Brief for Appellant — Costarelli v. Massachusetts
Supreme Court brief1975
Ask Donna
What actually matters in this document.
Text
Mice
IN THE
Supreme Court of the United States
OCTOBER TERM, 1974
No. 73 - No. 6739
STEVEN COSTARELLI,
Appellant
MASSACHUSETTS,
Appellee
ON APPEAL FROM THE MUNICIPAL COURT
OF THE CITY OF BOSTON
BRIEF FOR THE APPELLANT
ROBERT W. HAGOPIAN, ESQ.
Wrentham, Mass. 02093
Washington, 0.C. @ CLB PUBLISHERS’ e LAW PRINTING CO. e (202) 393-0625
| Pe
FORE ov cccccvcseccedcenscnn
QUESTIONS PRESENTED .......................
STATUTES INVOLVED .........................
STATEMENT OF CASE .....................-...
SUMMARY ARGUMENT ........................
ARGUMENT
I
IT,
Il.
IV.
VI.
THE JUDICIAL STRUCTURE OF MASS.
ACHUSETTS’ TWO- TIER TRIAL DE
NOVO PROCEDURE .....................
THE SIXTH AMENDMENT JURY
TRIAL GUARANTEE MEANS TRIAL
BY JURY IN THE FIRST INSTANCE .........
DUNCAN V. LOUISIANA, 391 U.S. 145
(1968) BOUND THE STATES TO THE
RULE OF CALLAN V. WILSON .............
THE INTERPOSITION OF A TRIAL BY
MAGISTRATE PRIOR TO AFFORDING
A DEFENDANT A JURY TRIAL IS AN
UNCONSTITUTIONAL BURDEN ON
THE RIGHT TO TRIAL BY JURY ...........
THERE IS NO COMPELLING INTEREST
ON THE PART OF MASSACHUSETTS
TO JUSTIFY ITS INFRINGEMENT OF
THE RIGHT TO TRIAL BY JURY ...........
THE FORCED INTERPOSITION OF A
TRIAL BY MAGISTRATE PRIOR TO
AFFORDING THE ACCUSED A TRIAL
BY JURY IS AN UNCONSTITUTIONAL
IMPOSITION ON THE RIGHT TO A
eet A re rer
(ii)
Page
VII. MASSACHUSETTS’ TWO-TIER TRIAL
DE NOVO PROCEDURE VIOLATES
THE DOUBLE JEOPARDY PROVISIONS
OF THE FIFTH AMENDMENT ............-- 45
oO) ee 47
BRIEF APPENDIX ....... ccc ccc cere c cere vccces la
TABLE OF AUTHORITIES
Cases:
Ad Hoc Committee on Judicial Administration v.
Commonwealth, 488 F.2d 1241 (ist cir. 1973) ......... 42
Apodaca v. Oregon, 406 U.S. 404 (1972) ............ 23, 24
Argersinger v. Hamlin, 407 U.S. 25 (1972) .............. 27
Ashe v. Swenson, 397 U.S. 436 (1970) ................ 37
Baker v. City of Fairbanks, Alaska_., 471 P.2d
ooo benee 666 40600666660066 ececens 21
Baldwin v. New York, 399 U.S. 66 (1970) ...... 19, 21, 25, 40
Barker v. Wingo, 407 U.S. 514 (1972) ............. 43, 44
Callan v. Wilson, 127 U.S. 540 (1888) --........... passim
Carsey v. United States, 392 F.2d, 810 (D.C. cir
Dh Pies cenkne 6 eewed 0866600066 4680045 37
Chaffin v. Stynchome, 411 U.S. 17 (1973) .......... 30, 33
Codispoti v. Pennsylvania, SPOT TTT 19
Colten v. Kentucky, 407 U.S. 104 (1972) ........... 32, 33
Commonwealth v. Crapo, 212 Mass. 209, 210
ee ee ee 14, 33
Commonwealth v. Marsino, 252 Mass. 224 (1925).......... 3
Commonwealth v. Mustone, 353 Mass. 490 (1968) ........ 37
Costarelli v. DeGuglielmo, No. 34, Supreme Judicial
Ee a ee ie ek oe doe wees 30
Costarelli v. Lucey, No. 941-T (D.Mass. 1974) ............ 7
Dana, in re, 7 Benedict 14(1876) ...............0008. 27
(iii)
Page
District of Columbia v. Colts, 282 U.S. 63 (1930) ......... 20
Duncan v. Louisiana, 391 U.S. 145 I 10, 17, 19,
21, 22, 23, 24, 38
Frank v. United States, 395 U.S. 147 Pe rere 21
Grayson v. Montgomery, 421 F.2d 1306 (Ist cir.
Dt UCC C ind MEUGe sa uhabeeuacuatn seeds. 30
Greene v. Briggs, 10 F. Cas. 1135, No. 5,764 (C.C.
EE eG eee eee ee ee ee ee aera 31
Green v. United States, 355 U.S. 184 chad audeudeds 45
Green v. United States, 356 U.S. 165 Se <eeakedeuwes 39
Gault, in re, 387 US. 1 (1967) 2... cee, 21
Holliday v. State, 109 R.1.93(1971) ......... 12, 22, 40, 44
Jones v. Robbins, 8 Gray 329 (1857)... . 15, 16, 17, 25, 34, 40
Keenan v. Board of Bar Examiners, 317 F.Supp.
I or i SA 21
Klopfer v. North Carolina, 386 U.S. 213 YS: get 2 41, 44
Largent v. Texas, 318 U.S. 418 (1943) ................. 3
Lee v. Fowler, 263 Mass. 440 (1928) ................... 3
Lemieux v. Robbins, 414 F.2d 353 (Ist cir. 1969),
cert. denied, 397 U.S. 1017(1970) ......... 30, 33, 36, 39
Mann v. Commonwealth, __ Mass.__, 271 N.E.2d
SNS er eee 4, 15, 31, 36
Manns v. Commonwealth, 213 Va. 233 EY ei oe oi ot a 22
Manns v. Koontz, 451 F.2d 1345 (4th cir. EN eee 22
Market Street Railway Company v. Railroad Com-
mission of California, 324 U.S. 548 (1945) ............ 6
Myers v. Commonwealth, ___ Mass. ___ , 298 N.E. 2d
819 (1973) ..... eee REEADOUS CNW WU Ee oka kc cn, 37
North Carolina v. Pearce, 394 U.S. 711 Ra Ee 30, 33
(iv)
Page
Parham v. Municipal Court, ___lowa ___, 199 N.W. ™
ye 7)
Pointer v. Texas, 380 U.S. 400 (1965) ..--- +++ se seers 37
Roe v. Wade, 410 U.S. 113 (1973) ..-- errr errs 39
Shapiro v. Thompson, 394 U.S. 618 (1969) ---------- 34, 39
Sherbert v. Verner, 374 U.S. 398 (1963) .----+-++ee+%> 39
Sibron v. New York, 392 U.S. 40 (1968) ..-----+eeeeee: 7
State v. Gerry, 68 N.H. 495 (1896) ..----+---> 26, 35, 36, 38
United States v. Ball, 163 U.S. 662 (1896) ..------+++>> 46
United States v. Butler, 426 F.2d 1275 (ist Cir. “s
errr rr rT rer Te Tit re.
