# Appellants Brief — Costarelli v. Massachusetts > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385001_1629%3A04 ## Record - **Collection:** Supreme Court brief - **Document type:** Appellants Brief - **Published:** January 1, 1975 - **Citation:** 421 U.S. 193 ## Text LIBRARY * ~~ _ Se prac COURT, UL ‘Ss fAnN EQ 1875 t [ : IN THE Supreme Court of the United States OCTOBER TERM, 1974 No. 73 - No. 6739 STEVEN COSTARELLI, Appellant MASSACHUSETTS, Appellee ON APPEAL FROM THE MUNICIPAL COURT OF THE CITY OF BOSTON BRIEF FOR THE APPELLANT ROBERT W. HAGOPIAN, ESQ. Wrentham, Mass. 92093 Washington, .C. @ CLB PUBLISHERS’ e LAW PRINTING CO. e (202) 393-0625 AY « tt? eas INDEX Page cs on 9. e gah Ea RS Ok oe CR ] Ne he calc tak ag iy ghey alaid sw a Ha 8 6.858, k- 2 Os By es a 8 pg 8. a ranean aran 9 Pe Se rs er kee w he nd een ye ee 9 ee | eer 10 ARGUMENT Il. Ill. IV. Vi. THE JUDICIAL STRUCTURE OF MASS- ACHUSETTS’ TWO- TIER TRIAL DE SEs EE sek en oe ee ee es 13 THE SIXTH AMENDMENT JURY TRIAL GUARANTEE MEANS TRIAL BY JURY IN THE FIRST INSTANCE ......... 15 DUNCAN V. LOUISIANA, 391 U.S. 145 (1968) BOUND THE STATES TO THE RULE OF CALLAN V. WILSON ......656.005. 17 THE INTERPOSITION GF A TRIAL BY MAGISTRATE PRIOR TO AFFORDING A DEFENDANT A JURY TRIAL IS AN UNCONSTITUTIONAL BURDEN ON i my get) ae f | THERE IS NO COMPELLING INTEREST ON THE PART OF MASSACHUSETTS TO JUSTIFY ITS INFRINGEMENT OF TORE Gseen ENP TM Be PU we eee 38 THE FORCED INTERPOSITION OF A TRIAL BY MACGiSTRATE PRIOR TO AFFORDING [THE ACCUSED A TRIAL BY JURY IS AN UNCONSTITUTIONAL IMPOSITION ON THE RIGHT TO A SPEEDY TRIAL (ii) Page VII. MASSACHUSETTS’ TWO-TIER TRIAL DE NOVO PROCEDURE VIOLATES THE DOUBLE JEOPARDY PROVISIONS OF THE FIFTH AMENDMENT .............- 45 tr & Pt re eee a ee ee ee ore 47 oR rr ee ee ee la TABLE OF AUTHORITIES Cases: Ad Hoc Committee on Judicial Administration v. Commonwealth, 488 F.2d 1241 (lst cir. 1973) ......... 42 Apodaca v. Oregon, 406 U.S. 404 (1972) ............ 23, 24 Argersinger v. Hamlin, 407 U.S. 25 (1972) .............. 27 Ashe v. Swenson, 397 U.S. 436 (1970) ................ 37 Baker v. City of Fairbanks, Alaska__, 471 P.2d DRE ns 22s CAGE EN ere ee and in the federal system?*, 1 Codispoti v. Pennsylvania, __. U.S. ___, 41 LEd 2d 912, 919, n.4 (1974). Cf. Callan v. Wilson, 127 U.S. 540, 549, 556. 3Frankfurter & C orcoran, Petty Federal Offenses and the Constitution Guarantee to Trial by Jury, 39 Harv.L. Rev. 917, 934. (1926). 418 U.S.C. Sec. 1 20 and two held that the jury trial provisions of the Sixth Amendment were applicable to “all crimes”. Appellant submits that in light of Duncat and Baldwin he was entitled to a trial by jury in the municipal court as the maximum possible penalty under G.L. Ch. 90 Sec. 24(2)(a) was a $500 fine and two years imprisonment.** Alternatively, it should be observed that G.L. Ch. 90 Sec. 24(2\(b) & (c) requires the Registrar of Motor Vehicles to revoke the driver’s license of a defendant who is convicted for using a motor vehicle without authority for a minimum period of one year or unti! his conviction is reversed upon “appeal” in the superior court. The loss of one’s driver’s license is a serious collateral consequence, District of Columbia vy. Colts, 282 U.S. 63, 73 (1930): Parham vy. Municipal Court, lowa 199 N.W.2d 50 (1972). Its revocation pursuant to G.L. Ch. 90 Sec. 24(2)(b) & (c) constitutes a criminal penalty since it is imposed for the commission of an act, i.e. using without authority, which is totally unrelated to the operation of a motor vehicle on the public ways or to the protection of the lives and safety of the public. As such this penalty was sufficient in itself to trigger the jury trial requirement under Baldwin: In extending the right to a jury trial, we define the category of “criminal”? prosecutions as includ- ing any offense a direct penalty for which may be incarceration in a jail or penal institution. It also includes offenses which may result in the loss of a valuable license, such as a driver's license or a license to pursue a common calling, occupation, or business.* It must also include offenses which, 5Br. App. Sa. st even if incarceration is not a possible punishment, still connote criminal conduct in the traditional sense of the term. *This does not cover revocation of licenses pursuant to administrative proceedings where lawtul criteria other than criminality are a proper concern in protecting public welfare and safety, as the basis of revocation or suspension in such instances is not that one has committed a criminal offense, but that the individual is not fit to be licensed, apart from considerations of only guilt or inno- cence of crime. Baker vy. City of Fairbanks, Alaska, 471 P.2d 386, 401.76 In light of this contention. district judge Joseph Tauro has restrained the Registrar of Motor Vehicles from suspending Steven Costarelli’s driver’s license on ac- count of his conviction in the Municipal Court of Boston by a magistrate, Costarelli v. Lucev, No. 9417, (D. Mass., 1974). Distinguishing Almeida v. Lucey, 372 F. Supp. 109, (D. Mass. 1974) affirmed BS cosaneas's (Oct. 