Reply Brief — In re Burrus

ILE COPY

IN THE

Supreme Court of the United States

OCTOBER TERM, 1970

No. 128

IN RE BARBARA BURRUS, et al.,

Petitioners.

ON WRIT OF CERTIORARI TO THE SUPREME

COURT OF NORTH CAROLINA

REPLY BRIEF FOR PETITIONERS

JACK GREENBERG

10 Columbus Circle

New York, New York 10019

MICHAEL MELTSNER

Columbia University Law School

New York, New York 10027

JuLius L. CHAMBERS

ADAM STEIN

JaMEs E. FERGUSON, II

JAMES E. LANNING

216 West Tenth Street

Charlotte, N.C. 28202

ANTHONY G. AMSTERDAM

ANN WAGNER Stanford University Law School

CHARLES BECTON Stanford, California 94303

Of Counsel Attorneys for Petitioners

(i)

TABLE OF CONTENTS

Page

ARGUMENT:

Neither the Adjudicative Phase of Juvenile Court

Proceedings nor the Character of State Juvenile

Institutions Are Sufficiently Distinguishable from

Criminal Proceedings or Incarceration as to Justify

Denial of Trial by Jury to Those Charged with

Delinquency... - sees e cece e eee e eee nennreeeees 1

CONCLUSION... see eee cece cece et eer ercecnees 19

TABLE OF AUTHORITIES

Cases:

Allen v. United States, 164 U.S. 492 (1896) ....-.---5--5 14

Baldwin v. New York, 399 U.S. 66 (1970) .--------+ee ees 12

Duncan v. Louisiana, 391 U.S. 145 (1968) .....---++-++: 12, 18

Hibdon v. United States, 204 F.2d 834 (6th Cir. 1953) ..... 13

in re Daniel Richard D., 261 N.E. 2d 627, 27 N.Y.2d

QDGTO) nc reece er veeerecsecrsveccevnssece 16

In re Gault, 387 U.S. 1 (1967) .........---5> 2, 3, 7, 9, 17, 18

In re Winship, 397 U.S. 358 (1970) .....-- eee eee ee eee 11, 18

Jackson v. Denno, 378 U.S. 368 (1964) .......--5+2-e6% 15, 16

Krulewitch v. United States, 336 U.S. 440 (1949) ......... 15

Patton v. United States, 281 U.S. 276 (1929) .....--- eee 12

Simmons v. United States, 390 U.S. 377 (1968) ........--- 16

State v. Holt, 90 N.C. 749 (1884) 2... ee ce eee ee eee 10

Toth v. Quarles, 350 U.S. 11 (1955) «1... 0c eee eee ees 14

Statutes:

North Carolina General Statutes:

RS CRE AE hear et aa peony Cryer a

I te, Uk oN Cae aks Mib-e eee Ala wee 12

—y . — , a ee

“ Courts, Corrections, and Aftercare, (Duke Center

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(ii)

Other Authorities:

Amsterdam, Segal and Miller, Trial Manual for the

Defense of Criminal Cases (1967)... . 2... e ee eee,

A Report on the North Carolina Juvenile System:

on Law and Poverty; mimeo, 1969).............

Hyde County North Carolina: School Bo yycott and

The Roots of Conflict (N.E.A. 1969) .................

Standards Relating to Fair Trial and Free Press,

(American Bar. Assoc. Project on Minimum

Standards for Criminal Justice, coc Oe et es”

Unconstitutionality of the North Carolina

Reformatories, (Duke Center on Law and

vteitiriy dbase rae techn. REE Ee OE OTe.

IN THE SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, 1970

No. 128

' IN RE BARBARA BURRUS, et al.,

Petitioners.

ON WRIT OF CERTIORARI TO THE SUPREME

COURT OF NORTH CAROLINA

REPLY BRIEF FOR PETITIONERS

Petitioners have received the briefs of the State of North

Carolina and various amici curiae and herewith file their

reply.

ARGUMENT

NEITHER THE ADJUDICATIVE PHASE OF JUVENILE

COURT PROCEEDINGS NOR THE CHARACTER OF

STATE JUVENILE INSTITUTIONS ARE SUFFICIENTLY

DISTINGUISHABLE FROM CRIMINAL PROCEEDINGS,

OR INCARCERATION AS TO JUSTIFY DENIAL OF

TRIAL BY JURY TO THOSE CHARGED WITH DELIN-

QUENCY.