United States ex rel Frizer v. McMann, 437 F.2d
1312 (Ist cir, 1970) 2... eee ee ee ees 42
United States v. Jackson, 390 U.S. 570 (1967) ........---- 34
United States v. Jorn, 400 U.S.470(1971) .........4-. 45, 47
United States v. Marion, 404 U.S. 307 (1971) .........--- 44
Wade v. Hunter, 336 U.S. 684 (1949) ... 2... 2... eee ees 47
Walker v. Dillard, 363 F. Supp. 921 (W.D.V. 1973) ........ 22
Ward v. Village of Munroeville, 490 U.S. 57 (1972) ..... 12, 39
Whitmarsh v. Commonwealth, Mass. , 316
lL @ ,!) 9) ar ee §, 22, 32
Williams v. Florida, 399 U.S. 78 (1970) .......... 23, 27, 38
Winship, in re, 397 U.S. 358 (1970) ...... 2.20 -e eee eee 21
United States Statutes
0 eT Terre ere Se re ee et 19
PORE. coc t6cceesbeus os eenneeus 2, 3,6, 7,8
PC ivevscses es cecedheeeaneennendnws 5
Massachusetts Laws
ES ee
(v)
Page
ee Eb vccccuecuceseévevecceceecs 4,5
SEED cc ccccsecscvcececocesceses 9,13
G.L. Ch. 218 Sec. 27A .......................... 14
G.L. Ch. 221 Sec. 34D .......................... 27
G.L. Ch. 248 Secs. 140 ..... 002. 3
G.L. Ch. 250 Secs. 1-2,9-12, 20.0.0... 3
G.L. Ch. 263 Sec.4 ..................565..... 9,13
ee 9,14
eee 9,14
ee 9, 13, 14
ee 14
a 9, 33
GL. Ch. 278 Sec.24 ow ccc 7,9, 11, 14, 35
el, GR. 276 Bae. Bn. ccc ccc ccc cccccccny 15
a 15
G.L. Ch. 278 Sec. 33A-33G ....................... 15
Article Xi—Declaration of Rights, Massachusetts
DE SO GeU din we edeeuceeceneeheeawecur 41
Article XII—Declaration of Rights, Massachusetts
EY MG ei i 9, 16, 40
Massachusetts Rules of Civil Procedure ................. 5
Miscellaneous
Hasler, De Novo Jury Trials, 23 Maine Law Rev. 63
PT Saabs ease e bert e eG eadcauee< 28, 39
Frankfurter & Corcoran, Petty Federal Offences and
the Constitutional Guarantee To Trial by Jury,
39 Harv. Law Rev. 917 (1926) .......020 0... 19, 38
Project on Minimum Standards for Criminal Justice,
CEE SS NORA UUUAW A Geb ose as kc ec cn 4?
_- + *
IN THE
Supreme Court of the United States
OCTOBER TERM, 1974
No. 73 - No. 6739
STEVEN COSTARELLI,
Appellant
MASSACHUSETTS,
Appeilee
ON APPEAL FROM THE MUNICIPAL COURT
OF THE CITY OF BOSTON
BRIEF FOR THE APPELLANT
OPINION BELOW
No opinion, fiadings of facts, or conclusions of law
were reported by the Municipal Court of the City of
Boston.
JURISDICTION
On February 27, 1974, Steven Costarelli was charged
in the Municipal Court of the City of Boston with using
a motor vehicle without authority and knowing such
use to be unauthorized, an offense set out in G.L. Ch.
90 Sec. 24(2)(a), and carrying a maximum possible
sentence of a $500 fine and two years imprisonment.
At the beginning of the proceeding, Steven Costarelli
duly moved the trial court in writing for a trial by jury
in the first instance, asserting specifically his constitu-
tional rights to same under the Fifth, Sixth, and
Fourteenth Amendments of the Constitution of the
United States. The trial court denied this motion.
Thereupon, Steven Costarelli was found guilty by the
trial judge and sentenced to one year imprisonment.
From the judgment of the Municipal Court, Steven
Costarelli ‘“‘appealed”’ to the Superior Court for a trial
de novo and concurrently brought this appeal to this
Court. This Court postponed the issue of jurisdiction
for further consideration.
Jurisdiction over this appeal is predicated on 28
U.S.C.1257(2) which grants review of “[f]inal judg-
ments or decrees rendered by the highest court of a
State in which a decision could be had,...” The
jurisdictional question at hand, then, is whether the
sentence imposed by the Municipal Court for the City
of Boston is a final judgment of a highest state court.
In Massachusetts there is no procedure tor obtaining
direct appellate review of a conviction in a municipal or
district court.! A defendent has a right of “appeal” for
'The municipal and district courts of Massachusetts comprise
the first tier of Massachusetts’ two-tier structure. For purposes of
this appeal, they are equivalent courts.
3
a trial de novo by jury in the superior court, the second
tier in Massachusetts’ two-tier criminal procedure.
However, a trial de novo in the superior court is a new
trial and not a remedy for reviewing the proceedings in
the lower court.
Alternatively, if a defendant does not “‘appeal”’ his
conviction to the superior court, he may obtain
collateral review of any jail sentence imposed by way of
a petition for writ of habeas corpus.? This remedy is a
collateral remedy and not a method of review
prerequisite to this Court’s jurisdiction under 28 U.S.C.
1257(2):
The possibility that the appellant might obtain
release by a subsequent and distinct proceeding,
and one not in the nature of a review of the
pending charge, in the same or a different court of
the State does not affect the finality of the
existing judgment or the fact that this judgment
was obtained in the highest state court available to
appellant. Largent v. Texas, 318 U.S. 418, 421-22
(1943).
