Graber, Samuel W.

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University of Tulsa College of Law

Tulsa Law Review Volume 3 Issue 2 1966 Criminal Law: Waiver of Counsel by Minor Defendants Samuel W. Graber Follow this and additional works at: https://digitalcommons.law.utulsa.edu/tlr  Part of the Law Commons Recommended Citation Samuel W. Graber, Criminal Law: Waiver of Counsel by Minor Defendants, 3 Tulsa L. J. 193 (2013). Available at: https://digitalcommons.law.utulsa.edu/tlr/vol3/iss2/9 This Casenote/Comment is brought to you for free and open access by TU Law Digital Commons. It has been accepted for inclusion in Tulsa Law Review by an authorized editor of TU Law Digital Commons. For more information, please contact megan-donald@utulsa.edu. NOTES AND COMMENTSThis reappraisal of the standard of care to be applied to minors inthe operation of dangerous instrumentalities was followed by a greatnumber of jurisdictions. Although at this time the courts are still di-vided on the point, the Dellwo view appears to serve as a model for themodern trend of American courts.The Adams case seems to narrow the gap between the Dellwo viewand that of the Restatement's as to the appropriate standard of care tobe applied to a primarily negligent minor. The case in its holding, al-though not adopting the Restatement view completely, unmistakablypoints towards a single standard for all engaged in adult activities.It is believed that the Dellwo trend, as exemplified in the Adamscase, has gathered progressive momentum. It is clear that it foreshadowsthe rule of the future, now inferentially approved by the New Mexicocourt; that minors taking part in activities normally engaged in by adultsare to be held to an objective standard of care.Hopefully, Oklahoma, and other jurisdictions will follow this trend.Vincent R. O'NeillCRIMINAL LAW: WAIVER OF COUNSEL BYMINOR DEFENDANTS'The accused may, of course, intelligently and knowinglywaive . . . his right to counsel either at a pretrial stage or atthe trial." 1In conjunction with many recent decisions concerning constitutionalrights of an accused in criminal proceedings, perhaps one of the mosttroublesome questions facing our courts today concerns the minor defend-ant. Should he be permitted to waive his right to counsel, or must thecourt appoint counsel for him regardless of his wishes, expressed or im-plied? In the past courts have been reluctant to state that minority is initself sufficient to require the appointment of counsel for a defendant.2But with a continuing emphasis upon due process of law as it concernsthe right of an accused to a fair and impartial trial, in the future a minormay be deemed incapable of waiving his right to counsel. This may betrue particularly in cases where he is charged with a felony or a seriousmisdemeanor.3IEscobedo v. Illinois, 378 U.S. 478, n.14 (1964).2 E.g., Commonwealth ex rel. Popovich v. Claudy, 170 Pa. Super. 482, 87A.2d 489 (1952); State v. Banford, 13 Utah 2d 63, 368 P.2d 473 (1962); Statev. Angevine, 62 Wash.2d 980, 385 P.2d 329 (1963).3 See Annor., A.L.R.2d 1160, 1185 (1960).1966)1Graber: Criminal Law: Waiver of Counsel by Minor DefendantsPublished by TU Law Digital Commons, 1966TULSA LAW JOURNALA recent Arkansas case which seemingly demonstrates this growingconcern for the minor defendant is Meeks v. State,4 in which the defend-ant Meeks, nineteen years of age, was charged with burglarly and sen-tenced to six years in the penitentiary upon his plea of guilty. He wasoffered counsel by the court, but this offer was refused. His motion toset aside judgment and that he be allowed to enter a plea of not guiltywas overruled by the trial court. Citing Swagger v. State 5 as controlling,the supreme court reversed and remanded the cause, stating:".... (It is]error to permit a young, inexperienced person to plead guilty to aserious charge where he has no attorney."6 But Swagger could havebeen distinguished from Meeks. Two of the three justices who dis-sented in Meeks pointed out distinct differences between the twocases. Swagger, a nineteen-year Negro boy, pleaded guilty to a chargeof assault to kill and was given the maximum sentence of twenty-oneyears in the penitentiary. After his commitment, he filed a motion toset aside