory that he couldn't defend his own case but when the child is in the position as the defendant, when the child is before the Court with up to six years of his freedom to be lost, somehow the Arizona Supreme Court finds that the parent can satisfactory act on behalf of the child as the lawyer would and as far as the suggestion that Officer Flagg act as the lawyer, the probation officer in this case it seems to us that this is even less realistic and less fair, there's a flat conflict of interest. Flagg is the person who signed the petition. He signed the petition on behalf of the state in which he said that he is informed and believes and therefore alleges that Gerald Gault is a delinquent. That's on page 80 of the record. Flagg did not do a thing for Gerald Gault. It's well established they didn't informed Gerald Gault of any of his rights, any of his rights throughout the proceeding. Instead, what he did try to do was to get a change of story as the record points out on page 49. He was certainly acting as an adversary. In short, our position is with respect to the lawyer -- with respect to the various other constitutional protections that we believe to be fundamental that the absence of a lawyer does not mean that we'll have a harmonious informal, non-adversary proceeding. Instead it means that we'll have a one sided adversary proceeding, a one-sided adversary proceeding in which the cards are stocked against the child from beginning to end. And we suggest that this Court at this time recognize for example on the case where a father and his son are alleged to --
William J. Brennan, Jr.: How will that Mr. Dorsen in that case, in that particular (Inaudible).
Norman Dorsen: Well, I did not mean and I'd like to answer that very specifically Mr. Justice I'm not suggesting and I hope my words are not taken to suggest that there's any intention to do the child in. We -- I said at the beginning and I would like to reaffirm that the purposes of these acts was the highest. The purposes were the help of the child. The problem is that the way their system is developed as the Supreme Court of New Jersey said just the other day that fundamental protections are essential. I think I'd like to --
Byron R. White: One more question, could you tell me to what extent around the country the judge sees is the social studies before determining delinquency?
Norman Dorsen: I don't know the answer to that.
Byron R. White: But it's -- is it widespread or not?
Norman Dorsen: I -- I should believe it would be but I do not know the answer to that.
Byron R. White: Which means that --
Norman Dorsen: You mean looking at the welfare reports or the reports of the probation officer --
Byron R. White: The family backgrounds --
Norman Dorsen: They're available to in almost every jurisdiction. But they're also -- before the determination --
Byron R. White: Of course, if they'll be trying out the specific fact of whether someone is maybe lewd phone call.
Norman Dorsen: That's correct.
Byron R. White: But delinquency decision on whether he's delinquent or not may not be limited to that.
Norman Dorsen: That's right.
Byron R. White: And you would say that if it isn't limited to that every fact upon which the determination of delinquency must be tried out even though the judges would look -- I never hold a fellow that boy to be a delinquent just on the basis of one act just depends on the whole background.
Norman Dorsen: Well, I would still maintain Mr. Justice White that when you are determining delinquency with the loss of freedom that the facts have to be stable. I -- I don't see how we can urge the contrary in this case.
Byron R. White: Well, if the judge says well I'll take one issue then did he make the phone call and then I'll consider that all the rest of this information is only relevant in disposition. I'll find him to be a delinquent and all the rest of this information is available to account. It's always the question of disposition whether I will put him on probation or whether I --
Norman Dorsen: That is the recommendation of the Children's Bureau of the Department of Health, Education and Welfare.
Potter Stewart: And how about notice just before you sit down? What should they notice according to you contain? Just in this case they noticed about the charge about the phone call or what else if there's anything.
Norman Dorsen: I would say that the notice of the charge about the telephone call, the notice of the possibility that he was going to be subjected to a determination on the subsection B which was never brought before him at any time. I also believe the notice should be in writing and I believe that the notice should be given to the child. It's his interest there --
Potter Stewart: Only to the child?
Norman Dorsen: To the child and to the parents.
Potter Stewart: Why to the parents?
Norman Dorsen: Because the parent has --
Potter Stewart: If somebody were going to charge against me they don't notify my mother, do they?
Norman Dorsen: That is true but in this case, when the child is a child there is -- in his minority, there is a familial relationship.
Potter Stewart: Well, so what makes it quite different from an ordinary case if you have to notify the parents?
Norman Dorsen: In the sense that maybe more rights --
Potter Stewart: The property right of a child with a parent?
Norman Dorsen: I would not call it a property right --
Potter Stewart: Then why should the parents have to be notified?
Norman Dorsen: Because I don't believe it's a property right --
Potter Stewart: Are you talking about constitutional right?
Norman Dorsen: Well, I believe it's the parents who are in a position to help the child. I believe the parents have a child and a family relationship and I believe therefore it has been apparently 100% of the jurisdictions that the legal aid office canvass, 100% provide notice for the --
Abe Fortas: Well, you're not talking about at least a constitutional right.
Norman Dorsen: That's right sir.
Abe Fortas: At least.
Norman Dorsen: I'll reserve the rest of my time, if I may.
Earl Warren: All right, Mr. Dorsen. Mr. Parks?
Frank A. Parks: Mr. Chief Justice, and if the Court please. The attack that is being made today against the Arizona Juvenile Code goes in our estimation to the heart of the American Juvenile Court system. We, the appellees in this case, consider this the crossroad of juvenile jurisprudence for approximately two-thirds of the sanctuary in a vast majority of cases, Juvenile Codes very, very similar, if not exactly the same as the Arizona Code have weathered constitutional attacks. And I think at the outset with considerable justification even opposing counsel as a critic to the Arizona Code will admit that it is incumbent upon a jurisdiction to treat their children differently than they would an adult. An adult defender of that would be the proper phraseology. The conflict of course arises entirely with on the one hand what is required by due process, fair treatment and the sociologist concept of what is proper treatment in terms of the fact that we're dealing with a child, the individual of tender years. Well, at the outset in proffering the calls for the State of Arizona, I think it's our Court that has explicitly stated, they are interested entirely in the individualized justice approach to children's problems. This is their main aim in regard to handling the problems of youth.
Byron R. White: Well what -- do you think this is such a big crossroad right in this case for New York?
Frank A. Parks: Well, in regard to my estimation of New York provisions, Your Honor I believe, that New York has gone beyond their crossroad.
Byron R. White: So this case is no crossroads for them anyway?
Frank A. Parks: No crossroad for them Mr. Justice.
Byron R. White: And how about California? How about California?