Although the Commonwealth has not raised them
and rightly so, there are two other indirect remedies for
attacking criminal onvictions in Massachusetts. The first
is the writ of error.? Like the writ of habeas corpus,
this is a collateral remedy, and not a means of direct
review:
The writ of error does not bring into the Supreme
Judicial Court the original case. That remains in
the court in which it went to judgment. Lee py.
Fowler, 263 Mass. 440, 443 (1922).
2G.L. Ch. 248 Secs. 1-40.
3G.L. Ch. 250 Secs. 1-2, 9-12.
ee ee: Te ee
4
A writ of error is an original, independent action
and in its origin and nature is distinguishable from
appeals and bills of exceptions, which are continua-
tions of the original action. Commonwealth yv.
Marsino, 252 Mass. 224, 227-228 (1925)
Quite apart from its collateral nature, the remedy does
not lie to attack a criminal conviction in a district or
municipal court:
In Massachusetts, the legislation permits a de novo
Superior Court trial for the defendant in all
aspects of the case but it does not provide a
method of reviewing error of law committed in the
course of the trial in the District Courts. See
G.L.C. 250 Sec. 9. It is reasonable to conclude
that the legislature intended that, upon appeal, the
question of guilt, the sentencing power and all
related matters be transferred to the Superior
Court for determination completely divorced from
the record of the prior trial.... We need not
speculate whether convictions in the District Court
resulted from error.... Mann v. Commonwealth,
__Mass.__, 271 N.E.2d 331, 333 (1971).
Th second remedy referred to above is a petition to
“4
the BBE suaicia Court pursuant to G.L. Ch. 211
Sec. 3 as amended by Ch. 1114, Sec. 44, of the Acts of
1973 which reads in relevant part:
The supreme judicial court shall have general
superintendence of all courts of inferior jurisdic-
tion to correct and prevent errors and abuses
therein if no other remedy is expressly provided;
and it may issue all writs and processes to such
courts and to corporations and individuals which
may be necessary to the furtherance of justice and
to the regular execution of the laws.
5
This remedy is distinct and collateral in nature. It is
instituted by a summons and complaint as an original
action, and is governed by the Massachusetts Rules of
Civil Procedure.* Additionally, the Supreme Judicial
Court has recently held that it does not have
jurisdiction under the statute to review a judgment of a
district or municipal court. More specifically, in
Whitmarsh v. Commonwealth, Mass. _, 316 N.E.2d
610, 612-613 (1974), the plaintiff Whitmarsh brought a
petition pursuant to G.L. 211 Sec. 3 to challenge his
conviction in a district court on the grounds that he
was denied a jury trial in the first instance. In ruling on
the jurisdictional issue, the Supreme Judicial Court
held:
The first paragraph of the plaintiff's petition states
that the jurisdiction (emphasis supplied) of this
court is invoked pursuant to M.G.L. Ch. 21]
Sec. 3 which provides in part that this court “shall
have general superintendence of all courts of
inferior jurisdiction to correct and prevent errors
and abuses therein if no other remedy is expressly
provided.”’ (emphasis by the Court)
(a) This is not a case where “no other remedy is
expressly provided.”
a eS
Conclusion On the basis of our discussion above
we conclude as follows: ...(b)that it [the peti-
tion] cannot be maintained as a petition for the
exercise of this court’s extraordinary powers under
M.G.L. Ch. 211 Sec. 3,....
In light of the above, appellant submits that the
judgment of the Municipal Court of the City of Boston
*This remedy is similar to the all writs statute, 28 U.S.C.
1651.
6
was not subject to any further direct appellate review,
either discretionary or by right. Accordingly, that
judgment is a “‘judgment...rendered by the highest
court of a State in which a decision could be had...”
within meaning of Sec. 1257(2). Indeed the Common-
wealth concedes this point on p.4 of its motion to
dismiss: ‘In the instance case, while the judgment is
not subject to further review...”
Lastly, on the issue of this Court’s jurisdiction, the
Commonwealth argues that the judgment of the
Municipal Court of Boston is not a “final” judgment
within the meaning of Sec. 1257. Its argument is
two-fold. First, it maintains that since the appellant
exercised his right for a trial de novo in the superior
court “the litigation in the Municipal Court can only be
considered as an intermediate step in determining the
appellant’s guilt or innocence,” and ‘“‘[t]herefore, the
decision in the Municipal Court...cannot be con-
sidered a ‘final judgment’...”> The short answer to
this argument is that the judgment of the Municipal
Court is “final” because there were no further steps left
open to be taken in the proceedings in the Municipal
Court. The sentence of one year imprisonment was the
“final word’’® of the Municipal Court of Boston.
The second contention by the Commonwealth is that
appellant’s “appeal” for a trial de novo in the superior
court “eradicated” the judgment of the Municipal
Court, and hence, “the finding and sentence of the
Municipal Court have no force and effect for any
See p. 4 of the Commonwealth’s Motion to Dismiss.
Market Street Railway Co. v. Railroad Commission of
California, 324 U.S. 548, 551 (1945).
7
purpose upon a judge of the Massachusetts Superior
Court, much less of the United States Supreme Court,
for purposes of an appeal based upon 28 U.S.C.
Sec. 1257.” The thrust here is that the judgment of the
Municipal Court became mooted by appellant’s ‘‘ap-
peal” for a trial de novo.’ The answer to this
proposition is that the judgment is not moot under the
state procedure, let alone from a federal viewpoint,
Sibron v. New Ycrk, 392 US. 40, 50-58 (1968). For
instance, the statute under which Steven Costarelli was
convicted required the Registrar of Motor Vehicles of
Massachusetts to revoke his driver’s license for a
minimum period of one year or until such time as his
conviction was reversed on “appeal”.® This action was
restrained by district court judge Joseph Tauro and a
three judge court has been convened to determine the
constitutionality of this procedure, Costarelli_ v. Lucey,
Registrar of Motor Vehicles, No. 941T, (D. Mass.
1974). Similarly, G.L. Ch. 278 Sec. 24 makes clear that
the sentence imposed by the Municipal Court is quite
viable:
If the appellant fails to enter and prosecute his
appeal [in the superior court] he shall be
defaulted on his recognizance and the Superior
Court may impose sentence upon him for the
crime of which he was convicted [in the district or
municipal court], as if he had been convicted in
Said court, and if he is not then in custody, may
7 . : .
In the circumstances of this case it would be more accurate
to characterize Steven Costarelli’s “appeal” for a trial de novo as
a protective appeal.
