to counsel and the necessity for a finding of intelligent waiver of counsel in all Juvenile Court proceedings, including preliminary conferences. In the instant case, however, the waiver of jurisdiction by the Juvenile Court eliminated any and all adversary proceedings against the child in that Court in which he would have had the right to be represented by an attorney.
It is admitted by defense counsel that, if there has been compliance with the procedural requirements of the statute, in order to sustain the challenge of waiver it must be shown that the Juvenile Court Judge's act of waiving jurisdiction in the case was arbitrary and capricious. Counsel concedes that a prior record of convictions, or the equivalent, in the Juvenile Court is not a condition precedent to waiver, and that waiver might be justified by repeated charges or by other factors relating to the child's history or the nature of the offense.
Before the hearing of the motion to dismiss, all the records of the Juvenile Court concerning the defendant in this case and in five prior cases, including the social records, were made available, by this court's order, to counsel for the defendant, counsel for the government, and the court. Certain of the Juvenile Court records had theretofore been made available for inspection by respective counsel upon Judge McGuire's order in connection with the habeas corpus proceeding.
Counsel for the defendant has pointed out certain discrepancies which he believes to exist between the summary of the defendant's record by the Director of Social Work in his report to the Judge and the underlying records. He urges that the Judge had before him a distorted version of the defendant's history.
Since the hearing on the motion, this court has reviewed carefully all the Juvenile Court files and records. From its perusal of the material in the Juvenile Court records, this court finds that the Judge's waiver of jurisdiction is amply supported not only by the Director's summary, on the face of which the Juvenile Court Judge noted his approval of the recommended waiver, but also by the underlying data prepared at the time of the defendant's several appearances before the Juvenile Court over a period of more than two years, which we can assume the Judge had available to him. The record discloses that the defendant, a very large, physically well-developed sixteen-year-old, a graduate of junior high school, has shown a pattern of assaultive behavior, not limited to mere fisticuffs, but embracing on at least one occasion use of a dangerous weapon. On two occasions he has been found to be in possession of firearms. Reports of the Department of Public Welfare note a hostile and belligerent attitude in defendant, together with lack of control over his aggressive tendencies. Although during certain periods of time he has seemed to make an adjustment, he has demonstrated that he has not learned by experience or accepted advice and that attempts at rehabilitation by employees of the Juvenile Court and Department of Public Welfare have had but superficial and temporary results.
There is a presumption of regularity which attaches to the acts of a public officer on public matters, within his jurisdiction, and where he has a discretion. Wilkes v. Dinsman, 1849, 7 How. 89, 48 U.S. 89, 12 L. Ed. 618. The judge of the Juvenile Court must be presumed to have acted upon the records before him. There has been no showing which overcomes this presumption. Since there is a more than adequate rational basis in those records for his exercise of discretion to waive and that is the only test of whether the action was arbitrary or capricious, it is immaterial whether he may have been motivated in whole or in party by a desire to relieve the Juvenile Court of a part of its burden. Eastern States Petroleum Corp. v. Rogers, D.C.Cir., 265 F.2d 593, Prettyman, C.J. The court therefore concludes that the waiver of jurisdiction by the Juvenile Court was valid, hence the District Court had jurisdiction to indict.
Counsel suggests that the indictment of the defendant in this Court may constitute double jeopardy, in view of the proceedings in the Juvenile Court, citing United States v. Dickerson, supra. A review of the Juvenile Court records in the instant case reveals nothing which sustains the claim of double jeopardy. The facts in the instant case are clearly distinguishable from those in the Dickerson case, since there was no proceeding before the Juvenile Court similar to arraignment in which this defendant acknowledged his guilt, and no hearing by the court to determine his guilt or innocence. True, the Juvenile Court social record includes a statement that the defendant admitted to the Intake Officer that he had struck the policeman, saying he did so in self-defense, but this does not amount to a plea of guilty before the court. In the Dickerson decision it was held that jeopardy attaches with a plea of guilty at the equivalent of arraignment or with a hearing by the court similar to a trial. The proceedings in the instant case never reached such a plea or hearing. In the Dickerson opinion Judge Holtzoff expressly stated that the result of his ruling in that case in no wise interfered with the statutory authority of the Juvenile Court to waive jurisdiction to the District Court, if exercised after preliminary hearing or ex parte investigation and before jeopardy attached. No former jeopardy prevents initial prosecution of the instant case in the United States District Court.
As to the alleged violations of procedural due process in the District Court after the waiver of jurisdiction, assuming that the defendant did not intelligently waive preliminary hearing, being without counsel, this does not require dismissal of the indictment. The defendant might have had ground for habeas corpus prior to indictment, but even if there were error in the preliminary proceedings, it has now been cured by return of a valid indictment by the grand jury.
Nor did prejudice result to the defendant from his lack of counsel at the time of arraignment, inasmuch as the court took a not guilty plea and appointed counsel promptly when it became apparent that he was unable to employ counsel. Even if the first arraignment should be held void, it would not follow that the Court is without jurisdiction to proceed after defendant has obtained counsel. Saylor v. Sanford, 5 Cir., 1938, 99 F.2d 605, certiorari denied 306 U.S. 630, 59 S. Ct. 465, 83 L. Ed. 1032. The remedy would be to re-arraign defendant, which in this case, in view of the defendant's not guilty plea, would serve no useful purpose.
For the foregoing reasons, the motion to dismiss or for alternative relief will be denied.
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