Frank A. Parks: California. They have made an inroad on their crossroad I believe while they haven't -- while they haven't gone as far as the potential constitutional ramifications could conceivably take it --
Byron R. White: Take that Illinois.
Frank A. Parks: Judging me short, Mr. Justice.
Byron R. White: Well, I mean I'm just -- you say this is the crossroad for the Juvenile Court system. Well that may be true in your statement. It may be true in certain states.
Frank A. Parks: In certain states and of course I look through with a monocle as seen through the State of Arizona as to what our conception is of a proper and a proper functioning juvenile system.
Byron R. White: And you will say why you think that that view of yours requires that the prior -- the evidentiary hearing the state place that I viewed --
Frank A. Parks: Certainly will.
Potter Stewart: -- he will take place rather than the way you do your --
Frank A. Parks: Mr. Justice White, I certainly will. The --
Abe Fortas: Well I hope let's assume that can be broken down a little bit. Will it interfere with individualized treatment in the Arizona conception for the child and the parent to be given a written notice?
Frank A. Parks: Certainly not. Certainly not, Mr. Justice Fortas.
Abe Fortas: Well, it then appears with the individualized treatment for the counsel to be provided to them.
Frank A. Parks: Well this, if you would wish, I will go into it now. I had hope that I might just give you the basic foundation for our reasoning --
Abe Fortas: I don't think -- all right, I will just like to get less from here. So you think that maybe it would interfere with individualized treatment of the counsel appointed for the child.
Frank A. Parks: Definitely, Your Honor. Definitely.
Abe Fortas: As far as the child were told, were given warnings you didn't have to say anything and if they did say anything it could be used against you. Do you think that will interfere with individualized treatment? In other words, if he is given an opportunity to avoid self-incrimination, will that interfere with individualized treatment?
Frank A. Parks: That is correct, Your Honor.
Abe Fortas: You think it would?
Frank A. Parks: That is correct. The warning of a right against self-incrimination, give that warning in every case.
Abe Fortas: That is bad.
Frank A. Parks: That is correct, Your Honor.
Abe Fortas: How about appellate review, will that interfere with individualized treatment?
Frank A. Parks: If the legislature so deemed that as the law of our jurisdiction then so be it. I take the position that the failure of our legislature to define an absolute channel of review did not deny due process.
Abe Fortas: I'm not asking that, I said would it interfere with the, what you say is Arizona's objective which is individualized treatment providing a right to appeal or right to review. Would that interfere with the individual?
Frank A. Parks: In good conscience, I would say no, Your Honor.
Abe Fortas: And how about confrontation? The requirement that the accusing witness testified in front of the child or the child's counsel or child's parent or all, would that interfere with the individualized treatment?
Frank A. Parks: In cases where the charges are denied by the child I think it is a requirement of due process.
Abe Fortas: You think that is a requirement?
Frank A. Parks: That is correct.
Abe Fortas: How do you construe this record, is this a null or -- (Voice Overlap) sir?
Frank A. Parks: The Supreme Court of Arizona wouldn't say side-step the issue. They took it front on by deciding that in this specific instance, it was not a relevant argument.
Abe Fortas: Yeah, but usually, the criminal case unless there is a clear admission case proceeds as if there had been on a not guilty claim, isn't that right?
Frank A. Parks: That is correct, Your Honor. However, as I will intend to interpret the facts of the case that I think they are a bit distorted by appellants as the actual permissions that were made.
Abe Fortas: I'm asking it in your view. That carried one. Do you agree that confrontation in the case of the juvenile is a constitutional necessity where there is a denial?
Frank A. Parks: I think it -- I wouldn't go so far as to say it's a constitutional requirement but I would be the first one to accept the concept that fair treatment would warrant a rule that would decide if the child has denied the charges that there'll be a fact-finding procedure to determine whether in fact the facts which have been alleged are correct or incorrect.
Abe Fortas: Well unless you're going to confess here than you have to take the position that the Gerald Gault did not deny --
Frank A. Parks: That's correct.
Abe Fortas: -- the act of which your complaint was made here. But on the other hand he didn't admit it, did he?
Frank A. Parks: As I would show the Court in the record, there were specific references made to the statements made by the boy not only to the judge who on two different occasions that the habeas corpus proceeding specifically stated, “I talked to the boy and asked him if in fact this telephone call was made.” The boy gave the exact set of facts as it's related in the record that he had dialed the number and he had stated some of the words although not the most serious of those words. This was also substantiated by Deputy Probation Officer Flagg who also testified at the habeas corpus proceeding that the boy on two different occasions admitted to him that he had stated the words involved. Mr. Dorsen had relied on the next perhaps out of the record where at the second hearing on the 15th, they again went back into talking to the boy to try to find out the specific facts that the judge wanted to delve into it that time. And then --
Abe Fortas: And they get back to the other point, if you think that confrontation where the boy denies guilt would not negate individualized treatment, why is it that you're so worried about self-incrimination by telling the boy that he has got a privilege against self-incrimination?
Frank A. Parks: Well, I think the one potential disadvantage to confrontation is to bring the child into the center of an adversary proceeding with all the taint perhaps of a criminal proceeding that we try to remove in the child.
Abe Fortas: But I thought you said that was alright where the child denies guilt that you thought there was an essential element of fairness?
Frank A. Parks: Well, of course I'm going outside the record now, Your Honor, as far as my --
Abe Fortas: It may not be depending on how one (Voice Overlap)
Frank A. Parks: Because it's my position that I think fundamental fairness requires a fair fact-finding determination of an adjudication of delinquency. And if the child denies it, I think that it would be incumbent upon the discretionary powers of the judge to ensure that the subject is aired to that degree which to his satisfaction and by clear and convincing evidence will indicate that there has been a violation if there is a violation or that the facts alleged indeed did take place.
Abe Fortas: They know they would establish anything by declaring convincing evidence sort of giving -- providing fundamental due process?
Frank A. Parks: I think the two would run hand-in-hand, Your Honor. Of course, if I just may answer the one remaining question left unanswered, what is the difference between that and the privilege against self-incriminations to warn the child of that. Well, this gets right to the basic core of the juvenile system that everything has conceivably done is for the purpose of enhancing the welfare of the child which the state's last opportunity to take the child of tender years in a very, very supreme effort try to take that child which perhaps is encourageable and make him a good citizen. Now, to tell him at the outset, we're here for your benefit, anything you say may be used against you. You don't have to say anything. I think that even the experts in the field will indicate that this is a very, very bad first step.
