96 JUVENILE COURT JUDGES JOURNAL

M

THOMAS H. BARKDULL, JR. Judge, District Court of Appeals

Miami, Florida

When I originally accepted this speaking iuvita- tion and was assigned the topic “An Appeals Judge Looks at the Juvenile Court Process”, I expected to draw on six years of experience.

Since May 15, 1967 and the rendition of the Gault decision, as so often happen-ither by legislative action or higher judicial interpreta- tion-my experience has been repealed, revised or amended.

Of course, as one appellate judge reviewing the juvenile court process, my remarks do not neces- sarily reflect the views of my colleagues. As a member of a court that sits in panels of three, my views without the concurrence of another are, a t best, nothing but a dissent.

Through calling for some figures from our clerk, I found a circumstance of which I was not aware. In asking the clerk to run a three year check on our juvenile matters, I found two things which surprised me. In addition to having normal delin- quency and dependency problems, our juvenile court also has custody matters in cases of divorce and separate maintenance upon a transfer order. I learned that almost eighty per cent of our ap- pellate work related to the juvenile court arose out of custody hearings which had been transferred from the chancellors, and usually on an emergency application. Of course, this is understandable, par- ticularly when there is an order changing custody and, as so often happens in our State, one of the

THOMAS H. BARKDULL, JR.

divorced parents may not then reside in the State of Florida. Most of our cases start on a petition requesting an emergency stay of a juvenile court order. We have had very few dependency appeals. We have had some delinquency appeals, but not toomany.

FALL, 1967-XVlll, NO. 3 97

I believe that any judge, a t any appellate level, approaches a juvenile file with some trepidation. Some of us have been concerned about some of the things that Gauttl said for quite a while. We normally should sustain a trial judge’s ruling and his discretion as a practical matter, if there is any competent substantial evidence to support it. Even more so are we inclined to sustain the discre- tionary rulings of a juvenile court judge. From the cold printed record before us, we know that we cannot tell what you see in your courtrooms every day. We have a nice atmosphere; we work on printed records, typed briefs, and where good counsel appear before us. We are not involved with personalities, and there is no way for an appellate judge, in searching a cold record, to put himself in the shoes of a trial judge at any level. This is particularly true in the instance of juvenile courts. I believe that appellate judges generally place more weight in the discretion of the juvenile judge than in any other trial court.

Gault has been of a great benefit to YOU. It may be a detriment in some respects, but I say it has been a benefit because it has clearly made a distinction between dependencv and delinquency hearings, and there should be a distinction. In your dependency matters, you know your contest is with the failure of the parents to take adequate care of the child through one cause or another. Whereas, in your delinquency hearings, you have the problem of the child’s refusal to conform to the established standards of societv. More important, the Supreme Court of the United States has remade juvenile courts into courts of law. It has, at least at the adjudication stage, made you in fact a court of law. It has raised the standard of the juvenile court in the eyes of the bar, the bench, and the community. Yet, it has left two doors open which I think will now permit, with constitutional approval, different treatment of a juvenile a t the preliminary stage and, certainly, different treat- ment of a juvenile in the disposition stage.

Your National Council is thirty years old this year. Thirty years from now, you will measure the real prestige and respect in the community of your court from 1967. And along with that is something I believe your courts need more than anything else. They need a public relations program to tell people what you do, because when the people of your communities fully understand your function they will be more ready to accept the financial responsibilities that go with operating your courts.

There is no need for me to tell you that you cannot accomplish your rehabilitation goals without ade- quate financing. I first ran into such a problem when my firm represented the County Commission of Dade County some ten years ago, and I was shocked a t the lack of concern by the bar and by the bench, and a complete lack of knowledge by the community of the needs of these courts. Unfor- tunately, in ten years, I don’t think that our county has done all it should to correct the prob- lems.

