Amicus Brief — Breed v. Jones

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In The

SUPREME COURT OF THE UNITED STATES

October Term, 1974

No, 73-1995

ALLEN F. BREED,

Petitioner,

vs.

GARY STEVEN JONES,

Respondent.

On Writ of Certiorari to the United States

Court of Appeals for the Ninth Circuit.

BRIEF OF CALIFORNIA PUBLIC DEFENDERS

ASSOCIATION AS AMICUS CURIAE

IN SUPPORT OF RESPONDENT.

RICHARD S. BUCKLEY,

Public Defender of Los Angeles

County, California

LAURANCE S. SMITH

Deputy Public Defender

19-513 Criminal Courts Building

210 West Temple Street

Los Angeles, California 90012

Telephone: (213) 974-2871

Counsel for Amicus Curiae

read, ‘

In The

SUPREME COURT OF THE UNITED STATES

October Term, 1974

No. 73-1995

ALLEN F; BREED,

Petitioner,

vs.

GARY STEVEN JONES,

Respondent.

On Writ of Certiorari to the United States

Court of Appeals for the Ninth Circuit.

BRIEF OF CALIFORNIA PUBLIC DEFENDERS

ASSOCIATION AS AMICUS CURIAE

IN SUPPORT OF RESPONDENT.

RICHARD S. BUCKLEY,

Public Defender of Los Angeles

County, California

LAURANCE S. SMITH

Deputy Public Defender

19-513 Criminal Courts Building

210 West Temple Street

Los Angeles, California 90012

Telephone: (213) 974-2871

Counsel for Amicus Curiae

SUBJECT INDEX

Page

Statement under Rule 42 xii.

Statement of Interest of the

Amicus Curiae 1

Argument 2

THE CALIFORNIA CONSTITUTION

INDEPENDENTLY PROTECTS MINORS

APPEARING BEFORE THE JUVENILE

COURT FROM DOUBLE JEOPARDY,

INCLUDING MOST FORMS OF CON-

TINUING JEOPARDY. GIVE! THIS

FACT, THE ACTUAL CASE OK

CONTROVERSY PRESENTED BY THIS

CASE IS AN EXCEEDINGLY NARROW

ONE, MERELY ARISING FROM AN

ISOLATED INCIDENCE OF DEPARTURE

FROM APPROVED METHODS OF

PROCEDURE. 2

Introduction to the First

Argument 2

A. Minors Facing Juvenile

Proceedings are Independ-

ently Protected From Double

Jeopardy, Including Most

Forms of "Continuing"

Jeopardy, by the California

State Constitution. 4

ii.

Page

B. The Conclusion that

Juveniles are Protected

From Double Jeopardy by

the State and Federal

Constitutions Follows

Inexorably From the Entire

History of Western Juris-

prudence. 8

C. The "Independent State

Ground" Doctrine Limits

the Scope of the Controversy

Herein Almost to its Own

Facts. 13

THE RULE URGED BY PETITIONERS

WOULD ALLOW A JUVENILE PROCEEDING

TO BE CONVERTED INTO A MERE

INQUISITION PRELIMINARY TO A

CRIMINAL CASE. THE RESULT WOULD

BE DESTRUCTIVE OF THE JUVENILE

COURT AND FUNDAMENTALLY UNFAIR

TO ALL MINORS WHO APPEAR BEFORE

IT, WHETHER THEY ARE "FIT" OR

"UNFIT" FOR JUVENILE COURT. 23

Introduction to the Second

Argument 23

iii.

Page

As it is Indispensable to

Accurate Fact-finding, the

Right to Present a Defense

to an Accusation of Criminal

Conduct is an Essential

Element of Due Process. 25

An_Impermissible Chilling

Effect Upon the Funda-

mental Right to Present a

Defense is Created Where

the Minor Must Fear That

If He Presents Evidence,

It Will Be Used by the

Public Prosecutor, Who is

Present in the Juvenile

Court, to Put Him at a

Disadvantage in a Later

Criminal Prosecution. 30

The Uncontrolled and Non-

reciprocal Prosecution

Discovery Which Would Result

If Petitioners Prevail is

Also Per Se a Violation of

Due Process. 36

iv.

Page

As California Appellate

Courts Would Not Correct

a Miscarriage of Justice

Resulting From an Erroneous

Finding of Guilt Due to a

Withheld Defense, it is

Doubly Important That No

Inhibition be Placed Upon

the Right to Freely Present

Evidence. 39

E. Conclusion to the Second

Argument. 4O

CONCLUSION 43

Vv.

