Haziel v. United States

• Decision Date: 27 September 1968
• Docket Number: No. 20982.,20982.
• Citation: 404 F.2d 1275
• Parties: Dozier V. HAZIEL, Appellant, v. UNITED STATES of America, Appellee.
• Court: U.S. Court of Appeals — District of Columbia Circuit

404 F.2d 1275 (1968)

Dozier V. HAZIEL, Appellant, v. UNITED STATES of America, Appellee.

No. 20982.

United States Court of Appeals District of Columbia Circuit.

Argued June 25, 1968.

Decided September 27, 1968.

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Mr. Harold H. Bacon, Washington, D. C. (appointed by this court), for appellant.

Mr. William G. Reynolds, Asst. U. S. Atty., with whom Messrs. David G. Bress, U. S. Atty., Frank Q. Nebeker and Miss Carol Garfiel, Asst. U. S. Attys., were on the brief, for appellee.

Before BAZELON, Chief Judge, WILBUR K. MILLER, Senior Circuit Judge, and WRIGHT, Circuit Judge.

BAZELON, Chief Judge.

Dozier Haziel was 16 years old when he was arrested for armed robbery and assault with a dangerous weapon in September 1965. The Juvenile Court waived jurisdiction to the District Court, where he was ultimately tried as an adult and convicted. Today he is 19 years old. He advances two contentions in this appeal: first, that his waiver by the Juvenile Court was improper; and, second, that even if the waiver was proper, he was denied his constitutional right to a speedy trial in the District Court.

Since the jurisdiction of the District Court to try the appellant depended on a valid waiver, we consider the waiver problem before examining the alleged constitutional defect in his trial. Because the record is inadequate to permit resolution of the waiver issue, further proceedings in the Juvenile Court will be required. To minimize further delay in the final disposition of this already prolonged case, we order the Juvenile Court to complete the further proceedings required within 30 days.

Three youths robbed a grocery store on September 2, 1965. The proprietor was shot and wounded. The police arrested Haziel and Larry J. Wilkerson minutes later several blocks away. On September 21, 1965, the Juvenile Court waived jurisdiction to the District Court. After indictment and arraignment in early October, trial was set for November 30, 1965. The crowded docket required a continuance that day. On January 20, 1966, following this Court's decision in Black v. United States, 122 U.S.App.D.C. 393, 355 F.2d 104 (1965), the Government moved to remand the case to the Juvenile Court for new waiver proceedings in which Haziel would be assisted by counsel. Two and a half weeks later, the case was remanded. Almost seven weeks later, on March 15, 1966, the Juvenile Court appointed counsel to represent Haziel. Just three days later, with a promptness theretofore lacking in the leisurely proceedings, the lawyer sent a five-line letter to the Juvenile Court:

Pursuant to your letter appointing me to represent on Dozier Haziel in your Court, I have reviewed the files of your Court and find no basis for requesting a hearing or further consideration relative to a waiver to the United States District Court for the District of Columbia.

On April 6, 1966, the court sent a second letter to the appointed counsel advising him of the adoption of a new Juvenile Court Rule 23 under which he could request a waiver hearing for his client despite his earlier decision. The lawyer telephoned the court to state that he "was standing by his position" and would not request a hearing.

Finally, on May 10, 1966, exactly four months after the Government's motion to remand, the Juvenile Court waived Haziel once again to the District Court without a hearing. This occurred seven weeks after the Supreme Court held in Kent v. United States, 383 U.S. 541, 557, 86 S.Ct. 1045, 16 L.Ed.2d 84 (1966), that the statute governing such waivers, 11 D.C.Code § 914 (1961), now 11 D.C.Code § 1553 (1967), "read in the context of constitutional principles" entitles a juvenile to a hearing before waiver. Specifically, the Supreme Court concluded in Kent,

The statute does not permit the Juvenile Court to determine in isolation and without the participation or any representation of the child the "critically important" question whetha child will be deprived of the special protections and provisions of the Juvenile Court Act.

Id. at 553, 86 S.Ct. at 1053.

Whatever one might think of the quality of representation in these waiver proceedings, there is no evidence whatsoever in the record of the slightest participation by the child. The curt letter of the appointed counsel does not suggest that he had even spoken with his client. Haziel sent a handwritten letter to the Juvenile Court judge on March 8, 1966, complaining of conditions in the District of Columbia Jail, where he had been incarcerated since September, and asking "that you take my letter into consideration in disposing of my case." This letter, unanswered by the court, does not suggest that Haziel was aware of any right to a hearing. Nor is there any suggestion in the record that Haziel was after the decision in Kent informed of this right. Nor is there any basis to speculate that his mother, with whom he lived before his arrest, was told that her son was entitled to a hearing.