All of you have read Gault-all of you have discussed it. In some ways, GauZt follows an earlier decision in 1954 which seemed to start a trend. It relies very heavily on the President’s Commission on Crime; i t relies heavily on the recommended standards of the juvenile and family courts published by your National Council. Of course, i t laid out four of the six requirements established by you, a t least in the adjudication process. I certainly do concur with that opinion in regard to this stage of the proceedings: to permit confronting witnesses and to examine investigative reports prior to adjudication, and then leave it to the counsel representing the child to determine what his course will be.

We have had appeals taken in our court when a lawyer took an appeal for one reason: he couldn’t see the investigator’s report and, in our system, all original records come up to us. The counsel walked into the clerk’s office, read the original report, and said: “I agree with the judge: dismiss the appeal”. But he added: “I had to go this far to see it”.

We have been involved with the problem of confessions. A t one time we had a case where a confession was given on a first degree murder problem in the juvenile court. The child was taken in and indicted as an adult and then brought on for trial, at which time his counsel objected to the confession because of the general constitutional safeguards not being fol!owed and particularly because i t was given in a forum where, a t that point in our state requirements, he was not en- titled to counsel. The trial judge overruled it and admitted it in. The child was convicted of first degree murder with a recommendation of mercy, which was automatic life imprisonment. We re- versed it.2 Our supreme court quashed our opinion and upheld the conviction.3 Since Gautt, I am certain that the child will get a new trial because of our Criminal Rule No. 1, following the Gideon decision.4

98 JUVENILE COURT JUDGES JOURNAL

Of course, the decision didn’t go as far as the recommended six standards of your National Council, i.e., on supplying a transcript and right to appeal. As a purely personal observation, I think that these will both fall. The petitioners in Arizona today, arguing the question of equal protection of the law, after Gault said he was entitled to the same rights as an adult in juvenile proceedings, should prevail. They will be entitled to a right of an appeal as any other aggrieved party, particular- ly in light of the way it was quoted so well in the Gault opinion. You cannot overlook the National Crime Commission report. I believe the real guide- lines, the ones we are all going to be looking a t in the future, are practically all the recommendations they made because a number of them were speci- fically referred to and approved in Gault. The Crime Commission’s report recommended that there be a removal of some of the jurisdiction over certain problems you have and confining it more to what would be a criminal violation if the person were an adult, and particularly in the question of your reaching out to take a child under your wing. In the years to come, it may be that we will see a division between delinquency matters and de: pendency matters, not by the judge putting on a different hat but by a clear departure over which route-whether you go to a social agency with your dependency matters and handle them admin- istratively and leave the delinquency matters in the courts those that relate to due process, regu- larity and fair treatment.

Formulate the programs you think your courts ought to have, because lawyers now can no longer cast aside the juvenile courts as some social agency. You are a court of law. You have to use this Supreme Court opinion and be morz active in getting your legislation passed. You are the people who can educate us best, because you have the opportunity and the motivation (from Gault) to change your systems. And, if you feel that they need to be changed, you will find a ready ear. I have been to every Florida State Bar convention since 1947, but don’t recall ever having seen much effort by our juvenile judges within the State Bar. Lawyers need to be educated as much as anyone else as to the functions of your courts. Most of the bar does not practice before your courts, and most of the bar couldn’t care less about your troubles. The wheel that squeaks the loudest gets the most attention. And those who go before the bar asso- ciations and the legislatures and squeak the loud-

est get the most money, the most attention, and the laws they want. It is my belief that you are going to have to get in the mill with the rest of the judges, the bar of your communities, and push for your program because, when you get right down to it, you have the greatest common denominator with which to reach every lawyer and every citizen of every community in your state-children. And they, above everything else, are what the people are most concerned about: the children.

When Gideon came down, I happened to be wearing the hat of chief judge of my court. The year before Gideon, we reviewed fifty-four criminal matters. Since Gideon, we reviewed two hundred and sixty-seven in our last year. At the time of Gideon, Florida had forty-six hundred people in its penal institutions. Of those forty-six hundred peo- ple, eighteen hundred were from Dade County and I think all eighteen hundred of them filed a petition on a Gideon somewhere along the line. Of course, if there is some hope of getting out I don’t begrudge them that effort. When Gideon hit us, there was a conference called of all appellate court judges, presiding judges of all the circuits of gen- eral jurisdiction and the criminal courts and, for several days in the State Capitol, we tried to set uniform regulations, forms, rules and procedures that we would follow on Gideon petitions. Since then, we have not run into too much trouble from the Federal courts.

