Mordecai v. United States

• Decision Date: 07 October 1969
• Docket Number: No. 21943.,21943.
• Citation: 421 F.2d 1133,137 US App. DC 198
• Parties: Linton K. MORDECAI, Jr., Appellant, v. UNITED STATES of America, Appellee.
• Court: U.S. Court of Appeals — District of Columbia Circuit

137 US App. DC 198, 421 F.2d 1133 (1969)

Linton K. MORDECAI, Jr., Appellant, v. UNITED STATES of America, Appellee.

No. 21943.

United States Court of Appeals, District of Columbia Circuit.

Argued February 11, 1969.

Decided October 7, 1969.

Certiorari Denied March 9, 1970.

Mr. Paul Bender, Washington, D. C. (appointed by this court), for appellant.

Mr. Robert S. Bennett, Asst. U. S. Atty., with whom Messrs. David G. Bress, U. S. Atty., at the time the brief was filed, Frank Q. Nebeker, Asst. U. S. Atty., at the time the brief was filed, and Earl J. Silbert, Asst. U. S. Atty., were on the brief, for appellee.

Before BAZELON, Chief Judge, and BURGER,^* and LEVENTHAL, Circuit Judges.

Certiorari Denied March 9, 1970. See 90 S.Ct. 1098.

BAZELON, Chief Judge:

In 1961 the Juvenile Court waived its "original and exclusive jurisdiction"¹ over the appellant, who was then 16 years old. Five years later, after his conviction for rape and assault with intent to rob became final, the Supreme Court held in Kent v. United States² that a juvenile facing waiver deserved a hearing and the assistance of counsel. The appellant received neither in 1961. This appeal from a denial below of his motion for relief under 28 U.S.C. § 2255 (1964) requires us to decide, among other questions, whether Kent applies retroactively to invalidate the waiver and subsequent conviction.

I

The intractability of the retroactivity issue and the apparent lack of consistency among decided cases are an inevitable consequence of the nature of the task. Several factors are of obvious importance in determining whether a new rule should be retroactively applied. Unfortunately, the criteria too often point in opposite directions, thereby requiring the court to balance opposing considerations.

The Supreme Court, despite the dissatisfaction of some of its members,³ has relied upon a three-pronged analysis in deciding whether particular decisions should apply retroactively: "(a) the purpose to be served by the new standards, (b) the extent of the reliance by law enforcement authorities on the old standards, and (c) the effect on the administration of justice of a retroactive application of the new standards."⁴ This catalogue provides a framework to approach the question at hand — the retroactivity vel non of Kent — but cannot contribute a mechanical answer.

The purpose of the standards announced by Kent provides a powerful argument for retroactive application. Whether the right to a hearing with counsel before waiver arises from the statute or the Constitution,⁵ there can be no doubt of the importance of counsel to insure the "full investigation" required in a waiver proceeding.⁶ We have often stressed the need whenever a waiver is contemplated for a thorough examination of the juvenile, his background and alternative strategies for rehabilitation short of adult criminal treatment.⁷ Experience demonstrates that the youth and his parents — when they are available — cannot be counted upon to present the case for juvenile treatment incisively and intelligently. Within our judicial system, we consistently rely upon counsel to marshal facts, present arguments and explore alternatives.

The essentiality of representation by counsel to justice in the individual case has led the Supreme Court to conclude that many of its decisions dealing with this Sixth Amendment right should be retroactive. From preliminary hearing⁸ to arraignment⁹ to trial¹⁰ and on to appeal,¹¹ the Court's declarations of the right to counsel have been made retroactive. These stages all hold implications for the "integrity of the fact-finding process"¹² that determines guilt or innocence. A waiver of jurisdiction by the Juvenile Court does not do this, but rather simply sets in motion the terrible wheels of an adult proceeding. But the Supreme Court has recognized that the "integrity of the fact-finding" process is critically important at other stages of the criminal process than those determining guilt. McConnell v. Rhay¹³ declared retroactive the decision in Mempa v. Rhay¹⁴ requiring counsel at a sentencing hearing. The waiver hearing certainly calls as loudly for the "guiding hand" of counsel as does the sentencing hearing; indeed, the investigations relevant for each are not entirely dissimilar in scope and subject matter.