In essence, North Carolina, and those amici who support

the State’s position, argue that denying jury trials to juve-

2

niles on the question of whether they are delinquents

reason of violation of state criminal laws results from a Pro-

per balancing of the equities. The State and amici contend,

primarily, that the purpose of the juvenile court system is

rehabilitative and thus its operation is to be distinguished

from criminal proceedings; that a jury trial will result ina

loss of confidentiality (which will in itself impair the rehabj.

litative purposes of the juvenile court system); and that the

availability of jury trials will result in delays in adjudication

and, therefore, in the availability of rehabilitative services,

Initially, it should be observed that regardless of the qual-

ity of rehabilitative services in fact made available by the

State to youth, incarceration that follows juvenile court

proceedings cannot be considered exclusive of punishment

of the juvenile, Jn re Gault, 387 U.S. 1, 27 ( 1967).' Whether

for his own good or not, the youth is labelled a law breaker,

eld against his will and subject to an institutional regime.

24 hours a day. Although in its brief North C arolina states

that “rehabilitation is the juvenile court’s polar star” the

State is about as far from realizing this laudable goal in

the administration of its juvenile correctional institutions

as from the north star itself. Recent research undertaken

ir North Carolina juvenile institutions simply fails to support

the notion that the Siate treats its children so differently

from its adults as to justify denial of trial by jury to the

young (even assuming some rational relationship between

provision ot benefits in a training school and safeguards that

are to attend the adjudicative phase).

Such rehabilitative services available to juveniles are pro-

vided in the familiar institutional context employed for both

young and old convicted of crime: the quality of services

and facilities offered is hardly likely io result in a substan-

"]t would likewise be inaccurate to suppose that adult penal insti-

tutions, in North Carolina and elsewhere, do not present rehabiliative

Opportunities to inmates. In both adult and juvenile cases the deci-

sions of sentencing judges and the operation of custodial institutions

reflect the varied purposes of criminal sentencing.

en meee

3

tial benefit being conferred on the youth. This picture of

juvenile detention in North Carolina emerges clearly from A

Report on the North Carolina Juvenile System: Courts, Cor-

rections, and Aftercare, Duke Center on Law and Poverty

(hereafter Duke Report) (mimeo, 1969).? The study illus-

trates well the conclusion reached by this Court that:

It is of no constitutional consequence—and of limited

practical meaning—that the institution . .. {in which]

a youth] is committed is called an Industrial School.

In re Gault, 387 U.S. 1, 27 (1967).

The Duke Report found that detention was most plainly

in nature at the C.A. Dillon School, which houses

those “youngsters who present problems at the State’s seven

other training schools” (Duke Report, 182).? Dillon reflects

the “orthodox maximum security principles of penology”

(Ibid.). Unlike the seven other institutions, it is surrounded

by a fifteen-foot cyclone fence with double barbed wire at

the top:

Every child lives in a small individual cell. He sleeps

on an indestructable and immovable bed under an

inaccessible light fixture that remains dimly lit

throughout the night... He may look out the

The report was prepared by the Duke Center on Law and Poverty

of Duke University School of Law under a grant from the United

States Office of Economic Opportunity and it represents the codifi-

cation of research and interviews as well as site visits to the state’s

eight training schools. An observer spent one week each at the four

boys’ schools (Eastern Carolina School for Boys, Stonewall Jackson

Training School, Samuel Leonard Training School and Morrison Train-

ing School). One-day visits were made to the remaining institutions

(C.A. Dillon School, Juvenile Evaluation Center, Dobbs Farm, and

Samarcand Manor).

‘In an article describing the study, one researcher reported that

other state training schools are only quantitively different from

Dillon, and more akin to “low-security prison camp[s] than they are

to enlightened institutions envisioned in the General Assembly’s legis-

lation and the North Caroliaa Supreme Court’s opinions.” Hough,

“Unconstitutionality of the North Carolina R eformatories,” 14 (Duke

Center on Law and Poverty; mimeo, 1970).

4

window if he is tall enough, but he cannot Open it

without a special key... .

Every thirty minutes throughout the night, counseloy

check each child through little windows in their cell

doors. (/d. at 184, 185.)

This penal atmosphere is illustrated by the methods uti-

lized for discipline. Although corporal punishment is fop.

bidden, instances of it are prevalent (Duke Report at 85, 99,

114, 199). Solitary confinement is one of the “legal” forms

of punishment which is practiced openly at all schools jn

order to discipline those who blantantly misbehave or who

run away (/d. at 88, 113, 153, 165-167, 189, 194). Being

placed in solitary confinement in the “quiet” or “meditation”

room (or as it is commonly called at the schools “the jug”)

is not a pleasant experience:

The jug itself consists of a small room in which a

slab of rock serves as a bed. An offender must Strip

down to his underwear. He is permitted to read only

the Bible, and he is served only two meals a day. At

5 o'clock in the evening he is given a mattress on

which to sleep, at 6 o'clock the next morning the

mattress is removed and the bare rock is all the boy

has to rest on (/d. at 88; see also 133).

