Appellees Brief — Costarelli v. Massachusetts

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FEB 20 IST

Octoser Term, 1974

No. 73-6739

STEVEN COSTARELLI,

APPELLANT,

Vv.

COMMONWEALTH OF MASSACHUSETTS,

APPELLEE.

ON APPEAL FROM THE MUNICIPAL COURT

OF THE CITY OF BOSTON

BRIEF FOR THE APPELLEE

Francis X. BELLOTTI

Attorney General

JouHN J. Irwin, JR.

Assistant Attorney General

Chief, Criminal Bureau

Davin A. Mrs

Assistant Attorney General

Chief, Criminal Appellate Section

131 Tremont Street

Boston, Massachusetts 02111

February, 1975. Attorneys for the Appellee

ee —————_______________________}

Blanchard Press, Inc., Boston, Mass. — Law Printers

SE CERNE SRE ENO

WRAL NOGA IET

SO aD

Beerener PRIA EN HET De

TABLE OF CONTENTS

Page ;

I. Opinion Below 1 :

II. Statement With Respect to Jurisdiction 2 E

A. The ‘‘ Judgement’? Lacks Prerequisite Fi- }

nality. 4

1. The Judgment Of The Boston Munici-

pal Court is Not An Effective Determi-

nation Of The Litiescdon. 6 i

2. Further Aprellate Review Is Available i

Within The Massachusetts Court Sys-

tem. $ %

B. The Judgment Herein Appealed Is Not A

Judgment Rendered By The Highest Court

Of Massachusetts In Which A Decision

Could Be Had. 9

III. Constitutional and Statutory Citations 11

IV. Question Presented 12

V. Statement of the Case 12

VI. Summary of Argument 12

VII. Argument 15

The Massachusetts Criminal Jury Procedure

Adequately Complies With The Fourteenth Amend-

ment Requirement That An Accused Be Afforded The _____..#

Right To Trial By Jury In State Criminal Proceedings. 15

I. The Massachusetts Procedure Provides Jury

Trial in a ‘‘ Basie and Fundamental’’ Mode. 15

A. The Colonial-Constitutional Experience 19

B. Contemporary States’ Practice . 28

II. The Massachusetts Jury Procedure Effects This

Court’s Enunciation of the Purpose and Funce-

tion of Jury Trial in America. 31

III. This Case Does Not Require Consideration of

the Right to a Speedy Trial. . Ne 37 ¢

il Table of Contents

Page

IV. The Massachusetts Criminal Jury Procedure

Complies With the Fourteenth Amendment’s

Ban Against ‘‘Double Jeopardy’’. 38

VIII. Conclusion ty Oa yee OE

Appendix A . eae Rhy gt See 41

Appendix B . RE ek ok aes kik 44

Cases

Anonymous v. Baker, 360 U.S. 287 (1959) _. . 2

Apodaca v. Oregon, 406 U.S. 404 (1972) . 13, 16, 338, 34

Baldwin v. New York, 399 U.S. 66 (1970) : 34

Banks vy. California, 395 U.S. 708 (1969) 5

Barker v. Wingo, 407 U.S. 514 (1972) 14, 37

Benton v. Maryland, 395 U.S. 781 (1968) 38

Birnbaum vy. United States, 107 F.2d 885 (4th Cir.

1939) 3

Brown v. Epps, 91 Va. 726 (1895) 27

Building Union v. Leadbetter Co., 344 U.S. 178 (1972)

modified, Construction Laborers v. Curry, 371 USS.

542 (1963) +

Cableton v. State, 248 Ark. 351 (1967) 29

Callan v. Wilson, 127 ".S. 540 (1888) 13, 16, 27, 30,

34, 35, 36

Clark v. Williard, 292 U.S. 112 (1984) 5

Commonwealth v. Blais, 113 Va. 760 (1912) 29

Commonwealth v. Duggan, 257 Mass. 465 (1926) 8

Commonwealth v. Locke, 338 Mass. 682 (1959) . 3

Commonwealth v. O’Neil, 72 Mass. 343 (1856) 7

Commonwealth vy. Twombly, Boston Municipal Court

1830 (Thatcher’s Criminal Cases 225 (1845) ) 21

Colten v. Kentucky, 407 U.S. 104 (1972) _... 14, 36, 38, 39

Department of Banking v. Pink, 317 U.S. 264 (1942) . 5

Table of Contents ill

Page

Dombrowski vy. Pfister, 380 U.S. 479 (1965) 39

Duncan v. Louisiana, 391 U.S. 145 (1968) 12, 13, 14, 15,

36, 47,.18, 19,. 32, 33, 34, 35

Pimerick v. Harris, 1 Binney 416 (1808) 26

Gideon v. Wainwright, 372 U.S. 335 (1963 18

Goddard v. State, 12 Conn. 448 (1838) — 25

Gorman Vv. Washington University, 316 U.S. 98 (1942) 4,10

Gospe’ Army v. Los Angeles, 331 U.S. 543 (1947) - 5)

Gotthilf v. Sills, 375 U.S. 79 (1963) — 5

Grifiin v. California, 380 U.S. 609 (1965) 18

Grovey Vv. Townsend, 295 U.S. 45 (1935) 10

Herbert v. Louisiana, 272 U.S. 312 (1926) 18

In re Oliver, 333 U.S. 257 (1948) 18

Jones v. Robbins, 8 Gray 329 (1857) 16, 17, 20

Johnson's Case, 1 Me. 230 (1821) | 26

Klopfer vy. North Carolina, 386 U.S. 213 (1967) 18, 37

Largent v. Texas, 318 U.S. 418 (1943) Se

Lemieux v. Robbins, 414 F.2d 353 (1st Cir. 1969). 34, 35, 36

Leonard v. State, 43 Mla. App. 454 (1066) 29

Lincoln v. Smith, 27 Vt. 328 (1855) 25

Mann v. Commonwealth, 359 Mass. 661 (1971) 8, 9, 36, 39

Manns v. Commonwealth, 213 Va. 233 (1972) 34

Manns v. Coontz, 451 F.2d 1344 (4th Cir. 1971) 30

Mapp v. Ohio, 367 U.S. 648 (1961) 18

Market Street Railway Co. v. Railroad Commissioner

of California, 324 US. 548 (1945) 5, 11

North Corolina v. Pearce, 395 U.S. 711 (1969) 14, 34, 38

Opinion of the Justices, 41 NM. 550 (1860) 23, 24

Palko v. Connecticut, 302 U.S. 319 (1937) 1s

Pointer v. Texas, 380 U.S. 400 (1965) 18

Powell v, Texas, 392 U.S. 516 (1968) 10

Republican Gas Co. v. Oklahoma, 334 U.S. 62 (1948) 4,5

Richfield Oil Corp. v. State Board, 329 U.S. 69 (1946) i)

Robinson vy. California, 370 U.S. 660 (2962) 18

SI Na) kis en

Se ee aa ee

Bem —

iv Table of Contents

. Page

Singer vy. United States, 380 U.S. 24 (1965) 32

State v. Despres, 107 N.H. 297 (1966) 23, 29

State v. Gerry, 68 N.H. 495 (1896) 23

State v. Griffin, 66 N.H. 326 (1890) 23

State v. Halliday, 109 R.I. 93 (1971) 34

State v. Jackson, 69 N.H. 511 (1898) | 22, 23, 24, 30, 31

State v. Nichols, 27 R.1. 69 (1905) 31

State v. Parker, 213 Kan. 229 (1973) . 29

State v. Peterson, 41 Vt. 504 (1869) . 25

State v. Powell, 86 N.C. 640 (1882) 28

State v. Ray, 63 N.H. 406 (1885) 23, 24

State v. Ring, 106 N.H. 509 (1965) . 23

State v. Sklar, __ Me. —, 317 A.2d 160 (1974) 26

State v. Sparrow, 276 NC. 499 (1970) 34

Sullivan v. Adams, 69 Mass. 476 (1855) 7

Thompson v. Dean, 74 U.S. 342. 4

United States v. Hark, 320 U. S. 531 (1944) 3

Washington v. Texas, 388 U.S. 14 (1967) . 18

Whitmarsh v. Commeunail, 1974 Mass.

1403, 316 N.E.2d 610

Williams v. Florida, 399 U.S. 78 (1970)

Adv. Sh.

8, 11, 16, 20

13, 33, 34

Wilmarth v. King, 74 N.H. 512 (1908) . 23, 24

Younger v. Harris, 401 U.S. 37 (1971) 35

Constitutional Provisions

United States Constitution

Article IIT. 16

Article III, Section 2 27

Fifth Amendment 17, 38

Sixth Amendment 16, 17

Fourteenth Amendment, Art. I, §§ 6, 11 (1901) 29

Massachusetis Constitution

Artiele XII

Table of Contents

New Hampshire Constitution

Bill of Rights, Art. 5

Art. 15 .

Statutes

28 U.S.C. § 1257

§ 1257(2)

§ 2103

§ 2283

42 U.S.C. § 1983

Supreme Peas Rules 16(1)(a)

U.S. 1 Stat. 85 § 25

Mass. Gen. Laws

c. 90 § 24 ..

211 § 5

. 211A

212 § 6 |

218 § 26

218 § 27A

265 § 13A

266 S§ 30, 60

267

278

278 § SA

ce. 278 § 28E

Massachusetts

Acts and Resolves of 1721-1722, ¢. 2

1786-1737, e. 18

1724-1725, ec. 4

1741-1742, e. 15

‘altace

ep reeepengege

vi Table of Contents

Page

1742-1743, ¢. 6 . 21

W0-1780, «. 7 ........ 2

1750-1751, ec. 17 20

1775-1776, e. 23 21

1776-1777, ¢. 36 21

1779-1799, e. 37 . 21

1783, e. 51 ane

1794, ec. 26 21

1783 Mass, Stat. ¢ 51 § 3. 20

1831 Mass. Stat. ce. 70 ¢ 1 20

1836 Rev. Mass. Stat. e. 85 § 28 20

c. 87 § 36 20

e. 1388 § 1 20

1845 Mass. Stat. ¢. 166 § 2... 20

1849 Mass. Stat. ¢. 31 20

1860 Mass. Gen. Stat. ¢. 116 6 32 20

e. 173 §§ 1, 4 20

1882 Mass. Pub, Stat. ¢. 154 § 39 20

c. 155 §§ 58, 61 20

1893 Mass. Stat. ¢. 396, 547 20

1894 Mass. Stat. ¢. 431 20

1897 Mass. Stat. «. 490 § 3 20

1902 Mass. Stat. c. 219 § 22 20

1905 Mass. Rev. Laws ec. 319 20

19185 Mass. Stat. ¢. 652 20

1929 Mass. Stat. c. 216 § 4 20

~ Ala. Code Ann. tit. 1, 7 29

Ala. Code Ann. tit. 18, §321 29

§326 29

Ariz. Rev. Stat. §{22-301 29

§§22-371 through 22-874 29

Ark Stat. §$44-115 29

§$44-116 29

SI AO A a LN I eB

Table of Contents vil

Page

§§44-501 . 29

MIR hawce 27. cha ta vie ew eee ae

Kan. Stat. Ann. §¢22-3609 29

§§22-3610 _. on 29

Laws of Gov ernnent of New Castle, Kent ail Suffolk

Upon Delaware 1700-1749 — and Hall, eds.,

ME oslo G eo Pe IR rer ee ee 28

Laws of Government of Mow Castle, Ke nt ond Suffolk

Upon Delaware 1753-1762 (Adams, ed., 1763) (with

October 1763 Session to October 1774 Session

yma ee NS Pie 5 ON eae eh in .

N.H. Rev. Stat. §§502:18, 502A ‘ii, 502A: 12 . a ;

New meget Laws ce. 45, $$ 3, 4 (1828) .......... & ;

N.C. Gen. Stat. §§ 7A-177.1, 196, -271, -272, 15-290 . 29

Acts and Laws ; - Rhode Island 1663-1767, (1767) ©. 25 4

Pa. Code tit. 234, Rules 6001, 6006, 6010 ae F

Pa. R. Crim. Pro.: 51, 67 . ee ase > ae 29 :

3 Statutes at Large of Pennsylvania 229 . men 26 &

246 26

4 Statutes at Large of Pennsylvania 194 | . 26

2... 26

15 Statutes at Large of Pennsylvania 110 | et ee :

XII Laws of Vermont 1777-1780 (Soule, od. 1964) 25, 31 ;

XITI Laws of Vermont 1781-1784, 102 (Williams, ed., 7

1965) 2 | 25

Virginia—1 Hening’s Statutes at i Large e (182 23) 132 26

168-168 26

303 27 .

273 26

485 rey ,

2 Hening’s Statutes at Large 41 27 )

Va. Code Ann. §§ 16.1-123, -124, -125, -132, -136 29

Bi: PAROS FAG Xo

Vili Table of Contents

Page

Miscellaneous

Frankfurter and Corcoran, Petty Offenses and the

Constitutional Guarantee of Trial by Jury, 39 Harv.