5G.L. Ch. 90 Sec. 24(2)b), 2(c) (Br. App. 5a).
8
issue process to bring him into court to receive
sentence.
Accordingly, it is submitted that the judgment of the
Municipal Court of Boston is not moot and is a “‘final
judgment ...rendered by the highest court of a State
in which a decision could be had” within the meaning
of these words in 28 U.S.C. 1257(2).?
QUESTIONS PRESENTED
1. Is Massachusetts bound by the rule of Callan vy.
Wilson, 127 U.S. 540, guaranteeing a defendant a trial
by jury in the first instance when charged with an
offense carrying a possible maximum jail sentence in
excess of six months?
2. Where a defendant is entitled to a trial by jury,
does the interposition of a trial by magistrate before a
trial by jury impose an unconstitutional burden on the
defendant’s Sixth Amendment right to a speedy trial?
3. Where the Sixth Amendment guarantees a trial by
jury, do state de novo procedures which deny this right
in the first instance violate the double jeopardy
provisions of the Fifth Amendment?
Subsection (2) of Section 1257 is applicable since the
Municipal Court sustained the constitutionality of the state
Statutes in question by denying defendant’s motion for a jury
trial. In the motion (App. 4), the defendant specifically
asserted his constitutional rights and the pertinent decisions of
this Court which he alleged to establish his rights.
9
STATUTES INVOLVED
Article XII of the Declaration of Rights of the
Massachusetts Constitution, Massachusetts General Laws
(ter. ed.) Ch. 263 Secs. 4 & 6, Ch. 218 Sec. 26, Ch. 278
Secs. 2, 18, 20 and 24, comprise the framework of
Massachusetts’ two-tier trial de novo criminal procedure
and are set forth in the Appendix to this brief.
STATEMENT OF THE CASE
On February 27, 1974, Steven Costarelli was charged
in the Municipal Court for the City of Boston with
using a motor vehicle without authority and knowing
such use to be unauthorized, an offense set out in
M.G.L. Ch.90 Sec. 24(2)(a) carrying a maximum
possible sentence of a $500 fine and two years
imprisonment. At the beginning of the proceeding,
Steven Costarelli duly moved the trial court in writing
for a trial by jury in the first instance, asserting
specifically his constitutional rights to one under the
Fifth, Sixth, and Fourteenth Amendments of the
Constitution of the United States. The trial court
denied this motion, Thereupon, the government placed
its case in evidence and rested. Steven Costarelli did not
testify or otherwise offer any evidence. The trial judge
then found Steven Costarelli guilty and sentenced him
to one year imprisonment. Appellant brings this appeal
to reverse the conviction of the Municipal Court of
Boston.
10
SUMMARY OF THE ARGUMENT
Massachusetts maintains a two-tier trial de novo
criminal procedure. For most offenses the accused is
brought to trial initially in the first tier, the district or
municipal courts, where he is tried before a judge. He
cannot obtain a trial by jury, but if he is dissatisfied
with the judgment of the lower court, he may “appeal”
to the second tier, the superior court, and obtain a trial
de novo by jury. If the defendant is reconvicted in the
superior court, he can obtain traditional appellate
review of this conviction in the Massachusetts Appeals
Court or Supreme Judicial Court.
In Callan v. Wilson, 127 U.S. 540, 557 (1888), this
Court unanimously held that the right to trial by jury
secured to the accused “the right to enjoy that mode of
trial from the first moment, and in whatever court, he
is put on trial for the offense charged.” Eighty years
later, in Duncan v. Louisiana, 391 U.S. 145, 149, 158
n.30 (1968), this Court held that the Fourteenth
Amendment guaranteed ‘a right of jury trial in all
criminal cases which—were they to he tried in a federal
court—would come within the Sixth Amendment’s
guarantee,” and hence, by implication it bound
Massachusetts to the rule of Callan vy. Wilson, subject to
the qualification in Justice White’s n.30 that the
Court’s decisions interpreting the Sixth Amendment
were “‘always subject to reconsideration.”
Appellant maintains that the essence of the rule of
Callan vy. Wilson is that the accused should not be put
“to the burden of two trials if he wishes a jury verdict”
and that the interposition of a trial by magistrate is an
unconstitutional imposition on the exercise of the right
to trial by jury. The “burden” on the right to trial by
jury includes the additional expense the accused must
bear for a meaningless trial in the lower court, the
embarrassment of being found guilty and “‘appealing”’,
an additional bail bond premium, and the threat of an
increased penalty upon reconviction in the second tier.
The burden of a district court trial cannot be
circumnavigated. If the defendant remains silent and is
convicted, collateral consequences, e.g. loss of one’s
driver’s license, attach immediately and the unimpeached
testimony of the government witnesses may be
introduced against him in his trial de novo in the superior
court should the witnesses become unavailable. Ad-
ditionally, if the accused fails to “prosecute his appeal, he
shall be defaulted on recognizance and the superior court
may impose sentence upon him for the crime of which he
was convicted.” G.L. Ch. 278 Sec. 24.
In addition to being a burden on the right to trial by
jury, the interposition of a trial by magistrate runs
counter to the “purpose” of the right to trial by jury,
namely, to protect the accused from government
oppression, such as the unnecessary burdens set out
above, and to interpose “between the accused and his
accuser... the commonsense judgment of a group of
laymen.” From this it follows that the rule of Callan v.
Wilson is an essential element of the right to trial by jury
in contradistinction to the unanimity for 12 man
requirements which are “features” of a jury. As such, the
rule should be left undisturbed.
Additionally, appellant maintains that Massa-
chusetts has no more right to interpose a trial
without a jury than it would to interpose a trial in
which the accused was denied the right to counsel, or
the right to remain silent, or the right to confront
12
witnesses. And it is no answer on Massachusetts’ part to
say that it offers the defendant a trial de novo with the
full panolpy of Sixth Amendment procedural rights.
Ward v. Village of Monroeville, 409 U.S. 57 (1972).
Similarly, Massachusetts has no compelling state interest
to deny the accused a trial by jury in the first instance
as it may accomplish its purpose of saving judicial
resources by maintaining a two-tier structure, but
allowing a defendant the choice of proceeding in the
first tier initially or a jury trial in the first instance
in the second tier. See e.g. Holliday v. State, 109 R.1.
93, (1971).