TABLE OF AUTHORITIES CITED

Cases Page

Aikens v. California, 406 U.S. 813

(1972) 14

Ashe v. Swenson, 397 U.S. 436, N. 10

at 446 (1970) 42

Bartkus v. Illinois, 359 U.S. 121 at

151-155 (dissenting opinion) (1959) 8, 9

Benton v. Maryland, 395 U.S. 784

(1969) 9

Bruce M. v. Superior Court,

270 Cal.App.2d 566, 75 Cal.Rptr.881l

(1969) 42

an v. Superior Court, 7 Cal.3d 575,

O02 Cal.Rptr. 831, 498 P.2d 1079

(1972) Cert. den. sub nom.

v. California, 410 U.S. 944

(1973) 5, 15, 16, 18, 19, 32

California v. Green, 399 U.S. 149,

176-177 (1970) (concurring opinion) 29

California v. Krivda, 409 U.S. 33

(1972) 14

Chaffin v. Stynchcombe, 412 U.S. 17

N. 20 at 32-33 (19733

Chambers v. Mississippi, 410 U.S. 284

(1972) 29

Department of Mental Hygiene v.

Kirchner, 380 U.S. lok (1965) 14

Donald L. v. Superior Court, 7 Cal.3d

592, 102 Cal.Rptr. 850, 498 P.2d

1098 (1972) 16-17, 20, 21

vi.

Page

Ex Parte Crouse, 4 Whart. (Pa.) 9

(1839) 11

Ex Parte Lange, 85 U.S. (18 Wall.)

163 (1873) 10

Fox Film Corp. v. Muller, 296 U.S.

207 (1935) 14

Gloria M. v. Superior Court, .

21 Cal.App.3d 895, 98 Cal.Rptr. 604

(1971)

at ¥ v. Duke Power Co., 401 U.S.

424 (1971)

Herb v. Pitcairn, 324 U.S. 117 (1945)

Hickman v. Taylor, 329 U.S. 495

(1947)

In re Dana J., 26 Cal.App.3d 768,

103 Cal.Rptr. 21 (1972)

In re Daedler, 194 Cal. 320, 228 P.

467 (1924)

In re Gault, 387 U.S. 1 (1967) 25,

In re Henry G., 28 Cal.App.3d 276,

104 Cal.Rptr. 585 (1973)

In re James M., 9 Cal.3d 517, 108

Cal.Rptr. 89, 510 P.2d 33/ 6, 7, 14,

In re Oliver, 333 U.S. 257 (1948)

In re Roderick P., 7 Cal.3d 801, 103

Cal.Rptr. 425, 500 P.2d 1 (1972)

vii.

Page

In re Ruth H., 26 Cal.App.3d 77,

102 Cal.Rptr. 534 (1972) 31

In re Winship, 397 U.S. 358 (1970)

26, 37

Ivan V. v. city of New York, 207

U.S. 203 (1972)

Jimmy H. v. Superior Court, 3 Cal.3d

709, 3 Cal.Rptr. 600, 478 P.2d 32

(1970

Kepner v. United States, 355 U.S.

184 (1957) 7

Lois R. v. Superior Court, 19

Cal.App.3d 895, 97 Cal.Rptr. 158

(1971 31

McKeiver v. Pennsylvania, 403 U.S.

528 (1971) 18, 24, 26, 40

Murdock v. City of Memphis, 87 U.S.

(20 Wall.) 590 (1875 13

N.A.A.C.P. v. Button, 371 U.S. 415

(1963) 34

People v. Blum, 35 Cal.App.3d 515,

110 Cal.Rptr. 833 (1973

(dissenting opinion) Cert. den.

i » 94 S.Ct. 2401

People v. Newland, 15 Cal.2d 678,

104 P.2d 778 (1940) 39

People v. Reilly, 3 Cal.3d. 421,

90 Cal.Rptr. 417, 475 P.2d 649

(1970) 40

viii.

Page

People v. Reyes, 12 Cal.3d 486

rhe Cai.Rptr. 217, 526 P.2d

225 (1974 40

Price v. Georgia, 398 U.S. 323

(1970) 3, 7

oy v. Superior Court,

Cal.3d 834, 117 Cal.Rptr.

437, P.2d (1974)

33, 37, 38

Richard M. v. Superior Court,

4 Cal.3d 370, 35 Cal.Rptr. 752

P.2d 664 (1971 » 5, 14

Richerson v. Superior Court,

264 Cal.App.2d, 729, 70

Cal.Rptr. 350 (1968) 42

Shelton v. Tucker, 364 U.S. 479

(1960) 34

Spano v. New York, 360 U.S. 315

(1959) 25

Specht v. Patterson, 386 U.S. 605

(1967) 29

United States v. Burr, 25 Fed. Cas.

30 (#14, 692d, C.C.D. Va. 1807) 26

United States v. Jackson, 390 U.S.

570 (1968) 33, 34, 35,

United States v. Robel, U.S.

258 (1967) ne

Waller v. Florida, 397 U.S. 487

(1970)

ix.

Page

Wardius v. Oregon, 412 U.S. 470

(1973) 29, 37, 38

Washington v. Texas, 388 U.S. 14

(1967) 28

Weems v. United States, 217 U.S.

349 (1910) 13

Williams v. Florida, 399 U.S.

