APPEAL FROM THE SUPREME COURT OF NEBRASKA.
Burger, Black, Douglas, Harlan, Brennan, Stewart, White, Marshall
After a hearing before a juvenile court judge, appellant DeBacker was found to be a "delinquent child"*fn1 and ordered committed to the Boys' Training School at Kearney, Nebraska.*fn2 DeBacker did not seek direct review of his commitment, but instead sought state habeas corpus. The Nebraska District Court dismissed appellant's petition, a divided Nebraska Supreme Court affirmed,*fn3 and last Term we noted probable jurisdiction over the present appeal, 393 U.S. 1076. Because we find that resolution of the constitutional issues presented by appellant would not be appropriate in the circumstances
of this case, the appeal is dismissed. See Rescue Army v. Municipal Court, 331 U.S. 549.
1. Appellant asks this Court to decide whether the Fourteenth and Sixth Amendments, in light of this Court's decisions in Duncan v. Louisiana, 391 U.S. 145; Bloom v. Illinois, 391 U.S. 194; and In re Gault, 387 U.S. 1, require a trial by jury in a state juvenile court proceeding based on an alleged act of the juvenile which, if committed by an adult, would, under the Duncan and Bloom cases, require a jury trial if requested. In DeStefano v. Woods, 392 U.S. 631, we held that Duncan and Bloom "should receive only prospective application" and stated that we would "not reverse state convictions for failure to grant jury trial where trials began prior to May 20, 1968, the date of this Court's decisions in Duncan v. Louisiana and Bloom v. Illinois." 392 U.S., at 633, 635. Because appellant's juvenile court hearing was held on March 28, 1968 -- prior to the date of the decisions in Duncan and Bloom -- appellant would have had no constitutional right to a trial by jury if he had been tried as an adult in a criminal proceeding. It thus seems manifest that this case is not an appropriate one for considering whether the Nebraska statute which provides that juvenile hearings be "without a jury," Neb. Rev. Stat. § 43-206.03 (2), is constitutionally invalid in light of Duncan and Bloom.*fn4
. Appellant next asks this Court to decide whether the preponderance-of-the-evidence standard for burden of proof in juvenile court proceedings, required by Neb. Rev. Stat. § 43-206.03 (3), satisfies the Due Process Clause of the Fourteenth Amendment. However, at the appellant's juvenile court hearing, his counsel neither objected to the preponderance-of-the-evidence standard, nor asked the judge to make a ruling based on proof beyond a reasonable doubt. In explaining why he did not seek a direct appeal from the juvenile court's determination that appellant had committed the act upon which rested the delinquent child finding, appellant's counsel stated at oral argument before this Court:
"It has been pointed out that I did not attack the sufficiency of the evidence.
"Of course, the reason for that is obvious. The evidence is more than sufficient to sustain a conviction of what he did. An appeal on the sufficiency of the evidence would have been close to frivolous." (Tr. 41-42.)
Later in oral argument counsel acknowledged that "no matter what the standard was . . . our evidence just isn't insufficient." (Tr. 47.) And when specifically asked whether "the evidence was sufficient even under a reasonable doubt standard," counsel responded: "Even under a reasonable doubt standard . . . ." (Tr. 47.)
Given this commendably forthright explanation by appellant's counsel, this case is not an appropriate vehicle for consideration of the standard of proof in juvenile proceedings.*fn5
. Appellant finally asks us to decide whether due process is denied because, as it is claimed, the Nebraska prosecutor had unreviewable discretion whether he would proceed against appellant in juvenile court rather than in ordinary criminal proceedings. The record shows (1) that appellant did not make this contention before the juvenile court judge; (2) that appellant raised the issue in his habeas corpus petition but that it was not passed on by the Nebraska District Court; (3) that appellant did not press the District Court's failure to consider this issue in his appeal to the Nebraska Supreme Court, and made only passing reference to the issue in his brief to that court; and (4) that the opinions of the Nebraska Supreme Court did not pass on the issue, or even refer to the contention. Given the barrenness of the record on this issue, in the exercise of our discretion, we decline to pass on it. So far as we have been made aware, this issue ...