L.Rev. 917 (1926) 29

17th Annual Report to the Justices of the Supreme

Judicial Court (19738) . 6, 31

In the

Supreme Court of the United States

Ocroser Term, 1974

No. 73-6739

STEVEN COSTARELLI,

APPELLANT,

COMMONWEALTH OF MASSACHUSETTS,

: APPELLEE,

ON APPEAL FROM THE MUNICIPAL COURT

OF THE CITY OF BOSTON

BRIEF FOR THE APPELLEE

\ I. Opinion Below

‘No opinion, findings of fact, or conclusiots of law were

reported by the Municipal Court of the City of Boston.

LL PEALE GE LEME ELTON aan

Ma tise

USED EL

II. Statement With Respect to Jurisdiction

The jurisdiction o1 this Court has been invoked pursuant

to 28 US.C. $1257(2). The appellant was convicted and

sentenced in the Boston Municipal Court on February 27,

1974. (App. 7a)? A notice of appeal to the United States

Supreme Court was filed in the lower court on May 16, 1974.

(App. 8a). The appellant’s jurisdictional statement was

filed in this Court on May 20, 1974, and this Court granted

the motion for leave to proceed in forma pauperis and post-

poned jurisdiction on October 21, 1974.

To the jurisdictional statement the Commonwealth of

Massachusetts filed a motion to dismiss pursuant to Rule

16(1)(a) of the Rules of this Court, and, in this portion

of the Brief for the Appellee, in accordance with Rule

16(6), the appellee addresses the question of jurisdiction,

suggesting by way of introduction, that this Court does not

have jurisdiction of the appeal pursuant to 28 U.S.C.

$1257 (2).?

The jurisdiction of this Court to review decisions of

state courts derives from $1257 which provides in pertinent

part that:

Final judgments or decrees rendered by the highest

court of a State in which a decision could be had, may

be reviewed by the Supreme Court as follows:

1“App. __” references are to the separate appendix filed pursuant

to Rules 26 and 36. The appendices in this Brief will be cited as

“Appendix A,” etc.

2 The appellee recognizes that this Court may treat the case as one

on petition for writ of certiorari in the event that it is determined

that the appeal was improvidently taken. 28 U.S.C. §2103. See

Anonymous v. Baker, 360 U.S. 287, 290 (1959). Notwithstanding,

the appellee suggests that the argunients contained in this Brief with

respect to “finality” and “highest court of a State” prerequisites to

jurisdiction are and would be substantially appropriate in opposition

to a grant of certiorari.

(1) **°

(2) By appeal, where is drawn in question the

validity of a statute of any state on the ground

of its being repugnant to the Constitution ... of

the United States, and the decision is in favor

of its validity.

(3) By writ of certiorari... where the validity

of a state statute is drawn in question on the

ground of its being repugnant to the Constitution

. of the United States, or where any title, right,

privilege or immunity is specially set up or

claimed under the Constitution ... of ... the

United States, 28 U.S.C. §12573

In this particular case it appears that the ‘‘judgment

or decree’? which is the basis of appeal is a conviction

and sentencing (or judgment of ‘‘guilty’’) in the Municipal

Court of the City of Boston.4 The appellee suggests that

this ‘*judgment’’ is an inadequate basis for jurisdiction

under §1257 because: (1) it is not a ‘‘final’’ judgment;

and, (2) it is not a judgment rendered by the highest

court of Massachusetts in which a decision could be had.5

3 See note 2, supra.

‘In Massachusetts practice it appears that the “judgment” in a

criminal case is the sentence. Commonwealth vy. Locke, 338 Mass.

682, 684 (1959), citing, inter alia, Birnbaum v. United States, 107

F.2d 885, 886-87 (4th Cir. 1939). This definition appears to be

consistent with this Court’s pronouncement in United States v. Hark,

320 U.S. 531 (1944).

5 The appellee further suggests that the judgment in this case is

inadequate to be the basis CetpeaPpner sub-section (2) of §1257

because the judgment does 7 raw in question the validity of a

“statute of any state.” Appellee suggests that the appeal may be

argued as drawing into question a right, privilege or immunity;

tye the Massachusetts »yrocedur idi ia oad

Sfatute as being in question, Rat ier, the appellapt

alleges that seven

Ma ANAT meee

SS SOTERA BRST Sty

re UR a een

Appellee further notes that upon application to this Ceurt

for review of the judgment of a state court, it is the

petitioner’s burden to affirmatively establish jurisdiction.

Gorman vy. Washington University, 316 U.S. 98 (1942).

A. The “Judgment” Lacks Prerequisite Finality.

This Court has stated that ‘‘no self-enforcing formula

defining when a judgment is ‘final’ can be devised.’’

Republican Gas Co. vy. Oklahoma, 334 U.S. 62, 67 (1948).

And, indeed, as early as 1869 the Court implicitly rejected

a simple mechanical formula with respect to finality, speak-

ing rather of ‘‘the degree of finality essential to the right

of appeal... .’’ Thompson v. Dean, 74 U.S. 342, 345-46.

(Emphasis added.)® However, despite the absence of

Massachusetts. statutes » constitutional ision “comprise

the framework of Massachusetts’ two-ticr tral de nove criming] pro-

cedure....” Brief for the Appellant, p. 9.

ere isfno_Massachusetts statute which prohibits a jury in the

ston Munvipal Court or, alternatively, directs that criminal _de-

Icular categories be tried without ae the J

nstance, Rather, the procedure is, it 1s argued, a

evelops because of the definition of jurisdiction of the@strict and

ragged courts In Massachusetts which happen_to_ be wit out piry,

Instance, Ihe wassachusetts procedure appears to be

more In the nature of€custom and usage (see 42 U.S.C. §1983)

and, as such, were the briefs and papers in this case to be treated

as a petition for writ of certiorari, the appellee would suggest that

\ the petition be denied because, among other reasons, the nature of

the right or immunity claimed by the appellant would be more fully

w! and appropriately developed in a proceeding based upon 42 U.S.C.

5 §1983 in a federal court.

6 No distinction is being made by the appellee in this brief with

respect to the different jurisdictional statutes which have been con-

sidered by this Court in the cited decisions in view of the following

statement by this Court:

The provision of §1257 that only “Final Judgments or Decrees

rendered by the highest court of a State in which a decision

could be had, may be reviewed by the Supreme Court...” has

always been carried in almost identical language since the

judiciary act of 1789, 1 Stat. 85, §25.

Building Union v. Leadbetter Co., 344 U.S. 178 (1952), modified,

Construction Laborers v. Curry, 371 U.S. 542, 552 (1963).

ee ee

absolutes, there appear to be certain principles germane

to this Court’s determination of whether a state judgment

is final for purposes of review under 41257:

SORE:

(1) The question of ‘‘finality’’ is one of purely

federal law. Gotthilf v. Sills, 375 U.S. 79 (1963);

(2) The designation given to the ‘‘judgment’’ by

state procedure is not controlling upon this Court.

Gospel Army v. Los Angeles, 331 U.S. 543 (1947);

Department of Banking v. Pink, 317 U.S. 264 (1942);

(3) The judgment must leave nothing more to be

decided. Richfield Oil Corp. v. State Board, 329 U.S.

FLT LE REE ONE LE ROME IRR ene I EEN NT

69 (1946); Clark v. Williard, 292 U.S. 112 (1934); ;

(4) The judgment must be an effective determi- é

nation of the litigation and subject to no furthe $

review or correction in any other state tr ichaS

field Oil Corp., supra; Market Street Railway Co. v. é

Railroad Commissioner of California, 32 U.S. 548

(1945) ;

(5) The issue of finality will be resolved not only

by examination of the entire record but, when neces-

sary by resort to local law to determine what effect

the judgment has under the state rules of practice.

Gospel Army, supra; Richfield Oil Corp., supra;

(6) This Court uniformly insists that further avail-

able »pellate review be pursued within the state

court system. Banks v. California, 395 U.S. 708 (1969) ;

and,

(7) History bears ample testimony that the Con-

gressionally-imposed limitations upon this Court’s

power of review is an important factor in securing

harmonious state-federal relations. Republican Nat-

ural Gas Co, v. Oklahoma, supra.

pees SRY

Upon examination of the judgment in this case, the

appellee suggests that it fails to satisfy the jurisdictional

requirement of finality in that: (a) the judgment is not

an ‘effective determination of the litigation’’; it cannot

be said that the judgment ‘‘leaves nothing more to be

decided’? and, (b) there are further possible avenues of

appellate review with respect to the judgment which have

not been pursued.

1. The Judgment Of The Boston Municipal Court Is

Not An Effective Determination Of The Litigation.

In Massachusetts there are four ‘‘levels’’ of criminal

procedure, or, more precisely, four courts which have

cognizance of criminal matters: the District Courts (Mass.

Gen. Laws ch. 218, §26),”7 the Superior Court (Mass. Gen.

Laws ch. 212, 66), the Massachusetts Appeals Court (Mass.

Gen. Laws ch. 211A), and the Supreme Judicial Court Mass.

Gen. Laws ch. 211, §5).2 A Massachusetts defendant who

is convicted of a crime before a district court has several

options.® He may, of course, accept his sentence or dispo-

sition as final and do nothing; he may appeal the finding

of guilty to the Superior Court, with or without jury.

7 There is considerable justification for treating the Massachusetts

District Courts and the Boston Municipal Court as different systems.

The Municipal Court of the City of Boston was established by statute

in 1821, and the Massachusetts District Courts were established by

statute in 1893. See, e.g., Seventeenth Annual Report to the Justices

of the Supreme Judicial Court, p. 4 (1973). However, for purposes

of this immediate discussion, it is suggested that they may be con-

sidered as equivalent courts. See Brief for the Appellant, p. 2;

Appendix A, n. 1.

8 An explanation of the jurisdictional bases for each of these Massa-

chusetts courts is included as Appendix A to this brief, infra.

9 It should be noted that the Commonwealth has no right of appeal

in any criminal matter in any court of the Commonwealth except for

a limited right to appeal in felony cases from decisions by the Superior

Court with respect to specific pre-trial matters. See Mass. Gen. Laws

ch. 278, §28E.

ees eee ee ee

Mass. Gen. Laws ch. 278, §18. Additionally, defendants

convicted of less serious crimes (including Mass. Gen. Laws

ch, 90, §24, the lower court conviction in the instant case),

PO a upon the court of conviction, have available

several options for jury trial within the district court

system.?°

Appellee’s research discloses that the appeal by a crimi-

nal defendant in Massachusetts who had first been convicted

in a municipal court without jury, was first designated

de novo in the ease of Sullivan vy. Adams, 69 Mass. 476

(1855) :

[W]e think that when an appeal is granted, it means

that there shall be a full trial in the court appealed to,

de novo, and thus the object of giving the appeal

will be accomplished. 69 Mass. at 478.

It was further explained that such an appeal ‘‘opens to

[the appellant] ... the whole case, as to the law, the facts

and the judgment.’’ Commonwealth v. O’Neil, 72 Mass.

343 (1856).1

More recently the Massachusetts Supreme Judicial Court

has stated its position with respect to the nature of the

de ovo trial:

It is reasonable to conclude that the Legislature in-

tended that, upon appeal [Mass. Gen. Laws ch. 278,

§18], the question of guilt, the sentencing power and

all related matters be transferred to the Superior

10 See Mass. Gen. Laws ch. 218, §27A and ch. 278, §18A which

are reprinted in Appendix B.

11]t should be noted that the “ajjseal® "provision: ‘Considered by “the

Supreme Judicial Court in Commonwealth v. O'Neil, was “Rey. Sts.

c. 85, §28, and c. 138, -§1,” a predecessor, of identical substance,

it is suggested, to Mass. Gen. Laws, ch. 278, §18.

;

€

Court for determination completely divorced from the

record of the prior trial. Jann v. Commonwealth,

| 359 Mass. 661, 664 (1971). [Italics added. ]

‘And, appellee suggests that chis available and elected

redetermination of the question of guilt, sentencing aad

all related matters of appellant’s district court trial contra-

indicates that the district court ‘‘judgment’’ be constaped

as an effective determination of the litigation, The judg-

ment in appellant’s district court case was, and is, subject

to furthef¢ review Jn a state tribunal, as it is subject. to

an availabl€ redetermination.

2. Further Appellate Review Is Available Within The

Massachusetts Court System.

