Jackie Harris v. Raymond K. Procunier, Director of the Department of Corrections of the Stateof California

The State of California (herein the State) appeals from the decision of the district court to grant a petition for writ of habeas corpus to appellee, Jackie Harris. In 1940, at the age of 14, Harris was charged with murder in a state court. The Juvenile Court had exclusive jurisdiction over him and conducted a hearing to examine Harris and determine whether he should be tried as an adult. Harris was not represented by counsel at that time, and there is no indication that he was informed of his right to same. The Juvenile Court found Harris to be unfit for juvenile proceedings and waived its jurisdiction. An information was subsequently filed against him in Superior Court; counsel was appointed for him and he entered a plea of guilty. He was placed in a state hospital as a sexual psychopath, and remained there for six years. After his release he was sentenced to life imprisonment.

In Kent v. United States, 383 U.S. 541 , 86 S.Ct. 1045 , 16 L.Ed.2d 84 (1966), the Supreme Court held that a determination by a juvenile court on the issue of whether it should waive jurisdiction over a juvenile is a critical stage in a criminal proceeding. It therefore requires a hearing…

(concurring):

While I concur in the majority opinion as to Jackie Harris’ appeal, I feel it unnecessary that Powell v. Hocker, 453 F.2d 652 (9th Cir. 1971) be overruled in the process. The two cases are horses of different colors.

True, the juvenile offenders in both Powell and Harris were without counsel at their respective state certification proceedings, but the similarities between the cases end there.

Retroactivity of Kent

In Harris the California juvenile court did conduct a hearing in accordance with state statute before determining that Harris should be tried as an adult. Ante at page 577. • But in Powell , certification for adult trial was admittedly made without any semblance of the “full investigation” mandated by the Nevada statute. Powell v. Sheriff, Clark County, 85 Nev. 684, 687 , 462 P.2d 756, 758 (1969).

In Harris, the California Supreme Court expressly found that retroactive application of Kent would be devastating as to California. 67 Cal.2d at 879, 64 Cal.Rptr. at 321-322, 434 P.2d at 617-618. The record in Powell contains no similar finding as to Nevada and the briefs contain no such claim.

Harris’ certification hearing occurred in 1940, twenty-six years…

dissenting, with whom Judge ELY concurs:

At a hearing in which he was denied the assistance of counsel, Harris was found not to be a fit and proper subject for juvenile proceedings. (See Calif. Welfare & Institutions Code § 707.) The juvenile court thereupon waived its jurisdiction in order to permit an information to be filed in the Superior Court charging Harris with murder. Subsequent to Harris’s conviction and sentence to life imprisonment, the Supreme Court held, with respect to a comparable waiver of jurisdiction by the District of Columbia juvenile court, that “there is no place in our system of law for reaching a result of such tremendous consequences without ceremony — without hearing, without effective assistance of counsel, without a statement of reasons.” (Kent v. United States (1966) 383 U.S.

541, 554, 86 S.Ct. 1045, 1053 , 16 L.Ed.2d 84 , accord, In re Gault (1967) 387 U.S. 1, 30 , 87 S.Ct. 1428 , 18 L.Ed.2d 527 .) 1 Nevertheless, the majority refuses to recognize Harris’s right to counsel at the fitness hearing, holding that Kent is not to be given retroactive application. In so holding, the majority misconceives both the unique nature of the fitness hearing and…

(concurring) :

I concur in the reversal of the judgment essentially for the reasons stated by Chief Judge Bazelon in his opinion in Mordecai v. United States, 421 F.2d 1133 (1969). As Judge Bazelon said of Mordecai, “appellant presents a forceful claim that the absence of counsel . at the time of his waiver must seriously undermine our confidence in the reliability of the process that led to *580 his trial in an adult court,” but “[e]ven if nonpunitive rehabilitation in the juvenile process would have been the proper path in [1940], society can no longer offer what was then, rightly or wrongly, denied.” 421 F.2d at 1138 .

The solution offered in' dissent only highlights the problem. The dissent recognizes that a person of Harris’s age (48) would not now be a fit and proper subject for juvenile court treatment. The alternative, it is suggested, is “a new trial in adult court.” See page 585, infra (Hufstedler, J., dissenting). But Harris does not suggest that his adult court proceeding was in any way defective. The proposed remedy is wholly unrelated to the fault.

It is true that the same impossibility of affording a suitable remedy was present in Kent itself. See page 585, n. 7,…

498 F.2d 576 Jackie HARRIS, Plaintiff-Appellee, v. Raymond K. PROCUNIER, Director of the Department of Corrections of the Stateof California, Defendant-Appellant. No. 72-1347. United States Court of Appeals, Ninth Circuit. May 22, 1974 Certiorari Denied Oct. 29, 1974 See 95 S.Ct. 235 . Russell Iungerich, Deputy Atty. Gen. (argued), Alan G. Novodor, Deputy Atty. Gen., Los Angeles, Cal., for defendant-appellant. Carson Taylor (argued), Los Angeles, Cal., for plaintiff-appellee. Before the Court En Bank: CHAMBERS, MERRILL, KOELSCH, BROWNING, DUNIWAY, ELY, HUFSTEDLER, WRIGHT, TRASK, CHOY, GOODWIN, WALLACE and SNEED, Circuit Judges, and BARNES, Senior Circuit Judge. OPINION BARNES, Senior Circuit Judge: 1 The State of California (herein the State) appeals from the decision of the district court to grant a petition for writ of habeas corpus to appellee, Jackie Harris. In 1940, at the age of 14, Harris was charged with murder in a state court. The Juvenile Court had exclusive jurisdiction over him and conducted a hearing to examine Harris and determine whether he should be tried as an adult. Harris was not represented by counsel at that time, and there is no indication that he was…