Quite apart from infringing the right to trial by jury,
the interposition of a trial by magistrate is an
unconstitutional imposition on the right to a speedy
trial. More specifically, the two-tier procedure is totally
counterproductive in minimizing the “anxiety and
concern of the accused.” For the defendant who
chooses to remain silent and insist upon his right to a
jury trial, a trial in the district court is a meaningless
proceeding which may “drain his financial resources”.
The imposition of a sentence amplifies anxiety, and the
ordinary inference drawn from “appeal” generates a
“cloud of suspicion.” In short, two-tier trial de novo
cuts away the roots of the speedy trial guarantee.
Lastly, appellant maintains that the two-tier de novo
procedure violates the double jeopardy provisions of the
Fifth Amendment. The heart of the double jeopardy
guarantee is that the government, absent a “manifest
necessity’’, should be limited “to a single criminal
proceeding to vindicate its vital interest in enforcement
of its criminal laws.” Implicit in limiting the govern-
ment to one crack at the accused is limiting it to a
13
proceeding which comports with sixth amendment
standards.
ARGUMENT
I
THE JUDICIAL STRUCTURE OF MASSA-
CHUSETTS’ TWO-TIER TRIAL DE NOVO
PROCEDURE
The first tier of Massachusetts’ two-tier de novo
system is comprised of the district and municipal
courts. These courts have jurisdiction!® over all
misdemeanors and crimes having a possible prison
sentence of five years or less, and certain enumerated
felonies having possible maximum prison sentences in
excess of five years.'! Criminal proceedings in the
district or municipal courts are commenced by the
issuance of a complaint. If the defendant pleads guilty
to the complaint at arraignment, he is sentenced by the
district or municipal court. If he is dissatisfied by the
sentence, he may “appeal.”!* the issue of his sentence
This jurisdiction is concurrent with the superior court, the
second tier of the de novo procedure, M.G.L. 218 Sec. 26, (Br.
App. 3a). Criminal proceedings may be initiated by either a
complaint before a district or municipal court, or upon an
indictment by a grand jury in the superior court, M.G.L. Ch. 263
Sec. 4 (Br. App. 1a). However, prosecution of crimes over which
the district and superior courts have concurrent jurisdiction is
almost always commenced in the district or municipal courts.
IIM.G.L. Ch. 218 Sec. 26 (Br. App. 3a). See generally,
Smith, Massachusetts Criminal Practice and Procedure, Sec. 44.
12M.G.L. Ch. 278 Sec. 18 (Br. App. 3a).
14
to the superior court, the second tier in the de novo
procedure, but he is not entitled to a de novo trial in
the superior court on his innocence or guilt, Common-
wealth v. Crapo, 212 Mass. 209, 210 (1912).
If the defendant pleads not guilty, he is tried in the
district or municipal court before a judge. He
cannot obtain a trial by jury. If he is convicted he has a
right of “appeal”!? to the superior court, the seccnd
tier of the de novo procedure, where he may obtain a
de novo trial by a jury of twelve!’ unless he waives
this right in writing,'® in which case he will be tried by
a judge. If a defendant fails to “prosecute his “‘appeal’’,
he shall be defaulted on his recognizance and the
superior court may impose sentence upon him for the
crime of which he was convicted, as if he had been
convicted in said court,” M.G.L. Ch. 278 Sec. 24 (Br.
App. la) (emphasis added).
13M.G.L. Ch. 278 Sec. 18 (Br. App. 3a).
14M.G.L. Ch. 278 Sec. 2 (Br. App. 2a).
ISFrom a guilty finding in certain district courts, a defendant
alternatively may “appeal” for a de novo trial by jury of six in
the district court, or from a guilty finding in the Municipal Court
of Boston, he may “appeal” for a twelve man jury in the
Municipal Court of Boston. These jury trials “proceed in
accordance with the provisions of law applicable to trials by jury
in the superior court” and appellate review from any conviction
is “‘in the same manner provided for trials by jury in the superior
court.” G.L. Ch. 218 Sec. 27A; G.L. Ch. 278 Sec. 18A. The only
practical difference to these alternatives is that the time for
obtaining a de novo jury trial in the district or municipal court is
much shorter than in the superior court.
16G L. Ch. 263 Sec. 6, (Br. App. 2a).
15
If a defendant is found guilty in the superior court,
he may obtain, by right, appellate review of his
conviction in the Massachusetts Appeals Court or the
Supreme Judicial Court.!7
THE SIXTH AMENDMENT JURY TRIAL
GUARANTEE MEANS TRIAL BY JURY IN
THE FIRST INSTANCE
One hundred and seventeen years ago Chief Justice
Snaw of the Massachusetts Supreme Judicial Court
concluded that the right to ti.4! by jury did not mean
trial by jury in the first instance, but only that the
state must afford the defendant a jury trial at some
time. More specifically, Chief Justice Shaw sustained
Massachusetts’ two-tier trial de novo procedure in Jones
v. Robbins, 8 Gray 329, 341 (1857)!® by holding:
And we believe it [the rigitt to a trial by jury] has
been generally understood and practiced here and
in Maine, and perhaps in other States having a
similar provision, that as the object of the clause is
to secure a benefit to the accused, which he may
avail himself or waive, at his own election; and as
the purpose of the provision is to secure the right,
without directing the mode in which it shall be
enjoyed; it is not violated by an act of legislation,
which authorizes a single magistrate to try and
pass sentence, provided the act contains a
17G_L. Ch. 278 Secs. 28, 31, 33A-33G.
I8Se¢ also Mann v. Commonwealth, Mass._, 271 N.E.2d
331, 333 (1971)
16
provision that the party shall have an unqualified
and unfettered right of appeal, and a trial by jury
in the appellate court, subject only to the common
liability to give bail, or to be committed to jail, to
insure his appearance and to abide the judgment to
the court appealed to.
In reaching this result, Chief Justice Shaw was
interpreting Article XII of the Declaration of Rights of
the Massachusetts Constitution!? guaranteeing that no
law “shall subject any person to...infamous punish-
ment... without trial by jury.” However, the eminent
Chief ‘ustice noted that this clause was “‘equivalent” to
the Sixth Amendment provision: “...in all criminal
prosecutions, the accused shall enjoy the right to a
epeedy and public trial by an impartial jury....”’
Thirty one years later, in Callan v. Wilson, 127 US.