78 (1970) 29, 36, 38

Constitutions

United States Constitution:

Article III, Section 2 13

Fifth Amendment 5, 7, 8

Sixth Amendment 25, 26, 28, 36

Fourteenth Arendment 5, 9, 29

California Constitution:

Article I, Section 13 5, 7

Article I, Section 13, Clause 4 4

Statutes

United States:

42 U.S.C. 2000e, et. seq. 35

California:

Civil Code, Section 25 17

Page ss a

Miscellaneous e

Civil Code Section 33 17 rae

California College of Trial Judges

Civil Code Section 211 17 California Juvenile Court Benchbook,

; 4 . 190-191 20

Government Code Section 26500 31 Section 10.4 (pp. 190-191) (1971)

Mellinkoff, D., The Conscience of a

Government Code Section 26501 31 Lawyer, 51-52 (1973) 28

Government Code Section 26502 31 National Conference of Commissioners

on Uniform State Laws, Uniform

Penal Code Section 245, Juvenile Court Act, Section 34;

Subdivision (b) 6 Rule 9 20

. Penal Code Section 859, National Council on Crime and

Subdivision (b) 17 Delinquency, Model Rules for

il ts. (1 20

Penal Code Section 1382 17 Juvenile Courts. (1969)

Note, Double Jeopardy and the

Welfare and Institutions Code Waiver of ‘Serdnbiation in

Section 606 16 7 California's Juvenile Courts,

Welfare and Institutions Code 24 Stan.L.Rev. 874, (1972) 16

Section 681 31 eis Note, Twice in Jeopardy, 75 Yale

Welfare and Institutions Code aod. SER, B. WS GS EPS (10ND) 3

Section 707 16 Stephen, H., "The Trial of Sir

Walter Raleigh," Transactions of

Welfare and Institutions Code the Royal Historical Society, 172

Section 851 17 (4th Ser. Vol. 2, 1919) 27

Rules Story, J.» 2s Commentaries on the

ons on of the United S

Proposed Federal Rules of Criminal Section 1792 at 548-550 (sth Eas

Procedure (1974) 38 1873) 27, 36

Proposed Federal Rules of Criminal

Procedure (1974), Rule 12-1 38 Story, J., Commentaries on a isho)

Pleadings, 602-605 (2nd Ed. 1 12

xii.

This brief is filed pursuant to

Rule 42 of the Supreme Court Rules.

Consent to the filing of this brief

has been given by the Office of the

Attorney General of the State of

California, counsel for petitioner,

and by Mr. Robert L. Walker, Esq.,

counsel for respondent. Letters

of consent from both counsel

should be on file with the Clerk

of this Court.

Interest of the Amicus Curiae

The California Public Defenders

Association is a nonprofit corporation,

incorporated under the laws of the State

of California in 1969. It was formed to

assist public defender offices in

California in their efforts to secure the

constitutional rights of indigent defen-

dants by vigorous and competent represen-

tation. The Association represents

approximately 600 defense attorneys from

34 public defender offices throughout the

State of California.

A decision by this Court in the instant

case could have a substantial impact upon

every minor appearing before a juvenile

court in California, by subjecting him

to double jeopardy, by inhibiting him

from presenting a defense on the merits

to an accusation of juvenile delinquency,

and/or by inhibiting him from candidly

discussing the facts of his case with the

Juvenile court judge. Accordingly, the

California Public Defenders Association

is filing this brief as amicus curiae

pursuant to the authority of its Board of

Directors and the unanimous vote of its

Committee on Amicus Briefs.

THE CALIFORNIA CONSTITUTION INDEPEND-

ENTLY PROTECTS MINORS APPEARING

BEFORE THE JUVENILE COURT FROM

DOUBLE JEOPARDY, INCLUDING MOST

FORMS OF CONTINUING JEOPARDY.

GIVEN THIS FACT, THE ACTUAL CASE

OR CONTROVERSY PRESENTED BY THIS

CASE IS AN EXCEEDINGLY NARROW ONE,

MERELY ARISING FROM AN ISOLATED

INCIDENCE OF DEPARTURE FROM

APPROVED METHODS OF PROCEDURE.

Introduction to the First Argument

In reading the Petition for Writ of

Certiorari and the Petitioner's Opening

Brief, we are struck by certain apparent

contradictions and shifts of position as

to the nature of the questions before this

Court, and their significance. Petitioner's

apparent uncertainty as to these matters

lead amicus to feel that some further

discussion of, one, what questions are

properly before the Court in this case;

and, two, the actual significance of those

questions, would be useful.

aS»

ant page 12 of the Petition for Certio-

rari, ‘1 petitioners seem to suggest--

perhaps in response to the broadness of

some of the language in the Ninth Circuit's

opinion--that this case should be used as

a vehicle for an overall redefinition of

the concept of double jeopardy, at least

as it relates to juvenile cases. At

pages 14-21 of the Petitioner's Opening

Brief, however, it is conceded that the

broad question of the application of the

federal bar against double jeopardy to

California proceedings is not properly

before the Court. We agree with petitioner

in this respect.

In the following paragraphs, we shall

set out, in detail somewhat greater than

that afforded by petitioners the nature

of the State decisions in this area.

