# Appellees Brief — Costarelli v. Massachusetts > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385001_1629%3A05 ## Record - **Collection:** Supreme Court brief - **Document type:** Appellees Brief - **Published:** January 1, 1975 - **Citation:** 421 U.S. 193 ## Text ' Deel tee eee mt 1) 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 3 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) 26 36 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 7 18 1 Pr 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, v. \ 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. & x 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 s Sfatute as being in question, Rat ier, the appellapt alleges that seven ~ Ma ANAT meee SS SOTERA BRST Sty re UR a een 4 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 6 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. & ey &. ¥ a é z & : ; ¥ y, € 4} 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. Ff 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). 9 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 10 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. 11 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 12 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 14 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 15 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 16 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 17 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: 4 *** 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,’ ’’ ia 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 18 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. 19 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 ee 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 — % 20 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 ‘ p t 5 > 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). 23 & 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. , 24 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 27 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 28 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 9 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 x 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), 29 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) ¢ 30 ‘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 31 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 32 porary society. In Duncan vy. Louisiana, supra, the Court noted: a 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 : 1. te : 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, 33 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 34 . 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 35 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: © Tals to gam acquittal in the district court, his mer 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; * sho © elect to take advantage of a second and ge of a secon d and fresh oppor- 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. 42 In Callan ©. Wilson, 127 U.S. 540 (1888), this Court rejected 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 | ne s* 36 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 a 1s without substance, as, among otter things, the a, 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, i 38 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 r 39 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 | ce , * —— . . 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. 40 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. 41 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. 48 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. 44 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. 45 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. 46 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 47 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 49 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, LLL LOGS EE SS CREE A SELLE ALE EET OUEST mR fest nen POG oer ES RIS SSMS: See ae aed Se BEIT, AL Ve Denny * Desert ccm OLE LONE TEINS DRL HER EIR 50 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. 1 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 PAL TIMORESE AEA IIT Ig Ble ee NGAI Yi I SAI 4 EERE SLC OREN CON ET II ISRO ETN YE 1 a amr ee LONELY OYA PS EO PLN IOLY LIE RIESE LS SITE GRATE TSB MME tet aN Eng: ee ee 52 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. --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385001_1629%3A05. Public record. Not legal advice.