The appellant had available to him a traditional avenue

of obtaining appellate review of the action of the district

e@urt in denying the motion for jury trial. This constitu-

tional issue could have been raised in the Massachusetts

Superior Court by motion to dismiss the complaint prior

y to trial.’ If such a motion were made, and subsequently

denied, and if the appellant were then found guttty>he

would have had available to him an opportunity for appel-

late review of the ruling on this motion as a matter of right

—_

oS.

by saving and perfecting exceptions thereto and pba ing

with the same to the Massachusetts Appeals Court, and,

pgssibly to the Supreme Judicial Court. See Whitmarsh v.

prmonwealth, 1974 Mass. Adv. Sh. 1403, 316 N..2d 610

nn. 1, 3.

Admittedly, the availability 0? this ordinary review under

the method of exceptions and ¢ppeal would be viable only

in the event that the appellant were not acquitted, and

12 “The foundation of the jurisdiction of the Superior Court in a

criminal case coming before it on appeal is the complaint made in

the District Court.” Commonwealth v. Duggan, 257 Mass. 465, 69

(1926).

that his properly presented motion to dismiss the complaint

had been denied at the superior court level. However, the

Commonwealth suggests that an appellant to this Court

under 28 U.S.C. §1257(2) must avail himself of the appel-

late remedies that exist at the state level for consideration

. . rs ——— . eae

of the constitutional issues that are presented to this Court

The ellee

recognizes that this Court’s decision in

318 U.S. 418 (1943), appears to be

Ontrary to the position argued by appellee.

In Laraent it is reasonable to conclude that a rule was

y court’s judgment would be

OMe tal tor purposes of (1257 review if the

state’s_ procedure provided no method of reviewing the

defenc s icti "eC in_the lower

wealth, supra, appears to indicate that the superior court?

Sees

procedure will pot constitute 2 Sie iL the districtscourt

: -_—-_-----—

re completely dixaroud from the recordpf the

prig *? 359 Mass. at 664.

CHowever2 llee suggests that a 4

0 uae of Largent would ignore the substantive

nature of the Massachusetts procedyre and the substantive

fact to whic re see dispute: the li litigation 1 in the

distric as aie cJection of the appellant in

this case, been effectiyely eK. the rec ord

B. The Judgment Herein Appealed Is Not A Judgment

Rendered By The Highest Court Of Massachusetts

In Which A Decision Could Be Had.

It is clear from the decisions of this Court that a judg-

ment need not be from a state’s highest court (by whatever

And, appellee recognizes that the statement of the ane

Massachusetts Supreme Judicial Court in Jann v. Coymon- 1 wh

ya eh

name under local practice) in order to be appealable under

28 U.S.C. §1257(2). See Powell v. Texas, 392 U.S. 516

(1968); Grovey v. Townsend, 295 U.S. 45 (1935). The test

seems not to be one of the vantioaler description or desig-

nation which may be applied to the tribunal by state

statute, but rather, whether the possibilities afforded by

state procedure for review by all state tribunals have been

exhausted:

*“ * *&

ence, it is tKe last }tate tribunal—* * *—to which the

cause could be brought for review which is the ‘highest

court of a state im which a decision could be had’

within the meaning of the jurisdictional statute. ...

Gorman v. Washington University, 316 U.S. at 100-01.

The appellee suggests that the ‘‘decisions’’ of the Boston

Municipal Court in this case are two

(1) the adjudication of the appellant’s guilt; and,

(2) the denial of the appellant’s motion for a jury

trial.

And, the appellee iat each of these decisions is

susceptible o€ further reyjeywognd revision under Massa-

chusetts statutes and practice. The adjudication guilt

can be re-litigated in the Superior Court before a jury of

twelve, or re-litigated in the Boston Municipal Court before

a_jury of twelve. Re-litigation is also available in ¢ either

of these courts, without a jury. The defendant _may, ay, if

convicted in either of these courts, then take an anda,

as of right, fo the Massachusetts Appeals Court and, or

alternatively, apply for further or substituted_hearings

before the Massachusetts Supreme Judicial Court. See

discussion mfra, Appendix A.

As to the question of the propriety of the Bos nici-]

pal Court’s ruling upon the motion for jury tria e

qucstion may be raised, as of right, in the Superior Court

(see Appendix A; Whitmarsh v. Commonwealth, supra)

and again, as of right in eitherthe Appeals Court or the |

Supreme SadieielCourt,

fin brief, the two decisions made by the Boston Municipz

Street Railway Co. v. Railroad Commission of Califoraia,

324 U.S. at 551. The decision as to the appellant’s guilt T=)

is subject to redetermination ; the ¢ he decision u n

for jury tral is subject to rex iax-correction and modifica

fe decision of the Bosto

Municipal Court did not oa of the charge and is, ir

this respect, distinguishable from LargentVrTerds, spre: it

III. Constitutional and Statutory Citations Tl yo

The constitutional provisions and statutes involved in

this case are the following:

Fourteenth Amendment of the United States Consti-

tution, Section I;

Article XII, Constitution of Massachusetts:

Title 28, United States Code, Section 1257:

Massachusetts General Laws, Chapter 218, Section

27A;

Massachusetts General Laws, Chapter 278, Section

18; and,

Massachusetts General Laws, Chapter 278, Section

18A.

Kach is set forth in Appendix B, infra.

Bana pes

IV. Question Presented

Whether or not the Massachusetts criminal jury pro-

cedure adequately complies with the Fourteenth Amend-

ment requirement that au accused be afforded the right

to trial by jury in state criminal proceedings.

V. Statement of the Case

Appellant Steven Costarelli was complained against in

the Municipal Court for the City of Boston on January

23, 1974, for violation of Mass. Gen. Laws, Ch. 90, §24,

commonly referred to as ‘‘unauthorized use of automobile”’.

(App. 6A). On that date, the appellant, then defendant,

pleaded not guilty and the trial of the case was scheduled

for February 6, 1974. On February 6, 1974, prior to trial,

the appellant filed a ‘‘Motion for Jury Trial,’’ and the

ease was, on that date, continued for trial until February

27, 1974. (App. 6A). On Kebruary 27, 1974, the case was

called for trial, the motion for jury trial was denied, the

appellant was found guilty, and the appellant was sen-

tenced to a house of correction for a term of one year.

(App. 6A-7.A). On that date and ai that time the defendant

‘‘appealed’’ the finding of guilty, although the record does

not disclose whether the appeal was taken pursuant to

Mass. Gen. Laws, Ch. 278, §18, or Mass. Gen. Laws, Ch. 278,

S18A. (See Appendix B.) The record before this Court

is devoid of any indication ef the further disposition of

the case.

VI. Summary of Argument

1. The right of jury trial in criminal cases is a funda-

mental right, guaranteed to defendants in state courts by

virtue of the Fourteenth Amendment. Duncan v, Louisiana,

391 U.S. 145 (1968). However, Duncan did not make the

rule of Callan v. Wilson, 127 U.S. 540 (1888), applicable

to the states; that is, first-instance-every-instance jury

trial is not mandatory in all state criminal proceedings.

Duncan enunciated a right, without definitively establish-

ing the mode in which the right is to be afforded state

defendants, and the Massachusetts mode of criminal jury

trial procedure comphes with the Duncan requirement

because if is a basic and fundamental mode; that is, a

mode which has_ its roots clearly within the Anglo-

American regime of ordered liberty in a constitutional:

historical sense. The Massachusetts mode is clearly basi

and fundamental because iffantedated, and remained viable yo

during, the colonial-constitutional period, ) Additionally,

several states, including New Hampshire, Vermont, Con-

necticut, Rhode Island and Maine (as a District) em-

ployed a similar trial de novo procedure during the same

period as a means of furnishing jury trial to defendants

within their jurisdictions. Finally, the Massachusetts pro-

cedure is comparable to contemporary developing jury

procedures in several states, and this Court has considered

contemporary state practice as a principle of Fourteenth

Anendment application. :

2. This Court in the eases of Duncan vy. Louisiana, R

supra, Wiliams vy. Florida, 399 U.S. 78 (1970), and

Apodaca v. Oregon, 406 U.S. 404 (1972), analyzed certain

traditional aspects of the jury-trial right with respect to

the function and purpose of a jury in American juris-

prudence, Appellee suggests that the primary purpose of

the jury is to prevent governmental oppression by the

interpostttorr-or-the-eonmnon sense judgment of laypersons

between an accused and his accuser, and by effecting

community participation in the process of adjudication

of guilt or innocence of an accused. Appellee further sug-

gests that an accused in Massachusetts has an absolute

right to a jury, regardless of the ‘‘petty nature’? of his

fense, and that thegfe novo procedure, though possibly

inconvenient t» some, tS beneficial to the large majority

of defendants and confraindicates a suggestion of govern-

mental oppression. The Massachusetts jury procedure ful-

fills the purpose gpd function—ef—esainal jury trial in

America,

3. The right to a speedy trial, a fundamental right,

is not an appropriate issne in this ease. If this Court

determines that the concept of ‘‘jury’’ embraces _first-

instance-every-instance jury trial, then a consideration of

the appellant’s speedy-trial claim becomes unnecessary.

Alternatively, should this Court agree that the Massa-

chusetts criminal jury procedure complies with the Dun-

can requirement, the record in thts ease fails to disclose

any Measurable period of time which can be assessed

against the eriteria of Barker v. Wingo, 407_ US, _514

1973). Fimally, the appellant has conceded that the ‘‘de-

lay’? in this case is ‘‘short’’. The @ppellant was not de-

prived a speedy jury trial. eae aoe

. The appeTlant’s alternative contention with respect

to the Double Jeopardy Clause is controlled by this Court’s

decisions in North Carolina v. Pearce, 395 U.S. 711 (1969),

and Colten v. Kentucky, 407 U.S. 104 (1972). In Massa-

ehusetts, as was the case in Kentucky, a defendant in a

criminal trial ‘‘appeals”’

tier system To Teceive a trial in the criminal courts, of

general Jurisdiction where the full range of constitutional

guarantees is available.”* Colten v. Kentucky, 406 U.S. at

114. In Massachusetts, as was the ease in Kentucky, the

to the seeond level of the two-

right to the seeond tier is absolute, and, at the defendant’s

behest, the lower court proceedings are ‘‘wiped out’’ en-

irely.€On_the_basis_of this Court's previous decisions,

Massachusetis suggests that_its de_novo trial procedure

‘iolate the Double Jeopardy Clause,7

VII. Argument

THE MASSACHUSETTS CRIMINAL JURY PRO-

CEDURE ADEQUATELY COMPLIES WITH THE

FOURTEENTH AMENDMENT REQUIREMENT

THAT AN ACCUSED BE AFFORDED THE RIGHT

TO TRIAL BY JURY IN STATE CRIMINAL PRO-

CEEDINGS.

I. Tue Massacuvsetis Procepvre Provives Jury Triau

ix a **Bastc anp FunpamMenrTaAL’’ Mope,

In Duncan v. Louisiana, 391 U.S. 145 (1968), this Court,

in examining a state’s procedure which dispensed entirely

with a jury trial in serious criminal cases,® stated the fol-

lowing:

*** Because we believe that a trial by jury in criminal

cases is fundamental to the American scheme of jus-

tice, we hold that the Fourteenth Amendment guar-

antees a right of jury trial in all criminal cases

which — were they to be tried in a federal co:.rt —

would come within the Sixth Amendme.t’s guarantee.

[Footnote omitted.}] 391 U.S. at 149.

The Commonwealth of Massachusetts suggests, at the

outset, that@Duncan did not_establish a requirement that

. bag . . ss

state jury procedures conform to all previous decisions

of this Court interpreting the right to jury trial guaranteed

to defendants in criminal cases in federal courtsSby Ar-

13 “None of these cases LVMaxwell v. Dow, 176 U.S. 581 (1900);

Palko v. Connecticut, 302 U.S. 319 (1937); and Snyder v. Massa-

chusetts, 291 U.S. 97 (1934) ], however, dealt with a State which

had purported to dispense entirely with a jury trial in serious criminal

cases.” 391 U.S. at 154-55. [Italics added.]

2 aE 0"

Berens EEO IROL REE IONE ALD LOOT OE ae ces aan ey a

ticle II] of the United States Constitution and by the

Sixth Amendment.4 This argument is written upon that

understanding and assumption, with the proviso tha

this Court is to hold that Duncan requires the states to

conform to the cases that determine federal jury-igial

right, then the doctrine of Callan y. Wilson, 127 U.S. 540

(TS88y~ should be re-assessed, or, alternatively, made ex-

plicit. In Drief, appellee argues, on the basis of its under-

without defining

Ee .

standing, that@Duncan secured a_right

‘ the mode in whiel

preci

14 The appellee recognizes that its position is not free from contrary

interpretation and suggests that the Massachusetts Supreme Judicial

Court has reviewed the alternatives and that the same are contained

in succinct and fair summary in the case of Whitmarsh vy. Common-

wealth, supra, at 1412-16. \We concur with the views of Mr. Justice

Powell as expressed in his concurrin igj

Pe an odaca Vv. Oregon,)406 U.S. 356, 369-77 (1972), wherein

4 But it is the Fourteenth Amendment, rather than the Sixth,

that imposes upon the States the requirement that they provide

jury trials to those accused of serious crimes. This Court has

said, in cases decided when the intendment of that Amendment

was not as clouded by the passage of time, that due process

does not require that the States apply the federal jury-trial right

with all its gloss.

