UNITED STATES COURT OF APPEALS FOR THE DISTRICT OF COLUMBIA CIRCUIT
Bazelon, Chief Judge, and McGowan and Tamm, Circuit Judges. Bazelon, Chief Judge (dissenting).
DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE TAMM
In this case we are asked, more than four years after the Juvenile Court proceedings, to remand the proceedings to the United States District Court for a redetermination of the validity of the Juvenile Court's waiver of jurisdiction. Since the basic proceedings against appellant were initiated he has reached his majority and the Chief Judge of the Juvenile Court, before whom the original hearings were held, has died.
Willie Strickland, Jr., our appellant herein, was seventeen years of age when he was charged with assault with a deadly weapon in a complaint filed in November 1966. The Juvenile Court by an order entered in January 1967 waived its jurisdiction, and soon thereafter appellant was indicted in the United States District Court. The indictment charged Strickland, in multiple counts, with assault with a dangerous weapon, D.C.Code § 22-502 (1967) and mayhem, id. § 506. The jury found appellant guilty on all counts of the indictment and he was sentenced to a term not to exceed 8 years under the provisions of the Youth Corrections Act, 18 U.S.C. § 5010(c) (1964). II.
Early in the District Court's trial of the offenses charged, defense counsel sought by motion to have the indictment dismissed on the ground that the Juvenile Court's waiver was invalid. In substance the motion was predicated upon the inability of anyone to locate the original Juvenile Court file at that time with the result that the only document establishing the Juvenile Court action was its waiver order. It was argued to the District Court that since the waiver order merely recited that the waiver hearing had been held, it was, in the absence of supporting records, insufficient to establish the validity of the waiver. The District Court denied the motion to dismiss basically on the ground that defense counsel had failed to establish in any way that appellant had been prejudiced by the loss of the Juvenile Court file. The learned District Court judge, however, ordered that the records of the Juvenile Court be brought before him so that he could determine if, in fact, a formal waiver hearing was held, and if so, whether appellant was at that time represented by counsel.
An examination of the Juvenile Court's records by Judge Gasch revealed an Order by Judge Miller of the Juvenile Court (Appendix I) which expressly stated that a full investigation was held and that the jurisdiction of the Juvenile Court was being waived over our appellant by virtue of the authority vested in the Chief Judge by D.C.Code 11-1553 (Supp. V, 1966). The order indicated that the appellant was represented by counsel at both the investigation and the waiver proceeding. The order recited that "all Court legal and social records on Respondent [our appellant] have been made available to [his] counsel. Respondent and his counsel have been afforded a hearing." (Emphasis added.) In conjunction with his order the Chief Judge issued a Statement in Support of Waiver Order (annexed hereto as Appendix II) in which he pointed out that according to the social worker's report to the Court, in which waiver was recommended, ". . . the Respondent has conducted himself as an adult since March 1966. . . ." Both the order and statement in support thereof were handed down on January 17, 1967, and are over Chief Judge Miller's signature.
On December 2, 1966, the procedure for waiver was initiated. This was followed, on December 19 of that year, by a recommendation of waiver by the chief psychiatrist of Legal Psychiatric Services.
He reported that Respondent 'does not seem to appreciate the seriousness of the current offenses and tends to make light of the whole thing.' The psychiatrist reported that tests on Respondent 'point up his tendency toward omnipotent, autistic thinking, and his paranoid attitudes.' He concluded that the Respondent 'is a very dangerous, impulsive, hostile young man, who sees himself as sort of indestructible superman, and is not psychotic.
Statement in Support of Waiver Order, Appendix II.
There has been no shadow of doubt cast on the authenticity of either the Waiver Order or the Statement in Support of the Order. Nor has there been any question concerning their regularity. III.