(1) 0, . - This Court has recognized that

‘a concept of continuing jeopardy has

application where criminal proceedings

anes oe, ocean ee not run their a

course. ce v. Georgia, 398 U.S. 32

(1970). Although the Court below would

narrowly confine that concept to retrials

which follow appellate reversals of criminal

convictions this Court has never intimated

that continuing jeopardy is limited to that

context."

-4-

After devoting some incidental discussion

to the historical underpinnings of those

decisions, we shall demonstrate how they

operate to severely narrow the question

which this case presents for review.

We shall conclude the argument by dis-

cussing briefly our views as to the

proper resolution of the narrow question

thus remaining, proceeding finally to

comment upon the practical impact which

a decision of that question by this Court

might have.

A. Minors Facing Juvenile Proceedings

are Independently Protected From

Double Jeopardy, Including Most

Forms of "Continuing" Jeopardy, by

the California State Constitution.

Article I, Section 13, Clause 4 of the

California Constitution (West 1974) pro-

vides, "No person shall be twice put in

jeopardy for the same offense." In the

case of Richard M. v. Superior Court,

4 Cal.3d 370, 93 Cal.Rptr. 752, 482 P.2d

664 (1971), the California Supreme Court,

in a unanimous opinion, gave effect to

-5-

"In proceedings before the Juvenile

Court, Juveniles are entitled to

Constitutional protections against

twice being placed in jeopardy for

the same offense (U.S. Const.

Amends. V, XIV; Cal. Const. Art.I

$13 ...)." 4 Cal.3d at 375, 93

Cal.Rptr. at 756, 482 P.2d at 668.

Drawing an analogy to bench trials in

criminal cases, the California court went

on to conclude that jeopardy attaches in

a juvenile proceeding at the time trial

on the merits is "entered upon". 4 Cal.3d

at 376, 93 Cal.Rptr. at 756-757, 482 P.2d

at 668-669. (2)

The Richard M. case, supra., involved

an attempt by the juvenile court to retry

a minor which it had already tried and

acquitted. Approximately two years later,

the California court resolved, in the

negative, any remaining doubts as to

whether its construction of the independent

(2) ry v. Superior Court, 7 Cal.3d

575, 581, OF Cal Rptr. 831, 535, 498 P.2d

1079, 1083 (1972), the California court

emphasized the dual grounds of the Richard M.

decision by characterizing it as having been

based upon the dual bars to double jeopardy

found in both state and federal constitutions.

this provision with the following language:

=6=

state and federal prohibitions against

double jeopardy would permit applica-

tion of a general concept of "continuing"

jeopardy to juvenile proceedings. |

In In re James M., 9 Cal.3d 517, 108

Cal.Rptr. 89, 510 P.2d 33, a juvenile

had been accused of felonious assault

upon a police officer. (>) The juvenile

court evidently was unable to conclude

that the charged offense had taken place;

nevertheless, over the juvenile's objec-

tion, it convicted him of "attempted

assault!’ On appeal, the State assumed

that there was no crime of "attempted

assault" under California law, but asked

that the matter be remanded to the juvenile

court for a second trial at which the

juvenile could be found guilty of the

completed charge of assault.

The State Supreme Court, after holding

that there was indeed no crime of "attempted

assault" in California, reversed with

directions to dismiss the case entirely.

In rejecting the State's argument, the

Court stated, again unanimously,

(3)ca1ifornia Penal Code Section 245,

Subdivision (b).

aie

"The trial court's finding

that James was guilty of only

attempted assault... .

constituted an implied acquittal

of the charged assault itself.

He could not be tried again for

an offense of which he had been

acquitted. Protection against

double jeopardy applies to juvenile

offenders as well as to adults.

(U.S. Const., 5th Amend.; Cal.Const.

Art. I, Sec. 13.)" 9 Cal.3d at

520, 108 Cal.Rptr. at 91, 510 P.2d

at 35.

While the James M. decision rests

independently upon the State Constitution,

it is, of course, directly parallel to the

opinions of this Court which refuse to

recognize any concept of continuing jeop-

ardy under the Fifth Amendment, e.g.,

Kepner v. United States, 355 U.S. 184 (1957);

Price v. Georgia, 398 U.S. 323 (1970) (per

Burger, C.J.).

(4) Neither the opinionof the Ninth Circuit,

the Petition for Certiorari, nor petitioner's

opening brief cite In re James M. Conse-

quently, no discussion is devoted in either

-8-

B. The Conclusion that Juveniles

are Protected From Double

Jeopardy by the State and Federal

Constitutions Follows Inexorably

From the Entire History of Western

Jurisprudence.

That the State Supreme Court should

attach a construction to the double

jeopardy provisions of the California

Constitution equivalent to that which this

Court has ascribed to the Fifth Amendment,

and that it should also conclude that both

provisions are independently applicable

to juvenile proceedings, should not come

as a surprise. cf. Petitioner's Opening

Brief, pages 14-15.

