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05/17/56 Thomas Edward Shioutakon, v. District of Columbia

May 17, 1956




Before PRETTYMAN, BAZELON and BASTIAN, Circuit Judges.



BAZELON, Circuit Judge.

This juvenile delinquency proceeding was instituted by a petition charging our 15-year old appellant with having used an automobile without the owner's consent. *fn1 At the hearing before the Juvenile Court, he admitted the charge and was committed to a training school. *fn2 He was not represented by counsel, nor did the judge advise him or his mother, who was present, *fn3 that he might be represented by counsel. About three months later, counsel appeared for him and filed a motion to vacate and set aside the court's judgment on the ground that he had been deprived of his constitutional right to counsel. Denial of this motion was appealed to the Municipal Court of Appeals which affirmed. *fn4 This court allowed a petition for leave to appeal because the question presented is important to the fair administration of justice.

One of the aims of the 1938 revision of the Juvenile Court Act *fn5 was to eliminate the formalities of a criminal proceeding which emphasizes "punishment and retribution," and to provide in its place a more informal procedure designed to enhance the protective and rehabilitative features which have come to be associated with modern juvenile courts. *fn6

To this end the Act authorizes the Director of Social Work to investigate any complaint "to determine whether the interests of the public or of the child require that further action be taken." *fn7 Congress clearly intended, in this section, to encourage the disposition of cases on a social rather than legal basis. In the event such disposition is deemed unwise, "further action" may be taken, as in the present case, by the filing of a petition which requires a court hearing. *fn8

But even where a petition is filed, the proceedings are meant to be non-criminal and non-formal in nature. *fn9 Instead of an indictment or information, there is a petition entitled "'In the matter of . . ..'" The hearing itself may be conducted in an "informal manner," *fn10 that is, without the "technicalities which are not essential to justice and which tend to confuse or intimidate a child." *fn11 The court is not open to the general public. *fn12 In the event an adjudication of delinquency results, the court is authorized to place the child on probation in his parents' custody, to commit him to the Board of Public Welfare or to a training school, or to "make such further disposition" as it deems in the child's "best interests," *fn13 The statute's aim is to avoid the stigmatizing effects of a criminal conviction. *fn14

In recognizing and approving the laudable objectives of this system of "individualized justice," *fn15 we may not overlook the fact that the status and rights of the child as well as rights of the parents are involved. *fn16 That fact inheres in the court's power to deprive the child of liberty and the parents of custody. *fn17 And where, as here, the exercise of this power rests upon an alleged violation of law, the court must find, from evidence in a hearing, whether the child has in fact committed an unlawful act.

The serious nature and effect of this adjudication suggests that Congress could not have been unaware of the need for effective assistance of counsel. *fn18 Although the Act in terms neither recognizes nor withholds such assistance, the legislative history reflects congressional understanding that alleged delinquents would be represented by counsel. *fn19 That there is a need for such representation to protect the child's interests is apparent, for example, from a realistic view of ยง 11-915's provision for "hearing." The "right to be heard" when personal liberty is at stake requires the effective assistance of counsel in a juvenile court quite as much as it does in a criminal court. *fn20 The need is also apparent from the provision for a jury on demand. *fn21 Clearly a child cannot, without the aid of counsel, competently decide whether he should exercise this right.

Rights afforded by the rules of the Juvenile Court would also be meaningless without legal assistance. Under Rule VIII, demand for a jury trial must be made in writing within five days of arraignment. If a jury is demanded, the juvenile may exercise peremptory challenges (Rule IX) and prepare written requests for instructions (Rule X). He is allowed to make written motion for a new trial or in arrest of judgment (Rule XII). Appeals to the Municipal Court of Appeals and to this court are available.

Since an intelligent exercise of the juvenile's rights under the Act and the Rules clearly requires legal skills not possessed by the ordinary child under 18, it is plain that, as appellee, the District of Columbia, concedes, a juvenile is entitled to be represented by counsel if he or his parents or guardian choose to furnish one. Appellee contends, however, that the court is not required to advise a juvenile of that right, or to assure itself that the right has been intellingently waived. It also contends that the court is not required to appoint counsel where there is no such waiver or where the juvenile's family is indigent. We think these contentions are unsound.

Appellee in effect would have us accept the proposition that protection of a child's rights hinges on whether he is either something of a genius or a member of a family which can afford counsel. Obviously the intelligence quotient of the child or the economic position of his family cannot be controlling. *fn22 Our concern for the fair administration of justice *fn23 impels us to hold that in this and in similar cases in the future, *fn24 the juvenile must be advised that he has a right to engage counsel or to have counsel named on his behalf. *fn25 And, where that right exists, the court must be assured that any waiver of it is intelligent and competent. *fn26

We are in full accord with the objectives of the Act to enable the court to deal with children in an informal manner and to encourage dispositions, on the basis of all relevant social data, looking toward treatment rather than punishment. Requiring the court to inform an alleged delinquent like appellant, against whom a petition has been filed, that he has a right to counsel is not, we think, incompatible with these objectives. *fn27

It follows from the foregoing discussion that the court erred in denying appellant's motion to vacate ...

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