15 * * * It seems very unlikely to us that our decision today

will require widespread changes in state criminal processes.

First, our decisions interpreting the Sixth Amendment are

always subject to reconsideration, a fact amply demonstrated by

a, instant decision.* * * 391 U.S. at L§8-59, n. 30.

1 Jones v. Robbins, 8 Gray 329 in which the principle

question involved was whether a person could be sentenced to state

prison without a grand jury indictment, the Supreme Judicial Court

said:

ee © *

The last clause, which seems to have been added for greater

caution, prohibiting the legislature from making any law which

shall subject any person to a “capital” or “infamous punishment,”

excepting for the government of the army and navy, without

trial by jury, is somewhat more explicit than the preceding

clause, “judgment by his peers,” and may be equivalent to the

clause in the sixth article of amendment of the Constitution

of the United States, declaring that, “in all crimina! prosecu-

tions, the accused shall ewjoy the right to a speedy and public

OF ae Oe eS eet

Appellee suggests that the conclusion of Duncan seems

to derive from an examination and application of criteria

which had previously served as the basis for this Court’s

determination that various rights extended by the Fifth

and Sixth Amendments with respect to federal criminal

proceedings were also to be protected against state action

by the Fourteenth Amendment. 391 U.S, 147-49. Specifie-

ally, the Court re-visited earlier ‘‘Fourteenth Amend-

ment’’ decisions, aud said:

*** The question hay been phrased in a variety of

ways in the opinions of this Court. The question has

been asked whether a righ is among those ** ‘funda- {

mental principles of liberty and ju: tice which lie at

the base of all our civil and political institutions,’ ’’

trial, by an impartial jury.” We believe it has been so practi-

cally understood; and where, by the terms of any law, a justice

of the peace or police court has been authorized to hear and

pass sentence, it has always been accompanied by a sight of

appeal. And we believe it has been generally understood and

practised here and in Maine, and perhaps in other states having

a_simila ovision, that as the object oi the clause is to secure

a benefit to the accused, which he may avail himself of or watve,.

at his own election; and as the purpose of the provision is to

DASE HTS PE RREL,

authorizes a single magistrate to try and pass sentence, provi ed

the act contains a provision that the party shall have an

unqualined and unietlere al, and a trial by jury

in , subject only to the common liability to

give bail, or to be committed to jail, to ensure his appearance

and to abide the judgment of the court appe: 0 is is

a necessary inconvenience, as is also the delay

till the sitting of such cou cy € same and no gréate

5 ye In case the magistrate, instea passin

sentence, should, on examination, bind the accused over, or

as the necessary alternative, commit him to jail. Such” seem

to have been the construction of a similar provision in oth

states. Emerick v. Harris, 1 Binn. 416. Murphy v. People,

2 Cow. 815. Jackson v. Wood, 2 Conn. 819. Beers v. Beers, >

4 Conn. 535. Sullivan vy. Adams, 5 Gray 477. It appears to us, f

therefore, that such a provision is not void, as a violation of

that clause, which, in criminal cases, secures to the accused a

right of trial by jury. Jd. at 341-42.

SLEDS AR PER ANE ERIN

perverse: Por

Powell vy. Alabama, 287 U.S. 45, 67 (1932),'7 whether

it is ‘‘¥asic in our system of jurisprudence,’’ In re

Oliver, 333 U.S, 257, 273 (1948); and whether it is

‘‘a fundamental right, essential to a fair trial,’’

Gideon v. Wainwright, 372 U.S. 335, 343-344 (1963) ;

Malloy vy. Hogan, 378 U.S. 1, 6 (1964); Pointer v.

Texas, 380 U.S. 400, 403 (1965).* * *

391 U.S. at 148-49.

The Court noted that recent cases had varied from the

‘‘essence of a scheme of ordered liberty’? test (Palko v.

Connecticut, 302 U.S. 319, 325 (1937)), and

. .. proceeded upon the valid assumption that state

criminal processes are not imaginary and theoretical

schemes but actual systems bearing virtually every

characteristic of the common-law system that has

been developing contemporaneously in Fingland and

this country (fhe question thus is whether given

this kind of syst@éM™ a particular procedure is funda-

mental — whether, that is, a_procedure is necessary

to an Anglo-American regime of ordered liberty? * =

391 U.S. 149-50 n. 14, and further,

*** Of each of these determinations [**] that a con-

stitutional provision originally written to bind the

Federal Government should bind the States as well

it might be said that the limitation in question is not

17 Quoting from Herbert v. Louisiana, 272 U.S. 312, 316 (1926).

18 The Court referenced to the following cases: Mapp v. Ohio, 367

U.S. 643 (1961); Griffin v. California, 380 U.S. 609 (1965);

Robinson v. California, 370 U.S. 660 (1962); Gideon v. Wainwright,

372 U.S. 335 (1963) Klopfer v. North Carolina, 386 U.S. 213

(1967); In re Oliver, 333 U.S. 257 (1948); Pointer v. Texas, 380

U.S. 400 (1965); and, Washington v. Texas, 388 U.S. 14 (1967).

19 Cases in footnote 18, supra.

necessarily fundamental to fairness in every criminal

system that might be imagined but is fundamental

in the context of the criminal processes eet |

by the American States. lbid.

Appellee suggests that the Court then, in Duncan, based

upon this initial definition of ‘‘fundamental’’, further re-

fined the ‘‘Fourteenth Amendment” application criteria

in terms of (1) historical analysis of jury trial in criminal

eases and, (2) contemporary practices among the states.?°

Appellee now argues and suggests to this Court that the

criteria of Fourteenth Amendment application may be

equally relevant for Fourteenth Amendment justification,

and that the€Massachusetts jury procedure is, itself, 2)

basic and fundamental procedure which has its roots

clearly within the Anglo-American regime of ordered

liberty in a constitutional-historical sense, as well asin

the light of contemporary developing jury procedures of of | ~—

several American States, In_brief, if the Fourteenth

Amendment requires that_a limitation be imposed, or a

procedure be secured, upon these criteria Massachusetts

ER Sang BO TN, Ce

suggests that

adequate by ia s ‘riteria, providi a_basie _and

fundamenta right in_a basic and fundamental mode

A. The Colonial-Constitutional Experience

SE ET IONE M TREN

The Massachusetts practice of affording criminal defen-

dants a jury trial after preliminary adjudication by a

judge (or magistrate) acting alone was first codified in

20 The Court reviewed the history of trial by jury in criminal cases

by reference to historical treatises and legislative history of the

debates and amendments surrounding various federal provisions, and

indicated, as well, that the constitutions adopted by the original

states were examined. 391 U.S. at 151-53. The Court also referenced

contemporary state law with respect to the right to jury trial in

serious criminal cases. 391 U.S. at 154. i

—

1647/7 when the General Court enacted a provision afford-

ing all persons the ‘‘libertye’’ of gn:

Appeal from the scntence of one magistrate .. ._and

a “ ; —_——

if the point of appeal be in matter of law then to be

determined by the bench; if in matter of fact by_the

bench and jury.

Tue Book or tHe GENERAL LAws AND Lipertyes ConcERN-

ING THE INHABITANTS OF MassacnusEeTTs, PUBLISHED IN

CAMBRIDGE ACCORDING TO AN OrDER OF THE GENERAL Court 2

(1660) . Our research of legislation enacted since 1647 dis-

loses that this provision has never been repealed and that

the trie! de novo procedure, with some modification, has

continued tr tise from that date to the present.” See

Whitmarsh v. Commonwealth, 1974 Mass. Ady. Sh. ai 1411;

Jones v. Robbins, 8 Gray 329, 341 (1857). The right of

‘‘appeal’’ was clearly not an unfettered one in colonial

pratice and has been the subject of critical commentary.

Frankfurter and Corcoran, Petty Federal Offenses and the

Constitutional tiuarantece of Trial by Jury, 39 Harv. L.

Rev. 917, 938-44 (1926) .??

21Ch. 51 §3 [1783] Mass. Stat.; Ch. 70 § 1 [1831] Mass. Stat.;

Ch. 85 §28, Ch. 87 §36, Ch. 138 §1 [1836] Rev. Mass. Stat.;

Ch. 166 §2 [1845] Mass. Stat.; Ch. 31 [1849] Mass. Stat.; Ch. 116

§32 and Ch. 173 §§1, 4 [1860] Mass. Gen. Stat.; Ch. 154 §39

and Ch. 155 §§58, 61 [1882] Mass. Pub. Stat.; Ch. 396 §47

[1893] Mass. Stat.; Ch. 431 [1894] Mass. Stat.; Ch. 490 §3 [1897]

Mass. Stat.; Ch. 219 §22 [1902] Mass. Rev. Laws; Ch. 319 [1905]

Mass. Stat.; Ch. 652 [1913] Mass. Stat.; and Ch. 216 §4 [1929]

Mass. Stat.

22 However, we suggest that the authors’ research does not seem

to include the historical fact that many of the impediments to an

actual exercise of the jury-trial right had been eliminated during the

colonial period and prior to the framing of the Massachusetts and

Federal Constitutions. See, e.g., Ch. 4, Acts and Resolves of 1724-25

(permitting amendment to the appeal so as to preclude dismissal on

technical grounds); Ch. 15, Acts and Resolves of 1741-42 (elimi-

nating requirement that a writing containing the reasons of appeal

The exact parameters of the procedure ia early practice

as regards magistrates’ subject-matter jurisdiction and

limitations upon the punishments that might be imposed

are elusive and, in some respects, difficult to establish

categorically in modern terms due to the fragmented ap-

proach of early legislators in codifying the criminal law

and incommensurabilities arising from social, economic,

and technological change. However, after a review of th

legislation of the colonial and constitutional periods, it

appears fair to state that, at least with respect to the

core offenses against the public order and peace, against

property, and against persons, the matters entrusted to

the trial de novo procedure then, and those entrusted to

the procedure now, are quite comparable. For example

during the colonial and constitutional experience, justices

of the peace, sitting outside the General Sessions of The

Peace, were authorized to proceed to a preliminary ad-

judication in cases where the offense was: participation

in a riotous or tumultuous assembly where a_ building

was torn down;” a liquor law violation; an assault and

battery not of a ‘‘high and aggravated nature’’;” receiving

be filed or produced). The latter provision reduced costs based upon

the number of pages filed. See Ch. 23, Acts and Resolves of 1775-

1776. Also, appellee has calculated that forty of the fifty-nine

shillings were for jurors fees and that these fees need not have

been advanced, nor would have been assessable against the defendant,

in the event of an acquittal. In general, see preambles to these

ameliorative acts for reflection of a legislative concern that the appeal

right be unfettered.

23Ch. 17, Acts and Resolves of 1750-51 (maximum punishment:

whipping, one year imprisonment in the county house of corrections

at hard labor, and another public whipping every three months during

the term of imprisonment); Ch. 26, Laws and Resolves of 1794

(re-enactment with some modification). See Commonwealth vy.

Twombly, Boston Municipal Court 1830, reported in Thatcher’s

Criminal Cases 225 (1845) (Thatcher, J., reviewing common-law

and legislative history of the offense.)

24Ch. 6, Acts and Resolves of 1742-43 (maximum fine: twenty

pounds sterling).

*5 Ch. 51, Laws and Resolves of 1783.

oe re, et ee SP oe ee ee ee ee ee ae

‘

22,

stolen government property ;76 or, a petty larceny or

offense of similar degree,27

Today, the district and municipal courts of Massachu-

setts, the successor courts to the General Sessions of the

Peace, continue to have jurisdiction over these offenses

which still are among those that mark the jurisdictional

limits of the authority of these courts. See Mass. Gen.

Laws, Ch, 218, 626; Ch. 267, $7; Ch. 265, §13A; Ch. 266,

66 30, 60.

The New Hampshire two-tier jury proceduze has been

traced by that state’s Supreme Court to a(1646 fiw of

the Massachusetts Colony, State v. Jackson, 69-N.W. 511

(1898), although it is clear that the New Hampshire

practice enjoys a history separate and apart from the

Massachusetts law:

*** In 1679, immediately after Charles IT discon-

tinued the jurisdiction of Massachusetts in the New

Hampshire territory, the general assembly of the

Province of New Hampshire enacted, ‘*That Any one

of the Council [that is, the council provided for by

the King’s Commission to President Cutt] may hear

76 Ch. 36, Acts and Resolves of 1776-77 (maximum fine: three-

times value of property stolen).