Abe Fortas: Which is reading was sort of lesson as applied to juveniles in the State of Arizona.
Frank A. Parks: Well, the report that comes out on a county basis on our state indicates that it was below the national level. I don't have the specific figures before us. The report comes out of our Fort Grant Industrial School which is entirely for delinquent children. They indicate that their number of repeaters is extremely low. And that's --
Abe Fortas: Extremely low means what, supplement --
Frank A. Parks: That ones who where in their once normally then come back.
Abe Fortas: That mean 40%, 50%?
Frank A. Parks: No, I think they're very -- in ‘54 -- '64, I believe it was in the 20% bracket. Now, I would just like to have the Court respectfully bear in mind that when the state acts as the parens patriae in place of the parent, it does in fact do that. Now, I would respectfully ask the Court to just bear in mind that we're dealing here with the child. Now, this is a completely different, if I may start with my argument from this basis, a completely different individual that than an adult. All through a child's adolescent years, he goes through period of limited freedom. He doesn't know absolute liberty and freedom as such is known to an adult. I mean, he has no absolute right to go out and drive a car, he has a limited right to contract. He doesn't have personal liberty to avoid compulsory education. His entire adolescent years in many cases a direct indication of just how he is going to be brought up is directly dependent on what proper parental restraints are placed upon him. If a child needs necessary restraints the parent gives it to him. And I think this was the basic feature behind the first Juvenile Court. The state steps in and tries its very best when the parent is not doing the job to do that job in the parent's place. Now, the facts this case will bear a -- or lend a great degree of credence to the statements that I'm making here today. This is not -- was not a waiver proceeding in our estimation based on the record. We don't think it was a case of which a child denied to tell the judge all and I think his statements indicated that he had stated some of the lewd remarks that were made on the phone. The facts as stated by Mr. Dorsen were basically correct. However, he made one statement that I had previously just touched upon that at June there were two hearings. The boy was picked up directly on the eighth. He was placed in a detention home in this very, very small community in Arizona, Globe, Arizona. And the probation officer who was directly involved in this case, Probation Officer Flagg, stated that he did not come back to the probation center as part of his activities until late around in the afternoon of the eighth. He immediately went down to the detention home and this was I believe in the early hours of the evening. Concurrently, therewith, Mrs. Gault came home and found out her son had been picked up by the police and he was down to the detention center. They met at that time. Now, this was a day before the hearing. Flagg who was one of two probation officers on the staff of the Juvenile Court in that county spoke to Mrs. Gault and his statement as I have related my brief is to the effect that he talked to Mrs. Gault, he explained everything to her. Mrs. Gault also admitted that this conversation took place. She admitted that when she talked to Probation Officer Flagg, he said, “I am going to try to set the hearing up for 3 PM tomorrow.” Now, on June 9th, this first hearing took place as related by Mr. Dorsen.
Abe Fortas: Why did the state in its capacity as parens patriae on this 15-year-old boy, pick him up and put him in the receiving home? Was there any indication that he was about to plead the jurisdiction or would not be available for trial? Was the warrant obtained as the record show what information (Voice Overlap)?
Frank A. Parks: No, Your Honor. There was no warrant obtained but I think the record while it is not specifically passed on this issue will show that on that specific date, the father was away on his job some hundred and fifty miles away up in the Grand Canyon area. His mother was working. The boy was home alone.
Abe Fortas: And so this supposedly benevolent parens patriae, the state picks the boy up and puts him on the -- well in most jurisdictions one would have to say is whimsically called a receiving home. I don't know your institute of --
Frank A. Parks: We would like to think of that as a detention centers is getting the center of our attention, Mr. Justice Fortas.
Abe Fortas: Well, I congratulate you up here relatively unique.
Frank A. Parks: But the Juvenile officer who by law is required to be contacted immediately in his best discretion decided that the proper procedure in this case was to have the boy taken to the detention center.
Abe Fortas: That's routine, isn't it? When the child --
Frank A. Parks: In not all cases --
Abe Fortas: -- with a delinquency as --
Frank A. Parks: Not in all cases.
Abe Fortas: No, it's not?
Frank A. Parks: Not in all cases.
Earl Warren: As part of being home alone with his father 120 miles away and his mother at work. Was any written notice left for the parents when the boy was taken or any word given to anybody in the household for where the boy has gone?
Frank A. Parks: Mr. Chief Justice, this did not take place.
Earl Warren: I beg your pardon?
Frank A. Parks: This did not take place. There was no written notice left at the home. We as appellees in this case tried to justify it to the respect that Flagg who was out during the day as soon as he came to the detention center happened to meet Mrs. Gault and we would presume that if he had been there earlier there would have been an actual notice. He testified he talked to her, specifically informed her about what the complaint contained and he also specifically told her where when the hearing was to take place. No subsequent written notes.
Earl Warren: But she had to get that information from neighbors or someone else around the place? The officers left no notice to the parents at all, did they?
Frank A. Parks: No, they did not. They did not. The very, very important factor I think that goes to the entire panoramic view of this case is that the boy was not new nor was his parents, completely new to this type of state action. The boy had his first scrape with the law back in 1962 when as the counsel has stated there was a theft to the baseball glove. Now, this was disposed of through the probation office intake procedure. There was no formal complaint made, but with a small type of an office that I know that they have in Gila County. This was a thing that was a common knowledge to them.
Abe Fortas: Was that -- was that ever approved when they boy -- is there anything in the record? Was there anything before a judge saw that shows that that was proved? That the boy stole the baseball glove? Is there anything you saw with the circumstances where that he picked it up on the baseball field and he break into the store?
Frank A. Parks: Other than there was no written record --
Abe Fortas: Well, what then is that?
Frank A. Parks: Well, it's just that -- where In this case as a factual matter, the judge was there back in 1962, these Probation Officers were there in ‘62 and they handled it.
Abe Fortas: But even the judge then say exactly what happened in this?
Frank A. Parks: Well, he was not asked to delve into that specific issue, his statements on the fact show he was well aware of what the facts of the case were.