Rule 23 of the Juvenile Court, adopted on March 30, 1966, following the decision in Kent, provides that "the juvenile and his parents, guardian or custodian shall be present" at the waiver hearing, but places the onus upon counsel to file a "request for hearing * * * within five days of the notice to counsel that the Court is considering waiver." Although the Juvenile Court in this case took pains to advise counsel of his client's right to a hearing, it sought no assurance that counsel in turn advised his client of this right.

The law allows counsel to speak for his client on many occasions. In an adversarial criminal proceeding, the client may be bound by his counsel's calculated decision when trial tactics are involved. See Henry v. State of Mississippi, 379 U.S. 443, 450-453, 85 S.Ct. 564, 13 L.Ed.2d 408 (1965). Such circumstances arise for the most part when the assertion of a claimed right may backfire if incorrect. Since these decisions must often be made in the heat of trial, and frequently involve nice calculations of procedural complexities and jurors' likely reactions, the attorney must sometimes make the choice without consulting his client. In other circumstances we rely upon counsel to speak for his client not because we believe the attorney must make the decision, but because we assume the attorney has consulted with his client, advised him of what is at stake, and helped him toward a wise decision.

At certain critical junctures, however, the law takes particular pains to insure that the decision is that of the defendant. Thus, Rule 11 of the Rules of Criminal Procedure as amended in 1966 provides explicitly,

The Court * * * shall not accept a plea of guilty * * * without first addressing the defendant personally and determining that the plea is made voluntarily with understanding of the nature of the charge and the consequences of the plea.

The juvenile's right to a waiver hearing is, like the right to a trial on a plea of not guilty in the adult court, "critically important." SeeKent, 383 U.S. at 553, 86 S.Ct. 1045; Black, 122 U.S.App.D.C. at 394, 355 F.2d at 105. "The essential scheme of the Juvenile Court Act is * * that non-criminal treatment is to be the rule — and the adult criminal treatment, the exception which must be governed by the particular factors of individual cases. Harling v. United States, 111 U.S.App. D.C. 174, 177-178, 295 F.2d 161, 164-165 (1961). The divide between the Juvenile Court with its promise of non-punitive rehabilitation and the harsher world of the District Court is one not lightly to be crossed. As the statute provides, and as this Court has time and again emphasized, treatment as a juvenile can be withdrawn only after "full investigation." 11 D.C.Code § 1553 (1967); see, e. g., Black v. United States, 122 U.S.App. D.C. 393, 355 F.2d 104 (1965); Watkins v. United States, 119 U.S.App.D.C. 409, 343 F.2d 278 (1964); Green v. United States, 113 U.S.App.D.C. 348, 308 F.2d 303 (1962); Pee v. United States, 107 U.S.App.D.C. 47, 274 F.2d 556 (1959).

Since the presumption of the statutory framework is that juveniles are to be treated as juveniles, the "full investigation" required before waiver to the adult court must explore all the possible dispositions short of waiver by which the "welfare of the child and the best interests of the District," 16 D.C. Code § 2316(1) (1967), may be secured. Both counsel and the court have a vital role to play in this exploration. The child's advocate should search for a plan, or perhaps a range of plans, which may persuade the court that the welfare of the child and the safety of the community can be served without waiver. And the court itself cannot remain inert. It also has a duty to utilize its "facilities, personnel and expertise for a proper determination of the waiver issue." Black, 122 U.S.App.D.C. at 396, 355 F.2d at 107. The trial judge in even an adversary criminal trial has a responsibility to protect the administration of justice. See, Evans v. United States, 130 U.S. App.D.C. 114, 119, 397 F.2d 675, 680 (1968) (dissenting opinion). Far more is this true under the Juvenile Court Act, where the parens patriae principle which justifies some tempering of the adversarial nature of the process reinforces the duty of the judge to insure that the child receives the full benefits promised by the statutory scheme.

A "full investigation" of the alternatives to waiver may well be a frustrating task. It is all too often clear what the juveniles considered for waiver need, and even clearer that the Juvenile Court cannot provide it. Many of these children need, above all, a stable home such as they have never enjoyed. They need parents, or, what may be more heartbreaking, they need better parents. This the court can never hope to provide. Less pardonably, it too often cannot even provide a surrogate that offers some hope to reclaim the youth. Many of these juveniles have grown to an embittered adolescence amidst the frustration of the ghetto.¹ They...