27 THe Book or tHe Generar Laws aNp LIBERTYEs OF THE

INHABITANTS OF MASSACHUSETTS, supra, at 7 (maximum punishment

in 1660: whipping and fine of up to forty shillings; but, by the end

of the constitutional period the maximum fine had been increased to

twelve hundred eighty shillings. Ch. 37, Acts and Resolves of

1779-30).

Our research has disclosed that long-term imprisonment was

rarely imposed in colonial Massachusetts. The one exception appears

to be the three-year term authorized for mailing a threatening letter

to extort. Ch. 7, Acts and Resolves 1749-1750. Otherwise, excepting

for the imposition of heavier fines, the penalty of next severity (out-

side of the jurisdiction of a justice of the peace) appears to have

been the death penalty. See, e.g., Ch. 2, Acts and Resolves of 1721-

1722 (death penalty for second offense of trading with the Indians);

and, Ch. 18, Acts and Resolves 1736-37 (death penalty for third

offense of theft).

& determine such smaller Thefts & pilferings, as ex-

ceed not the damage or fine of fforty shillings; or

penalty of Stocking or Whipping, not exceeding Ten

stripes; or only legal admonition, as he shal see

cause; Saving liberty of Appeal to the Delinquent.”

1 Laws, ed. of Batchellor, editor and compiler of

Early Province and State Papers, p. 17, s. 7. By an-

other enactment this jurisdiction was extended to all

criminal cases in which the punishment did not exceed

that above mentioned. [b., p. 22, s. 24.

69 N.H. at 514.

Several decisions of the New Hampshire Court seem to

best describe the office of the justice of the peace in New

Hampshire, the criminal jurisdiction of the justices at

the time of the formation of the New Hampshire Con-

stitution in 1784, and the modification of the jurisdiction

of the justices during the period following the revolution.

See, Opinion of the Justices, 41 NAT. 550 (1860); State

v. Ray, 68 N.IL. 406 (1885); State v. Griffin, 66 N.T. 326

(1890); State v. Gerry, 68 NW. 495 (1896); State v.

Jackson, supra; Wilmarth v. King, 74 N.H. 512 (1908);

State v. Ring, 106 N.H. 509 (1965); State v. Despres, 107

N.H. 297 (1966). And, although the cases have concerned,

in large measure, the scope of jurisdictional authority

which may be delegated to the municipal or district court

in view of Article V of the Bill of Rights of the New

Hampshire Constitution,”® it seems fair to say that the

New Hampshire Court has never questioned the historical

precedent of two-tier criminal adjudication, ‘‘provided the

—_ eee

28 The provision of the constitution relied upon is as follows:

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.

N.H. Const., Bill of Rights, art. 15.

right to trial by jury, such as the Constitution intends, is

| a to everyone in the last resort... Opinion of

the Justices, 41 N.UL. at 552, and ‘‘final yuadgment cannot

be enforced for the commission of any police offense,

however trivial, until the appellant has been convicted by

a jury of his peers.’* State v. Ray, 63 N.H. at 407.

Tn and prior to 1784, a New Hampshire justice of the

peace had general authority to try and determine those

criminal offenses that were punishable by a fine not ex-

ceeding forty shillings, by whipping or sitting in the

stocks. Wilmarth v. Ning, 74 N.H. at 515. However,

specific statutes authorizing the punishment of six months

imprisonment by a justice of the peace are to be found,

even antedating the constitution. New Hampshire Laws,

63, 64, 65 (1780). See Wilmarth v. King, supra. See also,

New Hampshire Laws, Ch. 45, 6S 3, 4 (1828). Finally, the

appellee suggests that the nature of the following of-

fenses within the jurisdiction of the justices of the peace

should be noted (these examples all being laws of 1771

cited in State v. Jackson, 69 N.W1. at 516-17): drunkenness ;

stealing (where the damage did not exeeed furty shillings) ;

‘‘affrayers, rioters, disturbers or breakers of the

peace. . .’’; striking or smiting another; and, ‘‘assaulting

a woman in the fields, streets or lanes... .’’”®

Decisions of the Supreme Court Vormomtyyind some

available portions of early Vermont TegtsTafion, establish

[ that two-tier criminal jury procedures were apart of the

constitutional experience in Vermont.

opted in

ipowered

The first constitution of Vermont

1777. The act of the legislature of

the justices of the peace to try certain pleas and ac-

tions of a criminal nature, and limited their juris-

29 The fines and penalties for these offenses are contained in the

opinion of the court at 69 N.H. 516-17.

diction. It also provided that every person ... ag-

grieved by the sentence of a justice in a criminal

action, might, on giving security, remove the cause

by certiorari, to the supreme court (where there was

then a trial by jury.) [sic] there to be tried on the

merits. The act of 1789 allowed an appeal from the

judgment and sentence of a justice to the county court

in all criminal causes.

State v. Peterson, 41 Vt. 504, 520-21 (1869). The ‘‘county

court’? was a jury court. See ‘‘An Act Regulating Juries

and Jurors, 22 Feb. 1779’, reprinted in XII Laws of

Vermont 1777-1780, at 117 (Soule, ed. 1964). See also

Lincoln v. Smith, 27 Vt. 328 (1855); Act of June 21, 1782,

reprinted in XIII Laws of Vermont 1781-1784, at 102-03

(Williams, ed. 1965).

Our research discloses that the states of§$Connecticut

and)Rhode TsTand {anc iePistrict of Maine similarly

employed a trial de novo procedure for furnishing, during

the colonial period, jury frial to criminal defendants who

were tried first before a magistrate or justice of_ the

peace without a jury. In Connecticut that procedure seems

{0 date trom at least 1702. See Goddard y. State, 12 Com

448, 454 (1838); Colonial Records of Connecticut 1689-1706,

at 545. In Rhode Island our earliest reference is 1718. Acts

and Laws of Rhode Island, 1663-1767, at 36, 44 (1767).°°

30 Again, the appellee requests that the Court note the nature of

the offenses for which the trial de novo procedure was provided

in jurisdictions where the defendant was given a general right to

a trial by jury subsequent to a preliminary adjudication by a magis-

trate or magistrates. For further example, in the colonial practice

of Rhode Island, a preliminary summary adjudication was provided

for in cases of a theft not exceeding ten pounds sterling (for which

the defendant might be punished by “whipping, fining, and banishing”

just as if the conviction had been by a jury verdict at the General

Sessions of the Peace), assault and battery, and firing a gun or

throwing fireworks into a crowd. Acts and Laws of Rhode Island

1663-1767, at 41, 64, 120 (1767).

POTTED

Brea hoe

And, in the District of Maine, 1783, See State v. Sklar,

Me, 517 A.2d 160, 170 (1974); Johnson’s Case, 1 Me, 230

(1821). There_is also evidence that a trial de novo pro-

cedure for providing a jury trial was employed in some

form in Pennsylvania, Virginia and Delaware during the

colonial and constitutional periods?

31.Qur research of Peu.sylvania legislation of the colonial and

constitutional periods does not disclose a uniform jury practice in the

ease of ali criminal offenses. There was, however, provision for a

general right to appeal to the Quarter Sessions for a jury trial in

quasi-civil proceedings. Act of February 21, 1736, reprinted at

4 Statutes at Large of Pennsylvania 291 (limiting the jurisdiction

of justices of the peace at five pounds sterling, with a right of appeal

to a jury in cases involving over forty shillings).

In addition, a trial de novo procedure for furnishing a jury trial

was, with fair consistency, provided for criminal offenses of inter-

mediate seriousness. See e.g., Act of August 21, 1719, reprinted

at 3 Statutes at Large of Pennsylvania 229, 233-34; Act of. February

24, 1721, reprinted at 3 Statutes at Large of Pennsylvania 246

(petty larceny punishable by twenty shilling fine, whipping and

imprisonment); Act of August 15, 1730, reprinted at 4 Statutes at

Large of Pennsylvania 194 (blocking a river); Act of October 4, 1788,

reprinted at 13 Statutes at Large of Pennsylvania 160 (commercial

fishing law violations punishable by a five pound fine or two months

imprisonment); Act of April 22, 1794, reprinted at 15 Statutes at

Large of Pennsylvania 110, 115-16 (keeping a gambling establish-

ment punishable by a fine of twenty-six dollars).

The use of the trial de novo procedure for furnishing a jury trial

where it is constituticually required in quasi-civil actions has been

considered and affirmed by the Pennsylvania Supreme Court. Emerick

v. Harris, 1 Binney 416 (1808).

The cornerstone of Virginia’s criminal justice system was the

monthly court which was formed in 1623 with the appointment_of

eight designated commissioners, of whom three were to be a quorum.

Act of March 20, 1629, reprinted at 1 Hening’s Statutes at Large 132

(1823); Act of March 1, 1631, reprinted at 1 Hening’s Statutes at

Large 168-169 (increasing jurisdiction to causes involving up to

five pounds sterling excepting those involving life or limb). In 1642

the monthly courts became county courts and a single commissioner

was given cognizance of causes involving twenty shillings or two-

hundreds pounds of tobacco or less. Act of June, 1642, reprinted at

1 Hening’s Statutes at Large 273. Also, in 1642, all persons were~

given what appears to have been an unqualified right to a jury trial.

Ibid.

in 1645 the Virginia “county courts” were given jurisdiction of

all cases and ordered to make jury trials available. Act of November

In partial summary, although there may have been no

strict consensus among the colonies as to the maodewin

which the right to jury trial was to be afforded, the trial

de novo mode for offenses_of intermediate seriousness

was a very substantial part of the colonial experience

and was, appellee suggests, clearly within the under-

20, 1645, reprinted at 1 Hening’s Statutes at Large 303. It is not

clear how the last three acts were reconciled in practice. Possibly,

a trial de novo procedure had already been implemented. In any

event, a trial de novo procedure for furnishing a jury trial was

formally implemented in 1658. Act of March 13, 1658, reprinted

at 1 Hening’s Statutes at Large 435. Appellee notes that the subject

matter jurisdiction of one and two commissioners at a preliminary

adjudication was increased to three hundred fifty and one thousand

pounds of tobacco respectively with the implementation of these pro-

cedures. We must further note that the Virginia legislation during

this period did not distinguish between criminal and civil actions

procedurally, all penal laws being enforced through qui tam proceed-

ings involving informers as well as victims.

This practice was tu be short-lived, however. In 1661 a new

colonial government, averring a reverence for the common law of

England, adopted that law, repealed all previous laws, provided that

the commissioners were from then on to be called “justices of the

peace” and have the same powers as English justices, and reduced

their jurisdiction in summary proceedings to causes involving twenty

shillings or two hundred pounds of tobacco, or less, in which causes

their judgment was to be “final.” Acts of March 23, 1661, reprinted

at 2 Hening’s Statutes at Large 41, 61-62, 72. It does not appear

that Virginia again established a trial ‘de novo procedure until the

post-constitutional period.

The post-constitutional procedure was held valid under the Sixth

Amendment and the Virginia Constitution on the ground that the

right to a jury trial is afforded if an unfettered right of appeal is

provided. Brown v. Epps, 91 Va. 726 (1895) (distinguishing

Section 2

Callan v. Wilson, supra, on the ground that Article I

onstitution requires that all ederal trials

“shall be By jury” which literally Teaves flo room for any adjudication

in the absence of a jury).

Information on early Delaware practice is quite sparse. Much of

the early penal legislation is somewhat cryptic. It is clear that the

Delaware justices of the peace had jurisdiction over some offenses

of intermediate seriousness, and although a right to appeal for a

trial by jury in the quarter sessions is not expressly given for all

offenses, the right is expressly afforded in the more comprehensive

legislative enactments and in language that suggests the right may

have been generally available. Laws of the Government of New

standing of the framers of our Federal Constitution. In-

deed, we suggest that the de novo mode was Within the

experience and understanding of those whose precepts as

regards the jury-trial right were the more developed:

in the ‘de novo _states’’ it _appears that j j

provided for all offenses, petty and serio

Was

B. Conteniporary State Practice

The contemporary practices of the states with respect

to jury trial have been the subject of examination by this

Court in several recent cases, notably: Duncan v. Louisi-

ana, supra; North Carolina v. Pearce, supra; Baldwin v.

New York, supra; Williams v. Florida, supra; Apodaca

v. Oregon, supra; and Colten v. Kentucky, supra, And our

examination of the parties’ briefs in these cases indicates

that the Court has received considerable analysis, on a

state-by-state basis, of the criminal jury prevedures of

most of the states. See, e.¢., Duncan v. Louisiana, supra;

Brief for Appellant, pp. 3a-Sa; Brief for Appellee, pp.

101-113.

The appellee has examined contemporary state prac-

tice and suggests that a fie HOO Seta compapable

to the Massachusetts proc ized

Castle, Kent and Suffolk upon Delaware 1700-1749, at 139, 159, 184,

194, 218 (Franklin and Hall, eds. 1752); Laws of the Government

of New Castle, Kent and Suffolk upon Delaware 1753-1762, at 146,

316, 321, 323 (Adams, ed. 1763) (with October 1763 Session to

October 1774 Session Supplements ).