Abe Fortas: Someone -- well, I am aware of knowing that that's so or that it's not so. The fact of the matter is based on what you say and what happened here is it that was an important part, it's unwritten and unknown perhaps so far as we know, unadmitted and unproved incident as part of the reason for putting the boy in detention for a maximum of six years for an offense which he have committed by or as a -- the immediate consequence of an offense which is committed by an adult would have resulted in the maximum of two months imprisonment, isn't that right?
Frank A. Parks: That's correct. Well, the judge indicated that -- Judge McGhee that this was not the entire criteria involved. The boy was still on probation from the February 2nd, 1964 adjudication of delinquency when he was involved with that grand theft. And being on probation, I think the Court went through their adjudicatory proceeding determined whether or not the facts as alleged on this occasion took place and they took into effect the fact that the boy was already on probation. He was not responding to their therapeutic approach that the Court was trying to afford him.
Abe Fortas: But forgive me, I'll leave you alone for this. But so far as this record shows on that grand theft incident, the only thing that we have is a scrap of paper reproduced in this record that shows that he was in the field along with another boy and that the other boy took the pocketbook, is my recollection correct?
Frank A. Parks: That is correct, Your Honor.
Abe Fortas: That's all we know, that that appears on this sheet of paper. We don't know whether the boy himself was culpable, what the degree of culpability was when he participated in taking it or whether he was just along with the boy and now the representation is I don't -- maybe it's yours but basically this whole theme, it has said that the state as I think is parens patriae, the exact thing as sort of a forced father of this boy. And one of the things that it takes into account is a record statement that the boy was along with another boy in the movie theater and the other boy took the pocketbook. Isn't that correct?
Frank A. Parks: That was the basic substance of that prior probation and I know the Court is limited to in this case the order signed by the Court under that occasion. They determined the boy could be delinquent and just what the provisions of his probationary period were.
Hugo L. Black: Were they following the ordinary course as followed by the Juvenile Court of the county as it has developed?
Frank A. Parks: The basic framework, Your Honor, I would say, was complied with. We think it was as far as a notice is concerned, as far as going through an adjudicatory proceeding as we think it should be you held. The fact that the parents were given notice of the hearing, our Court said that if the boy had in their estimation denied the charges, they would have definitely had a reasonable period of time in which to prepare a defense.
Hugo L. Black: That's simply following the procedure as it has developed.
Frank A. Parks: That is correct.
Hugo L. Black: And on second thoughts I would have called this to question.
Frank A. Parks: I understand.
Hugo L. Black: I -- I don't see that you have done anything extraordinarily bad that you've done.
Frank A. Parks: No, that is --
Hugo L. Black: I think you've been rather following the Court as it's been followed in the trial.
Frank A. Parks: That is correct, Mr. Justice Black. The Arizona Court based its decision with the fact that they were going along with the vast majority of cases that have held similarly on similar points they did not go into the extreme citation stage that they could have. I mean the case law up until now is relatively replete with cases that have passed on the same identical subjects where the courts had accepted the parens patriae doctrine. They have said that we recognize the child is entitled to due process or the question is what does due process require in this special tribunal and they have balanced on the one hand as I have mentioned the needs of the individual and on the other hand adjust what the goals of the quality are in recognizing the type of individual being dealt with. They have confronted the question --
Hugo L. Black: With that questions you -- the basis here whether you're -- that that's the case, they set you in a situation of having to say, does it not, that they're not entitled to legal notice.
Frank A. Parks: Well, I -- of course, I speak through the mouth now of our Supreme Court who interpreted our statute by saying the constitutional -- not the constitutional but the requirements of fair play and due process require notice. And I cannot be absolutely sure but well I know in cases gone by, cases decided that there was no right to notice state act with this parens patriae. It could do that as it would without notice. We here are saying that that is required and that these are one of the injections into our Juvenile Code that I think will take away from the immediate splash made by Mr. Dorsen that our Juvenile Code is briefed of any protection whatsoever. What we're trying to equalize what is needed and what is required.
Hugo L. Black: You can do it by not recognizing some federal rights that this fellow will have except that he's a minor, isn't that here?
Frank A. Parks: Well, if one was to accept the principle that a child has the same absolute rights as a parent, then one would only have one hurdle remaining.
Hugo L. Black: But he would have stay in prison and do whatever has to be done. It's in the Senate, couldn't do a tort.
Frank A. Parks: In regards to taking the juvenile and sending him to the state?
Hugo L. Black: Yeah, I think you're sending him to confinement. Whatever you call the place of confinement. You're the one who will have that separate.
Frank A. Parks: We tend to think it's not confinement merely because his liberty, he is limited to the parental restraint levels.
Hugo L. Black: You think it's not confinement? Maybe you went a little too far.
Frank A. Parks: We look at it from this point. It is very difficult and I think it would be naïve to argue that when the child goes to an industrial school he has the right to walk out the gate any time he wants to. This is not true. The child is sent there for training. It's just like saying if you're going to be sent to school you're going to school from eight until four or whatever the hours are and you may leave at 4 o'clock and come home.
Hugo L. Black: Could he?
Frank A. Parks: Well, he is there on a 24-hour basis depending on what the provisions are for perhaps his temporary release.
Hugo L. Black: As a matter of fact, if you're to call the place a jail instead of what do you call it and because it's not a jail, isn't it?
Frank A. Parks: If one would consider it a penal institution.
Hugo L. Black: But he didn't have a place to get home. He had no parents, did he?
Frank A. Parks: The record shows the father was constantly away. There were statements made by Judge McGhee to the effect that after having made an investigation they didn't think that the parents were performing the function they should. This was one of the reasons why perhaps one of the items involved is just what function the parents have claimed. And if you got a good child who's not being helped by his parents as he should, the state has an interest in the child, Your Honor, to attempt to keep him on the straight road of life until he gets to the age of 21 when he's on his own.
Hugo L. Black: Well, how about the concept though that his parents are not given the child a home or that does not extend the home as it may extend this.
Frank A. Parks: This is a prerogative of the Juvenile Court as far as sending them home if they wish. The Court here --
Hugo L. Black: As you were trying to do. Did you send the claim?
Frank A. Parks: Yes, sir. He has the option of taking the child away from the parents and putting him in a training school or it is merely an act of delinquency which has no correlation to the family life that the juvenile judge has the ability to say the boy is going home, stay at home, and you'll have a curfew, he'll go to group sessions. He will have these requirements placed upon him. It depends on each individual situation.
