had expressed a desire to "bug out" - to feign mental illness - before he went to the Hospital for examination, and both doctors concurred that petitioner's attitude and conduct, both at the Hospital and outside it, were consistent with malingering.
Virtually the only testimony offered at the hearing favorable to petitioner's position on competency was offered by Dr. Beardsley, a psychologist, who testified that, on the basis of psychological tests given petitioner, she felt that he had a mental illness.
However, in the light of the efforts petitioner was apparently making to feign mental illness, the results of these tests seem inconclusive. The Court finds that the overwhelming evidence points to the fact that petitioner was competent when he pleaded guilty.
IV. The Juvenile Court's Waiver of Jurisdiction
Petitioner's final contention is that he is entitled to relief because he was not represented by nor informed of his right to counsel at the time the Juvenile Court waived jurisdiction over him. See D.C.Code § 11-914 (1961), now § 11-1553 (Supp. V, 1965). The government does not dispute the factual allegations which petitioner makes on this point.
The government argues, however, that petitioner is not legally entitled to relief. Black v. United States, D.C.Cir., 122 U.S. App. D.C. 393, 355 F.2d 104 (1965), reversed a District Court conviction which followed a waiver by the Juvenile Court in the absence of counsel. The government maintains that Black was based upon policy considerations implicit in the Juvenile Court Act and the Legal Aid Act
and that it did not rest on constitutional grounds. The government contends that, since the infringement of a statutory right does not afford a basis for collateral relief, Sunal v. Large, 332 U.S. 174, 67 S. Ct. 1588, 91 L. Ed. 1982 (1947), petitioner is entitled to no relief here.
Although there is no indication in Black that the decision has constitutional underpinnings, other decisions involving the Juvenile Court have held that constitutional rights carry over into this area from the general area of the criminal law. See, e.g., In re Poff, 135 F. Supp. 224 (D.D.C. 1955) (constitutional right to counsel in Juvenile Court guilt-determining proceedings). The right to counsel which Black protects would seem to be based upon considerations of fairness similar to those which have formed the basis for many constitutional rulings in the area of right to counsel, and this Court finds it difficult to see how Congress could deny a suspected juvenile offender counsel at a waiver hearing, even if it wanted to do so. However, the Court finds it unnecessary to decide this point in the light of the view it takes below on the retroactivity of the Black decision.
The government argues that Black ought not to be given retroactive effect by this Court in a proceeding under 28 U.S.C. § 2255 (1964). First it contends that the Black opinion itself suggests prospective application only, because the decision outlined what the District Court should do in two kinds of post- Black waiver cases - namely, those in which trial had not taken place, and those in which trial had taken place but conviction had not yet become final - but ignored mentioning the disposition of cases, like the present one, where convictions had become final. However, the Court does not read this silence as indicating any view, one way or the other, on how the present case must be decided. Judicial silence - like legislative silence - is usually ambiguous and is frequently an invitation to others to perform intersticial decisional functions.
In two recent cases the Supreme Court has indicated that all decisions in the area of criminal rights are not to be given retroactive effect, in the sense that they may be relied upon by petitioners seeking to attack their convictions collaterally. Tehan v. United States, 382 U.S. 406, 86 S. Ct. 459, 15 L. Ed. 2d 453 (1966); Linkletter v. Walker, 381 U.S. 618, 85 S. Ct. 1731, 14 L. Ed. 2d 601 (1965). These decisions reflect the concern of the Court for the disruptive effect which certain of its new constitutional decisions in the area of criminal law might have were they to be given full retroactive application. In order to decide which decisions should be applied retroactively, the courts are required to "weigh the merits and demerits in each case by looking to the prior history of the rule in question, its purpose and effect, and whether retrospective operation will further or retard its operation." 381 U.S. at 629, 85 S. Ct. at 1738. One of the tests to be applied in this weighing process is whether the particular decision involved is related to the fairness of the trial and the accurateness of the guilt-determining process or whether it is a rule which has other social purposes. See id. at 639; see also Mishkin, the Supreme Court 1964 Term - Foreword: The High Court, The Great Writ, and the Due Process of Time and Law, 79 Harv.L.Rev. 56 (1966).
In considering the history of the Black rule, one finds that, unlike the decisions the retroactivity of which were considered in Linkletter and Tehan, Black does not involve a reversal of a previous decision sanctioning a practice now found illegal. However, it appears that the practice in waiver proceedings in the Juvenile Court has been not to supply counsel, and the Court of Appeals implicitly recognized the existence of this practice when it set down the guidelines referred to above to help the District Court deal with anticipated post- Black waiver cases. To upset Mordecai's conviction - and those of others like him who were waived without counsel - will have a disruptive effect in this jurisdiction similar to the one which the Court attempted to avoid in Linkletter and Tehan.
Moreover, the right recognized in Black is not one related to the truthfulness of the guilt-determining process. The presence of counsel at a waiver hearing would seem to have even less to do with the "fairness of the trial - the very integrity of the fact-finding process," Linkletter v. Walker, supra, 381 U.S. at 639, 85 S. Ct. at 1743 - than the rule forbidding prosecutors to comment on the accused's failure to testify which was considered in Tehan and found not to be aimed at guaranteeing a fair trial. Black rests not on any notion that an innocent man may be found guilty if counsel is not present at the waiver proceedings but on the growing awareness that the process by which the State deals with criminal conduct is an intricate one in which counsel may be helpful at every stage - not only during the trial. This humanitarian rule, although properly a subject for future application, should not be available to reverse convictions following fair trials long after they have become final.
Petitioner has not asserted that the Black rule is related to the truthfulness of the trial process. He has urged, however, that Black, unlike Linkletter and Tehan, involves the jurisdiction of the trial court, and that a different result as to its retroactivity is therefore required. The Court does not agree. There can be no doubt that the courts of the District of Columbia had jurisdiction of petitioner's person and of the offenses he allegedly committed. By providing in D.C.Code §§ 11-906, 11-907 (1961), now § 11-1551 (Supp. V, 1965), that the jurisdiction of the Juvenile Court is "original and exclusive," Congress was merely effecting an allocation of functions between the Juvenile Court and this Court, and its purposes in so doing will not be furthered by viewing the two courts as separate and distinct jurisdictional entities when errors in waiver procedures are challenged. Instead, the appropriateness of awarding relief in such cases should, as in cases where only one court is involved, depend upon a weighing of those very factors bearing on the nature and seriousness of the alleged error which the Court has already considered and found to be insufficient to justify its awarding collateral relief in this case.
This Court having determined that petitioner was effectively assisted by counsel at the time of the proceedings against him in this Court, that his guilty pleas were entered voluntarily, that he was mentally competent at the time he pleaded guilty, and that the absence of counsel at the waiver hearing in the Juvenile Court does not justify relief under 28 U.S.C. § 2255 (1964), the motion to vacate sentence must be, and hereby is, denied.