“This is not committment for the boy’s safety or for some

one else’s safety. This is incarceration for punishment pure

and simple.” (/d. at 134).

At Eastern Carolina School for Boys, a visit to the “quiet

room” is supposedly limited to seven consecutive days. How-

ever, the rule is circumvented by removing a boy after the

seventh cay only to return him immediately. Although one

boy claimed to have spent twenty-one days in “the jug” a

social worker explained that a week was the normal period

of confinement (/d. at 88).

The penal atmosphere of the reformatories is reinforced

by every facet of the inmates’ daily routine. His mail is

censored (/d. at 113, 153); and his daily life, regimented.

At Eastern, for example, the boys march in silent single file

Es

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5

lines wherever they go and are required to wait at every

doorway for permission to pass through (/d. at 48, 73-75).

“March, march, march; the boys engage in marching ad

absurdium” (Id. at 75). Although campuses of some of the

training schools are attractive, many of the buildings are

drab. Dobbs Farm was formerly a women’s prison and “its

buildings still reflect their penitentiary past. With the excep-

tion of one new cottage the structures are ugly, poorly

lighted, badly ventilated, and anything but attractive.” (/d.

at 191). Two of the seven classrooms at Eastern are in a

¢ructure which was recently condemned as unsafe for use

as a dormitory by the State Health Department (/d. at 45).

There is neither a bathroom nor a water fountain in the

building (/d. at 49).

The drabness and regimentation of life at the training

schools is reflected in the diet and dining facilities. At

Eastern, a cottage has twenty minutes to eat a meal in a

dingly colerless dining hall (/d. at 74). Similarly, at Dobbs

Farm “the dining facilities are in abismal condition” (/d. at

195). To be sure the drabness of Dobbs, the formerly all

black training school, is heignicned in comparison to good

quality food and pleasant dining hall at Samarcand Manor,

which was formerly only for white girls (/d. at 200) and

which was the only school that treated mealtime as more

than another regimented period in the lives of the inmates.

The Duke Report found that the penal atmosphere of the

institutions studied was reinforced by the stigma attached

to children by training school personnel. As soon as he

arrives at the school, a child is made to feel that he

has done “something very wrong to be at the school” (/d.

at 105). Very few people at the school talk positively about

the boys. “Negativism looms over the campus and the stig-

ma grows” (Jd. at 106).

Although the North Carolina General Statutes proclaim

that the special juvenile process is intended to “assure the

protection, treatment, rehabilitation or correction which is

appropriate . . .” for the youngsters ($§ 7A-277) serious

a

6 |

attempts are not made to meet the special psycho!

medical, social, and vocational needs which may different;

a young offender from an adult (and which if filled might

lead to healthy adjustment). It is with this failure in ming

that one must appraise the position of the National Couneil

of Juvenile Court Judges, that differences between adult.

hood and adolescence justify the denial of a jury trial tog

juvenile where an adult accused of the same offense woul

be entitled to receive one (brief at 8, 9; see also brief

of State of North Carolina at 25, 26). For example, juve-

niles sent to training schools are in dire need of inspiring

and remedial education, but generally neither is found in

North Carolina:

Most of the young lads . . . have come from back.

grounds filled with dull teaching and irrelevant curr.

cula. They have responded with ‘truancy’ either in

the form of skipping public school completely or by

sitting restlessly and sullenly at the back of the class

room ... Unfortunately, at the training school, they

face the same academic wilderness they so desperately

tried to escape (Duke Report at 50-1; see also 70,

145, 175-6).

Too many classes consist of monotone lectures read straight

from the textbook by the teacher who then has students

read passages out loud row after row (/d. at 145; see also

48, 50, 175). Such imaginative instruction as is available is

overshadowed by the monotony of the teaching as a whole

(/d. at 51-70). At Eastern, for example, the more progres-

Sive teachers are discouraged by the faculty and administra-

tion (/d. at 70). “From our observations ... We realized

that . . . boredom ran rampant throughout the school sys

tem” (/d. at 50).

Only the Juvenile Evaluation Center, Dillon, and a pilot

cottage at Jackson offer group therapy (/d. at 188, 131).