'S, 1974). Subsequent to Duncan and Baidwin, state and lower federal courts have rendered conflicting opinions as to whether Duncan bound the states to the rule of Callan y. Wilson. The Supreme Court of Rhode Island answered See also Keenan v. Board of Bar Examiners, 317 F.Supp. 1350, 1360 (EDNC 1970) wherein Judge Craven notes that the loss of one’s right to practice law is a penalty, Cf. /n re Winship, 397 U.S. 358, 363-64, 367 (1970); In re Gault, 387 U.S. 1, 50; and Frank v. United States, 395 U.S. 147, 159-169 (19 _ ). 7? the question in the affirmative in State v. Holliday, 109 R.1. 93, 103, (1971): We hold, then that those charged with misde- meanors that could result, upon conviction, in the imposition of a sentence of more than six months are entitled to a speedy and prompt trial by an impartial jury in the first instance. The Supreme Court of Virginia reached the opposite conclusion in Manns v. Commonwealth, 213 Va. 2nd 233 (1972)?? holding that Mr. Justice White's footnote 30 in Duncan “makes it clear’ that the question of “incorporation” was an “open” one. See also to the same effect, Walker vy. Dillard, 363 F. Supp. 921 (W.D.V. - 1973) which, like Manns, relied on Mr. Justice Fortas’ concurring opinion to Duncan. Since these opinions are contrary to this Court’s holding in Duncan, appellant alleges that they are inapposite. In Whitmarsh vy. Commonwealth, Mass.__, 316 N.E. 2d 610, 618-619, the Supreme Judicial Court held that the “state of the law on the subject is highly uncertain” and therefore it was not “required to conclude either (a) that the Sixth Amendment would be interpreted at the present time by the Supreme Court to require a trial by jury in the first instance... , or (b) that even if that court did reaffirm this rule ...with respect to the Federal Courts, it would apply such a requirement in equa! fashion to the states.” Appellant submits that it was the duty of the Supreme Judicial Court under Article VI of the Constitution to interpret the decisions of this Court as they existed and apply them. Instead, the Supreme “7Cf. Manns y. Koontz, 451 F.2d 1345, (4th Cir. 1971) 23 Judicial Court evaded the issue on the grounds that “the meaning of the Sixth Amendment’s jury trial provision and perhaps also specific instances of its application to the States...continues to be in flux.” In any event, the decision should be accorded no value. Lastly, on this branch of the argument, applicant maintains that Williams v. Florida, 399 U.S. 78 (1970) and Apodaca vy. Oregon, 406 U.S. 404 (1972) are not contrary to his position that Duncan bound the States to the rule of Callan y. Wilson. In Williams, this Court held that the States are not required to afford a defendant a twelve-man jury as the meaning of the Sixth Amendment did not include a twelve-man jury requirement. In reaching this conclusion, the Court in effect overruled the federal twelve-man requirement and hence this decision is entirely consistent with Mr. Justice White’s remark in n. 30 in Duncan:—‘“[{o]ur decisions interpreting the Sixth Amendment are always subject to reconsideration. ...’’ Quite apart from this consideration, Duncan was expressly reaffirmed by the Court at p. 86, and by Mr. Justice Black concurring at p. 107: We have emphatically “rejected the notion that the Fourteenth Amendment applies to the States only a ‘watered down, subjective version of the individual guarantees of the Bill of Rights.” Mallov vy. Hogan, 378 U.S. 1, 10-11. Today’s decision is in no way attributable to any desire to dilute the Sixth Amendment in order more easily to appiy it to the States, but follows solely as 4 necessary consequence of our duty to reexamine prior decisions to reach the correct constitutional meaning in each case. The broad implications in early cases indicating that only a body of 12 Be ee yee soe? Soc 24 members could satisfy the Sixth Amendment requirement arose in situation where the issue was not squarely presented and were based, in my opinion, On an improper interpretation of that amendment. Had the question presented here arisen in a federal court before our decision in Duncan y. Louisiana, 391 U.S. 145, (1968), this Court would still, in my view, have reached the result announced today. In Apodaca v. Oregon, 406 U.S. 404, this Court held that the unanimous jury requirement of the Sixth Amendment was not applicable to the States. In so holding, four justices impliedly overruled the require- ment as to federal trials and as such their plurality opinion is @onsistent with Duncan. Mr. Justice Powel! reached the same conclusion, but was not in “accord with a major premise upon which that judgment” was based, namely “that the concept of jury trial as applicable to the States under the Fourteenth Amend- ment, must be identical in every detail to the concept required in federal cowrts by the Sixth Amendment,” Apodaca, supra, 369. Three justices in dissent felt that the federal standard should not be changed and hence, the states should be bound to the unanimous jury requirement on the basis of Duncan. Accordingly, appellant submits that this decision is not a departure trom Duncan in principle. It simply redefined “‘what is meant by the concept ‘jury’” in the context of the Sixth Amendment. 