540 (1888), this Court reviewed the constitutionality of
the District of Columbia’s two-tier trial de novo
procedure which was identical to the Massachusetts
procedure. 7? In this case, Justice Harlan took note of
Jones v. Robbins by citing at p. 553-4 the aforesaid
quoted portion of Chief Justice Shaw’s opinion, and
then rejected its reasoning at p. 556-7:
Except in the class or grade of offenses called
petty offenses,...the guarantee of an impartial
jury to the accused in a criminal prosecution,
conducted either in the name, or by or under the
authority of the United States, secures to him the
right to enjoy that mode of trial from the first
moment, and in whatever court, he is put on trial
for the offense charged. In such cases, a judgment
of conviction, not based upon a verdict of guilty
The full text of Article XII is set out in Br. App. a.
Callan v. Wilson, 127, U.S. 540, 551.
17
by a jury, is void. To accord to the accused a right
to be tried by a jury, in an appellate court, after
he has been once fully tried otherwise than by a
jury, in the court of original jurisdiction, and
sentenced to pay a fine or be imprisoned for not
paying it, does not satisfy the requirement of the
Constitution. When, therefore, the appellant was
brought before the Supreme Court of the District,
and the fact was disclosed that he had been
adjudged guilty of the crime of conspiracy charged
in the information in this case, without ever having
been tried by a jury, he should have been restored
to his liberty.
This decision, of course, was not binding upon
Massachusetts. However, appellant submits that subse-
quent decisions of this Court have made the rule of
Callan v. Wilson, applicable to the states.
Ill
DUNCAN V. LOUISIANA, 391 U.S. 145,
(1968), BOUND THE STATES TO THE
R'ILE OF CALLAN V. WILSON.
One hundred and eleven years after the decision of
Jones v. Robbins, this Court in Duncan y. Louisiana,
391 U.S. 145, 149, (1968) made the Sixth Amendment
applicable to the states:
[W]e hold that the Fourteenth Amendment
guarantees a right of jury trial in all criminal cases
which--were they to be tried in a federal
court—would come within the Sixth Amendment’s
guarantee;
and at page 157-158:
18
Our conclusion is that in the American States, as
in the federal judicial system, a general grant of
jury trial for serious offences is a fundamental
right, essential for preventing miscarriages of
justice and for assuring that fair trials are provided
for all defendants. (emphasis added)
The State of Louisiana had argued against this
holding, on the grounds that “‘if due process is deemed
to include the right to jury trial, States will be
obligated to comply with all past interpretations of the
Sixth Amendment” including the guarantee for a
twelve-man jury, the unanimous verdict requirement,
and the rule of Callan v. Wilson, 127 U.S. 540. In
rejecting this assertion, Mr. Justice White observed at p.
158-159 n. 30:
It is 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 recon-
sideration, a fact amply demonstrated by the
instant decision.... Indeed, there appear to be
only four States in which juries of fewer than
twelve can be used without the defendant’s
consent for offenses carrying a maximum penalty
of greater than one year. Only in Oregon and
Louisiana can a less-than-unanimous jury convict
for an offense with a maximum penalty greater
than one year. However ten states authorize
first-state trials without juries for crimes carrying
lengthy penalties; these States give a convicted
defendant the right to a de novo trial before a jury
in a different court.
The breadth of the majority opinion is made clearer by
Mr. Justice Fortas in his concurring opinion at p. 213:
“But although I agree with the decision of the Court, I
19
cannot agree with the implication, see ante, at 158-159,
n.30, that the tail must go with the hide: that when we
hold, influenced by the Sixth Amendment, that ‘due
process’ requires that the States accord the right of jury
trial for all but petty offenses, we automatically import
all of the ancillary rules which have been or may
hereafter be developed incidental to the right to jury
trial in the federal courts.’’ Likewise, Mr. Justice Harlan
acknowledged the same in his dissent at p. 181:
Consequently, the court has compromised on the
ease of the incorporationist position, without its
internal logic. It has simply assumed that the
question before us is whether the Jury Trial Clause
of the Sixth Amendment should be incorporated
into the Fourteenth jot-for-jot and case-for-case, or
ignored. Then the Court merely declares that the
clause in question is ‘in’ rather than ‘out’.
Duncan was followed by Baldwin v. New York, 399
U.S. 66 (1970) wherein five out of eight members of
this Court “‘agreed that, at the very least, the Sixth
Amendment requires a jury trial in all criminal
prosecutions where the term of imprisonment author-
ized by statute exceeds six months.”2! Of the five
members, three drew the demarcation line between
“petty” and “serious” crimes at six months,” as is
defined by common law?’ and in the federal system?4,
21 Codispoti v. Pennsylvania, ___U.S. ___, 41 LEd 2d 912, 919,
n.4 (1974).
2Cf. Callan v. Wilson, 127 U.S. 540, 549, 556.
Frankfurter & Corcoran, Petty Federal Offenses and the
Constitution Guarantee to Trial by Jury, 39 Harv.L. Rev. 917,
934. (1926).
418 U.S.C. Sec. |
20
and two held that the jury trial provisions of the Sixth
Amendment were applicable to “‘all crimes’.
Appellant submits that in light of Duncan and Baldwin
he was entitled to a trial by jury in the municipal court as
the maximum possible penalty under G.L. Ch. 90 Sec.
24(2)(a) was a $500 fine and two years imprisonment.?*
Alternatively, it should be observed that G.L. Ch. 90 Sec.
24(2)(b) & (c) requires the Registrar of Motor Vehicles to
revoke the driver’s license of a defendant who is
convicted for using a motor vehicle without authority for
a minimum period of one year or until his conviction is
reversed upon “appeal” in the superior court. The loss of
one’s driver’s license is a serious collateral consequence,
District of Columbia v. Colts, 282 U.S. 63, 73 (1930);
Parham v. Municipal Court, lowa , 199
N.W.2d 50 (1972). Its revocation pursuant to G.L. Ch. 90
Sec. 24(2)(b) & (c) constitutes a criminal penalty since it
is imposed for the commission of an act, i.e. using
without authority, which is totally unrelated to the
operation of a motor vehicle on the public ways or to the
protection of the lives and safety of the public. As such
this penalty was sufficient in itself to trigger the jury trial
requirement under Baldwin:
In extending the right to a jury trial, we define
the category of “criminal’’ prosecutions as includ-
ing any offense a direct penalty for which may be
incarceration in a jail or penal institution. It also
includes offenses which may result in the loss of a
valuable license, such as a driver’s license or a
license to pursue a common calling, occupation, or
business.* It must also include offenses which,
Br. App. Sa.
21
even if incarceration is not a possible punishment,
still connote criminal conduct in the traditional
sense of the term.