All training schools do have two or three social workers, but

each is extremely overworked and carries a caseload of over

115 children (/d. at 93, 135-8, 171, 196). These social

workers only have time to attend to those who disrupt life

at the school and must ignore the quiet, although equally

troubled children, whose problems might be remedied with

talk and understanding (/d. at 135, 196). The cottage par-

ents (adults who supervise the living units) are untrained in

counselling and most have no desire to attempt it. At Jack-

son, “only about four out of the forty-seven cottage parents

feel the desire to listen to a boy’s problem and discuss it

with him in a non-defensive way.” (Jd. at 120). It should

be noted that few cottage parents have more than a high

school education, many are retired, and most resent their

lack of prestige and low pay (Jd. at 85-6, 120, 132).

Without proper counselling, problems stemming from the

child’s homelife are ignored: “neither the school nor the

jocal court or welfare officials seriously work with the stu-

dent’s family while he is in training school in order to

improve the environment that was responsible for his com-

mitment” (Jd. at 153; see also 104-5). Consequently, once

a child is released he is no better equipped to deal with his

family or community than he was before. Half return to

the training schools (/d. at 154). Compare Jn re Gault, 387

US. 1, 21-23 (1967).

Not only do training schools ill prepare children for release

by failing to deal with special social and psychological prob-

lems, but the schools also foster values which may make the

child’s life outside of the school more difficult (Duke Report

at 73). Subservience to the authority structure of the school

is paramount and exposure to the complexities of human

relationships is absent. (Jd. at 66). As a concomitant of

this rigid authority structure, the schools place a premium

on dependence and group-oriented behavior while discourag-

ing initiative, creativity, and individualism (/d. at 66, 76, 79,

97, 99-101, 115). Except for group therapy sessions (which

are provided at only three schools) there are no channels

through which the children can voice displeasure, let alone

alter any facet of training school life (/d. at 188). Pro-

posals to establish student governments have been rejected,

denying the children any training in democracy (Jd. at 79,

100 n. 7, 115). The effect is that:

8

Personal dignity and integrity are washed away in

the school’s efforts to control. Dependence is fos.

tered and self-esteem remains undeveloped. Unhap.

piness, insecurity, anti-social behavior, and even Seri-

ous crimes may result from this undeveloped personal

esteem. The thwarting of independence may resylt

in costly felonies in the future (/d. at 100).

Just as a child’s special educational and psychological

needs are ignored so are his medical needs. In fact, at

Eastern, a child’s financial condition may determine whether

he receives dental care or undergoes an operation. One

social worker explained, “‘if it’s an emergency we worry

about the money later; but if it is not, we don’t proceed

until we can find money. Sometimes we don’t proceed,”

(/d. at 81). There are stark contrasts between the medical

facilities at different schools. Dobbs Farm, the formerly all

black school, has one nurse who is supposed to care for 235

girls with little money and equipment (/d. at 194). The for-

merly all white Samarcand Manor, on the other hand, has an

emergency operating room and is visited by doctors and —

dentists (/d. at 200). The Duke Report concludes that

“Equal treatment ought to involve paying for candy, new

street clothes, and medical expenses for all the students,

especially those in need. Parens Patriae and In Loco Paren-

tis as concepts ring hollow when the responsibilities of good

parents are not borne by the State in caring for its youthful

wards” (Jd. at 81). Thus North Carolina juvenile institutions

present a familiar pattern: rehabilitation is a stated goal but

the facilities, services, personnel and programs necessary to

realize it fall far short of what is required.

Modern penological theory stresses that both young and

old offender is likely to return to society and that every

effort should be made to prepare him for that return and

improve his capacity to adjust to the economic and social

realities that he will confront. In the case of juveniles, a fair

statement of the matter is that because of age it is recognized

that we may be more successful in rehabilitation and thus

every advantage should be given to young offenders in struc

turing opportunities for change and improvement. Thus the

juvenile court system reflects, and petitioners in no way

challenge, the informality and broad discretion of judges and

probation officials at juvenile court intake and at the dis-

positional phase. When a judge or a probation officer evalu-

ates the dispositional alternatives available and fits them to

the young offender he is exercising a discretion and an

expertise in selecting and structuring such treatment.

But we fail to understand how the state’s decision not to

enhance the retributive aspects of incarceration when dealing

with juveniles can be taken as a justification for denial of a

jury trial at the adjudicative phase. Even were North Caro-

lina, and other states, able to show that they made available

a wealth of treatment options, sufficient to transform the

youth into a person likely to live a healthy and adjusted life,

it could still be doubted whether the state had the power to

dispense with constitutionally required factfinding protec-

tions, otherwise decmed essential prior to involuntary con-

finement for culpable conduct. Where the state operates

and maintains custodial institutions that seem to serve pri-

marily to hold, and barely to educate or to train the young,

the case for less rigorous factfinding procedures dissolves.