Records of le gislative enactments, or case law, or both, concerning

the colonial and constitutional periods were available to ‘appellee for

New York, Maryland, New Jersey and Georgia. A search of this

riaterial did not disclose the use of a trial de novo procedure for

providing a jury trial or a provision for a general right to a jury trial

in these states. Complete records of the colonial practice of South

Carolina and North Carolina were not available. However, it is

known that North Carolina provided a trial de novo procedure for

offenses of intermediate seriousness as early as 1868, See State v.

Powell, 86 N.C. 640, 642 (1882),

by several states including, at legst, Avizona? Arkansas,**

Alabama,** Kansas,> Nor ire,”

Pennsylvania and Virginia2’% Appellee acknowledges

that the ostensible jurisdiction of the Massachusetts

32 Ariz. Rev. Stat. §§22-371 through 22-374 establish the

de novo appeal to the superior court from the final judgment of a

justice or police court; however, the “appeal” is not always de novo,

i.e., if a transcript of the proceedings in the lower court has been

maintained, the “appeal” may be upon that record based upon the

superior court’s evaluation of the sufficiency and condition of that

record. ‘The jurisdiction of the justice of the peace courts is contained

in Ariz. Key. Stat. §§22-301.

33 Ark, Stat. §§44-115, -116, -501 and -509 establish the de novo

procedure of appeal to the circuit court. See Cableton v. State, 243

Ark. 351, 359 (1967). However, the initial jurisdiction of the

lower “tier” appears to be restricted to violations of municipal by-laws

and ordinances. See Ark Stat. §§44-115, -116.

3*See Ala. Const. art. 1, $§6, 11 (1901). The jurisdiction of

the first tier (the “county court”) is defined in Ala. Code Ann. tit. 13

$321; see Leonard v. State, 43 Ala. App. 454 (1966) and Ala. Code

Ann. tit. 1 §7 and tit. 13 §326. The latter citation appears to define

the de novo right. Appellee also notes that second degree manslaughter

appears to be a misdemeanor in Alabama and subject to adjudication,

in the first instance, at the lower court level without a jury.

35'The de novo procedure appears in Kan. Stat. Ann. §§22-3609,

-3610. See State v. Parker, 213 Kan. 229, 230, 233, 235 (1973).

36N.C. Gen. Stat. §§7A-177.1, -196, -271, -272, 15-290.

37 The trial-de-novo procedure and enabling legislation is explained

in State v. Despres, 107 N.H. 297 (1966). See N.H. Rey. Stat.

§§502:18, 502A:11, 502A:12. The jurisdiction of the district or

municipal first tier is limited to crimes for which the maximum penalty

is fine not exceeding one thousatid dollars or imprisonment not

exceeding one year or both. [bid.

“8 Pa, Code tit. 234, Rules 51, 67, 6001, 6006, 6010. The munici-

pal court has jurisdiction of all criminal offenses where the punish.

ment that might be imposed is five years or less. After the imposition

of sentence the municipal court judge shall notify the defendan

his right to appeal for a trial de novo by jury. If the defeadan

appeal, the district attorney muust proceed to a grand jury and,

So cearh un indictment, proceedings owe cases

involving indictable offenses.

39 Va. Code Ann. §§16.1-123, -124, -125, -132, -136. See Common.

wealth v, Blais, 118 Va. 760 (1912). In Virginia, any person

convicted in a court not of record, of an offense not felonious, has

a right to a de novo jury trial in a circuit court (even if the conviction

resulted from guilty plea, rather than trial).

re)

‘first tier’’ seems to represent (with the possible excep-

tion of Alabama) the extreme with respect to powers of

fines and incarceration. However, the coneept of de novo

adjudication, in a procedure comparable to the Massachu-

setts system im respects other than potential sentencing,

secmis to be recognized as a legitimate form of jury pro-

cedure by a substantiaLaumber of States.”

*° Appellee has suggested, and, hopefully established, that the

subject matter or “core offenses” cognizable by colonial justices of

the peace are substantially comparable to the subject matter juris-

diction of the present Massachusetts District Courts and the Boston

Municipal Court. It does appear, however, that the ostensible

authority of the modern justice has been substantially expanded in

terms of money fine amount and potential time of incarceration.

This is, of course, an important consideration, especially in view of

the recognized distinction between “petty” and “serious” offenses and

the doctrine of Callan v. Wilson, supra. Appellee argues, however,

that the practical expansion of “lower tier” jurisdiction is justified by

social, technological and procedural advance, as well as by need,

but further, that the actual expansion is far less than the apparent

expansion.

The expansion of magistrates’ jurisdiction was examined by the

New Hampshire Supreme Court in State v. Jackson, supra. That

court noted that, with some exceptions, in 1777 the largest fine

which a New Hampshire justice was authorized to impose was forty

shillings, and that the longest definite term of imprisonment was

three months, “... authority being given in certain cases to imprison

in the house of correction for an indefinite term; ...” 69 N.H. at 518.

That court, in 1898, undertook to interpret the 1777 sentencing

power in terms of subsequent authority of the justices in 1791, 1799,

1805, 1815, 1822, etc. The interpretation and examination took

this form:

In 1781, the Spanish milled dollar reckoned as six shillings,

and other silver and gold in proportion, were made legal tender

on all contracts made after that time, and for all debts con-

tracted prior to the last day of January, 1777. Laws, ed. 1789,

pp. 185, 187. The constitution provides that, in all cases

where sums of money are mentioned in it, “the value thereof

shall be computed in silver at six shillings and eight pence per

ounce.” Laws, ed. 1789, p. 30. Const., art. 96. It seems from

the act of February 12, 1785, that the value of gold at that time

was five pounds six shillings eight pence per ounce, or, when

compared with si!ver, as sixteen to one. Laws, ed. 1780, p. 338;

ed, 1789, p. 187. The money of account was changed from

the English system to the decimal or United States system in

Il, THe Massacnusetts Jury Procepure EFrrects THIS

Covrt’s Exunciation oF THE Purpose axp Function

or Jury Tria is America.

In addition to an examination of historical and con-

temporary practices among the states, the Court, in recent

‘ases touching upon the nature of the jury right, has

studied the purpose and function of the jury in contem-

1792 (Act of Congress of April 2, 1792, c. 16, s. 20; Laws,

ed. 1797, p. 267); and the first United States silver dollar was

coined in 1794. This dollar contained 371% grains of pure

silver,—about the same quantity as the Spanish milled dollar.

According to the rule of the constitution, forty shillings equaled

six ounces of silver,—a quantity sufficient to make seven and

three fourth United States Silver dollars.

69 N.H. at 518-19.

Appellee includes this New Hampshire analysis primarily to

establish that a dollar-for-dollar comparison is difficult, if not totally

impractical. Nevertheless, appellee asks that. this Court, if such

comparison be made, take note of the fact that the Chief Judge of

the Vermont County Court was paid at the rate of ten shillings per

day in 1780, and that an attorney in that court received for his labor

four shillings per day. “An Act for Regulating Fees Novr. 53RD

1780” reprinted in XI' Laws of Vermont 1777-1780, at 206. (Soule,

ed. 1964).

And, should this Court compare the extreme of the present

authority of a Massachusetts District Court Judge to imprison, the

appellees ask that the following statement of the Rhode Island

Supreme Court be noted:

Suffice it to say that at the time of the adoption of the State

constitution [1843] imprisonment in the State prison was the

gravest punishment known to the law of the State for crimes

less than capital crimes, and that it had succeeded to the former

punishments of whipping, branding, and standing in the pillory.

State vy. Nichols, 27 R.1. 69, 82 (1905).

In summary, appellee argues that the

Massachusetts system?

rather Isdiction

‘s the

the Massachusetts procedure

functioning an

porary society. In Duncan vy. Louisiana, supra, the Court

noted:

erhaps because the right to jury trial was not

directly at stake, the Court’s remarks about the jury

in Palko and Snyder [Palko y. Connecticut, 302 U.S.

319 (1937); and Snyder y. Massachusetts, 291 U.S.

319 (1934)] took no note of past or current develop-

ments regarding jury trials, [and] did not consider

its purposes and functions . .. . 391 U.S. at 155.

The Court then stated the purpose (and its components )

of the guarantee of jury trial in the Federal and State

Constitutions: ‘‘a right to jury trial is_ granted to crim-

inal defendants im order to prevent oppression by the

Government.’’ Teiting Singer v. United States, 380 U.S.

24, 31 (1965)] 391 U.S. at 155. The Court continued with

categories of potential governmental oppression based

upon history and experience :

unfounded criminal charges brought to eliminate

enemies ;

judges too responsive to the voice of higher au-

thority ;

protection against arbitrary action;

the corrupt and overzealous prosecutor:

the compliant, biased, or eccentric judge;

the exercise of plenary powers over the life and

liberty of the citizen to one judge or a group of

judges ;

unchecked power; and,

arbitrary law enforcement,

concluding, inter alia, that: ‘Coven where defendants «are

wtisfied with bench trigls, the right to a jury trial very

likely serves its intended »urpose of making judicial or

prosecutorial unfauuess Joss likalyS’ 391 US. at 158,

In Williams v. Florida, 399 U.S. 78 (1970), the Court

considered the question of whether the constitutional

guarantee of a trial by “jury” necessarily required trial

by exactly twelve persons, rather than some lesser num-

ber — in Williams, six. 399 U.S. at 86. In deciding the

issue the Cor stated:

*** The relevant inquiry, as we see it, must be the

function that the particular feature performs in its

relation tv the purposes of the jury trial. 399 U.S.

at 99-100.

The Court then reviewed the statement of jury purpose

contained in Duncan, concluding:

Given this purpose [to prevent oppression by the

government], the essential feature of a jury obviously

hesin the interposition between the accused and his

i ——

accuser of the commonsense judgment of a group of

lf¥men, and in the community participation and

shared responsibility that results from that group’s

determination of guilt or innocence. 399 U.S. at 100.

The Court determined that there was little reason tof

think that these goals are in any meaningful sense Tess

likely to he achieved when the Jury numbers six, than

when it numbers twelve. [hid.

In Apodaca y. Oregon, 406 U.S. 404 (1972), this Court

considered the question of whether conviction of crime by

a less-than-unanimous jury violated the right to trial by

jury in criminal cases. 406 U.S. at 406, The Court examined

relevant constitutional history, noting that conflicting in-

ferences could be drawn therefrom, and stated:

ARO on aa TART CPD eG

. that in determining what is meant by a jury we

must turn to other than purely historicai considera-

tions. 406 U.S. at 410.

The Court’s inquiry then explicitly focused upon the

function served by the jury in contemporary society, and

the enunciated jury ‘‘purpose’’ of Duncan and Williams

was examined. The Court concluded that ‘‘a requirement of

unanimity ... does not materially contribute to the exercise

of yommonsense judgment.’’ Ibid. [Emphasis added. |

n view of the ‘purpose _and_function’’ analyses_of

Duncan, Wylliams, and Apodaca, appellee_si

it is appropriate in the instant ease to examine the Mas-

sachusetts jury procedure to determine whether or not

the ‘‘essential feature’’ of the jury_is effected, The issue

is governmental oppression and whether or not the Massa-

chusetts system, in _a_meanjnigful sense, prevents such

oppression by the interposition of the commonsense judg-

ment of a body of laypersons between _the accused and

lis accuseL

41 An examination of the “trial de novo” cases decided in the state

courts has provided little assistance. In Manns v. Commonwealth,

213 Va. 233 (1972), the Virginia court made no examination of

history, nor analysis of jury purpose, in its consideration of this

question. The court seemed merely to reject the argument that

Callan vy. Wilson became applicable to the states via Duncan v.

Louisiana, citing to footnote 30 and the dissent of Mr. Justice Fortas.

Also, in State v. Halliday, 109 R.1. 93 (1971), no examination of

history or jury purpose is apparent; rather, the Rhode Island court

concluded on the basis of Duncan, and Baldwin v. New York, 399

US. 66 (1970), that the “mandate of Callan is applicable to the

states.” 109 R.I. at 103.

Cases decided in federal courts bear only indirectly upon potential

governmental oppression and, even less be question

of jury purpose. In Lemieux vy. Robbins

1969) (cited with approval by the court in Sfale"W Sparrow, 276

N.C. 499 (1970) ) the Circuit Court examined the “trial de novo”

procedure in the state of Maine on the basis of a challenge deriving

from this Court’s determination of North Carolina v. Pearce, 395

An examination of the Massachusetts jury system dis- 7

close: text an accused has an absolute right to a body of

laymen whose judgment Will stand between himself _and

his accuser after a preliminary adjudication at which he

need do nothing.” In fact, the defendant obtains the dis-

US. 711 (1969). In its opinion, the Circuit Court made the following

statement with respect to the practical nature of the de novo procedure:

... [A] defendant gives up nothing by going to trial in the

district court. Nor, unlike the situation in Pearce, need he

demonstrate error, constitutional or other, in a first trial to

secure a second trial, which very proof of error gives the state

the opportunity to increase the punishment. Such is indeed

one way street. Here we deal with a two way street.