*This does not cover revocation of licenses
pursuant to administrative proceedings where
lawful criteria other than criminality are a
proper concern in protecting public welfare
and safety, as the basis of revocation or
suspension in such instances is not that one
has committed a criminal offense, but that
the individual is not fit to be licensed, apart
from considerations of only guilt or inno-
cence of crime. Baker v. City of Fairbanks,
Alaska, 471 P.2d 386, 401.?
In light of this contention, district judge Joseph
Tauro has restrained the Registrar of Motor Vehicles from
suspending Steven Costarelli’s driver’s license on ac-
count of his conviction in the Municipal Court of
Boston by a magistrate, Costarelli v. Lucey, No. 941T,
(D. Mass., 1974). Distinguishing Almeida v. Lucey, 372
F. Supp. 109, (D. Mass. 1974) affirmed )
(Oct. 15, 1974).
Subsequent to Duncan and Baldwin, state and lower
federal courts have rendered conflicting opinions as to
whether Duncan bound the states to the rule of Callan v.
Wilson. The Supreme Court of Rhode Island answered
See also Keenan v. Board of Bar Examiners, 317 F.Supp.
1350, 1360 (EDNC 1970) wherein Judge Craven notes that the
loss of one’s right to practice law is a penalty, Cf. /n re Winship,
397 US. 358, 363-64, 367 (1970); In re Gault, 387 U.S. 1, 50;
and Frank v. United States, 395 U.S. 147, 159-169 (19 _ ).
22
the question in the affirmative in State v. Holliday, 109
R.1. 93, 103, (1971):
We hold, then that those charged with misde-
meanors that could result, upon conviction, in the
imposition of a sentence of more than six months
are entitled to a speedy and prompt trial by an
impartial jury in the first instance.
The Supreme Court of Virginia reached the opposite
conclusion in Manns v. Commonwealth, 213 Va. 2nd
233 (1972)*’ holding that Mr. Justice White’s footnote
30 in Duncan “‘makes it clear” that the question of
“incorporation” was an “open” one. See also to the
same effect, Walker vy. Dillard, 363 F. Supp. 921
(W.D.V. - 1973) which, like Manns, relied on Mr.
Justice Fortas’ concurring opinion to Duncan. Since
these opinions are contrary to this Court’s holding in
Duncan, appellant alleges that they are inapposite.
In Whitmarsh v. Commonwealth,__Mass.__, 316
N.E. 2d 610, 618-619, the Supreme Judicial Court
held that the “‘state of the law on the subject is highly
uncertain” and therefore it was not “required to
conclude either (a) that the Sixth Amendment would
be interpreted at the present time by the Supreme
Court to require a trial by jury in the first instance... ,
or (b) that even if that court did reaffirm this
rule...with respect to the Federal Courts, it would
apply such a requirement in equal fashion to the
states.”’ Appellant submits that it was the duty of the
Supreme Judicial Court under Article VI of the
Constitution to interpret the decisions of this Court as
they existed and apply them. Instead, the Supreme
71Cf. Manns v, Koontz, 451 F.2d 1345, (4th Cir. 1971)
23
Judicial Court evaded the issue on the grounds that
“the meaning of the Sixth Amendment’s jury trial
provision and perhaps also specific instances of its
application to the States ...continues to be in flux.”
In any event, the decision should be accorded no value.
Lastly, on this branch of the argument, applicant
maintains that Williams v. Florida, 399 U.S. 78 (1970)
and Apodaca v. Oregon, 406 U.S. 404 (1972) are not
contrary to his position that Duncan bound the States
to the rule of Callan vy. Wilson. In Williams, this Court
held that the States are not required to afford a
defendant a twelve-man jury as the meaning of the
Sixth Amendment did not include a twelve-man jury
requirement. In reaching this conclusion, the Court in
effect overruled the federal twelve-man requirement and
hence this decision is entirely consistent with Mr.
Justice White’s remark in n. 30 in Duncan:—“[o)ur
decisions interpreting the Sixth Amendment are always
subject to reconsideration. ...’’ Quite apart from this
consideration, Duncan was expressly reaffirmed by the
Court at p. 86, and by Mr. Justice Black concurring at
p. 107:
We have emphatically “rejected the notion that the
Fourteenth Amendment applies to the States only
a ‘watered down, subjective version of the
individual guarantees of the Bill of Rights.’”
Mailoy vy. Hogan, 378 U.S. 1, 10-11. Today’s
decision is in no way attributable to any desire to
dilute the Sixth Amendment in order more easily
to apply it to the States, but follows solely as a
necessary consequence of our duty to reexamine
prior decisions to reach the correct constitutional
meaning in each case. The broad implications in
early cases indicating that only a body of 12
24
members could satisfy the Sixth Amendment
requirement arose in situation where the issue was
not squarely presented and were based, in my
opinion, on an improper interpretation of that
amendment. Had the question presented here
arisen in a federal court before our decision in
Duncan vy. Louisiana, 391 U.S. 145, (1968), this
Court would still, in my view, have reached the
result announced today.
In Apodaca v. Oregon, 406 U.S. 404, this Court held
that the unanimous jury requirement of the Sixth
Amendment was not applicable to the States. In so
holding, four justices impliedly overruled the require-
ment as to federal trials and as such their plurality
opinion is consistent with Duncan. Mr. Justice Powell
reached the same conclusion, but was not in “accord
with a major premise upon which that judgment” was
based, namely “that the concept of jury trial as
applicable to the States under the Fourteenth Amend-
ment, must be identical in every detail to the concept
required in federal courts by the Sixth Amendment,”
Apodaca, supra, 369. Three justices in dissent felt that
the federal standard should not be changed and hence,
the states should be bound to the unanimous jury
requirement on the basis of Duncan. Accordingly,
appellant submits that this decision is not a departure
from Duncan in principle. It simply redefined “‘what is
meant by the concept ‘jury’” in the context of the
Sixth Amendment.
25
IV
THE INTERPOSITION OF A TRIAL BY
MAGISTRATE PRIOR TO AFFORDING A
DEFENDANT A JURY TRIAL IS AN
UNCONSTITUTIONAL BURDEN ON THE
RIGHT TO TRIAL BY JURY.
As Justice Harlan calls to our attention in Baldwin y.
New York, 399 U.S. 66, 137, the bedrock of Callan vy.