The Court cannot simply ignore the grim reality of “rehabi-

litation”: that the poor and the black are those usually

incarcerated; that they are treated as if they have broken

society’s rules; and held for long periods of time—to emerge

older, but basically unchanged, for the experience.

In recognition, perhaps, of both the reality of custodial

incarceration in state juvenile institutions and this Court’s

rejection in Gault of the significance of a rehabilitative pur-

pose as a justification for informality in fact-finding, North

Carolina and The National Council of Juvenile Court Judges

also urge that trial by jury is itself counter-rehabilitative.

Thus is it said that juries will bring “the traditional delay,

formality and inevitable ‘clash and clamor’ of adversary pro-

ceedings” (brief of National Council, 30); that the juvenile

judge will now become concerned with the “technicalities of

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3

procedure” (/d. at 33), that hearsay evidence will have to be

excluded (/bid); that the juvenile will be punished by pub.

licity (brief of North Carolina 25); and that jury trials wil]

delay “counselling, treatment, rehabilitation and reform of

a troubled child” (brief of National Council at 32). Aspects

of these contentions have been discussed in petitioners’ brief

and the amicus brief of the Public Defender Services for the

District of Columbia and the Neighborhood Legal Service

Program of Washington, D.C. Several points, however, merit

a reply.

First. It should be noted (as both North Carolina (p. 28)

and the National Council appear to concede (p. 35)) that no

empirical evidence has been presented which corroborates,

much less establishes, the premise that a jury trial impairs

the health of the child or his family, or interferes with his

rehabilitation. On the contrary, one may doubt that the

rehabilitative prospects of a youth are fostered when court

proceedings (which determine whether a state criminal law

has been violated, subject the youth to lengthy incarceration

and stigmatize him in the eyes of much of the community)

are structured so as to deny a community judgment as to guilt

solely because of age. In the instant case, for example, the

black juveniles who protested what they considered blatant

acts of racial discrimination against black: school children are

unlikely to have had their confidence and trust in society

strengthened by trial before a white juvenile court judge ra-

ther than a jury representing the community as a whole—es-

pecially when the adults who demonstrated with them were

entitled to trial by jury. One may suppose that it will be

somewhat difficult for blacks, who have for decades sought

the right to trial by a cross-section of their communities as a

protection against, inter alia, case-hardened and oppressive

attitudes of trial judges, cf. State v. Holt, 90 N.C. 749 (1884),

to understand how their welfare is served by requiring them

to go to trial without a jury.

10

Second. The notion that by granting petitions’ motion

for a jury trial a juvenile court is converted into a front page

-—

circus is unreal. As in adult cases the overwhelming majority

of criminal cases do not command public attention. More-

over, the newsworthiness of a case does not depend on the

nce of a jury. In urban areas it is unlikely that all but

the most notorious juvenile case would become a subject for

newspapers, radio or television. In rural areas, the media

might be concerned with the more commonplace juvenile i

case but it is likely that a small community would learn the

nature of such occurrences and persons apprehended, whether

or not reported, simply by word of mouth. So in the case

at bar, despite the fact that petitioners were not entitled to

a jury trial, sufficient publicity attended their adjudication

as delinquents to move a national organization to issue a

report describing the events involved. See Hyde County

North Carolina: School Boycott and the Roots of Conflict

(NEA. 1969).

We reiterate what was urged at length in petitioners’ brief

(pp. 21-23): there is simply no reason why a jury trial in

those cases where a defendant and his counsel determine :

that one is in the best interests of the child must be equated

with unregulated reporting. If a state believes that publicity

punishes juveniles it does better exercising it powers to

promote privacy and regulate disclosure rather than to deny

jury trials to those juveniles who wish one. It is hardly in

the interest of a youth who wishes a jury trial in order to

protect himself from, for example, a case-hardened judge or

one who has seen inadmissible evidence, to deny him trial

by jury because he may suffer the indirect consequences of

disclosure if he has a jury trial. Without a trial by jury such

ayouth may suffer the far more painful fate of unjustifiable

incarceration, despite the existence of what a jury might find

to be a reasonable doubt of guilt. Cf. In re Winship, 397

U.S. 358 (1970). Far more reasonable a course to protect

youths from publicity is regulation of disclosure in juvenile

cases, restriction of the persons who may attend court pro-

ceedings, and recognition that those juveniles who are con-

cerned about publicity are most likely to waive their right

totrial by jury. Standards Relating to Fair Trial and Free

11

ee oo

12

Press, passim (American Bar Assoc. Project on Minimum

Standards for Criminal Justice, 1966). Cf. Patton y. United

States, 281 U.S. 276, 297 (1929).