At this point it would seem that a presumption of regularity would arise as a matter of law, and that this presumption would apply, in the absence of substantial showing to the contrary, to the actions of both the Juvenile and District Courts. " All possible presumptions are indulged to sustain the action of the trial court." T.V.T. Corporation v. Basiliko, 103 U.S.App.D.C. 181, 183, 257 F.2d 185, 187 (1958), citing In re Chapman Coal Co., 196 F.2d 779 (7th Cir. 1952). See also, Mercantile Trust Co. v. Hensey, 205 U.S. 298, 306, 27 S. Ct. 535, 51 L. Ed. 811 (1907), Berenter v. Staggers, 124 U.S.App.D.C. 141, 142 n.2, 362 F.2d 971, 972 n.2 (1966), In re Ripp, 242 F.2d 849, 851 (7th Cir. 1957), Miller v. Delaware, Lackawanna and Western Railroad Co., 241 F.2d 116, 118 (2d Cir.), cert. denied, 354 U.S. 923, 77 S. Ct. 1384, 1 L. Ed. 2d 1438 (1957). Despite the absence of any showing of error, or of prejudice, the dissent, with more courage than justification, is overwhelmed by the apparently hypnotic claim that the waiver proceedings were invalid, and concludes somehow that this mere allegation opens indefensible breaches in the procedural aspects of the case. This simply is not the case and the result is a legal maltrition in which a naked allegation functions as a substitute for proof. A remand to consider whether the waiver was valid is, in our opinion, a meaningless pantomime carried on for the sake of tradition despite what is a completely adequate and finalizing record. "The absence of a completely accurate transcript does not, without more, invalidate a conviction." United States v. DiCanio, 245 F.2d 713, 715 (2nd Cir.), cert. denied, 355 U.S. 874, 78 S. Ct. 126, 2 L. Ed. 2d 79 (1957). There is far less reason then to invalidate a "waiver proceeding" and thus the conviction, where, on the basis of the ample record before us, we can only conclude that our appellant would derive absolutely no benefit from the rehabilitative values of Juvenile Court jurisdiction. IV.
The appellant has placed a great deal of stress on the decision of the Supreme Court in Kent v. United States, 383 U.S. 541, 86 S. Ct. 1045, 16 L. Ed. 2d 84 (1966). We have carefully examined that decision and given extensive consideration to the words of the Court therein. Following this examination we are convinced that reliance on Kent by our appellant can be nothing more than an act of sophistry.
In Kent the Supreme Court stated, inter alia :
It [the District Court] must have before it a statement of the reasons motivating the waiver including, of course, a statement of the relevant facts. It may not "assume" that there are adequate reasons, nor may it merely assume that "full investigation" has been made. Accordingly, we hold that it is incumbent upon the Juvenile Court to accompany its waiver order with a statement of the reasons or considerations therefor. . . . The statement should be sufficient to demonstrate that the statutory requirement of "full investigation" has been met; and that the question has received the careful consideration of the Juvenile Court; and it must set forth the basis for the order with sufficient specificity to permit meaningful review.
Kent v. United States (supra) 383 U.S. at 561, 86 S. Ct. at 1057.
In the instant case each and every one of the requirements enumerated in Mr. Justice Fortas' opinion is complied with in both the letter and the spirit of the law. The trial judge denied appellant's motion to dismiss relying upon Judge Miller's order with its accompanying statement as required under the teachings of Kent. We can reasonably assume that the trial judge had both of these documents in his possession, although admittedly the record is not entirely clear on this point. It is a safe assumption that both the waiver order and statement in support thereof were transmitted together, and it must be noted that the statements of the trial judge contained in the record are devoid of any suggestion which would positively negate the availability of these two documents to him. The logic of this argument is enhanced by the language of the Court in Kent. " It is incumbent upon the Juvenile Court to accompany its waiver order with a statement of the reasons or considerations therefor." United States v. Kent (supra) 383 U.S. at 561, 86 S. Ct. at 1057 (emphasis added). The language of Judge Miller's waiver order strongly indicates that it was drafted in light of the guidelines promulgated by the Supreme Court. This, coupled with the fact that both order and statement were issued on the self-same day, leads this Court to believe that both documents were sent to the District Court and were in the trial judge's possession. *fn1 V.
If the recitals in the waiver order itself are to be considered inadequate on their own merit for the purpose of certifying that the basic procedural standards had been met, such a consideration would have to be negated by the dictates of pure logic and common sense by considering the content of the "Statement in Support of Waiver", at page three thereof which is a certification of a "Summary of Court Records . . . Relevant to Waiver" and clearly expresses Judge Miller's consideration of the prior juvenile record amassed by appellant, which includes a 1960 robbery charge, his subsequent commitment to the custody of the Department of Public Welfare, his charge of extorting money from school children in 1963, a robbery charge in 1962, a 1963 charge for destroying movable property, followed by yet another commitment to the custody of the Department of Welfare. The record facing this Court creates a strong and, we believe, justifiable doubt as to the ability and sufficiency of the Juvenile Court to deal with our appellant's repeated transgressions of community laws and his continued attitude of utter and flagrant disregard for those laws designed to make the community a safer and better place to live.
