Concurring and Dissenting:
I join all of the opinion of the court except Section V. Because I believe social worker Walwyn's interrogation of A.M. about the alleged crime in the absence of, and without notice to, his attorney violated A.M.'s constitutional right to counsel as well as his rights under 5 V.I.C. § 2512.1 respectfully dissent from the court's disposition of this appeal. I would remand for further proceedings on the government's motion to transfer A.M. for trial as an adult.
Walwyn interviewed A.M. about the alleged offense when Wal-wyn knew that A.M. was represented by an attorney. Walwyn's report to the Territorial Court was based primarily on that interview. In his report, Walwyn, alter reciting A.M.'s version of what happened on the day of the alleged offense, drew the following inferences:
[A.M.] seems to be complacent and laid back about the entire affair. Initially, the young man did not fully understand the extent of the charges against him. Although he was later made aware of the extent of the charges, his attitude did not change. *457Additionally, he shows little remorse for what the alleged victim might be experiencing. He indicated that it is her fault that things are hard on her because she could have easily told the truth.
A.M. filed a "Motion to Strike" that asked the Territorial Court to suppress not only A.M/s version of the offense as reported in Wal-wyn's report but also the evaluation and recommendation sections of that report. The motion and associated briefs requested that these latter segments of the report be suppressed because "both sections refer to the minor's alleged lack of remorse." App. 67. As A.M/s brief explained to the court,
Had the minor's attorney been present at the interview or had the minor heeded the attorney's [prior] instructions [not to discuss the case with anyone], no facts would have been elicited for the caseworker to presume that the minor should be displaying feelings of remorse (i.e. the minor's view of the incident).
App. 67.
The Territorial Court declined to suppress any portion of Wal-wyn's report. After a hearing, it granted the government's motion to transfer A.M. for trial as an adult. Although the court's findings do not specifically refer to A.M.'s attitude toward the alleged offense, the court relied on Walwyn's report and hearing testimony as a basis for concluding that a denial of the government's motion would provide no prospect for rehabilitation of A.M. and would afford inadequate protection for the public.
Under the Virgin Islands statute, as under the statute before the Supreme Court in Ken v. United States, 383 U.S. 541 (1966) a proceeding on a motion to transfer a juvenile for trial as an adult is a "critically important" proceeding. Id. at 560. As a result, based on the teachings of In re Gault, 387 U.S. 1 (1967), I conclude that the Due Process Clause entitled A.M. to have his attorney present when he was interrogated by the state concerning the alleged offense.1 Since the record provides no basis for finding that there was *458a knowing and voluntary waiver of this right by A.M., I can only conclude that Walwyn's questioning of A.M. without his attorney being present was unconstitutional. As the majority acknowledges, it also violated 5 V.I.C. § 2512.
Unlike my colleagues, I am unable to conclude that the failure to grant the motion to suppress was harmless error or that A.M/s counsel, by asking too much relief^ precluded A.M. from thereafter maintaining that less than the entire report should have been suppressed. It is clear from Walwyn's report and testimony that his conclusion concerning A.M.'s attitude toward the alleged offense was based on his interrogation of A.M. regarding the events of the day in question. That conclusion was thus fruit of a poisoned tree. Further, while it is conceivable to me that the Territorial Court gave no weight to Walwyn's conclusion regarding A.M.'s attitude, I consider that highly unlikely and am unwilling to assume an absence of reliance in the absence of express assurance from the Territorial Court. When asked to determine whether an individual accused or convicted of a crime can be rehabilitated or whether such an individual represents a threat to the public, courts normally and understandably rely on the available information regarding the individual's attitude towards the events in question and I believe it very likely that the Territorial Court did so here.
My colleagues correctly point out that A.M.'s counsel sought suppression of Walwyn's entire report. However, to the extent A.M.'s motion was based on the contention that Walwyn's interrogation violated A.M.'s right to counsel, the briefing made clear that A.M.'s concern was about the above-quoted conclusion that Walwyn reached concerning A.M.'s state of mind.
I would reverse the order of the Territorial Court and remand for further proceedings. If the Territorial Court is able to provide explicit assurance that Walwyn's evaluation of A.M.'s attitude played no role in its decision on transfer, I would permit the entry of a new transfer order. If the court is unable to give that assurance, a new study and report by another social worker would be necessary to *459provide an untainted basis for a new hearing on the government's motion to transfer.
Section 3 of the Revised Organic Act of 1954 makes the Fifth and Sixth Amendments of the United States Constitution applicable in the Virgin Islands. A.M/s Motion to Strike claims a right to counsel and cites the Sixth Amendment in support. It may be that the Sixth Amendment, being limited to crimi*458nal proceedings, is not applicable to a juvenile transfer proceeding. If it is not, however, I believe there is a right to counsel at that stage under the Due Process Clause of the Fifth Amendment. A.M.'s motion made clear to the Territorial Court that he claimed a constitutional right to counsel, and I would hold that this was sufficient to preserve the issue.