Third, It is argued that jury trials burden the administra.

tion of justice and cause delay. Of course, jury trials may

contribute to delays in court proceedings—although (1) the

experience of jurisdictions that have made jury trials avaij-

able, as amply documented by the only empirical evidence

before the Court, submitted dy the Public Defender Service

for the District of Columbia and the Neighborhood Legal

Service Program of Washington, D.C., strongly suggests that

such burdens are not imposing, and (2) clogged court calep-

dars are the product of a variety of factors operating on a

particular court system and cannot be said to have been

caused by the availability of jury trials. But, regardless of

what one might say as an initial matter about the availability

of trial by jury, our criminal procedure has evolved in such

a manner as to make such administrative burdens Clearly

worth carrying when they purchase a community judgment

before stigma and incarceration are imposed, Duncan y,

Louisiana, 391 U.S. 145, 149 n. 14 (1968). The Court con-

sidered and rejected such arguments when it recently deter-

mined that the right to trial by jury was constitutionally

protected for all but minor offenses despite the “‘administra-

tive conveniences”’ that might attend judge trials, Baldwin y,

New York, 399 U.S. 66, 73 (1970).

It is suggested, moreover, that jury trials will delay the

availability to the youth of such rehabilitation as are offered

by the states. This is simply contrary to fact. In North

Carolina, as in most jurisdictions with which we are familiar,

the juvenile authorities have ample authority to control and

condition the activities of the juvenile prior to final

adjudication. Section 7A-285 of the N.C. General Statutes

authorizes the court “to assume immediate custody of the

child,” prior to hearing on the merits, and to enter such

orders as are required for the child’s best interests. The

court may provide for physical custody of the child and is

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13

authorized “to take the child to such place or person as is

designated.” Thus there is abolutely no reason why treat-

ment of the juvenile need await final adjudication. Indeed,

to so contend is merely to suggest that the state has failed

in still another way to provide adequate facilities and serv-

ices to young people. A state which makes available coun-

sling and treatment to a troubled child and his family only

ina facility where the child is to be separated from his home

for months, if not years, of institutional living has totally

failed in its obligations to young people. If this is the char-

acter of the “rehabilitative ideal,” discussed by the state

and the National Council, we suggest that trial by jury is

more, not less, desirable. A juvenile court system which

declines to assist a youth in trouble until after adjudication

_and then sends him to a custodial institution—is unworthy

of any special treatment under the Constitution.

Finally, petitioners submit that the premise on which the

arguments of both the State and the National Council is

built—that the adjudicative phase of the Juvenile Court is

unique—is no longer valid. Aside from the right to jury

trial at issue here—and the right to public trial—decisions of

this Court, as reflected in North Carolina law, have produced

a fact-finding procedure almost indistinguishable from that

of a criminal case. As the American adversary system has

been designed principally with the jury in view, for a number

of reasons its fair administration requires maintenance of the

right to jury trial. Thus it is potentially mischievous to

provide for counsel, confrontation, the privilege against self-

incrimination, proof beyond a reasonable doubt but not a

jury trial.

This is most obvious in the case of the reasonable doubt

standard which was, of course, developed and defined in the

context of trial by jury. See IX Wigmore, Evidence $2497

(3d Ed. 1940). Since it is plain that a state carries a far

lesser burden in convincing one man rather than twelve of

a defendant’s guilt beyond a reasonable doubt, the constitu-

tional standard of proof is weakened when a defendant is

tried to a judge. Compare Hibdon v. United States, 204 F.

14

2d 834 (6th Cir. 1953). In addition to the sheer Weight of

numbers, the diversity of a jury gives substance to the rea.

sonable doubt standard, and insures that an accused Will not

be convicted unless jurors of varied backgrounds and out.

look concur in the judgment:

Juries fairly chosen from different walks of iife bri

into the jury bex a variety of different experiences,

feelings, intuitions and habits. Such juries may reach

completely different conclusions than would be

reached by specialists in any given field. Toth »,

Quarles, 350 U.S. 11, 17 (1955).

