United States ex rel. Bombacino v. Bensinger

• Decision Date: 19 June 1974
• Docket Number: No. 73-1175.,73-1175.
• Citation: 498 F.2d 875
• Parties: UNITED STATES of America ex rel. Joseph BOMBACINO, Petitioner-Appellee, v. Peter BENSINGER, Respondent-Appellant.
• Court: U.S. Court of Appeals — Seventh Circuit

498 F.2d 875 (1974)

UNITED STATES of America ex rel. Joseph BOMBACINO, Petitioner-Appellee, v.Peter BENSINGER, Respondent-Appellant.

No. 73-1175.

United States Court of Appeals, Seventh Circuit.

Argued January 9, 1974.

Decided June 19, 1974.

William J. Scott, Atty. Gen., Charles H. Levad, Asst. Atty. Gen., Chicago, Ill., for respondent-appellant.

Patrick A. Tuite, Chicago, Ill., for petitioner-appellee.

Before CUMMINGS and STEVENS, Circuit Judges, and GRANT,^*Senior District Judge.

STEVENS, Circuit Judge.

The district court concluded that there was a constitutional defect in the statutory procedure by which Illinois determined to prosecute petitioner as an adult rather than as a juvenile; accordingly, the court issued a writ of habeas corpus ordering him released from custody.Since we find no constitutional infirmity in the Illinois procedure as it was applied in petitioner's case, we reverse.

In 1967petitioner, who was then 16, was arrested in connection with the beating of another youth.A delinquency petition filed in the juvenile court charged him and two other boys with aggravated battery.After the victim died, the State's Attorney of Cook County moved, pursuant to a statutory provision which has since been amended,¹ to transfer the case to the Criminal Division of the Circuit Court of Cook County.Petitioner's counsel objected to the transfer.After hearing oral argument, but without receiving any evidence, the juvenile court granted the prosecutor's motion.The three boys were then indicted for murder.Two were acquitted; the jury found petitioner guilty of voluntary manslaughter.He received a sentence of one to five years in the custody of the Department of Corrections.On appeal, the Illinois Supreme Court affirmed, expressly holding that the transfer procedure was not in conflict with Kent v. United States, 383 U.S. 541, 86 S.Ct. 1045, 16 L.Ed.2d 84.²

In Kent,the Supreme Court held that the juvenile court of the District of Columbia could not waive jurisdiction over a minor charged with a criminal offense without first affording the minor a hearing.Kent had been afforded no hearing; the juvenile judge's ex parte decision was inadequate because his counsel was denied access to records considered by the judge, because the judge had an inadequate opportunity to consider the issue in an unhurried and impartial manner, and because no statement of reasons supported the decision of the juvenile court.³The Supreme Court's holding in Kent rested explicitly on the language of the District of Columbiastatute.⁴At several points in the Kent opinion,⁵ as well as in In re Gault, 387 U.S. 1, 87 S.Ct. 1428, 18 L.Ed.2d 527, however, the Court indicated that such proceedings must comport with the basic requirements of the Due Process Clause.⁶

There is some uncertainty about the impact of the Due Process Clause on the procedure followed by a state in determining whether to transfer a youth from the jurisdiction of a juvenile court to that of a court of ordinary jurisdiction.There is respectable authority for the view that the determination may be committed entirely to the discretion of the prosecutor.⁷Under this view, procedural safeguards would not be constitutionally required unless the state elected to provide for judicial participation in the transfer decision.Since the Illinois procedure under review in this case did provide that the juvenile judge could object to a decision by the State's Attorney to transfer,⁸ for purposes of our decision we may assume that the transfer proceeding is of such critical importance to the juvenile⁹ that any fundamental procedural unfairness in that proceeding will require a subsequent conviction to be set aside.¹⁰

We find no such unfairness in the record before us.Petitioner made only two objections to the proceedings which resulted in his transfer: first, that no evidence was heard; and, second, that the judge gave no statement of reasons for his decision.

There are two aspects to the argument based on the absence of an evidentiary hearing.It is first significant that the court did not refuse to hear any evidence offered on behalf of the petitioner because no such offer was made.In oral argument his counsel made certain representations which, since they were unchallenged, presumably were accepted as true by the judge.Although petitioner's guilt or innocence was in dispute, the facts concerning the juvenile's age, education, family background, and the absence of a prior record, appear to have been undisputed.We find nothing in the record to indicate that petitioner was denied the opportunity to adduce evidence relating to the transfer issue.