(Befendant has the benefit of two full_opportunities for_ac ittal:

exercise Of his rT only gives him a new_trial

but vacates the ju ent and removes the entire case to th

Superfor Court, The state Is willing to accept this jn th

facing the load on the-Superiar Court

: accept _it_at a> [Footnote omitted.]

Joes accept it, both he and_the_ state start at_parity;

tunity, It does not_seem unfair to us that, absent_affirmative

pr i they should start again at parity. 414

2d at 355.

Although the statement is not explicitly addressed to the issue of

governmental oppression, the appellee suggests that he Circuit

Court’s_ obser jcit ca overnment_ oppression

in the de novg process?

TMs NT Coontz, 451 F.2d 1344 (4th Cir. 1971), the

Circuit Court affirmed a federal district court’s refusal to grant reiief

on the basis of a claim that the Virginia de novo procedure was

violative of Duncan. The basis of dismissal seems to have clearly

been 28 U.S.C. §2283 and Younger v. Harris, 401 U.S. 37 (1971).

However, the Court did consider the element of irreparable injury

and the prosecutorial-oppressive criteria of Dombrowski v. Pfister,

380 U.S. 479 (1965), in reaching its decision. Appellee suggests

that the Court's action at least implicitly contraindicates governmental

oppression in ti Virginia procedure.

a hypothetical system based upon the “... power to provide for several

trials, by a court, without a jury, on several successive convictions,

before allowing a jury trial.” 127 U.S. at 555. Although the record

in this case is slight, it is clear_that sever ms

are neither -oretically possible uc the

Commonwealth. assachusetts. The “appeal” ¢ jury trial may

Ss |

tinct adavantage of being able to discover the prosecu-

tion’s case without having to disclose his own, while in

no way jeopardizing his right to trial by Jury. Although

1¢ cannot as of right waive a trial at the district court

level, cf., Lemieux v. Robbins, supra, at 355, n. 4, he can

certainly avoid a trial by merely listening to the Com-

monwealth’s evidence without offfering his own and, if

found guilty, appealing, which is what appellant Costa-

reli did in this case. Brief for the Appellant, p. 9ZQn

nicipal court proceeding becomes

a nullity: the appeal ‘‘wipes out the lower court action

entirely. ann v. Commonwealth, 309 Mass. at 666.

Admittedly, the de novo procedure effe piveere

ree of restriction a1 } Thconvenicn ho Ve

defendant may Tisten to_the government’s case, without

igclosing Tis own, and have, immediately thereafter and

f_absolute” right, the further community participation

in_the process of adjudication of guilt or innocence _gnd

the interposition of commonsense judgment of a group

of laymen — and, at the same time have the possibility

of immediate acquittal? We suggest that the answer

—

ould be in the negative. The function of the jury is

preserved.

be elected immediately by a convicted diistrict court defendant and,

as such, should be distinguished from the possibility of prolonged

litigation which was suggested by this Court in Callan.

‘3 The Commonwealth justifies the inconvenience by pointing—aut

that the district courts are designed, 1m the interest of both the

dévendant and the Commonwe2trn- rowlde spee - . »stly

afijudications than are possible the second level of the Massachu-

all on appeal. entucky, 407 U.S.

p 104, 114 (1972).

“yo

eri

Ill. Tunis Cask Dors Nor Reeuime Consiperation OF THE

Ricut vo a Speepy Triat.

The Court’s opinion in Klopfer v. North Carolina, 386

U.S. 215 (1967), established that the right to a speedy

trial is ‘‘fundamental’’ and is imposed by the Due Pro-

cess Clause of the Fourteenth Amendment on the States.

Aad the Court, in Barker vy. Wingo, 407 U.S. 514 (1972),

undertook to ‘‘identify some of the factors which courts

should assess in determining whether a particular defen-

dant has been deprived of his right.’? 407 U.S. at 530.

In the instant case the appellant has asserted that the

interposition of a trial by magistrate prior to affording

the accused a trial by jury is an unconstitutional imposi-

tion on the right to a speedy trial. Brief for the Appel-

lant, p. 41, The appellee suggests, however, that if this

Court determines that the concept of ‘jury’? contemplates

first-instance-every-instance jury trial, then a considera-

tion of the appellant’s speedy trial claim becomes unne-

cessary.

tag the Court agree that the Massa-

chusettScriminal jury procedure complies with the Dun-

cam requirement, then it is suggested that the appellant’s

1s without substance, as, among otter things, the

this fails to disclose any measurable period of

me which can be assessed against the Barker v, Wingo

factors. Indeed, the od, the appellant acknowledges that the time} &

delay m appeal to the m to the misdemeanor session in the County

of Saf yrt’’. Brief for the AppelTant> pte, 1. 44.)

_—_—_

We assume this to be an acknowledgment that it is the

de novo aspect of the Massachusetts procedure to which

the appellant primarily eon Assuming, then, the pro-

priety of that procedure, it Lis stiggesicd that a “Stor a Sort

delay | is inadequate as a ee ae of violation of the “or the right

to a speedy trial,

IV. Tue Massacuvusetrts CriminaL Jury Procepure Com-

pLies Wir THe FourreeNtH AMENDMENT’s Ban

Acatxst ‘‘DouBLe JEoPARDY’’.

The Fifth Amendment guarantee against double jeop-

ardy is enforceable against the states through the Four-

teenth Amendment. Benton v. Maryland, 395 U.S. 781

(1968). This is, appellee acknowledges, a fundamental

guarantee. Id. at 795. However, as the Court noted in

North Carolina v. Pearce, 395 U.S. 711, 719-721:

At least since 1896, when United States vy. Ball,

163 U.S. 662, was decided, it has been settled that this

mstitutional guarantee im poseyno limitations what-

ever upon the power to retry a defendaphwhoas suc-

ceeded in getting his first conviction set aside ‘* The

principle that this provision does not preclude the

Government’s retrying a defendant whose conviction

is set aside because of an error in the proceedings

leading to conviction is a well-established part of our

constitutional jurisprudence.’’ United States v. Tateo,

377 U.S. 463, 465. [Footnote omitted.]

And further:

Although the rationale for this ‘‘wellestablished

part_of our constitutional jurisprudence”’” has been

rariously verbalized, it rests ultimately upon_uthe

yremise that the original conviction has, at_the de-

fendant’s hehest, been wholly nullified and the slate

wiped clean >

his rationale was applied to a two-tier_system of crim-

foal justice in Colten v. Kentucky, 407 U.S. 104 (1972).

There the appellant had been convicted of a misdemeanor

in the Kentucky two-tier system. On appeal to this Court,

the appellant challenged, infer alia, the constitutionality

of the enhanced penalty he received after conviction at

his ‘‘second-tier’’ trial. As to the appellant’s double jeo-

pardy argument this Court said:

Colten’s alternative contention is that the Double

Jeopardy Clause prohibits the imposition of an en-

hanced penalty upon reconviction. The Pearce Court

rejected the same contention in the context of that

vase, 39D ULS., at 719-720. Colten urges that his claim

is stronger because the Kentucky system forees a de-

fendant to expose himself to jeopardy as a price for

securing a trial that comports with the Constitution.

That was, of course, the situation in Pearce, where

reversal of the first conviction was for constitutional

error. The contention also ignores that a defeudant

‘an bypass the inferior court simply by pleading

—

guilty and erasing immediately thereafter any con-

sequence that would otherwise Tollow from tendering

the plea. 407 U.S. at 119-20.

Appellee suggests that in determining that the imposi- |

tion of a more severe penalty upon reconviction in Ken- >

tucky’s_ two-tier system was constitutionally permissible, a

this _Court_held, @ fortiori, that retrial and recon viction yo

in the Kentucky two-tier system were constitutionally

pernussible. :

i n

In Massachusetts, as Was the casein Kentucky, the de- pe -

fendant im a criminal trial Happeals ) to the second level |

, * —— . . pes y

of the two-tier system to receive a trial ‘tin the criminal

courts of general jurisdiction where the full range of

constitutional guarantees ds avagable.”’ Colten v. Ken-

tucky, 406 U.S. at 114. In Massachusetts, as wes the case

in Kentucky, the right to the second-tier is absolute and,

0 ee

> Py a .

at_the defepdant’s behest the lower court proceedings are

‘*wiped_out entirely”? Mann v. Commonwealth, 359 Mass.

at 66€ See Collen v. Kentucky, 406 U.S. at 113 n. 3.

Thus, appellee suggests, the Massachusetts de novo trial

procedure does not violate the double jeopardy ban of the

Fourteenth Amendment.

VIII. Conclusion

Upon the basis of the foregoing, the appellee suggests

that the Court should dismiss this appeal because the Court

is without jurisdiction, in that the judgment herein ap-

pealed is not a final judgment rendered by the highest

court of Massachusetts in which a decision could be had.

Alternatively, the appellee suggests that the appeal

should not be treated as a case upon petition for writ of

certiorari; however, if so treated, that certiorari be denied.

Alternatively, if determination be made upon the merits,

appellee suggests that this Court conclude that the ap-

pellant’s claim is without merit in that he was afforded,

under Massachusetts procedure, a jury trial within the

requirements of the Fourteenth Amendment.

Respectfully,“

Francis X, BeLuorri

Attorney General

Joun J. Inwiy, JR.

Assistant Attorney General

Chief, Criminal Bureau

Davin A. Mitts

Assistant Attorney General

Chief, Criminal Appellate Section

131 Tremont Street

Boston, Massachusetts 02111

Attorneys for the Appellee

#4 Counsel acknowledge, with gratitude, that John S. Legasey of

the Northeastern University School of Law and Vernon C. Watters

of the Harvard Law School have assisted the Commonwealth greatly

in the preparation of this brief.

APPENDIX A

The Criminal Jurisdiction of the Massachusetts Courts

1. The ‘‘District Courts’’ of Massachusetts are created

by a statute which geographically divides the Common-

wealth into seventy-three districts. Mass. Gen. Laws, ch.

218, §1. Each of these seventy-three ecurts is a court of

record and ‘‘of superior and general jurisdiction with

reference to all cases and matters in which they have juris-

diction. ...’? Mass. Gen. Laws, ch. 218, 64. The eriminal

jurisdiction of the District Courts is defined as follows:

District courts shall have original jurisdiction, con-

current with the superior court, of the following

offenses committed within their respective district or

otherwise made punishable therein: all violations of

by-laws, orders, ordinances, rules and regulations,

made by ¢ittes, towns and publie officers, all misde-

Ineanors, except libels, all felonies punishable by im-

prisonment in the state prison for not more than five

years, the crimes mentioned in sections sixteen, seven-

teen, eighteen, nineteen, twenty-eight and forty-nine

of chapter two hundred and sixty-six, and the erimes

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 proceedings referred to

them under the provisions of section four A of chapter

two hundred and eleven. Mass. Gen. Laws. ch, 218, 626.”

* There is some justification for the suggestion that the Boston

Municipal Court and the Massachusetts: District Courts are separate

and distinct courts, each of its own “system.” For example, the

District Courts were established by statute in 1893, and the Boston

Municipal Court was established by statute in 1821. See, Seventeenth

Annual Report to the Justices of the Supreme Judicial Court, pp. 3-4

(1973). However, under current Massachusetts law, Gen. Laws,

oa baa

eRe

—

2. The ‘Superior Court’? of Massachusetts is not a

court of geographical definition, but rather of composition

(Mass. Gen. Laws, ch, 212, §$1-6). The Superior Court

was established by statute in 1859. The criminal jurisdie-

tion of the Superior Court is defined as follows:

The court shall have original jurisdiction of all

crimes and appellate jurisdiction of crimes tried be-

fore a district court. Crimes committed in that part

of Seituate deseribed in chapter three hundred and

ninety-four of the acts of nineteen hundred and twelve

shall be within the territorial jurisdiction of the court

both in Norfolk eounty and in Plymouth county, and

arrests and service of process in such cases may be

made by an officer qualified to serve eriminal process

in Cohasset. Crimes committed in any part of Cam-

bridge, Watertown or Newton lving in the Charles

river basin shall be within the territorial] jurisdiction

of the court both in Middlesex county and in Suffolk

county. As amended St, 1958, ¢. 319, ¢ 24. Mass. Gen.

Laws, ch, 212, S6,

%. The intermediate appellate court, known as_ the

Massachusetts Appeals Court, was created in 1972 by Chap-

ter 740 of the Acts of 1972, Mass. Gen. Laws, eh. 211A.