Moreover, a defendant is entitied to the interchange and

testing of ideas before a judgment against him is rendered,

Allen v, United States, 164 US. 492, 501 (1896). The ver.

dict of a trial judge, not only represents the thinking of a

single man, with all the danger of individual predispositions

that this involves, it represents thinking untested by con-

frontation with the contrary views of others. The essential

genius of the jury trial is its effect in neutralizing or diluting

peculiar biases or predispositions and insuring that individual

views will stand the test of confrontation and debate—that

a judgment of conviction may emerge only if each juror

becomes satisfied that guilt has been established beyond a

reasonable doubt. Thus it is not accidental that Kalven and

Ziesel have concluded:

“If a society wishes to be serious about convicting

only when the State has been put to proof beyond

a reasonable doubt, it would be well advised to have

jury system.” (The American Jury, 189-90)4

*Should juvenile judges share the views expressed in the briefs of

the State of North Carolina and the National Council, as to the

benign character of juvenile rehabilitation in custodia! institutions, the

jury applying the reasonable doubt standard is an even more essential

protection. A judge who believes that adjudication of guilt is not a

prelude io punishment for wrongdoing but merely a precondition to

Satisfying the needs of the youth is far more likely to regard rigid

adherence to the reasonable doubt standard as an encumbrance to

helping a youth.

15 ee

In a jury case, when the defense contends that evidence-

that the prosecution intends to offer is inadmissible under

an exclusionary rule, a hearing is held by the trial judge, out

of the presence of the jury, for the purpose of determining

the validity of the constitutional claim. At this hearing, of

course, the substance of the evidence in question is presented

to the judge. The evidence can be submitted to the jury

only if the trial judge determines that it has not been secured

in violation of the constitutional rights of the defendant.

See Jackson v. Denno, 378 U.S. 368 (1964).

In Jackson v. Denno, supra, th » Court held that this separ-

ation of functions is mandatory under the Due Process Clause

of the Fourteenth Amendment, and that the task of deter-

mining the admissibility of evidence—In Jackson, the volun-

tariness of a confession—cannot be delegated to the jury.

The primary basis for the decision was the Court’s recogni-

tion that jurors would be unable to exclude from their con-

sideration a truthful, but involuntary, confession. (378 US.

at 388-89). But the dangers perceived by the Court in

leckson v. Denno exist whenever a single body determines

both the admissibility of evidence and the guilt or innocence

of the accused. It is fictitious to assume that in a close

case, the judgment of the trial judge will not be influenced

by a belief in guilt, derived from exposure to an inadmissi-

ble confession or constitutionally inadmissible, physical evi-

dence. Cf. Krulewitch v. United States, 336 U.S. 440, 453

‘That exposure to inadmissible evidence will, in fact, influence the

judgment of a judge on the ultimate issue of guilt or innocence is

confirmed by Kalven & Zeisel, The American Jury (1966). In con-

nection with that work, questionnaires were distributed to cooperat-

ing trial judges for the purpose of analyzing the differences in the

evaluation of identical cases by a judge and jury. Trial judges indi-

cated the result they would reach before the jury returned its verdict

in 3,576 cases. The authors found that in 828 cases, the judge would

have convicted the defendant of the crime charged, but the jury did

not do so. (P. 110, Table 24). In thirteen percent of these cases, the

judge pointed to facts that he knew but that could not be put before

the jury as one explanation for the disagreement. (P. III, Table 26.)

16

(1949) (Mr. Justice Jackson, concurring). In the case of the

young person who wishes a jury because the trial judge has

seen a statement before adjudication—claimed to be inadmis.

sible on constitutional grounds—“Absent a jury trial all ques.

tions of fact . . . are determinable by the same Judge who

presides at the trial.” Jn re Daniel Richard D., 261 N.E.24

627, 630, 27 N.Y.2d 90 (1970). Yet a major reason trig)

lawyers request jury trials is that the judge may have been

exposed to inadmissible evidence in the course of deciding

whether to admit it in evidence. Cf. Simmons v. United

States, 390 U.S. 377, 393-94 (1968). Proper operation of

constitutional exclusionary rules and other rules relating to

the exclusion of evidence, requires that the determination

of admissibility not be made by the body determining guilt

or innocence. Trial by jury ~ermits the separation of these

functions and guarantees constitutional rights to have illegally

obtained evidence and other inadmissible evidence “entirely

disregarded.” Jackson v. Denno, supra, 378 U.S. at 389,

Contagion of the trial judge by proferred evidence which

he hears in ruling on its “admissibility” is only one prejudi-

cial incident of non-jury trials. It is no exaggeration to say

that bench trials deny the defendant the benefit of most

evidentiary rules. This is sc for several reasons. “[I]t is

virtually impossible to convince an appellate court that the

receipt of inadmissible evidence in a bench trial was prejud-

icial. Although trial judges are given great credit by appel-

late judges for having reasoning powers that allow them to

compartmentalize their minds and segregate admissible from

inadmissible evidence in arriving at a verdict, as a practical

matter trial judges are no less human than jurors.” Il

Amsterdam, Segal & Miller, Trial Manual for the Defense of

Criminal Cases, Section 317, at p. 2-247 (1967). Further-

more, the confusion of roles of the trial judge who also tries

Certainly, there are cases in addition to this number in which such

information has some conscious or subconscious influence on the trial

judge but which would not be reported in this candid fashion.