25 IV THE INTERPOSITION OF A TRIAL BY MAGISTRATE PRIOR TO AFFORDING A DEFENDANT A JURY TRIAL IS’ AN UNCONSTITUTIONAL BURDEN ON THE RIGHT TO TRIAL BY JURY. As Justice Harlan calls to our attention in Baldwin y. New York, 399 U.S. 66, 137, the bedrock of Callan y. Wilson is that the accused should not be put to “the burden of two trials if he wishes a jury verdict.’ That “burden” was eloquently set out by Mr. Justice Thomas of the Supreme Judicial Court in his memorable dissent in Jones v. Robbins, 8 Gray 329, 351-2: It seems to me plain that, when the Constitution declares that “the legislature shall not make any law that shall subject any person to a capital or infamous punishment, excepting for the govern- ment of the army and navy, without trial by jury,” its meaning is trial by jury when and wheresoever he shall be tried; not upon his second trial, nor after having been subjected to another and different mode of tnal. If, for an offense subjecting him to capital or infamous punishment, the citizen may be tried once without a jury, it is not easy to see why he may not be so tried a second time: why the legislature may not provide that, upon appeal to the municipal court, he may be tried by a single judge, and postpone his trial by jury to his appeal to this court. Such a law would, indeed clog and obstruct his trial by jury: but the difference between that and this is in degree only. The subjecting the accused to one trial by a single magistrate obstructs the right of a tral by jury, Berens YOIGTOS 9 aay 26 and essentially impairs its value. It places between the accused and a trial by jury a barrier not necessary for the security of the public, such as are the preliminary examination and the holding to bail. It interposes unnecessary delay between the accusation and trial by his peers. It subjects him to unnecessary and often fatally burdensome expense before he can reach the tribunal by which it is his right and his security to be tried. The subject cannot be said, under such a law, to obtain his right “freely, and without being obliged to purchase it; completely. and without any denial: promptly, and without delay”. When you state the proposition that a man may be constitutionally tried for murder by a justice of the peace or a police court, or by any single judge, even after indictment, and that he cannot have a trial by jury until he has been tried by a single magistrate, | think every mind familiar with the Constitution, and with the common law rights secured by it, shrinks from the conclusion; yet it is to be observed, that the twelfth article of the Bill of Rights makes no distinction between laws subjecting the citizen to capital and those subjecting him to infamous punishments. They stand on the same ground. 1 am aware that in some text-writers of authority, and in the dicta of judges for whom I feel the highest respect it has been said, that if there is an unobstructed and unclogged right of appeal to a court in which a trial by jury can be obtained, the article of the Bill of Rights is satisfied. To this view | answer...[t}hat is not an unobstructed and unclogged right of appeal, wh.ch the twelfth article secures, but an unobstructec and unclogged right of trial by jury.*$ S J 332. 37 apart from this, the defendant cannot help but expose his defense through cross examination of the govern- ment’s witness.*° Likewise, cross examination has the tendency of hardening and polishing the government’s witnesses in the de novo trial in the superior court. See e.g. Ashe v. Swenson, 397 U.S. 436, 439-440 (1970); and Carsey v. United States, 392 F.2d 810, 813-814 (D.C. cir. 1967) which detail the metamorphasis of testimony in the first and subsequent trials. Alter- natively, if defense counsel does not cross examine the government’s witnesses in the district court, and if they subsequently become unavailable, their unimpeached testimony will be admitted against the accused since the opportunity to cross examine the witnesses existed in the district court. Commonwealth v. Mustone, 353 Mass. 490 1968) distinguishing Pointer v. Texas, 380 U.S. 400 (1965). Lastly, on this section of the argument, it should be observed that in addition to being a burden on the right, the imposition of a trial by magistrate manifestly runs counter to the “purpose” and “function” of the nght to trial by jury: As we said in Duncan, the purpose of trial by jury is to prevent oppressions by the Government by providing a ‘safeguard against the corrupt or overzealous prosecutor and against the compliant, biased, or eccentric judge.’ ... Given this purpose, the essential feature of a jury obviously lies in the interposition between the accused and his accuser of the commonsense judgment of a group of Mass. _ 298 N.E.2d Cf, Myers v. Commonwealth, 819, 828 (1973). 