Hugo L. Black: And he's denied of that here, doesn't he?
Frank A. Parks: That's correct.
Hugo L. Black: (Inaudible) I suppose that it is a major impact for both of the judge (Inaudible).
Frank A. Parks: And this leads me to a point that has not been brought out and I think that they track a bit from the harshness of the disposition that was made by the juvenile judge. Gerald Gault is no longer in Fort Grant State Industrial School. And I bring up these factors for two reasons it perhaps would have rendered this case moot. But under our Arizona Law, when a child is sent to the industrial school, he is under the exclusive control of the State Board of Directors of Institutions for Juveniles. He is under their exclusive control on jurisdiction until he reaches his majority or he is absolutely released. Now, in this case, one of the ramifications of the individualized treatment shows that on December 9th of 1964, in other words about five months after he was committed, the boy was replaced in his home under what is commonly called our home placement program. And it's a conditional release where under many, many circumstances the boy is allowed to go home for a weekend. And then he is taken back to the institution for training, for development, for guidance during the week and allowed to go home. He is presently at our latest report still with his parents and as a result of the adjudication here he spent only five months in our industrial school. They applied what they thought was needed on the boy and now he hasn't been in trouble since December 9th of 1964. Now, the question was raised as to whether or not this renders this moot. In others words, it was raised before it came here. We thought not for the basic reason that the boy did not have his absolute release. He was subject to the jurisdiction of our board of directors anytime he could be taken back without a hearing, etcetera. I think my --
Earl Warren: Mr. Parks, I was wondering about the request that the parents made for the recipient of this telephone call, the woman who received the telephone call to be brought to the hearing for examination as to whether it was this boy's voice or the voice of the other one and the judge said as I read some place, they don't have to come here. But what about that so far as the parent here is concerned?
Frank A. Parks: Well, it is our position Mr. Chief Justice that whether or not a complaining party should be there is directly dependent and commingled the question of whether or not when in a fatherly manner the juvenile judge says, “Gerald, what went on? What did you do?” And the boy says, “Well, judge, I called the number and I said some of the words on the phone.”
Abe Fortas: Suppose the judge didn't say it in fatherly manner.
Frank A. Parks: And I'd say it wasn't an Arizona juvenile judge, Mr. Justice Fortas. We --
Earl Warren: I understood Mr. Parks that at that time when they asked for the woman to be pressed that there was a difference of opinion as between the boy and the authorities as to whether he had spoken any if those lewd words. And that they wanted her there for the purpose of establishing that it was the other boy's voice and not his voice on the telephone. Now, that it would seem to me would be enough of a denial, so if there was the right of confrontation of witnesses that he would have the right to have that woman present so she could be examined as to whose voice it was. Now, I may have say that the facts inaccurately but --
Frank A. Parks: Well, our Supreme Court reviewing the entire record thought that the statements that were made and there was one person who held a view that Gerald did not make the admission. That was Mrs. Gault, she was the one who was at the June 9th adjudicatory hearing. The father wasn't there. At that hearing, there were statements made as to could you hear what was stated? Did you know what was going on? And through her testimony on occasion she says, I think they said this I think they said that. Now --
Earl Warren: And did the probation officer would also indicate that the boy had not admitted that--
Frank A. Parks: That is correct, Your Honor in regard to the second hearing on June 15th. Now, this would --
Earl Warren: Was that the time when they asked for the woman to be present?
Frank A. Parks: No, sir. That on June 9th was the first hearing and that statement which was made by Probation Officer Flagg and Judge McGhee is that at the June 9th hearing Gerald admitted making some of the statements. Flagg testified that at the June 15th hearing the boy recanted and said that he didn't. Then there is a conflict between the judge and the probation officer because the judge said that the boy told him again on the 15th that he had made some of the statements. And I can just state that our Supreme Court selected the facts and decided that the boy had in fact made the admissions that were contended on our behalf during the appeal and that there was no need to go into the confrontation issue because there were in fact admissions and now --
Abe Fortas: In Arizona do you make -- is it appropriate or permissible to make a finding of delinquency on the basis just in the admissions of the juvenile? You have set the admissions without corroboration?
Frank A. Parks: Mr. Justice Fortas, this was a case of first instance in that regard in Arizona on this issue and they are directly saying that the boy admits that there is no relevant issue on that subject and they have disposed of it.
Abe Fortas: You mean that's what this case stands for?
Frank A. Parks: Yes, sir.
Abe Fortas: There is a rule on other jurisdictions is entirely in effect that admissions have to -- of juveniles have to be corroborated before they would be accepted as a basis for --
Frank A. Parks: I know that deals with cases of where I believe there's a question of who is an accomplice and who is a -- if there is a violation involved if they are an accomplice I don't know of any specific cases where any statement by a juvenile has to be corroborated before it's acceptable for it's probative value. I would like to just move on to I think probably one of the most important areas and that is the right to counsel. I have relinquished certain portion of my time to and Mr. Merritt Green presenting the Ohio Association of Juvenile Court Judges who would like to make some statements on the case at hand. The positions being taken by appellants in regard to the right of counsel are based entirely upon what they consider and believed to be the requirements of due process. In doing so, they are definitely and entirely acquitting the juvenile proceeding to a criminal trial. We contend that this is not so. Our statute specifically holds; it is not to be considered a juvenile or a criminal trial, a child is not convicted if he is found delinquent. His statements can in no way be considered a conviction of a crime. Our state has gone perhaps one step farther by trying to protect the child as much as possible by requiring that two years after an adjudication of delinquency the records will be destroyed. Our legislature saw this as a means of avoiding the problems of when the boy gets to the 20 and 21 where he has the record available for perhaps civil service or the FBI to see, that is destroyed. We have specific provisions for the destruction of those records. We like to think that this is a means of taking this proceeding and if it has performed its function of taking it and dispensing with it.
Abe Fortas: With what?
Frank A. Parks: And therefore, dispensing with any potential problems that could arise out of that hearing beyond what was contemplated by our statute.
Abe Fortas: What records are destroyed though? Now, here is a case where a boy might have been kept in custody for six years. And you certainly don't destroy all records after two years. What is destroyed and what remains? There must be some record that Gerald Gault was subject to this court order that would survive for the six-year period.
