In Re Gault – Half-a-Century Old

On February 14, 1912, when Robert Taft was president, Arizona became the last territory to join the continental United States. Statehood had followed decades of violence among white settlers, Mormons, Mexicans and Native Americans. They fought over growing cotton. Labor fought business. Everyone fought over water rights. In early 1903, it was decided to build a colossal dam. This was called The Salt River Project and was located sixty miles northeast of Mesa. Construction began in 1905 and the last block was laid in 1911. It was dedicated by Former President Theodore Roosevelt on March 18. It flooded over 16,000 acres, which created the largest artificial lake in the world at that time.  Yet, controversy over water rights continues to this day.

The Origins of Arizona’s Name and Early Beginnings to Modern Times

The name Arizona comes from the Papago “ali-shonak” meaning “small spring.” The name became popular following the discovery of rich lodes of silver in 1736. “Ali-shonak” was corrupted into “Arizona.” The land was originally part of New Mexico, after the Gadsden Purchase. However, in 1863, during the Civil War, which had reached this far west, those in the western area of New Mexico established their own territory, Arizona.

The state has always been a land of contrasts, from geography to politics, to the law. While the Border Patrol expands alongside a make-believe wall, the mayor of Phoenix has pushed for it to become a sanctuary city. The state that gave us Barry Goldwater, who, in late life, became more progressive, thanks in part to his second wife, also brought forth Senator John McCain, Janet Napolitano, a Democratic governor and then United States Secretary for Homeland Security, and Bruce Babbitt. He served as a Democratic Governor and then United States Secretary of the Interior. Arizona is a right-to-work state, and guns are ubiquitous.

However, following Trump’s election, more than 20,000 men, women and children participated in the Women’s March in Phoenix, 15,000 in Tucson and 1,200 in Flagstaff, which had faced a snowstorm the night before. Other marches were held in Prescott, Sedona, Jerome, Gold Canyon, Green Valley, Bisbee and Ajo.

Arizona’s Place in The Law Books

Out of this bubbling crucible have come two Landmark United States Supreme Court decisions, Miranda (discussed in a past Newsletter) and In Re Gault, aka: Application of Paul and Marjorie Gault, 387 U.S. 1 (1967), issued on May 15, 1967. You can hear the oral arguments here:

The question before the Warren Court was: Were the procedures used to commit Gault constitutionally legitimate under the Due Process Clause of the Fourteenth amendment?

No, they were not, ruled the Court, 8 – 1. Justice Abe Fortas wrote the decision and Justice Potter Stewart, the Dissent. Gault provided juveniles certain adult rights previously denied: the right to timely notice of charges, the right to counsel, the right to confront the accuser and cross-examination, and the right to protections offered by the Fifth and Sixths Amendments.

The Story Behind the Case, and The Problems Found Thereafter

The back story and what came after the United States Supreme Court decision, is fascinating: On the morning of June 8, 1964, Gerald Gault and his friend, Ronald Lewis, were arrested by the Gila County Sheriff. Gerald was already on probation for having been in the company of a teenager who had stolen a wallet from a woman’s purse. The allegation this time was that one or both of the boys made lewd remarks during a phone call to a neighbor. While his parents were at work, Gerald was taken into custody. They were not notified. His older brother finally located him at the Juvenile Detention Home. When Gerald’s parents showed up, they were told there would be a hearing at Juvenile Court the next day.

There was no transcript or recording of the hearing. No one was sworn in. The complainant was not there. Gerald had no attorney. What is known about the hearing came much later when the judge testified at a subsequent hearing. The arresting officers told one story; Gerald’s mother told another, as reported to her by the teenager. The judge said he would think about it. For some unknown reason, Gerald was taken back to the Detention home. A few days later, the arresting officer sent Ms. Gault a short note, written on a piece of paper: “Judge McGhee has set Monday, June 15, 1964, at 11:00 A.M. as the date for further Hearings on Gerald’s delinquency.”

Again, the complainant, Ms. Cook, did not show up, despite Ms. Gault’s request. The judge said that Ms. Cook did not have to appear. A probation report was filed without notice to Gerald or his parents. Judge McGhee found that “said minor is a delinquent child, and that said minor is over the age of 15 years.” The judge committed Gerald, as a juvenile delinquent, to the State Industrial School “for the period of his minority [that is, until 21], unless sooner discharged by due process of law.”

A Further Examination of Juvenile Rights was Needed

Arizona law did not permit appeals in juvenile cases. A writ of habeas corpus was dismissed by the Superior Court. Judge McGhee testified at a hearing before the Supreme Court of Arizona. The state’s highest court affirmed the dismissal of the writ. The United States Supreme Court accepted certiorari.

Justice Fortas, citing the beneficent intent of the Juvenile Court wrote: “At the adjudication stage, the use of clearly incompetent evidence in order to prove the youth’s involvement in the alleged misconduct . . . is not justifiable.

Particularly in delinquency cases, where the issue of fact is the commission of a crime, the introduction of hearsay – such as the report of the policeman who did not witness the events – contravenes the purposes underlying the sixth amendment right of confrontation.”

The Court reiterated the findings of Kent v. United States, 383 U.S. 541 (1966) that a waiver hearing must fulfill the essentials of due process. The decision of the U.S. Supreme Court defined due process as requiring written notification to the child and parents as quickly as possible and time for them to prepare for a hearing. At the hearing, the child and parents must be advised of their right to counsel, including a court-appointed attorney if they cannot afford one; and the Fifth and Sixth Amendments apply, including the right of cross-examination.

After What Seemed to Be a Conclusion, The Story Continues

A Landmark Case indeed. However, that was not the end of the story. Gerald Gault had ambitions of military service. In August of 1968 an army recruiter sent a form to the Gila County Juvenile Court. Did Gerald Gault have a record? Yes, a probation officer responded. The officer went into detail about Gerald’s legal history. He told the recruiter that Gerald had a record of delinquency. His file was still active. He had never been found not guilty, Thus, he was prohibited from enlisting.

Then things got complicated.  In 1968, Gerald’s parents petitioned the Gila County Court. But the county probation officer said the U.S. Supreme Court had not mandated that the original case be heard in that county. He was correct. The parents’ attorney, Amelia Lewis, filed a motion before the Arizona Supreme Court, asking that the hearing be held in Gila County. It was denied.

The Arizona Supreme Court then sent the case to the Maricopa Superior Court, in Phoenix. However, since state law prohibited appeals in juvenile cases, the case went nowhere.

Nevertheless, Gerald did serve in the Army and retired after 23 years. In 2014, his entire case was reviewed by the Gila County Juvenile Court. Urged by Gerald’s parents and two amicus attorneys, the court agreed to hear the case again. This time, the court found: “The determination shown by Paul and Marjorie Gault to vindicate their son in the courts, still unfulfilled, is reason alone to act now – even a half-century late.”

On August 6, 2014, the original order declaring Gerald a delinquent and sending him to the Arizona Industrial school, was finally vacated. Arizona, the land of contrasts and surprises, finally did the right thing.