The right to counsel at interrogations and at line-ups has not been declared retroactive.¹⁵ For the most part these decisions have been so treated because of the reliance of law enforcement officers on practices previously approved and because of the impact of a retroactive application upon the administration of justice. But the decisions in Escobedo v. Illinois,¹⁶ Miranda v. Arizona¹⁷ and United States v. Wade¹⁸ shared to some extent a distinctive purpose in that the ultimate value at stake was not the regularity of the process but the protection of other interests — the privilege against self-incrimination in Escobedo and Miranda; the right to meaningful confrontation at trial in Wade. While counsel may have an active role to play in assuring his client's understanding of the right to silence at an interrogation or — more problematically — in encouraging the police to conduct lineups fairly, the meaningful participation of counsel is not so palpably essential to the process as absolutely to demand retroactive application of the new standards.¹⁹ Waiver proceedings, on the other hand, may well rely so heavily upon the forceful advocacy of counsel representing the juvenile that a court cannot content itself that waivers unaccompanied by such representation were preceded by the requisite "full investigation."

While the purpose served by the right to counsel in this context argues for retroactive application of Kent, the direction of the second signpost — that of reliance by law enforcement authorities on the old standards — is not so clear. It does appear that in fact the Juvenile Court did not consider either a hearing or the assistance of counsel essential to a waiver proceeding before our decision in Black v. United States,²⁰ which anticipated by a year the right to counsel authoritatively established in Kent. But certainly more than reliance in fact must sometimes be required to justify nonretroactive application of a new standard; the justification for reliance by lower courts must influence the decision. If the new standard appears as a bolt from a clear sky to shatter hitherto solid-seeming precedent, the reliance of lower courts upon old standards is above reproach. If, on the other hand, the new standard has been foreshadowed by earlier decisions which would have allowed a lower court paying sensitive attention to trends in the law to anticipate the latest ruling, then non-retroactive applications based only upon the fact that lower courts have clung woodenly to the old, eroded standard would simply "validate this kind of footdragging."²¹

This court did hold in 1960 that the Juvenile Court was not required to hold a hearing to waive its exclusive jurisdiction,²² and there was little reason for the Juvenile Court to suspect erosion of this holding before the decision in Kent. But there was no established "old standard" approving the practice of waivers without counsel. The importance of counsel to the fairness of criminal proceedings was well established, at least in federal courts, long before this waiver occurred in 1961. Moreover, this court had held in 1956 that the assistance of counsel was required in juvenile proceedings to determine involvement in unlawful activities.²³ Shioutakon v. District of Columbia rested upon our interpretation of the presumed legislative intent of Congress reached in the light of constitutional principles, although the statute itself "in terms neither recognizes or withholds such assistance."²⁴

Faced with a similar silence vis-a-vis the assistance of counsel in that part of the statute dealing with waivers, the Juvenile Court might well have suspected that the juvenile was entitled to an attorney. In this regard Kent was not "a clear break with the past."²⁵ Indeed, in the apparent absence of any earlier case precisely upon point, it is not altogether clear that Kent constituted a change in the law.²⁶

The third factor to be considered, that of the effect on the administration of justice of a retroactive application of the new standard, may encompass a raft of miscellaneous considerations. Upon occasion the Supreme Court has seemingly shied from applying decisions retroactively because a high proportion of past stock criticism of such reasoning is that convictions would be affected.²⁷ The retroactivity should depend upon the risk of injustice to the individual convicted under a discarded standard rather than upon the total number of cases where injustice may have occurred. There is merit to this argument. At the core of the retroactivity problem, we must in the individual case balance our fear of permitting an erroneous conviction to stand against our reluctance to vacate a conviction that may be correct. Totalling up all the individual cases merely multiplies the weights on each side of the scales by an equal factor, and accordingly should not alter the result of the balancing exercise.

But the problem is more complicated. When a decision in the criminal law is made retroactive, the consequence is not to free all whose convictions are affected. Normally new hearings or new trials will be held in some or all cases. If retroactive application would affect a high proportion of convictions, the new proceedings thus necessitated may overload judicial facilities and outstrip resources.

The Government has not informed the court in this case how many individuals a decision to make Kent retroactive would affect, although such information is of obvious relevance when the argument is raised, as it has been by the Government, that "to give Kent retroactive effect might have a significantly disruptive effect on the administration...