Frank A. Parks: Your Honor, Title 8 Section 238 in our Juvenile Code provides for the destruction of records after two years after the discharge of the child from the institutions in which he may have been committed.
Abe Fortas: That would mean now that this would be destroyed after he gets to be 21 with Gerald Gault unless he gets an absolute discharge prior to that time.
Frank A. Parks: That is correct.
Abe Fortas: And that you construe that as meaning all records including the records of this man in the institution? Is that the way?
Frank A. Parks: They make a specific mention Your Honor to the fact that destroys the records of the proceedings.
Abe Fortas: Just that with the proceeding. But the fact that he have been there presumed they would still remain on the record.
Frank A. Parks: Of course, I couldn't make a specific statement that in all cases the proceedings are destroyed and the background information is retained. I should imagine that in some cases there is a variance one way or the other but I think by the requirements of statute it's only required that they destroy a record of the proceedings.
Abe Fortas: Which is told compliment in terms of we've been talking and they say that they still be -- presumably still would be a record that the boy was sent to the institution for such and such a period for such and such on such and such a basis.
Frank A. Parks: There's a possibility that that is true. As to the right to counsel, I necessarily find myself arguing a philosophical point of view which is the basic foundation of our juvenile system. We don't think the word liberty is used in the same sense that that word is used in our constitutional provisions. We think that of course there's a clear cleavage between our position and appellants that we think the probation officer can serve a function for the child which either remove as much of a traumatic experience for the child as possible, probation officer acts for the child. There is a requirement that the probation officer be present during the hearings and represent the interest of the child. Of course the appellants take the position that this is not possible. I argue not in the same vein as one would have perhaps argued the Miranda decision that we don't need this type of procedure because it's not required. There's an added factor here. There is a reason why an absolute right to counsel at this proceeding shouldn't be a rule absolute. Our Court definitely left the discretion of the appointment of counsel up to juvenile judge and I can say with a great degree of frankness, there are many, many proceedings in the State of Arizona where the discretion of the juvenile judge is used to say in this case we think counsel is required and therefore it shall be. This is a case where the judge did not use that specific discretion. We think a rule absolute would require or would destroy the flexibility of the Juvenile Court.
Earl Warren: Does your Juvenile Court judge have the right to say, no lawyer can represent a child in this particular case?
Frank A. Parks: No, Mr. Chief Justice. Our Court -- Supreme Court decided back and I believe in the early 1950s that if the parents wish to retain counsel, they have that right to retain counsel of their own choosing. And counsel cannot be prohibited from performing whatever function they see fit at that hearing.
Earl Warren: I wonder how you would distinguish so the situation where if the child of a wealthy family wants to bring a lawyer there to represent the child that they can do so and he can have representation all the way through the proceeding on the theory that it will be helpful to him. But on the other hand, a poor family that can't afford an attorney must remain for everyone and must rely on the probation officer.
Frank A. Parks: There -- there is a distinction Mr. Chief Justice between what the Court perhaps would think is the best procedure for the child. They might think it would be better if we just came in here to encourage the boy to talk as the first means of rehabilitation. It would work better without counsel to perhaps just tidy that process but we can't go so far as to say because we think that specific procedure is correct we're going to say you cannot have the right to counsel appointed on your behalf. In other words, if the parent so wishes we didn't think, our Supreme Court did not think that we had the power to say, “No, you are going to be prevented from doing that.” This was the concept of fair play.
Earl Warren: And then do you think it represents a fair play for the judge himself to determine whether the child shall have counsel.
Frank A. Parks: Shall have counsel in the circumstances needed and that the circumstances in the case might perhaps warn them, that's correct, Your Honor. As -- as far as the general subject on counsel, philosophically it is our position that the spirit of law rather than the absolute letter constitutional constructions which I agree individuals can go and pick out certain statements made in constitutional questions and justify their position. We are of the opinion that in balancing the needs of the individual and the goal of equality that the spirit of the law rather than the absolute letter of the law would require this Court to accept the juvenile proceeding the way it has been functioning and the way it will function in the future. I guess I'll make my final statement on the right against self-incrimination just to give the Court some of the reasons that individuals who have commented on the subject have stated there is a reason why the child should not be informed of that right. Our Court specifically did not say the child doesn't have the right only that the Court did not have to advise in that right. First of all, we contend that there's no criminal conviction involved, number one. Number two, a refusal for the child to testify or to talk to the judge cannot be punished if in many cases just indicates the fact that the child is antagonist from the society unwilling to cooperate showing a further need for perhaps additional guidance. There's no prosecutor present. There is no individual twist what the child says. We would prefer to think of our juvenile judges as talking with the child in the most reasonable perspective encouraging him to tell the truth. As far as the right to appeal and the right to a transcript I would just rest on the statements made in my brief and to the effect that we think the decisions on the subject at the present time indicate this is not a denial of due process. I'm now relinquished the remainder of my time for Mr. Green.
Speaker: May I ask you one question?
Frank A. Parks: Yes, sir.
Speaker: (Inaudible)
Frank A. Parks: Well, I know as Mr. Dorsen stated many of the states are varying now. I know there are five that require appointment of counsel after request and to finding it. In Arizona it is left entirely to the discretion of the juvenile judge.
Speaker: (Inaudible)
Frank A. Parks: That would be contrary to the decision of our Arizona Supreme Court. Now, the point of counsel, Your Honor, we got to -- then the decision is left to the juvenile judge that he thinks it is required. And I would say that in our most populous county or state, this is a procedure that is given entirely if the parents ask for counsel. The Court bends over backwards to give it if under the circumstances of the case they think that the ends of justice would require that. It's up to the judge, Your Honor.
Earl Warren: Mr. Green?
Merritt W. Green: Mr. Chief Justice and may it please the members of the Court. Mr. Parks was kind enough to relinquish some of his time to me that I might talk with you on this amicus on behalf of the Juvenile Judges Association of the State of Ohio. There's certainly no purpose for me to walk over the ground to spend trying the work done by the counsel before me. I think my role here is that I did concede my role here as that of voicing my concern on behalf of those people, thousands of people who preside over and worked within the framework of the Juvenile Court system that a decision does not come from this case which would in effect wipe out our present Juvenile Court structures -- procedural structures. I think that concern arose out of the trust that was in the brief and in the argument, I believe, of the appellant, which in effect asked this Court to impose upon the Juvenile Court procedures the doctrines that the Court has laid down in Gideon, Escobedo, Miranda and so forth to apply those to delinquency cases. It's easy to come confused in that distinguishing is that if you can distinguish between felonies misdemeanors and delinquencies, the state legislatures on all 50 states I believe having their wisdom in defining what -- how they're going to treat transgressions of the rules of good conduct in order that our society require to setup classes of these transgressions as felonies, misdemeanors and delinquencies. Now, we have always within this framework of the Juvenile Court system had always I may say it this way not considered what would ordinarily be a crime if committed by adult, a crime if done by a youngster.