The prohibition against two trials of

any one cause has always been an essential

part of the jurisprudence of Western man,

beginning in ancient Greece, continuing

through Roman law and Canon law; by the

Thirteenth Century, it had become firmly

established in the Common law of England.

Bartkus v. Illinois, 359 U.S. 121, at

151-155 (Black, J., dissenting) (1959),

place to California's general rejection of

the concept of continuing jeopardy in

juvenile cases.

and the extensive documentation there

cited. (9)

It has also been observed by this

Court that by thetime of Blackstone,

the rule that there should only be one

trial of a given cause was applied with

equal force to both civil and criminal

cases:

". . . In civil cases the

doctrine is expressed by the maxim

that no man shall be twice vexed

for one and the same cause nemo

debet bis vexari pro una et eadem

causa... ."

"(In criminal cases) The common

law not only prohibited a second

punishment for the same offense,

but it went further and forbid a

second trial for the same offense,

whether the accused had suffered

punishment or not, and whether in

the former trial he had been

(5), decade later, the impressive

scholarship contained in Justice Black's

dissent in Bartkus was instrumental in

convincing the Court to apply the bar

against double jeopardy to the states

through the Fourteenth Amendment.

Benton v. Maryland, 395 U.S. 784, 795

Ties.

-10-

acquitted orconvicted." Ex Parte

Lange, 85 U.S. (18 Wall.) 163,

168-169 (1873).

As the antecedents of the bar against

double jeopardy were evolving, so were the

antecedents of the California juvenile

court. In 1924, the California Supreme

Court noted that California's juvenile

courts had evolved directly from concepts

of probate jurisdiction, specifically

that of parens patriae, which are equally

rooted in the law of ancient England.

"The theory that the State and

its instrumentality, the court, is

the guardian of all such minors as

require its care and protection is

of ancient origin, looking back into

feudal times in England when the Crown,

through the inquisitio post mortem

had the matter of the supervision

over the estates of minors. ...

fT 7he jurisdiction of this court

was transferred to the court of

chancery through which the King,

as we are told by Blackstone, in

his capacity of parens patriae,

assumed the general protection. ..

-ll-

of all infants in his kingdom

through the keeper of his

conscience, the Chancellor. ...

The doctrine (of parens patriae)

. . . thus became a part of the

British system of government and

of jurisprudence and the juris-

diction of courts of equity thus

firmly established in the English

law passed to this country upon

the establishment of courts of law

and equity in its various states.

- « -" Imre Daedler, 194 Cal. 320,

324-325, 228 P.467, 469 (1924). (©)

No special "prescience" is needed, there-

fore, to conclude that the concept of double

jeopardy and the California juvenile court

both evolved directly from roots which

were both integral parts of the same corpus

juris. Just as the English antecedents of

(6) an si1uminating view of the exercise

of pre-juvenile court parens patriae juris-

diction, which by its similar © modern

practice underscores the nenepenteneenn

——s of the juvenile court, is provided

in Ex Parte Crouse, 4 Whart. (Pa.) 9, 11

(1655). = —————ti—i‘Cit*s

-12-

double jeopardy barred multiple liti-

gation of the same contested facts before

the Chancellor, ‘7) so is the modern-day

codification of those antecedents found

in the federal and state constitutions

applicable to the contemporary exercise

of parens patriae jurisdiction in the

juvenile court.

It is the genius of our Common law

system that old principles may be applied

to new, but analogous situations as the

occasion arises. When reasoning thus by

analogy, one can hardly expect the old

factual situation to be identical to the

new context to which the enduring principle

is applied. If it were otherwise, there

would be no growth of the law, merely an

application of static principles to repe-

titious fact patterns. As Mr. Justice

McKenna once aptly stated,

"Time works changes, brings into

existence new conditions and purposes.

Therefore a principle to be vital must

be capable of wider application than

the mischief which gave its birth.

This is peculiarly true of constitutions.

(7) 5, Story, Commentaries on Equit

Pleadings, 602-605 (2nd Ed. T8A0}-

-13-

They are not ephemeral enactments

designed to meet passing occasions.

Weems v. United States, 217 U.S.

349, 373 (1910). °°?

G The"Independent State Ground"

Doctrine Limits the Scope of

the Controversy Herein Almost to

its Own Facts.

Petitioner's concession (Petitioner's

Opening Brief, page 19) that the California

decisions applying the protection against

double jeopardy to juveniles rest upon

independent State grounds requires the

conclusion that the broad federal questions

which this case might otherwise present for

decision do not constitute a "case or

controversy" within the meaning of Article III,

Section 2 of the Constitution.

In Murdock v. City of Memphis, 87 U.S.

(20 Wall.) 590 (1875), this Court decided

that it had no jurisdiction to review

questions of state law which had been

(Swe are grateful to petitioner's counsel

for having so ahly framed the above para-

graph for us at pages 29-30 of his opening

brief.

-14-

determined by state courts, even though

a federal question might also be present

in a given case. This conclusion having

been reached, it followed easily enough

that it would amount to the giving of an

advisory opinion forthe Court to decide

federal questions in a case where the

result was controlled by state law, regard-

less of how the federal issues were resolved.