38 ” laymen....”’ Williams v. Florida, supra, at 100. Apodaca vy. Oregon, 406 U.S. 404, 410 (1972)." Accordingly, appellant submits that the rule of Callan vy, Wilson is not just a “detail” in the definition of what is meant by a jury, but rather it is an essential element of the right, and for this reason, it should be left undisturbed. V. THERE IS NO COMPELLING INTEREST ON THE PART OF MASSACHUSETTS TO JUSTIFY ITS INFRINGEMENT OF THE RIGHT TO TRIAL BY JURY. When Steven Costarelli was placed in jeopardy before the Municipal Court of Boston, it was his right to obtain a jury verdict, Duncan v, Louisiana, 391 US. 145. Massachusetts had no more right to deny him this fundamental right than the right to confront witnesses against him, or the right to counsel of his own *'De novo jury trials for serious offenses were not existent at common law or in America in 1784. De novo bench trials were in existence in England for petty offenses, Frankfurter & Corcoran, Petty Federal Offenses and the Constitutional Guarantee of Trial By Jury, 39 Harv. L. Rev. 917, 932-36 & n.85 (1926). In New Hampshire a de novo jury was afforded the accused in case of misdemeanors. “In all other cases trial by jury was free. The accused was not obliged to purchase, or even to demand, it....The burden rested not upon him to procure either a trial or an acquittal. It rested on the state—to obtain a trial by jury, as well as a conviction by their verdict.” State v. Gerry, 68 N.H, 495, 499-500 (1896). 39 choosing, or the right to remain silent. The abridgment of this right by the trial judge of the Municipal Court was a denial of the right, and it is no answer on _ the part of Massachusetts to say that it offered the defendant a trial de novo with the full panolpy of Sixth Amendment procedural rights. This argument was rejected in Ward vy. Village of Monroeville, 409 U.S. 57, 61-62, wherein the accused was initially denied an impartial tribunal: Respondent also argues that any unfairness at the trial ievel can be corrected on appeal and trial de novo in the County Court of Common Pleas. We disagree. This “procedural safeguard’? does not guarantee a fair trial in the mayor’s court; ... Nor in any event may the State’s trial court procedure be deemed constitutionally acceptable simply because the State eventually offers a defendant an impartial adjudication. Petitioner is entitled to a neutral and detached judge in the first instance. But even if it assumed, arguendo, that the interposi- tion of a trial by magistrate is an incidental burden on the right to trial by jury, appellant maintains that there is no “compelling state interest” to justify the infringement on the fundamental right to trial by jury, Roe v. Wade, 410 U.S. 113, 155; Shapiro v. Thompson, 394 U.S. 618, 631-634 (1969); Sherbert v. Verner, 374 U.S. 398 403-406 (1963). Massachusetts, of course, has an interest in allocating its judicial resources by maintaining a two-tier structure.*? but this interest can 2 7 emieux v. Robbins, 414 F.2d 353, 355 (1st cir. 1969), cert. denied, 397 U.S. 1017; Hasler, De Novo Jury Trials, 23 Maine Law Rev. 63 (1971). But see Mr. Justice Black’s retort in Green v. U.S., 356 US. 165, 216 (1958): “It is undoubtedly true that a judge can dispose of charges .. . faster and cheaper than a jury. PO TIE LEPINE: i tia a | 40 be achieved equally as well, if not more efficiently, by allowing the accused the option of proceeding initially in the first tier or obtaining a jury trial in the first instance in the second tier. See Holliday ». State, 109 R.I. 93 (1971); and Beldwin v. New York, 399 U.S. 66, 74, n.22 (1969). Indeed the allowing of the accused this option would more than likely effect a saving of Massachusetts judicial resources.** But such trifling economies as may result have not generally been thought sufficient reason for abandoning our great constitutional safeguards aimed at protecting freedom and other basic human rights of incalculable value, Cheap easy convictions were not the primary concern of those who adopted the Constitution and Bill of Rights. Every procedural safeguard they established purposely made it more difficult for the government to convict those it accused of crimes. On their scale of values justice occupied at least as high a position as economy.” “There are certain types of cases in which a defendant, if given an option, will always choose a trial by jury in the first instance, or if not given the option, will always “appeal” for a trial de novo. This is particularly true in driving under the influence of intoxicating liquors cases where conviction results in the loss of one’s driver's license for a minimum of one year and where the reversal rate of district court convictions by juries is extremely high. See Boston Herald American, Feb. 24, 1973, which reported that in one session of Suffolk Superior Court “19 out of 22 defendants who appealed lower court findings of guilty imposed by judges were subsequently acquitted by juries of their ” peers! 