Gault is not going to be a detrimental millstone to your juvenile courts, but will be a milestone that not only brings you greater responsibility and corresponding prestige in your field, but one that you will look back upon in the final analysis as probably a pretty good decision.

This will help bring about something that some of us are trying to do in Florida. We are trying to rake juvenile court judges to the level of our circuit court, which is our court of general jurisdic- tion. The juvenile court judges will be assigned to special divisions and will have the complete power of a full circuit judge to fully administer the affairs of a child and his family.

The role of a juvenile judge-from my side of the bench-is one that I personally don’t envy and one that I think most judges feel is of the highest responsibility in the judiciary, because under your dominion is the most precious thing to any person

FALL, 1967-XVlllr NO. 3 99

or any family-ar any community-its children. You have this responsibility, and I don’t know of any who envy you the exercise of i t a n d have yet to meet the first judge who wants to trade places with you.

I haven’t brought you much enlightenment- perhaps I have brought a little heat. But, I would like to close with this thought: Seriously consider, when you go back to your communities, that Gault gives you the motivation and opportunity to bring forth the type of court before which (if it should

occur) you would want your child to appear in your community. s g c:,,

1 Re Gault, 387 U.S. I, 18 L.Ed.2d 527, 87 Supreme Court

2 Francois v. State, Fla.App.1966, 158 So.2d 7.

3 State v. Francois, Fla.1967, 197 So.2d 492.

“ideon v. Wainwright, 372 U.S. 335, 9 L.Ed.2nd 799, 83

1428.

Supreme Court 792.

Committee Report

The following excerpt from the 1967 Report of the Committee on Cooperation with Law Enforcement Agencies is reprinted here because of its special sig- nificance:

This Committee feels that an aggressive approach to our present problems will serve to give notice that the National Council and each individual Judge is willing, ready, and able to work within the framework of the recent Supreme Court decisions and still fulfill his obligations to the basic and underlying principles of the Juvenile Court system - the care and protection of the troubled youth of these United States.

Once the new rapport is established between courts and police, this Committee recommends a continuing program of cooperation.

In support of this we further recommend:

1. Periodic seminars with police agencies. Comment: This may consist of the workshops for

police officials assigned to juvenile divisions; workshops for all police officers; lectures to police trainees; promo- tion schools; and prosecution staffs.

2. Establishment of a position within each court as liaison officer with the police.

Comment: This officer may be called Prevention Co- ordinator, Police Coordinator Officer, etc.

The Committee has attached a des-ription of the duties of the Prevention Coordinator for the Rhode Island Family Court as a guide.

3. Establishment of juvenile divisions in all police departments composed of men dedicated and educated to the needs of the child.

Comment: While the Committee feels that officers skilled and trained in juvenile court procedures should handle all such cases, it is aware that some communities administratively cannot provide such service. These areas should concern themselves with educating all oiiicers.

4. Continuous liaison by the Judge himself with the police officials.

Comment: All too often personalities intervene to make cooperation impcssible. It is the duty of the court to constantly encourage dialogue with police officials. Constructive criticism will never destroy any mean- ingful relationship.

Note: The Committee Chairman has attached state- ments from some leading law enforcement officials in his home state.

5. A renewed public relations effort on the part of each individual Judge, particularly in view of recent Supreme Court decisions and its many ramifications.

Comment: The Committee heartily endorses the for- mation of a Citizens Advisory Group for each commu- nity. Such groups have proven extremely beneficial in every area where they have been established.

And lastly,

6. The continued application of all the Court’s per- sonnel to assisting all law enforcement agencies in pre- vention programming.

Comment: Prevention is the key to the ultimate solu- tion of juvenile delinquency. Each court should utilize to the fullest its own resources and make full use of every other agency’s resources whenever possible.