Herb v. Pitcairn, 324 U.S. 117 (1945).

In Fox Film Corp. v. Muller, 296 U.S.

207, 210 (1935), the Court stated:

"(W)here the judgment of a state

court rests upon two grounds, one of

which is federal and the other non-

federal in character, our jurisdic-

tion fails if the nonfederal ground is

independent of the federal ground and

adequate to support the judgment."

See also Department of Mental Hygiene v.

Kirchner, 380 U.S. 194, 197 (1965);

California v. Krivda, 409 U.S. 33 (1972);

Aikens v. California, 406 U.S. 813 (1972).

Thus, given the Richard M. and James M.

decisions, supra., and the doctrine of the

independent nonfederal ground, it becomes

apparent that the question remaining for

decision by this Court is an exceedingly,

if not excessively narrow one; one which,

incidentally, this Court has refused to

decide on a very recent prior occasion.

Bryan v. Superior Court, 7 Cal.3d 575,

102 Cal.Rptr. 831, 498 P.2d 1079 (1972),

Cert. den. sub nom., Bryan v. California,

410 U.S. 944 (1973). That question is

whether the narrow exception which the

state courts have carved out of their

double jeopardy decisions in Bryan and

the instant case passes federal consti-

tutional muster.

This exception might be defined as

follows:

On any given charge, assuming

(absent waiver) that jeopardy bars

a second trial in either juvenile

or criminal court where the

juvenile has not been found "unfit"

and where a final judgment of acquittal

or an appealable dispositional order

has been entered, is a second trial

in criminal court nevertheless

permissible where the minor has been

found "unfit" at some time after a

trial on the merits has begun in

juvenile court?

-16-

It is worth noting at this point that

Section 606 California Welfare and

Institutions Code prohibits the trial of

a juvenile in criminal court unless he

has been found unfit for juvenile court

under Section 707. Section 606 contains

no guidance, however, as to the stage of

the proceedings at which a finding of unfit-

ness may occur, or, for that matter, as to

the sufficiency of any evidence which may

have been presented up to that point.

Under the anomalous ‘9) Bryan exception,

even if the evidence of guilt was palpably

insufficient, it would be entirely possible

for the juvenile court to simply declare

a minor unfit at any time after the presen-

tation of evidence had begun, prior to the

announcement of any verdict, by simply

seizing on some incidence of misbehavior

in the minor's past, the presence of which

is all but inevitable unless the minor has

been living in an iron lung. See Donald L.

v. Superior Court, 7 Cal.3d 592, 600-601,

(2) see Note, Double Jeoparyy and the

Waiver of Jurisdiction a fe) a's

Juvenile Courts, o4 otan.L.nev. O74,

= *

102 Cal.Rptr. 850, 855, 498 P.2d 1098,

1103 (1972).

Were such a thing to happen, the

result would be an injustice easily a

dozen times worse than that which might

result were a minor required to stand

trial twice in juvenile court. Even if

he were ultimately acquitted, the minor,

upon being found unfit, would be trans-

ferred from the ostensibly homelike 20)

surroundings of Juvenile Hall to the stark

environs of the County Jail. There he

could be held for at least 10 days pending

a preliminary examination, ‘2.) ana then

for a minimum of an additional 60 days

after the filing of an information‘12)

As California law renders minors incapable

of disposing of property or of entering

into contracts, 13) i¢ is unlikely indeed

that the minor would be able to post bail

during this time.

(10) caiifornia Welfare and Institutions

Code Section 85l.

(11) aii fornia Penal Code Section 859(b).

(12)caiifornia Penal Code Section 1382.

(13) see California Civil Code Sections

25, 33, 211.

-18-

The Bryan decision appears to have been

based upon pragmatic fears that juvenile

judges would declare minors unfit for

improper reasons were a different result

reached. 7 Cal.3d at 584, 102 Cal.Rptr.

at 837, 498 P.2d at 1085. But as we have

pointed out above, a different pragmatic

problem has simply been substituted,

whereby courts may be encouraged to say

"unfit" instead of "not guilty" in cases

where the evidence is weak, but the Court

or prosecutor has a hunch that, given a

second chance, enough evidence might be

educed to support a conviction.

We do not think that the meaning of the

Constitution can be made to change upon

fears or presumptions that courts of law

are going to act improperly. For, to

engage in such a presumption ignores

"every aspect of fairness, of concern,

of sympathy, and of paternal attention

that the juvenile system contemplates."

McKeiver v. Pennsylvania, 403 U.S. 528,

550 (1971).

Equally fundamental to the proposition

that rules of law ought not to be based

on assumptions that courts are going to

act improperly is the fact that nowhere

in our constitutional system has the

o19-

content of fundamental rights been made

to turn on invidious ad hominim considera-

tions. For the State Court to hold, in

effect, that jeopardy attaches and termin-

ates, respectively, at the beginning and

end of a juvenile court trial, (14) uniess

the minor happens to be an incorrigible

little so-and-so, simply will not do. If

nothing else, the invidious situation

created by the State Court's resolution

of the jeopardy issue under its own law

raises a serious problem of equal protec-

tion of the laws.