4] Vi. THE FORCED INTERPOSITION OF A TRIAL BY MAGISTRATE PRIOR TO AF- FORDING THE ACCUSED A TRIAL BY JURY IS AN UNCONSTITUTIONAL IMPC- SIT'ON ON THE RIGHT TO A SPEEDY TRIAL. Referring again to Justice Thomas’ dissent in Jones . Robbins, supra, it is observed that he objected to the “unnecessary delay between accusation and trial by... [the defendant’s] peers’, on the grounds that a defendant ought to obtain his right to a trial by jury * “freely, and without delay’”’. The latter words come from Article XI of the Massachusetts Constitution which reads: Every subject of the Commonwealth ought to find a certain remedy by having recourse to the laws, for all injuries or wrongs he may receive in his person, property, or character. He ought to obtain right and justice freely and without being obliged to purchase it, completely and without denial, promptly and without delay, comformably to the law. Article XI is in essence the underpinning to the speedy trial guarantee of the Sixth Amendment which this Court made applicable to the states in Afopfer y. North Carolina, 386 U.S. 213, 222-3, 225-6 n.21 (1966): We hold here that the right to a speedy trial is as fundamental as any of the rights secured by the Sixth Amendment. Initially, appellant maintains that it is unnecessary to decide whether the total time elapsed between arrest, 42 trial in the district court, and trial de novo in the superior court is impermissable per se in light of the Sixth Amendment standards, Cf. United States ex rel. Frizer v. McMann, 437 F.2d 1312, (2nd cir. 1971): United States v. Butler, 426 F.2d 1275 (Ist cir. 1970). However, some passing observations are helpful. First, the time schedule in the superior court for trial of misdemeanors and less serious felonies is deplorable. Chief Justice Tauro of the Superior Judicial Court summarized the judicial log-jam succinctly in his 1972 State of the Judiciary address, 57 M.L.Q. 209, 2, 3: “The dismal plight of the superior court cannot in any sense support even guarded optimism.” See also Ad Hoc Committee on Judicial Administration v. Commonwealth of Massachusetts, 488 F.2d 1271, (Ist cir. 1973) cert. denied U.S. (1974). When one considers the added delay of a trial in the district court, the intervening time between “appeal” and docketing in the superior court, it is observed that the total time between arrest and trial by jury may be between six months and a year and a half.44 No doubt exists that this time period, in itself, would violate the speedy trial provisions applied in many jurisdictions. See e.g. Rule 4 of the Second Circuit Court of Appeals: ‘‘In all cases the government must be ready for trial within six months from the date of arrest, service of summons, detention, or the filing of a com- plaint or of a formal charge upon which the defendant is to be tried.”: and ABA, Project on Minimum Standards for Criminal Justice, Standards Relating to Speedy Trial (1968). “in Suffolk County, the misdemeanor session sits con- tinuously in the superior court and the time delay in “appeal”’ is short. 43 Although Massachusetts’ court congestion is entitled to some weight in excusing delay, this Court has stated in Barker v. Wingo, 407 U.S. 514 (1972) that “the ultimate responsibility for such circumstances must rest with the government rather than with the defendant’’. In a concurring opinion Justice White emphasized this point more strongly at p. 537-538: A defendant desiring a speedy trial, therefore, should have it within some reasonable time; and, only special circumstances presenting a more pressing public need with respect to the case itself should suffice to justify delay. Caly if such special considerations are in the case and if they outweigh the inevitable personal prejudice resulting from delay would it be necessary to consider whether there has been or would be prejudice to the defense at trial. “‘[T]he evils protected against by the speedy trial guarantee exist quite apart from actual or possible prejudice to an accused’s defense.” In light of this criteria, it is submitted that the “unnecessary delay” noted by Justice Thomas is not a factor entitled to some weight in justifying Massa- chusetts’ delay in bringing a defendant to trial. Indeed, in light of the expense and burden a defendant must suffer by a district court trial, the “unnecessary delay” is more akin to a “‘deliberate attempt to delay the trial in order to hamper the defense” and “should be weighed heavily against the government’, Barker yr. Wingo, supra, p. 531. Implicit in the right to a speedy trial is the right to a speedy trial by jury, and the interposition of a trial without a jury is an unnecessary burden on the right. 