That court, subject to such further appellate review by

the Supreme Judicial Court as may be permitted pursuant

to Massachusetis law (Mass. Gen. Laws, ch. 211A, $11, or

otherwise), has concurrent appellate jurisdiction with the

Supreme Judicial Court, to the extent review is otherwise

ch. 218, §1, the Boston Municipal Court is considered to be one

oi the District Courts of Massachusetts and, accordingly, appellee

suggests that for the purposes of this brief, and indeed. this appeal,

the Boston Municipal Court should be considered as the equivalent

of a Massachusetts District Court unless a contrary position is explicitly

noted because of some explicit and controlling distinction made in

Massachusetts statutes or applicable case law. See, Brief for Appellant,

p. 2, nm. i.

allowable, with respect to a determination made in the

Superior Court (and others) in criminal cases, irrespective

of whether sentence has been imposed, except in review of

convictions for first degree murder or where a sentence of

death or life imprisonment has been imposed, Mass, Gen.

Laws, ch. 211A, $10. This jurisdiction is subject, however,

to this proviso: that whenever two justices of the Supreme

Judicial Court issue an order for direct review by the

Supreme Judicial Court in any ease on appeal, either at

the request of one of the parties or at the court’s own

initiative, upon finding that the questions to be decided are:

* (2) questions of law concerning the Constitu-

tion of the Commonwealth or questions concerning the

Constitution of the United States which have been

raised in a court of the Commonwealth;...,

the case will be reviewed directly by the Supreme Judicial

Court without the necessity of any prior hearing or decision

by the Appeals Court on the merits of the issues sought

to be reviewed,

4. The Supreme Judicial Court has “weneral superin-

terdence of all courts of inferioy jurisdiction to correct and

prevent errors and abuses therein.’’ Mass. Gen, Laws,

eh, 211, $3. And, Massachusetts statute expressly provides

that ‘*questions of law arising upon exceptions, report or

appeal shall be heard and determined by the full court.”

Mass. Gen. Laws, ch. 211, §5.

APPENDIX B

CONSTITUTIONAL AND STATUTORY PROVISIONS INVOLVED.

Fourteenth Amendment of the United States Constitution,

Section 1:

All persons born or naturalized in the United States, and

subject to the jurisdiction thereof, are citizens of the

‘nited States and of the State wherein they reside. No

State shall make or enforee any law which shall abridge

the privileges or immunities of citizens of the United

States; nor shall any State deprive any person of life,

liberty, or property, without due process of law; nor deny

to any person within its jurisdiction the equal protection

of the laws.

Article XII, Constitution of Massachusetts:

No subject shall be held to answer for any erimes or

offense, until the same is fully and plainly, substantially

and formally, described to him; or be compelled to accuse,

or furmsh evidence against himself. And every subject

shall have a right to produce all proofs, that may be favor-

able to him; to meet the witnesses against him face to face,

and to be fully heard in his defence by himself, or his

counse!, at his election. And no subject shall be arrested,

imprisoned, despoiled, or deprived of his property, im-

munities, or privileges, put out of the protection of the

law, exiled, or deprived of his live, liberty, or estate, but

by the judgment of his peers, or the law of the land.

And the jegislature 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.

Title 28, United States Code, Section 1257:

Final judgments or decrees rendered by the highest court

of a State in which a decision could be had, may be

reviewed by the Supreme Court as follows:

(1) By appeal, where is drawn in question the validity

of a treaty or statute of the United States and the decision

is against its validity.

(2) By appeal, where is drawn in question the validity

of a statute of any state on the ground of its being repug-

nant to the Constitution, treaties or laws of the United

States, and the decision is in favor of its validity.

(3) By writ of certiorari, where the validity of a

treaty or statute of the United States is drawn in question

or where the validity of a State statute is drawn in ques-

tion on the ground of its being repugnant to the Constitu-

tion, treaties or laws of the United States, or where any

_title, right, privilege or immunity is specially set up or

claimed under the Constitution, treaties or statutes of, or

commission held or authority exercised under, the United

States.

For the purposes of this section, the term ‘highest court

of a State’? ineludes the District of Columbia Court of

Appeals.

Massachusetts General Laws Chapter 218, Section 27A:

[Trial by jury of six in certain courts]

Any defendant in a district court of Berkshire county

found guilty of an offense or erime over which the district

courts have original jurisdiction under the provisions of

section twenty-six may appeal and claim a jury of six in

the district court of Central Berkshire.

Any defendant in a district court of Bristol county found

guilty of an offense or crime over which the district courts

have original jurisdiction under the provisions of section

twenty-six may appeal and claim a jury of six in the second

or third district court of Bristol.

Any defendant in a district court of Essex county found

guilty of an offense or crime over which the district courts

have original jurisdiction under the provisions of section

twenty-six may appeal and claim a jury of six in the first

district court of Essex or the central district court of

northern Essex.

Any defendant in a district court of Hampden county

found guilty of an offense or crime over which the district

courts have original jurisdiction under the provisions of

section twenty-six may appeal and claim a jury of six in

the district court of Springfield.

Any defendant in the first district court of northern

Middlesex, the fourth district court of eastern Middlesex

or the district court of Lowell found guilty of an offense

or crime over which the district courts have original juris-

diction under the provisions of section twenty-six may

appeal and claim a jury of six in the district court of

Lowell.

Any defendant in the district court of Marlborough, the

district court of Natick, first district court of southern

Middlesex, the district court of central Middlesex or the

second district court of eastern Middlesex found guilty of

an offense or crime over which the district courts have

original jurisdiction under the provisions of section twenty-

six may appeal and claim a jury of six in the first district

court of southern Middlesex.

Any defendant in the first district court of eastern

Middlesex, the third district court of eastern Middlesex,

the district court of Somerville, or the district court of

Newton, found guilty of an offense or crime over which

aoe

the district courts have original jurisection under the

provisions of section twenty-six may appeal and claim a

jury of six in the third distriet court of eastern Middlesex.

Any defendant ina district court of Norfolk county found

guilty of an offense or crime over which the district courts

have original jurisdiction under the provisions of section

twenty-six may appeal and claim a jury of six in the district

court of northern Norfolk or the district court of East

Norfolk.

Any defendant in a district court of Plymouth county

found guilty of an offense or crime over which the district

courts have original jurisdiction under the provisions of

section twenty-six may appeal and claim a jury of six in

the district court of Brockton.

Any defendant in a district court of Worcester county

found guilty of an offense or crime over which the district

courts have original jurisdiction under the provisions of

section twenty-six may appeal and elaim a jury of six in

the central district court of Worcester.

Such claim of appeal shall be in writing and shall con-

stitute a waiver of any claim of appeal to a trial by jury

in the superior court or other disposition in said superior

court.

Any defendant found guilty in any of said district courts,

of an offense or crime over which the district courts have

original jurisdiction under the provisions of section twenty-

six who hes appealed to the superior court may, in the

discretion of a justice of the superior court, at any time

before trial on such appeal, claim a jury of six in the

district court designated in paragraphs one through ten of

this section. Such claim shall be in writing and shall con-

stitute a waiver of any right to a trial by a jury in the

superior court or other disposition in said superior court.

When a claim for a trial by jury of six has been made

under the provisions of this paragraph, the clerk of the

Cie ET

superior court shall forthwith forward to the clerk of the

said district court all the papers in the case which have

heen filed in the superior court,

The justice presiding at such session over a jury of six

shall have and exercise all the powers and duties which

a justice of the superior court has any may exereise in

the trial and disposition of such eases.

No justice so sitting shall act in a ease in which he

has either sat or held an ingnest in the district court

or otherwise has taken part in any proceeding therein.

Trials by such juries of six in a district court shall be

held in the courthouse of said court or a courthouse of

the superior court within the same county, and shall pro-

ceed in accordance with the provisions of law applicable

to trials by jury in the superior court, except that the

number of peremptory challenges shall be limited to two

to each defendant. The commonweaith shall be entitled to

as many challenges as equal the whole number to which

all of the defendants in the ease are entitled. Jurors shall

be drawn from the pool of jurors available for the jury

sessions in either civil or criminal sessions in the superior

court. The district attorney for the district in which the

alleged offense or offenses occurred shall appear for the

commonwealth in all cases. The chief justice of the district

courts shall arrange for the jury sessions of the said

district courts and shall assign justices and special justices

thereto, to the end that speedy trials may be provided for

such appeals. In the event of a trial by a jury of six

in a district court, review may be had directly by the

supreme judicial court by a bill of exceptions, appeal,

report or otherwise, in the same manner provided for trials

by jury in the superior court. The defendant may elect

fo waive a jury of six m the manner provided by section

six of chapter two hundred and sixty-three, but such waiver

shall not revive any right to a trial by jury or other

disposition in the superior court which had been waived

under the provisions of the eleventh or twelfth paragraphs,

of this section.

The justice presiding at such session over a jury of six

shall, upon the request of the defendant, appoint a stenog-

rapher, who shall be sworn, and who shall take steno.

graphic notes of all the testimony given at the trial, and

shall provide the parties thereto with a transcript of his

notes or any part thereof taken at the trial or hearing for

which he shall be paid by the party requesting it at the

rate fixed by the chief justice of the district courts; pro-

vided, however, that such rate shall not exceed the rate

provided by seetion eighty-eight of chapter two hundred

and twenty-one. Said chief justice may make regulations

not inconsistent with law relative to the assignments, duties

and service of stenographers appointed for any district

court, and any other matter relative to such stenographers.

The compensation and expenses of said stenographer shall

be paid by the county.

Massachusetts General Laws, Chapter 278, Section 18:

[Appeals in criminal cases to superior courts;

recognizance |

Whoever is convicted of a crime before a district court

may appeal the finding of guilty or the sentence imposed

thereon to the cuperior 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 accordance with the procedures set forth in

section fifty-eight of chapter two hundred and seventy-six,

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until he recognizes to the conummonwealth, in such sum and

with such surety or sureties 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 net previously surrendered and discharged,

and so from time to time until the final sentence, order

or deeree, and not depart without leave, and in the mean-

time to keep the peace and be of good behavior. If tae

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. Notwith-

standing any other provision of law, a defendant, after a

finding of guilty in a district court, may appeal therefrom

and shall thereafter be entitled to a trial de novo in the

superior court or may appeal to and claim a jury of six

in a distriet court in accordance with said sesion twenty-

seven A.

Massachusetts General Laws, Chapter 278, Section I8A:

[ Trial of misdemeanors in Suffolk county or in municipal

court of Boston |

Any defendant, in any district court of Suffolk county or

in the municipal court of the city of Boston, found guilty

of a violation of a by-law, order, ordinance, rule. or regu-

lation made by a city or town or public officer er of any

other misdemeanor, except libel, may appeal and claim

a jury of twelve in the municipal court of the city of

Bosten By claiming such appeal, the said claimant shall

be deemed to have waived any claim of appeal te a trial

by a jury in the superior court or other disposition in

said superior court.

Any defendant, found guilty in any district court of

Suffolk county or in the municipal court of the city of

Boston, of a violation of any of the offenses enumerated

in the first paragraph of this seetion who has appealed

to the superior court, may, at any time before trial on

such appeal, claim « trial by a jury of twelve in the munieci-

pal court of the city of Boston and by so doing shall be

deemed to have waived any right to a trial by a jury in

the superior court or other disposition in said superior

court. When a claim for a trial by a jury of twelve in

the municipal court of the city of Boston has been made

under the provisions of this paragraph, the clerk of the

superior court shall forthwith forward to the clerk of said

municipal court of the city of Boston all the papers in

the case which have been filed in the superior court.

The justice presiding at such session over a jury of

twelve in said municipal court of the eity of Boston shall

have and exercise all the powers and duties which a justice

of the superior court has, and may exercise in the trial

and disposition of such eases.

No justice so sitting shall act in a ease in which he has

either sat or held an inquest in the district court or other-

wise has an interest,

Trials by such juries of twelve shall proceed in accord.

anee with the provisions of law and rules of court appli

pable to trials by jury in the superior court. The common-

wealth shall be entitled to as many challenges as equal the

whole number to which all of the defendants in the ease are

entitled. Jurors shall be drawn from the pool of jurors

available for the jury sessions in the superior court for

Suffolk county. The district attorney for the Suffolk dis-

trict shall appear for the commonwealth in all eases. The

chief justice of the municipal court of the city of Boston

shall arrange for jury sessions in the said municipal court

and shall assign justices and special justices thereto, to

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the end that speedy trials may be provided for such appeals.

In the event of a trial by a jury of twelve in the sand

municipal court, review may be had directly by the suprenw

judicial court, by a bill of exceptions, appeal, report or

otherwise in the same manner provided for trials by jury

in the superior court. ny person taking an appeal ander

this section shall be subject to the municipal court of the

city of Boston in matters of recognizance, In such matters,

the said municipal court shall have all of the powers and

duties of, and shall proceed in the same manner as the

superior court.

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.