But for all the ways in which the Bryan

decision might be criticized, it remains

that further resolution of the controversy

presented herein and in Bryan will have

an immediate effect upon perhaps ten

individuals within California, aside from

respondent Jones.

This is for the reason that, under current

practice, virtually 100 percent of all fitmess

(14) 74 is worth reiterating at this point

that the California court has held that

Jeopardy terminates at the end of trial for

purposes of barring the State from appeal-

— In re James M., supra.; Bryan v.

uperior Court, supra. al. at 583,

Rptr. at 57-498 P.2a at 1085.

-20-

determinations are made prior to trial,

at the "very outset" of theproceedings.

See California College of Trial Judges,

California Juvenile Court Benchbook,

Section 10.4 (pp. 190-191) (1971),

commended by the California Supreme

Court in Donald L. v. Superior Court,

7 Cal.3d 592, 598, 102 Cal.Rptr. 850,

853, 498 P.2d 1098, 1101 (1972).

Califomia's actual practice in this

respect is typical of what takes place

in most American jurisdictions, and con-

forms to the recommendations of the National

Conference of Commissioners on Uniform

State Laws. Uniform Juvenile Court Act,

Section 34; Rule 9; Model Rules for

Juvenile Courts (National Council on

Crime and Delinquency, 1969); and see the

15 state statutes cited by petitioner at

pages 47-48 of his opening prier. (15)

(15)we think it neither unfair nor inappro-

priate to state our opinion, based upon many

years of experience with the Los Angeles

County Juvenile Court, that this case arises

principally because there happens to have

been a single juvenile referee in Los Angeles

with a documented penchant for touching off

appellate brouhahas by taking unconventional

and sometimes premptory actions during or at

the close of trials. See In re Dana J.,

26 Cal.App.3d 768, 103 Cal. Rptr. 21 (1972);

Appendix, p. 22; see also generally

In re He G., 28 Cal.App.3d, 276, 104

Cal Rptr- S85 (1973) .

-2l-

The practical impact of the Ninth

Circuit's opinion upon the ongoing

practices of the California Juvenile

Court has been slight indeed; it has served

only to correct a solitary and isolated

deviation from standard practice. Quite

contrary to what petitioner suggests at

pages 36-45 of his opening brief, no one

has Supposed that the Ninth Circuit has

required any "cumbersome preliminary

hearing" to be conducted prior to a fitness

hearing. It is doubtless because of the

much greater "cumbersomeness"--not to

mention unfairness--of having a whole trial

before a fitness hearing that California

courts have made it the standard procedure

to consider fitness prior to trial; and

the California legislature has consistently

refused to require that the adjudication

hearing precede the fitness hearing.

Donald L. v. Superior Court, Supra., 7 Cal.3d

at 597, 102 Cal.Rptr. at 853, 498 P.2d at 1101.

Left undisturbed, therefore, the opinion

of the Ninth Circuit changes little; this

fact raises in our mind a substantial ques-

tion of whether a further stirring of the

narrow controversy presented herein by this

Court would be a provident use of judicial

=-23~

=22- -

resources. On the other hand, as we shall THE RULE URGED, BY PETITIONERS WOULD ALLOW

develop more fully in Part II, post, a A JUVENILE PROCEEDING 10 BE CONVERTED

decision on the merits in favor of peti- 0 A CRIMINAL CASE oe RESULT WOULD

tioner, which would have the effect of = ESSTRUCTIVE OF THE JUVENILE | COURT

encouraging juvenile courts to abandon WHO APPEAR BEFORE IT, WHETHER THEY ARE

their heretofore preferred practices, would "FIT" OR "UNFIT" FOR JUVENILE COURT.

radically alter the status quo; in the

process, many of the constitutional concepts

which have been considered fundamental in

our free society will have been assaulted,

and a further blow will have been dealt Should petitioner prevail on the merits

to the chances for the success of the in this case, there is every danger that

juvenile court. juvenile courts in California and e'se-

where might change their standard proce-

dure and, freed from any residual doubts

as to the constitutionality of such pro-

cedure, begin holding large numbers of

minors unfit for juvenile court at the

dispositional phase of the proceedings,

after an adjudication hearing had taken

place.

We feel the effect of this would be evil

indeed; it would likely destroy any remain-

ing hope that the juvenile court can actually

function in the best interest of minors by

converting its once paternal and informal

hearings into preliminary inquisitions, to

Introduction to the Second Argument

-24-

be used to afford unfair advantage to

the prosecutor in a later criminal

prosecution.

For this reason, minors accused of

juvenile delinquency would be severely

inhibited from presenting to the juvenile

court their explanation of the facts or

from calling witnesses in their defense.

In short, the result would be a universal

distortion of the accuracy of the fact-

finding process in juvenile court and a

further invidious discrimination against

those minors who are later tried as adults,

as if a sixteen-year-old facing life in

the penitentiary is not under enough of

a handicap already.