44 Quite apart from these considerations, the more serious Charge against the trial de novo system is that it is totally counterproductive in minimizing the “‘anxiety and concern of the accused”, Barker v. Wingo, supra, p.532 one of the main purposes of the speedy trial guarantee. This object is set out more fully by this Court in United States v. Marion, 404 U.S. 307, 321 (1971): Arrest is a public act that may seriously interfere with the defendant’s liberty, whether he is free on bail or not, and that may disrupt his employment, drain his financial resources, curtail his associa- tions, subject him to public obloquy, and create anxiety in him, his family and his friends. These considerations were substantial underpinnings for the decision in Klopfer v. North Carolina, supra. The same reasoning is also applicable to the defendant who is not arrested: “Finally even if an accused is not incarcerated prior to trial, he is still disadvantaged by restraints on his liberty and by living under a cloud of anxiety, suspicion, and often hostility’, Barker v. Wingo, supra, p. 533. For the defendant who simply listens to the government’s case, and wishes not to disclose his defence, a trial in the district court is a meaningless proceeding which may “drain his financial resources”’. The finding of guilty and “appeal” do not minimize anxiety but amplify it; and the ordinary inference drawn from “appealing” generates a “cloud of suspi- cion”’. In short, the two-tier de novo procedure cuts away the right to a speedy trial at its roots. See State v. Holliday, 109 R.1. 93, 103:—“The Constitutional right to a speedy trial by a jury contemplates that the accused 45 shall be entitled to a trial by a jury at the time he is initially subjected to judicial process which could subject him to a loss of liberty by imprisonment in excess of a period of six months.” VII. MASSACHUSETTS’ TWO-TIER TRIAL DE NCVO PROCEDURE VIOLATES' THE DOUBLE JEOPARDY PROVISIONS OF THE FIFTH AMENDMENT. In Benton vy. Maryland, 395 U.S. 784, 794, (1969), this Court bound the states to the double jeopardy provisions of the Fifth Amendment by incorporating them in the Fourteenth Amendment. The underpinnings of these provisions are set out by Justice Harlan in United States v. Jorn, 400 U.S. 470, 479 (1971): A power in government to subject the individual to repeated prosecutions for the same offense would cut deeply into the framework of procedu- ral protections which the Constitution establishes for the conduct of a criminal trial. And society’s awareness of the heavy personal strain which a crimina! trial represents for the individual defend-_ ant is manifested in the willingness to limit the Government to a single criminal proceeding to vindicate its very vital interest in enforcement of criminal laws. Both those considerations are expressed in Green v. United States, 355 U.S. 184, 187-188 (1957), where the Court noted that the policy underlying this provision “is that the State with all its resources and power should not be allowed to make repeated attempts to convict an 46 individual for an alleged offense, thereby subject- ing him to embarrassment, expense, and ordeal and compelling him to live in a continuing state of anxiety and insecurity, as well as enhancing the possibility that even though innocent he may be found guilty.” Appellant alleges that Massachusetts’ trial de novo procedure, if tested in the light of these criteria, cannot sustain constitutional validity. The two-tier procedure inherently subjects a defend- ant twice to the heavy “‘personal strain which a criminal trial represents’. A conviction in the district court subjects him in the eyes of the community to the “embarrassment” of being “found guilty” and “‘appeal- ing’ in a criminal proceeding. Similarly, conviction in the district court “burdens the defendant with a meaningless expense and ordeal and compells him “‘to live in a continuing state of anxiety and insecurity, as well as enhancing the possibility that even though innocent he may be found guilty’. In short, such a procedure is not consonant with limiting “the Govern- ment to a single criminal proceeding to vindicate its vital interest in enforcement of criminal laws”. Implicit in limiting the government to one crack at the defendant is limiting it to a proceeding which comports with Sixth Amendment standards. Similarly, appellant maintains that the prohibitions of double jeopardy clause not only bar punishing a defendant twice for the same crime, but bar placing him to his defense a second time, Ex Parte Lange 18 Wall 163, 169 (1893). While it is true that retrial is not barred by double jeopardy principles in the case of the defendant who perfects a successful appeal, United States vy. Ball, 163 U.S. 662 (1896), it is equally true 47 that the bar tu reprosecution is not “confined to prevention of prosecutorial or judicial overreaching” United States v. Jorn, supra, 484, but extends to designed governmental procedures that place a defendant to his defense a second time to obtain that which he is entitled to in the first instance. More specifically, the double jeopardy clause bars reprosecution when absent a “manifest necessity’, the accused is deprived of “his valued right to have his trial completed by a particular tribunal,” Wade v. Hunter, 336 U.S. 684, 688 (1949); United States v. Jorn, supra, 