Abe Fortas: But Mr. Green, the distinction between misdemeanors and felonies is based on some difference in the elements of the act.
Merritt W. Green: That's right sir.
Abe Fortas: Well, if the distinction between delinquency and on the one hand felonies and misdemeanors on the other hand may or may not be based on the difference in the elements of the act.
Merritt W. Green: That's right, sir.
Abe Fortas: It might be based merely on the fact that who doesn't whether he's 18 years old or 19 years old.
Merritt W. Green: That's right. That's right, you see this may be an oversimplication of statement but the delinquency is not a crime. Children do not commit crimes, they become delinquent and they are not treated as crimes until the Court that has the exclusive jurisdiction releases them to the adult court to be tried as an adult would be tried as in the Kent case. The Court will remember that in the Kent versus United States case, the Court, I believe, recognized that the Juvenile Court system was of such -- well, I think the Court says that in that case that the child was entitled to the exclusive jurisdiction of the Juvenile Court and it's attending protections. And that when the Court considered that they should whether or not this boy should have been treated as a -- tried as a criminal that that's where it became as such vital importance that all of these constitutional protections such as hearing and notice of those things should be carried out. Now, as I say from the standpoint of a meek issue, we are looking at this I'm frank to say in the practical aspect of it. While on this particular --
Abe Fortas: What is the difference Mr. Green, here's a boy and let's suppose that he telephoned this lady and said some lewd things over the telephone. He was picked up and then he has this, whatever you want to call it hearing or whatnot and the end of it is that he is to send away for maximum of six years. Now, if an adult that had done exactly the same thin, he would have been arrested. He would have been tried. He would have been given due process. He would have a right against self-incrimination. He would have had the possibility of appeal. There would have been transcript. There would have been notice in writing. The burden would have been on the state to establish his guilt beyond reasonable doubt. There would have been confrontational witnesses all because he's an adult and the most he could have been put away for is two months. Now, here's a boy that gets picked up and he gets none of these safeguards. No confrontational, most certainly this is at the very least of the monthly record as to whether he admitted his -- that he did it. And he gets sent up for maximum possibility of being deprived of his freedom for six years and why you call one a crime and not the other one a crime?
Merritt W. Green: Well, I'm just -- I'm not calling one a crime and not the other crime. I'm just saying that under our concept of the treatment of juveniles all of the 50 legislates -- legislatures all in the 50 states have said transgressions which would otherwise be misdemeanors or felonies have committed by adults are not crimes and therefore the special treatment is given to them because actually Mr. Justice Fortas that -- the mere fact that this boy was brought in for this particular thing even though he was on probation does not in and of itself say that he is going to be sent away. You see, as I -- see if these three steps in the Juvenile Court proceedings, there's the intake proceeding, the adjudication hearing as to whether or not he really is a delinquent and then the next --
Abe Fortas: But one -- one of the questions here is very simply put. If this boy was sent away for the three incidence that have been here mentioned, the baseball glove incident, and whatever that was, the pocketbook instance whatever that was, and the present incident. What is there in the Juvenile Court fair philosophy? What is there in the theory of the Juvenile Court which makes it undesirable or impossible for this boy to have had the basic elements of a trial with respect to those incidents so that at least he would have known and we would know, reviewing courts would know exactly what these incidents were, what happened, why this boy was sent away for six years. Now, is it your position that doing that would destroy the Juvenile Court theory?
Merritt W. Green: Or decided on that. I don't think there's anything in this case or any other case which would prohibit that. I think again I think we have to -- as a matter of fact I don't believe the Arizona statutes prohibit those things. I know in my own state, you're entitled to counsel, you're entitled to hearing. If you want a transcript, you can ask the Court to take a transcript. You see, I don't think anybody questions any of the three of us, that juveniles are not entitled to the full measure of due process. Again, it's within the area of the specialized treatment as to what amounts the due process in relation to what is best for this youngster.
Byron R. White: (Inaudible)
Merritt W. Green: No, we all -- I think all of the courts and all of us here would say that due process is certainly should be accorded to juveniles. There is no need for criminal cases.
Hugo L. Black: (Inaudible)
Merritt W. Green: No, I don't believe so. Oh! I don't believe -- I accept that -- I don't know -- no, due process -- due process. I think due process is essential fairness for anybody and everybody. Now, what -- due process under certain circumstances may be different. I don't think you can say it's a hard and fast rule that due process is this in every case.
Abe Fortas: Mr. Green, you don't say, do you, that due process is what the Juvenile Court judge says it is in the particular case period and that's the end of the definition.
Merritt W. Green: No, I don't think so.
Abe Fortas: So, well do you say that --
Merritt W. Green: I think those are all subject to scrutiny. That's why were here.
Abe Fortas: Well, what does this include then? I mean say, if you say it's not something more than what the Juvenile Court judge decides in this particular case, would it include a notice in writing?
Merritt W. Green: I think adequate notice.
Abe Fortas: Adequate notice.
Merritt W. Green: Adequate notice, yes.
Abe Fortas: Would it include counsel?
Merritt W. Green: I think, yes.
Abe Fortas: Would it include a warning about the -- and the privilege of self-incrimination, privilege against self-incrimination?
Merritt W. Green: Well, constitutional protections against those things apply in where its person is charged of the crime. Now again, if we're going to do all those things in the concept of the cases I have mentioned that applied it does, then we're going to have to say that delinquency is just another name for crimes and that that is the fact is not, they are crimes and then therefore all the constitutional guarantee should apply in every respect that you have mentioned here today and as was outlined in the Kent for instance where you declined -- that time, I believe, the Court declined to accept the invitation. I agree to that.