Mr. Justice Blackmun, in his recent

plurality opinion in McKeiver v. Pennsylvania,

403 U.S. 528, 551 (1971) has observed that,

"If the formalities of the criminal adjudi-

cative process are to be superimposed upon

the juvenile court system, there is little

need for its separate existence." To this

we would add that if the Draconian infor-

malities of the pre-constitutional criminal

law are to be allowed to work their way

into that system, there is even less of a

reason for its continued existence. To

- *

paraphrase John Gay, an open foe--in the

form of the State openly pressing criminal

charges--may prove a curse, but a pretended

friend--in the form of a juvenile judge

coaxing informatim out of an unwary minor

for the later advantage of the state in

a criminal trial--is far worse. See

Spano v. New York, 360 U.S. 315, 323 (1959).

A. As it is Indispensable to Accurate

Fact-finding, the Right to Present

a Defense to an Accusation of

Criminal Conduct is an Essential

Element of Due Process.

“Inits landmark decision in In re Gault,

387 U.S. 1 (1967), this Court held thet

minors appearing before the juvenile court

were guaranteed due process of law. Among

other things, the Court specifically

included in its concept of due process for

minors the traditional Sixth Amendment rights

to notice, to the assistance of counsel and

to confront and cross-examine witnesses, ‘16)

The Court has subsequently sharpened and

clarified this decision to emphasize that

(16) mere were a total of five opinions

written in Gault. While there was consider-

able divergence throughout these opinions,

-26-

the primary concern of the due process

clause is the fairness and accuracy of

the fact-finding or adjudicatory stage

of the proceedings; the Court has, there-

fore, extended to minors certain rights

which it considered essential to accurate

fact-finding, ‘17)wni1e refusing to extend

others which were considered nonessentia

It has long been assumed that the rights

to notice, counsel and compulsory process

contained in the Sixth Amendment form a

constellation, the purpose of which is to

"permit any individual who was charged

with any crime, tc prepare his defense. ..

United States v. Burr, 25 Fed. Cas. 30, 32

(#14, 692d, C.C.D. Va. 1807) (Per Marshall,

C.J.).

1, (18)

they approach unanimous agreement on the

proposition that one or more of these

Sixth Amendment rights should be afforded

to minors. See 387 U.S. at 61 (Black, J.,

concurring); 64 White, J., concurring);

72 (Harlan, J., concurring and dissenting);

80-81 (Stewart, J., dissenting).

(17)In re Winship, 397 U.S. 358 (1970)

Ivan V. v. City of New York, 407 U.S.

203, 204 ast (Proor beyond a reasonable

doubt) .

(18) weKesver v. Pennsylvania, 403 U.S.

528, 547 (1971). (Jury trial).

~-27~

at Common law, an accused was denied

the right to testify or to call witnesses

in his defense; he was defended only by

the argument that the case against him

had to be completely proved. The theory

behind this rule was that if the state

presented adequate prima facie proof of

quilt, no witnesses or counsel on the

other side needed to be attended to;

if the state's evidence was insufficient,

none were needed. H. Stephen, "The Trial

of Sir Walter Raleigh," Transactions of

the Royal Historical Society, 172, 184

(4th Ser. Vol. 2, 1919). Needless to

say, this primitive rule was ruinous in

its effect on the accuracy of fact-finding.

"Witnesses for the Government may

swear falsely and directly to the

matter in charge, and until opposing

testimony is heard there may not be

the slightest doubt as to its truth,

and yet, when such is heard, it may

be incontestable that it is wholly

unworthy of belief. . .." J. Story,

Commentaries on the Constitution of

the United States, Sec. 1792 at

548-550 (4th Ed. 1873).

-28-

By enactment of the Sixth Amendment,

therefore, a proper concern for factual

accuracy was injected into a system

which had once been content to feel that

it was an “honor" to the law that its

pristine majesty did not permit the

accused to defend themselves; for

"respectable" people simply weren't indicted.

D. Mellinkoff, The Conscience of a Lawyer,

51-52 (1973).

That one of the Sixth Amendment's

purposes was to constitutionalize the

fundamental right to a defense has been

recognized in many contemporary opinions

of this Court. In In re Oliver, 333 U.S.

257, 273 (1948), the Court held that,

"failure to afford the petitioner a reason-

able opportunity to defend himself. ..

was a denial of due process of law. A

person's right to reasonable notice of

the charge against him, and an opportunity

to be heard in his defense. . . are basic

to our system of jurisprudence. ..."

Accordingly, in We’ rington v. Texas, 388

U.S. 14, 17 (1967), the Court held that

as the Sixth Amendment right to compulsory

process is tantamount to the right to

present a defense, it would be applied to

-29-

the states through the Due Process Clause

of the Fourteenth Amendment. Earlier

that year, the same rule had been announced

in mental commitment cases which are

Similar to juvenile proceedings in their

parens patriae origins. Specht v.

Patterson, 386 U.S. 605, 610 (1967).