Herbert F. Smith, Jr. v. Howard Yeager, Warden, New Jersey State Prison

The majority finds that this appeal is foreclosed by the Supreme Court’s decision in McMann v. Richardson, 397 U.S. 759, 90 S.Ct. 1441, 25 L.Ed.2d 763 (1970). I cannot agree. It is my opinion that the denial of appellant’s right to counsel at his hearing on the waiver of juvenile court jurisdiction is properly before us. Once I face that question, I conclude that appellant had a right to counsel, and that the State of New Jersey failed to comply with the mandate of the United States District Court in providing such assistance to Smith.

Smith was sixteen and a half years of age when he was…