the judgment and order of commitment on the ground that hewas not represented by counsel at the time he entered his plea ofguilty. The record does not show that the court personally informed thedefendant that an attorney would be appointed to represent him if heso desired. The boy was practically illiterate although his petition allegedthat he had gone to school.In distinguishing the two cases, Chief Justice Harris, dissentingin Meeks, emphasized the fact that Swagger was not informed by thecourt that counsel would be appointed to represent him if he so de-sired, but Meeks was in fact offered counsel and rejected this offer.7 Jus-tice Ward, also dissenting, pointed out that Swagger's mental conditionwas in issue, but this was not brought to the attention of the court be-cause he was not represented by counsel. Meeks, however, was sent tothe State Hospital for examination and was found to be normal. Hehad also completed ten years schooling.8This case is most important in that the court held, in essence, thata normal, nineteen-year old boy, with ten years of schooling is incap-able of waiving his right to counsel. Chief Justice Harris interprets themajority opinion as stating that because the defendant is a minor is,of itself enough to require the court to appoint an attorney to representhim; a point with which the majority of jurisdictions disagree.9It is not the language used by the Arkansas court which is dis-agreeable, but rather the application of this language to the particular factsof the case. In nearly every instance it will be held error to permit one, re-gardless of age, to plead guilty to a serious charge without the benefit4 396 S.W.2d 306 (Ark. 1966).5227 Ark. 45, 296 S.W.2d 204 (1956).6 Id. at -, 296 S.W.2d at 206.7 Meeks v. State, supra note 4, at 308 (dissent).8 Meeks v. State, supra note 4, at 309 (dissent).9 E.g., cases cited note 2 supra.[Vol. 3, No. 22Tulsa Law Review, Vol. 3 [1966], Iss. 2, Art. 9https://digitalcommons.law.utulsa.edu/tlr/vol3/iss2/9NOTES AND COMMENTSof counsel where, because of his ignorance or mental capacity, or lackof knowledge of law and courtroom procedure, he is deemed incapableof representing himself.10 The crucial issue is not the age of the ac-cused, but whether the evidence shows that he had the capacity, mentalor otherwise, to waive counsel. It is certainly difficult to comprehendthat a normal, nineteen-year old boy with ten years of schooling couldnot be considered intelligent enough to waive his right to counselIf the decision of the court was based upon a belief that Meeks was"inexperienced," it is probable that this would have been discussed. Yet,the opinion is silent on this point. It is possible that the justices may havedetermined Meeks was lacking in experience by a subjective evaluation ofthe record. However, most jurisdictions evaluate the defendanes ex-perience objectively in determining whether he is capable of makingan intelligent waiver with emphasis upon his familiarity with criminalprocedure rather than the amount of general skill or wisdom he pos-sesses. If Meeks was considered "inexperienced" in any way whatso-ever, it was certainly not discussed.From all indications it appears that the Meeks case holds that minor-ity itself is enough to require the appointment of counsel by the courtto represent the defendant in criminal proceedings. It seems as if thecourt was reaching for this conclusion, for the decision in Swaggerwould have been the same regardless of the defendant's age. Swagger'smental condition prevented his making an intelligent waiver of counsel,but this was not true of Meeks. Isn't it more probable than not that agealone was the controlling factor in this case? For had Meeks possessedthe same level of intelligence but had been two years older, he wouldmost certainly have been deemed to have made an intelligent waiver ofhis right to counsel.Whether or not this is indicative of a trend is yet to be seen, but it isinteresting to note that Arkansas is not the only state expressing thisviewpoint. Recent opinions in other jurisdictions, although not expresslystating that a minor is incapable of waiving counsel, have also demon-strated this growing concern for the minor defendant. The Supreme Courtof Washington, while upholding