Abe Fortas: I don't get any words by trying to solve these problems in terms of the use of the word like ‘crime’ or ‘not crime’. I mean the question is we're dealing with proceedings here in which the persons maybe deprived of their liberty to put into a place 24 hours a day. They're in custody and you can call it a crime or you can call it (Inaudible) but it still deprives the liberty.
Merritt W. Green: Yeah, but children are not adults. I think we recognize, in this society that there certain restraints, certain that must be on children and that some children thereby reason of certain circumstances require restraints, guidance, training over and beyond then that role that they get within an actual custody of their family. And now the family certainly is the natural custodian of the children. And I think maybe that's where we get in a matter of semantics here as to what is the difference? Well, there is a difference between adults and children.
Abe Fortas: Well, I think and I think there is a difference. There is difference between a man and a woman. Mr. Green let me just ask you one more and then I'll leave you alone. How about confrontation? Would you consider that the right to confrontation is part of due process for juveniles?
Merritt W. Green: If denied -- if the act is denied by the juvenile, most assuredly. Well, I would say that a child -- that the Court may in determining whether or not delinquency is present and at certain case can take the statement of the child whether he gave it them in Court or to a policeman or something like that.
Earl Warren: Mr. Green, is there a National Association of Juvenile Court Judges?
Merritt W. Green: Yes, there is, Your Honor.
Earl Warren: Do they agree with you in your position here?
Merritt W. Green: Well, I can't speak for them and they were asked to command amicus but because of the power structure, the organizational structure they couldn't get together the information to file an application.
William J. Brennan, Jr.: Well, did they all agree?
Merritt W. Green: Sir?
William J. Brennan, Jr.: Did they all agree?
Merritt W. Green: As to --
William J. Brennan, Jr.: -- any of this or either way? Either way.
Merritt W. Green: Do they all agree? Well, there may be some who agree to that, some of these guarantees should not extend as strictly as I say that they should be extended or it's just Mr. Justice White.
William J. Brennan, Jr.: You know some members of that association think that none of them should?
Merritt W. Green: That none of them? Well I can't say. I don't know because I don't know all the members of the association. I wouldn't have anyway in knowing that.
Byron R. White: You wouldn't expect that (Inaudible)?
Merritt W. Green: No, that's right. I think they agree that this treatment of juveniles is really different than the treatment of adult as criminals.
Earl Warren: Mr. Dorsen.
Norman Dorsen: I should be very brief Mr. Chief Justice and members of the Court. On your two questions earlier, the request for Mrs. Cook came at the second hearing and that's at pages 35 and 36 of the record. With respect to the discretion of the juvenile judge to appoint counsel, it seems to me if there's any meaning in parens patriae, this seems to me the perfect case without exercise, with that discretion should have been exercised. The record is literally teaming with unresolved issues and I can understand why the discretion wasn't exercised.
Byron R. White: Who speaks for the juvenile in this respect, Mr. Dorsen? Do you contend, in respect to the counsel, let's assume there's an advice to the child that you have the right to counsel. He looks to his father and the father says, “We don't want counsel.”
Norman Dorsen: If the child wants counsel, it's his right, he should have counsel.
Byron R. White: Well, he speaks to the -- so the judge shouldn't think the father has agreed to it.
Norman Dorsen: Or the question would be under the cases like Carnley and Cochran where there was a knowing waver of a right. I would be very --
Byron R. White: How can the child waive a right?
Norman Dorsen: Well that's the point I was just going to make. I have great difficulties of seeing how the child --
Byron R. White: So you view the thing as in every single case that there necessarily must be a counsel for the juvenile even if the parent is represented.
Norman Dorsen: No, I would not go that far unnecessarily. I think --
Byron R. White: Well, how do you get out -- how do you get out of it? There has to be counsel but he can't waive it.
Norman Dorsen: In certain situations, I think that the counsel probably could represent both interests. Where there was no indication for example, that the --
Byron R. White: Well, that's different. You say he's represented, he could have represented both parents otherwise, we were then -- he could have represented both but you would have to make sure that the child is represented.
Norman Dorsen: That's right, that's correct.
Byron R. White: And that there has to be a lawyer in the courtroom. Some lawyer has to be in the courtroom every time there is a determination --
Norman Dorsen: That would be my position, Mr. Justice White. I might add that as Mr. Young, the discretion in this case was not reviewable as Mr. Justice Douglas said in the wonder of the case absolute discretion is a ruthless master. It is more destructive of freedom than any of man's other inventions and I think that quote is quite opposite to this situation. Third, on the Fifth Amendment point would rest on our brief but we believe and you suggest that there is a clear case of possible self-incrimination under the Arizona Code. I might add since Mr. Justice Brennan raised the Illinois situation that Illinois was the first state to past legislatively and provisions for Juvenile Court. It now provides for two hearings as I suggested New York does, one a fact-finding hearing and another, a dispositional hearing with --
Byron R. White: (Inaudible)
Norman Dorsen: No, it does not. Finally, I want to deal with this question of Gerald Gault's alleged admissions. I want to be as clear as I possibly can on what happened. There were four witnesses at the habeas corpus hearing. The first witness was Mrs. Gault. She said specifically that there was no admission of the dirty word at the first hearing. And that's in the record at page 30. She did not testify regarding the second hearing. Mr. Gault was the second witness. He did not testify regarding the first hearing because he was not present. Regarding the second hearing, he denied that Gerald Gault admitted saying the dirty words and that's at page 24 of the record. Flagg was the third witness, Officer Flagg. He said specifically on page 51 of the record that there was no admission of the language during the custodial stage of the matter.
Earl Warren: During when?
Norman Dorsen: The custodial, the preliminary stage before the hearing when he was picking up Gerald Gault. He said that Gerald did not admit making these statements. Regarding the first hearing he said that there was an admission inconsistently with Mrs. Gault. Regarding the second hearing, he said that there was no admission. Judge McGhee was the final witness. He said as to both juvenile hearings that there was a partial admission of language at both hearings and those were at pages 58, 59, and 61. Judge McGhee also testified at page 59 and 70 of the record that he was not satisfied what has happened at the first hearing. It doesn't sound to me that Gerald Gault specifically admitted making those statements.
Earl Warren: Did Gerald --
Norman Dorsen: He did not testify at the habeas corpus hearing.
Earl Warren: But did he at the second hearing?
Norman Dorsen: Yes. And the conflict was over what he said as the Supreme Court of Arizona said. Thank you very much.
Earl Warren: Thank you.