At the oral argument before the juvenile judge, petitioner argued that the prosecutor should be required to introduce evidence to show probable cause that the juvenile was guilty of a criminal offense.Quite clearly, under the Illinois statutory procedure, such evidence was unnecessary.¹¹We find nothing in either the Kent opinion or in the concept of fundamental fairness which mandates such a hearing before the jurisdiction of the juvenile court may be waived.¹²Of course, before an indictment can be returned, evidence of probable cause, sufficient to satisfy the grand jury, must be presented.That procedure adequately protects a person's rights; there is no constitutional requirement that a probable cause showing must be made twice.

We are also satisfied that there is no inflexible requirement that a statement of reasons always be given by a juvenile judge before allowing a transfer to occur.The need for a statement of reasons in any procedural context must be evaluated in the light of the function such a statement would perform.We have recognized the importance of providing uncounselled laymen with a written explanation of decisions denying parole,¹³ or denying a Selective Service reclassification,¹⁴ and are aware of the desirability of such explanations in a prison disciplinary context.¹⁵In such situations the statement enables the layman both to obtain meaningful appellate review and to know the standards of the decision maker to which he must attempt to conform his conduct.But no appellate review lay from an order of transfer under Illinois law applicable to petitioner's case,¹⁶ and the decision included no prescription for future conduct.Moreover, a statement of reasons is less necessary when the person affected is represented, as was petitioner in this case, by competent counsel.

We are well aware of the significant value of a statement of reasons in the decisional process of any case because such a statement always reduces the risk that the decision may be, or may appear to be, arbitrary.Nevertheless, there are so many aspects of the judicial process in which critical decisions have traditionally been made without explanation, that we could not properly hold that a statement is constitutionally mandated simply as a safeguard against real or apparent arbitrariness.Unlike Kent, in which the decision to transfer was for the juvenile judge and the Supreme Court apparently had some doubt as to whether he had had the opportunity to consider it sufficiently,¹⁷the present case involves a statutory scheme in which the role of the judge was confined to supervising the exercise of prosecutorial discretion and the undisputed fact that the judge was given, by the oral argument he heard, sufficient opportunity to consider whether objection was appropriate.In this case the absence of a statement of reasons cannot be termed fundamentally unfair.

Since we find no essential unfairness in the record before us, the judgment of the district court must be

Reversed.

*Senior District JudgeRobert A. Grant of the Northern District of Indiana is sitting by designation.

1The statutory procedure which governed petitioner's transfer provided:

If a petition alleges commission by a minor 13 years of age or over of an act which constitutes a crime under the laws of this State, the State's Attorney shall determine the court in which that minor is to be prosecuted; however, if the Juvenile Court Judge objects to the removal of a case from the jurisdiction of the Juvenile Court, the matter shall be referred to the chief judge of the circuit for decision and disposition.If criminal proceedings are instituted, the petition shall be dismissed insofar as the act or acts involved in the criminal proceedings are concerned.Taking of evidence in an adjudicatory hearing in any such case is a bar to criminal proceedings based upon the conduct alleged in the petition.

Ill.Rev.Stat., Ch. 37, § 702-7(3)(1967).Effective July 31, 1967, the statute was amended to provide:

If a petition alleges commission by a minor 13 years of age or over of an act which constitutes a crime under the laws of this State, and, on motion of the State's Attorney, a Juvenile Judge, designated by the Chief Judge of the Circuit to hear and determine such motions, after investigation and hearing but before commencement of the adjudicatory hearing, finds that it is not in the best interests of the minor or of the public to proceed under this Act, the court may enter an order permitting prosecution under the criminal laws.

Ill.Rev.Stat., Ch. 37, § 702-7(3)(1971).

2SeePeople v. Bombacino, 51 Ill.2d 17, 280 N.E.2d 697(1972), cert. denied, 409 U.S. 912, 93 S.Ct. 230, 34 L.Ed.2d 173.

3383 U.S. at 546, 554.

4See383 U.S. at 556.

5See383 U.S. at 553, 554, 555 and 556.

6"Although our decision in Kent turned upon the language of the statute, we emphasized the necessity that `the basic requirements of due process and fairness' be satisfied in such proceedings 383 U.S. at 553."387 U.S. at 12.

7The Court of Appeals for the Fourth Circuit, sitting en banc, concluded that confining the decision to...