To our dismay, the record of appellant's transgressions goes even further. Judge Miller continued his evaluation by detailing charges against appellant on March 16, 1966, at which time he was charged with housebreaking, and his absconding from Number 2 Precinct during questioning about the charge while an "attachment" was outstanding for this offense; and on November 9, 1966, Judge Miller records, appellant was charged with "assault with a deadly weapon" (a bottle), with "assault with intent to kill, robbery by force and violence (with another, stealing arresting officer's gun at point of a shotgun)," and finally, with "assault with a deadly weapon (six counts, when he fired a shotgun at six complainants, wounding three)."
Judge Miller also recorded social workers' reports that appellant was not attending school; his parents had little control over him; he had a few odd jobs "while on his own;" he has fathered a baby girl. The record, meticulously recorded by Judge Miller, speaks of appellant's tubercular affliction and his treatment and cure therefrom. Judge Miller recorded: "The social worker thought the respondent to be beyond juvenile rehabilitative facilities. The Director of Social Work concurred in this recommendation."
The conclusions enumerated by Judge Miller point out that appellant's "full exposure" to institutional and non-institutional facilities of the Juvenile Court have not had any significant rehabilitative impact on him, and that his alleged conduct "reflects the highest degree of danger to the public." The dissent, however, concludes that this lengthy recital does not apparently justify Judge Miller's written conclusions that
by the use of facilities currently available to the Juvenile Court: 1) there are not reasonable prospects for rehabilitation of the Respondent; 2) and that the public safety can not be adequately protected. VI.
We have gone to great lengths in setting out our appellant's record simply because it is impossible to accept or justify the position urged upon us by his counsel, or by the dissent herein, which would lead to the untenable conclusion that the loss or mislocation of records resulted in some meritorious shortcoming in the procedural requirement attendant upon the waiver proceedings. Although there is some chronological confusion as to precisely when and where certain records were or were not available, it is clear on the record presented to the Court, that the waiver was valid, complete, adequate, proper and timely.
This Court is quick to note that the difficulties surrounding this case could have been avoided had the transcript of the waiver hearing been available at all times. In a court system as vast as ours, it is inevitable that from time to time a file may either be lost or temporarily mislaid. We do, however, admonish those with the responsibility of caring for these records to exercise an even greater degree of diligence in a job which is generally well done. However, even without the transcript of the waiver hearing the Court is most hesitant to go behind the affirmative recitals found in the Chief Judge's order; nor are we willing to overturn the District Court's decision based upon some hypothetical irregularity in the Juvenile Court's proceedings. See T.V.T. Corporation v. Basiliko, 103 U.S.App.D.C. 181, 183, 257 F.2d 185, 187 (1958), citing In re Chapman Coal Co., 196 F.2d 779 (7th Cir. 1952). As this Court stated in Creek v. Stone, 126 U.S.App.D.C. 329, 334, 379 F.2d 106, 111 (1967): "[The Juvenile Court is rightly vested with a broad range of discretion in light of its professional expertise. . . . When the expert discretion of the Juvenile Court is exercised with knowledge of the salient facts, its exercise of discretion will not be disturbed absent clear abuse." In another case in point this court stated that waiver of jurisdiction by the Juvenile Court would lead to a presumption of regularity with regard to those proceedings which enable the court to reach its decision. Green v. United States, 113 U.S.App.D.C. 348, 351, 308 F.2d 303, 306 (1962) (Burger, J., concurring).
Of more significant import is the recital in the District Court stating the availability of the Juvenile Court record prior to the closing of the proceedings before that Court and stating that the record was expressly made subject to examination by defense counsel who failed originally to raise the objection here in issue. The failure of the appellant's counsel to take any further action incontrovertibly indicates his satisfaction with the record before him. The issue, however, is now raised by counsel newly retained; loss of the Juvenile Court file in the interim does not in the opinion of this Court warrant reversal.
To remand this case at this late date to the District Court for a determination and evaluation is an injudicious waste of time. That the aim of the dissent is high and praiseworthy is completely irrelevant; Appellate Court rulings must be judged by their soundness; not by their motivation. Against this specific record the Court would be moving beyond the area of protecting juvenile proceedings and reducing itself to an adoption of a punitive, accuser policy toward the trial courts. While the most hardened mind and most calloused heart can be stirred to righteous indignation by any flagrant disregard of the constitutional rights of ...