484. In Jorn, this Court held reprosecution was barred after a mistrial was declared by the trial judge, sua sponte, since the defendant was denied his option to go to the jury once he was placed in jeopardy. Similarly, in the instant case, once Steven Costarelli was placed in jeopardy, he was entitled to the judgment of his peers and the denial of his motion for a jury trial was equivalent to the trial judge’s declaration of a mistrial in Jorn. In both cases, the defendant was deprived on his jury verdict once he was put to trial. CONCLUSION Appellant submits (1) that his conviction in the Municipal Court of Boston was unconstitutional since he was denied his Sixth Amendment right to a trial by jury; (2) that reprosecution is barred since his Sixth Amendment right to a speedy trial was abridged: and (3) that reprosecution is barred by the double jeopardy provisions of the Fifth Amendment. 48 WHEREFORE, appellant prays that this Court reverse his conviction and remand this case to the Municipal Court of the City of Boston with instructions that the complaint upon which he was charged should be dismissed with prejudice. Respectfully submitted, Robert W. Hagopian, Esq. Wrentham, Massachusetts 02093 la APPENDIX Article XII of the Massachusetts Declaration of Rights: No subject shall be held to answer for any crimes or offense, until the same is fully and plainly, substantially and formally, described to him; or be compelled to accuse, or furnish evidence against himself. And every subject shall have a right to produce all proofs, that may be favorable to him; to meet the witnesses against him face to face, and to be fully heard in his defense by himself, or his counsel, at his election. And no subject shall be arrested, imprisoned, despoiled, or deprived of his property, immunities, or privileges, put out of the protection of the law, exiled, or deprived of his life, liberty, or estate, but by the judgment of his peers, or the law of the land. And the legislature shall not make any law, that shall subject any person to a capital or infamous punishment excepting for the government of the army and navy, without trial by jury. G.L. Ch. 263 Sec. 4 No person shall be held to answer in any court for an alleged crime, except upon an indictment by a grand jury or upon a complaint before a district court or in proceedings before a court- martial. G.L. Ch. 278 Sec. 24 If the appellant fails to enter and prosecute his appeal, he shall be defaulted on his recognizance and the superior court may impose sentence upon him for the crime of which he was convicted, as if he had been convicted in said court, and, if he is not then in custody, may issue process to bring him into court to receive sentence. 2a G.L. Ch. 278 Sec. 2 Issues of fact joined upon an indictment or complaint shall, in the superior court, be tried by a jury drawn and returned in the manner provided for the trial of issues of fact in civil causes, unless the person indicted or complained against elects to be tried by the court as provided by law. G.L. Ch. 263 Sec. 6 A person indicted for a crime shall not be convicted thereof except by confessing his guilt in open court, by admitting the truth of the charge against him by his plea or demurrer or by the verdict of a jury accepted and recorded by the court or, in any criminal case other than a capital case, by judgment of the court rendered as hereinafter provided. Any defendant in the su- perior court in a criminal case other than a capital case, Whether begun by indictment or upon complaint or any defendant in the housing court of the city of Boston or in the housing court of the county of Hampden in a criminal case, may, if he shall so elect, when called upon to plead, or later and before a jury has been impanelled to try him upon such indictment or complaint, waive his right to trial by jury by signing a written waiver thereof and filing the same with the clerk of the court, whereupon he shall be tried by the court instead of by a jury, but not, however, unless all the defendants, if there are two or more charged with offenses growing out of the same single chain of circumstances or events whether prosecuted under the same or different indictments or complaints shall have exercised such election before a jury has been impanelled to try any of the defendants; and in every such case the court shall have jurisdiction to hear and try such cause and render judgment and_= sentence thereon. 