that a minor may waive counsel, ex-pressed the belief that a more satisfactory procedure would involve theappointment of counsel in every instance where the accused is less thantwenty-one years of age." A recent Vermont case, In Re Moses,12 ex-presses a similar viewpoint. Although holding the minor defendant hadwaived counsel, the court stated: ". .. W]e would prefer that the trial1oE.g., Wade v. Mayo, 334 U.S. 672 (1948); Rohrer v. State of Montana,237 F. Supp. 747 (D. Mont. 1964); State er tel. Stumbo v. Boles, 139 S.E.2d259 (W. Va. 1964)."1Snyder v. Maxwill, 401 P.2d 349 (Wash. 1965) (per curiam); Klapprothv. Squier, 50 Wash.2d 675 314 P.2d 430 (1957) (dissent).12U122 Vt. 36, 163 A.2d 868 (1960).1966)3Graber: Criminal Law: Waiver of Counsel by Minor DefendantsPublished by TU Law Digital Commons, 1966TULSA LAW JOURNALcourts appoint counsel for all minors charged with serious crimes.. ." 18In Kansas it appears that defendants less than seventeen years of age,no matter how well educated, are incapable of waiving counsel. In Mc-Carty v. Hudspeth,'4 the court stated: "A boy less than seventeen yearsof age [is] too immature to make an intelligent waiver... ,, ' The Illi-nois Supreme Court has adopted a rule providing: "In no case shall aplea of guilty or waiver of indictment be received or accepted from aminor under the age of eighteen years, unless represented by counsel." 10At the present time Oklahoma follows the majority and permits aminor to waive his right to counsel in a criminal case if the recordaffirmatively shows there has been an intelligent waiver and it appearsbeyond all doubt that he fully understands the implications of thiswaiver.' 7 Knowledge of courtroom procedure also weighs heavily indetermining whether he is aware of these implications.'8It should be remembered that a youthful defendant is not necessarilyan ignorant or feeble minded one; many persons less than twenty-oneyears of age are far more intelligent than others over that age. It wouldbe interesting to see what position Arkansas would take if confrontedwith a twenty-year-old defendant with the I.Q. of a genius and an under-standing of criminal procedure. From the application of the rule inSwagger to the Meeks case, it appears that this hypothetical defendantwould also be adjudged incapable of waiving his right to counsel. If thisbe the case, then Meeks is an important decision in the field of constitu-tional criminal procedure, its sole concern being protection of the minordefendant.Samuel W. Graber13 Id. at , 163 A.2d at 872.14 166 Kan. 476, 201 P.2d 658 (1949).15 Id. at -, 201 P.2d at 660. Accord, Dunafee v. Hudspeth, 162 Kan. 52,4178 P.2d 1009 (1947) (failure to appoint counsel for twenty-year-old defendantviolative of due process); State v. Oberst, 127 Kan. 412, 273 Pac. 490 (1929)(error to permit seventeen-year-old defendant to plead guilty to seven counts ofmurder without benefit of counsel).16 SMITH-HURD ILL. ANN. STAT, ch. 110 § 101.26(4) (1956).17 E.g., Dallas v. State, 286 P.2d 282 (Okla. Cr. App. 1956); Clark v. State,95 Okla. Crim. 375, 246 P.2d 422 (1952); Fields v. State, 77 Okla. Crim. 1, 138P.2d 124 (1944).The Oklahoma Court of Criminal Appeals has held that in all cases where anaccused, without counsel, pleads guilty and is sentenced on that plea, the recordmust affirmatively show: "... [Tlhat the accused knows and understands the natureof the charge against him, and the punishment that can be imposed therefor;knows and understands his constitutional right to be represented by counsel; knowsand understand his right to be represented by Court appointed counsel, if he isunable to employ the same, knows and understands his right to a trial by jury."Huggins v. State, 388 P.2d 341, 344 (Okla. Cr. App. 1964).IS E.g., Application of McDaniel, 302 P.2d 496 (Okla. Cr. App. 1956); Exparte Cornell, 87 Okla. Crim. 2, 193 P.2d 904 (1948); Ex parte Smith, 83 Okla.Crim. 199, 174 P.2d 851 (1946).[Vol. 3, No. 24Tulsa Law Review, Vol. 3 [1966], Iss. 2, Art. 9https://digitalcommons.law.utulsa.edu/tlr/vol3/iss2/9

Criminal Law: Waiver of Counsel by Minor Defendants

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Criminal Law: Waiver of Counsel by Minor Defendants

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