State v. Turner , 253 Or. 235 ( 1969 )

O’CONNELL, J.,

dissenting.

Duncan v. Louisiana, 391 US 145, 88 S Ct 1444, 20 L Ed2d 491, 499 (1968) holds that “the right to a jury-trial in serious criminal cases is a fundamental right and hence must he recognized by the states as part of their obligation to extend due process of law to all persons within their jurisdiction.”

In re Gault, 387 US 1, 87 S Ct 1428, 18 L Ed2d 527 (1967) makes it clear that juvenile proceedings are essentially criminal in nature and that they must measure up to the essentials of due process, including the safeguards enumerated in the majority opinion in the present case. Once it is established that the juvenile accused is entitled to safeguards specified in Gault it would follow that he is entitled to the due process safeguard of trial by jury unless there is some reason for making an exception in the latter case.

The majority excepts trial by jury from the due process requirement as applied to juveniles on the ground that “the ultimate question in a juvenile proceeding is not one of ‘guilt’ or ‘innocence’ but rather one of determining what is in the best interest of the child.” Gault, as I understand it, speaks to the contrary; it says plainly enough that “guilt” or “innocence” is the ultimate question in proceedings "where the juvenile is subjected to the risk of the penalty of incarceration and that when a child is subjected to such proceedings without the specified due process requirements it is no answer to say that the elimination of these requirements is necessary to serve “the best interest of the child.”

The majority constructs its whole argument upon a premise which is wholly inconsistent with the rationale of Duncan. That rationale is that “A right to jury trial is granted to criminal defendants in order to prevent oppression by the Government.” 20 L Ed2d at 499. The Court further explains: “The framers of the constitution strove to create an independent judiciary but insisted upon further protection against arbitrary action. Providing an accused with the right to be tried by a jury of his peers gave him an inestimable safeguard against the corrupt or overzealous prosecutor and against the compliant, biased or eccentric judge.” 20 L Ed2d at 500. The danger of arbitrary, corrupt or biased action is just as great in juvenile proceedings as it is in adult proceedings. Du/ncan also says that if the accused prefers “the common-sense judgment of a jury to the more tutored but perhaps less sympathetic reaction of the single judge,” he is entitled to it. Id. at 500. The majority opinion in the present case says that a child is not entitled to this tempering effect of the jury. It is not made clear why he is not so entitled. Apparently the majority intend to say that a sympathetic jury may find the child not guilty and as a consequence the trial judge will lose his “parens patriae” control over the child, thus thwarting judicial efforts to rehabilitate him. This is just another form of the “parens patriae” justification for denying due process whieh was rejected in Gault.

Finally, the majority seems to argue that “the clash and clamor of the jury trial” is incompatible with the parens patriae procedure employed by juvenile courts. Gault assures the juvenile the right to inject into the proceeding all of the “clash and clamor” of an adversary proceeding that his counsel wishes to employ in asserting the due process rights specified in that opinion. Gault having permitted these inroads upon the traditional rehabilitative process, the basic character of the courtroom setting is changed from one of quiet communion between judge and child to that of an adversary arena of the ordinary lawsuit if the child or his parents so elect. Once the proceedings have been changed into a trial directed by counsel the parens patriae function of the trial judge is pretty nearly eliminated at the adjudicatory stage whether the trial is with or without a jury.