ee

—

17

the facts tends to promote avoidance of clear cut rulings on

evidentiary issues. “[I]n a bench case, some judges make it

a practice to take defense objections to the admissibility of

evidence under advisement, and then when it is clear that

the prosecution has a sufficient case apart from the contes-

ted evidence, they will insulate themselves from reversal by

announcing that they are not going to consider the evidence,

but find the defendant guilty without it. This sort of eva-

sion of tricky evidentiary issues cannot be worked in a jury

trial.” Jd. at p. 2-248.

In addition, the judge frequently comes to the determina-

tion of the guilt question against a background that makes

impartial appraisal of the admissible evidence impossible.

Informed by prior contacts with the case or with the defend-

ant that he is unable to avoid, the judge who sits on the

guilt issue almost invariably knows of a prior record and

and other unfavorable personal facts. Moreover, he

approaches determinations of credibility with attitudes har-

dened by observation of prior trials to which the defendant

was not a party; and it is no accident, in particular, that he

tends to believe police witnesses, since the judge has prob-

ably heard the same officer testify against a dozen, or a

hundred, guilty defendants. The impact of these factors

varies from case to case, but it is not unusual for one or all

of them to preclude a bench-tried defendant from having his

guilt or innocence fairly heard on the admitted and admis-

sible evidence and nothing else. It is of the very nature of

the jury to bring a healthy skepticism to appraisal of the

credibility of witnesses whose veracity a judge may not test

simply because he has relied on the witness in the past. This

function of the jury is especially significant in juvenile courts

where the officers are likely to be closely related in their

work tothe juvenile court judge.

The judge’s dual role in a non-jury trial also obscures, by

commingling, the questions of law and fact which it is the

defendant’s right to have fairly determined and fairly

reviewed. Jn re Gault, 387 U.S. 1 (1967). Ina jury trial,

18

the principles of law applied are clearly articulated, sinze

the judge must charge them to the jury. Limited but mean.

ingful review is availabi. Ji the jury’s factual determination

under the legal principles charged by the court. By contrast,

where a judge is the trier of fact, no clear cut articulation

or decision of either legal or factual questions is ordinarily

made, and appellate review is severely hamstrung. Bench

trials thus may not merely allow, but rather tend to promote

arbitrariness; and, at best, they deprive the defendant of the

essential conditions for a clear, visible and regular decision

of the separate legal and factual questions upon which his

conviction depends.

Thus, regardless of the preference one may have for or

against the jury in the abstract it is obvious that a jury com-

pliments the “structure and style of the criminal process—

the supporting framework and the subsidiary procedures—”

Duncan v. Louisiana, 391 U.S. 143, 149, n. 14 (1918). This

is what we understand Mr. Justice White to have meant in

Duncan when he wrote that a jury trial “is fundamental in

the context of the criminal processes maintained by the

American states.” (/bid.) The decisions in Gault and Jn re

Winship, 397 U.S. 358 (1970) have constitutionally man-

dated an adjudicative phase of juvenile court proceedings so

similar to that which is found in criminal proceedings that a

right to jury trial is required in juvenile court for the same

reasons that it is required in adult proceedings. Duncan,

supra, 391 U.S. at 148, 149, 155-158.

_—

19

CONCLUSION

WHEREFORE, petitioners pray that the judgment below

be reversed.

pe Ot OLLI DOLE LG HD

Respectfully submitted,

JACK GREENBERG

10 Columbus Circle

New York, New York i0019

MICHAEL MELTSNER

Columbia University Law

School

New York, New York 10027

JULIUS L. CHAMBERS

ADAM STEIN

JAMES E. FERGUSON, II

JAMES E. LANNING

216 West Tenth Street

Charlotte, North Carolina

28202

ANTHONY G. AMSTERDAM

Stanford University Law

School

Stanford, California 94303

Attorneys for Petitioners

ANN WAGNER

CHARLES BECTON

Of Counsel