3a Amended by St. 1971, c. 843, §21; St. 1973, c. 591, §20. G.L. CH. 218 Sec. 26 District courts shall have original jurisdiction, concurrent with the superior court, of the following offenses committed within their respec- tive district or otherwise made punishable therein: all violations of by-laws, orders, ordinances, rules and regulations, made by cities, towns and public officers, all misdemeanors, except libels, all felonies punishable by imprisonment in the state prison for not more than five years, the crimes mentioned in sections sixteen, seventeen, eighteen, nineteen, twenty-eight and forty-nine of chapter two hundred and sixty-six, and the crimes of forgery of a promissory note, or of an order for money or other property, and of uttering as true such a forged note or order, knowing the same to be forged. They shall have jurisdiction of proceed- ings referred to them under the provisions of section four A of chapter two hundred and eleven. Amended by St.1958, c. 138; St.1962, c. 722, §8; St.1964, c. 140; St.1969, c. 496; St.1973, c. 585. G.L. CH. 278 Sec. 18 Whoever is convicted of a crime before a district court may appeal the finding of guilty or the sentence imposed thereon to the superior court or may appeal to and claim a jury of six in a district court in accordance with section twenty-seven A of chapter two hundred and eighteen and at the time of conviction shall be notified of his right to take such appeal. The case shall be entered into the superior court on the return day next after the appeal is taken, and the appellant shall be released On personal recognizance or committed, in accord- ance with the procedures set forth in section fifty-eight of chapter two hundred seventy-six, Se ac | 4a until he recognizes to the commonwealth, in such sum and with such surety or surcties as the court requires, with condition to appear at the superior court on said return day and at any subsequent time to which the case may be continued, if not previously surrendered and discharged, and so from time to time until the final sentence, order or decree, and not depart without leave, and in the meantime to keep the peace and be of good behavior. If the appellant is not released on personal recognizance and is committed for failure to recognize, the superior court shall thereupon have jurisdiction of the case for the purpose of revising the amount of bail required as aforesaid. The appellant shall not be required to advance any fees upon claiming his appeal or in prosecuting the same. Notwithstanding any other provision of law, a defendant, after a finding of guilty in a district court, may appeal therefrom and shall thereafter be entitied to a trial de novo in the superior court or may appeal to and claim a jury of six in a district court in accordance with said section twenty-seven A. Amended by St.1973, c. 657. G.L. CH. 278 Sec. 20 Upon such appeal, the clerk of the district court shall transmit to the clerk of the superior court a copy of the complaint and of the record of conviction, the original recognizances, a list of the witnesses, the appearance of the attorney for the defendant, if any is entered, and a statement of the expenses; and no other papers need be transmitted. G.L. Ch. 90 Sec. 24 (2) reads in part: (a) ....and whoever uses a motor vehicle without authority knowing that such use is unauthorized shall, for the first offense be punished by a fine of not less than fifty dollars Sa nor more than five hundred dollars or by imprisonment for not less than thirty days nor more than two years, or both, and for a subsequent offense by imprisonment in the state prison for not more than five years or in a house of correction for not less than thirty days nor more than two and one half years, or by a fine of not more than one thousand dollars, or by both (b) A conviction of a violation of the preceding paragraph of this section shall be reported forthwith by the court or magistrate to the registrar, who may in any event, and shall unless the court or magistrate recommends otherwise, revoke immediately the license or right to operate of the person so convicted, and no appeal, motion for new trial or exceptions shall operate to stay the revocation of the license or right to operate. If it appears by the records of the registrar that the person so convicted is the owner of a motor vehicle or has exclusive control of any motor vehicle as a manufacturer or dealer or otherwise, the registrar may revoke the certificate of registration of any or all motor vehicles so owned or exclusively controlled. (c) The registrar, after having revoked the license or right to operate of any person under the preceding paragraph of this section, in his discretion may issue a new license or reinstate the right to operate to him, if the prosecution of such person in the superior court has terminated in favor of the defendant, or, after an investigation or upon hearing, may issue a new license or reinstate the right to operate to a person convicted in any court of the violation of any provision of paragraph (a) of subdivision (2) of this section; provided, that no new license or right to operate shall be issued by the registrar to...any person me, "ores SESE E? ol wer Ee Sa | — 6a convicted of violating any other provision of paragraph (a) of subdivision (2) of this section until sixty days after the date of his original conviction if for a first offense, or one year after the date of any subsequent conviction within a period of three years. TE AEF --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385001_1629%3A04. Public record. Not legal advice.