Wilson is that the accused should not be put to “the
burden of two trials if he wishes a jury verdict.” That
“burden” was eloquently set out by Mr. Justice Thomas
of the Supreme Judicial Court in his memorable dissent
in Jones v. Robbins, 8 Gray 329, 351-2:
It seems to me plain that, when the Constitution
declares that “the legislature shall not make any
law that shall subject any person to a capital or
infamous punishment, excepting for the govern-
ment of the army and navy, without trial by
jury,” its meaning is trial by jury when and
wheresoever he shall be tried; not upon his second
trial, nor after having been subjected to another
and different mode of trial. If, for an offense
subjecting him to capital or infamous punishment,
the citizen may be tried once without a jury, it is
not easy to see why he may not be so tried a
second time; why the legislature may not provide
that, upon appeal to the municipal court, he may
be tried by a single judge, and postpone his trial
by jury to his appeal to this court. Such a law
would, indeed clog and obstruct his trial by jury;
but the difference between that and this is in
degree only.
The subjecting the accused to one trial by a single
magistrate obstructs the right of a trial by jury,
26
and essentially impairs its value. It places between
the accused and a trial by jury a barrier not
necessary for the security of the public, such as
are the preliminary examination and the holding to
bail. It interposes unnecessary delay between the
accusation and trial by his peers. It subjects him to
unnecessary and often fatally burdensome expense
before he can reach the tribunal by which it is his
right and his security to be tried. The subject
cannot be said, under such a law, to obtain his
right “freely, and without being obliged to
purchase it; completely, and without any denial;
promptly, and without delay”’.
When you state the proposition that a man may be
constitutionally tried for murder by a justice of
the peace or a police court, or by any single judge,
even after indictment, and that he cannot have a
trial by jury until he has been tried by a single
magistrate, | think every mind familiar with the
Constitution, and with the common law rights
secured by it, shrinks from the conclusion; yet it is
to be observed, that the twelfth article of the Bill
of Rights makes no distinction between laws
subjecting the citizen to capital and _ those
subjecting him to infamous punishments. They
stand on the same ground.
| am aware that in some text-writers of authority,
and in the dicta of judges for whom I feel the
highest respect it has been said, that if there is an
unobstructed and unclogged right of appeal to a
court in which a trial by jury can be obtained, the
article of the Bill of Rights is satisfied. To this
view | answer...[t]hat is not an unobstructed
and unclogged right of appeal, which the twelfth
article secures, but an unobstructed and unclogged
right of trial by jury.”8
Bo these weighty words of Judge Thomas no satisfactory
reply has ever been made.”—State v. Gerry, 68 N.H. 495, 507
(1896).
27
Initially, it is observed that Justice Thomas recog-
nized the possibility that if a “citizen may be tried
once without a jury, it is not easy to see why he may
not be so tried a second time”. This same objection was
raised by Justice Blatchford in /n re Dana, 7 Benedict
14: (1876) “If Congress has the power to deprive the
defendant of his right to a trial by jury, for one
trial,...it is difficult to see why it may not also have
the power to provide several trials by a court, without a
jury, on several successive convictions, before allowing a
trial by jury”. Cf. Williams v. Florida, 399 U.S. 78, 91
n.28.
The “unnecessary and often fatally burdensome
expense” referred to by Justice Thomas comprises the
defendant’s legal fees, witness fees, bail bond premium,
and his loss of time and pay. For the accused who is
innocent, but found guilty, he must bear these expenses
for a meaningless proceeding before he ever gets into
court where he may obtain a verdict by a jury. While it is
true that Massachusetts assigns indigents free
counsel,2? Argersinger v. Hamlin, 407 U.S. 25 (1972),
there are many defendants who are just above the
indigent level and must hire private counsel for their
defense in the lower Massachusetts courts. On the
average, this expense is between $150-250. If the
defendant “appeals” for a trial de novo he must pay
further counsel fees of a minimum of $400. Cf.
Massachusetts Bar Associations’ Minimum Fee Schedule
(1973). The expense of the lower court trial is often
Rule 3:10 of Rules of the Supreme Judicial Court; G.L. Ch.
221 Sec. 34D.
28
“fatally burdensome”. For example, recently, this
attorney witnessed a trial in a district court in which a
school teacher was convicted for larceny of merchandise
from a discount store. Upon conviction the defendant’s
lawyer informed him of his right to a jury trial. The
defendant asserted his innocence and indicated he
wanted to “appeal’’. His counsel then informed him
that the cost for his services on “appeal” for
arraignment and trial would be $450. The defendant
replied “‘Well I already have lost two days pay and
$250 and if we appeal it will cost me another two days
pay and $450 more. | cannot afford that. We better
take the best deal we can get here.””*?
In and above the financial burden, appellant
maintains that the district court trial has a limiting
effect on the right to trial by jury. Some of the more
discouraging aspects of the proceeding are recorded by
Bing and Rosenfeld in 7he Quality of Justice at p.
105-106:
Arguments on motions when they are brought,
pit the judge and defense counsel as adversaries.
The police prosecutor, unfamiliar with controlling
court decisions, participates only to comment
upon the facts. The burden falls upon the judge
first to develop the arguments in opposition to the
defense motion, and then decide who has made
the better argument.
When defense counsel make motions to suppress
illegally obtained evidence, district court judges
“We have concluded on the basis of hard statistical data that
in determining guilt or innocence, a man’s finances are more
important than the circumstances surrounding the charge, and
ultimately, money determines the final disposition,” Bing and
Rosenfeld, The Quality of Justice, p.ix. See also Hasler, De
Novo Jury Trials, 23 Maine Law Rev. 63, p. 82-83, (1971).
~~
29
frequently reserve decision until the entire case has
been heard. If he thinks the defendant is
guilty—influenced in part by the questionable
evidence—rather than weighing the motion exclu-
sively on its merits, he is in a position to balance
the legal merits of the motion against the
seriousness of the crime.
The trials themselves are brief. One judge’s
impatience with zealous defenses was expressed
when he remarked to a defense counsel, “We don’t
follow those Supreme Court decisions here.”
The formal requirement for a guilty finding is
proof beyond a reasonable doubt. In district court
trials, there are strong indications that the
government’s burden is reduced to showing (iat
the preponderance cf the evidence establishes the
defendant’s guilt. ...
At the heart of the district court’s attitude,
which overlooks rules of law and guaranteed rights,
is the belief that the defendant can always protect
himself by asserting his right to trial de novo.*!
No doubt can exist that the net effect of such a trial is
to discourage the accused, if he is found guilty, from
proceeding further.
Quite apart from the trial itself, the sentencing
procedure is often a fatal deterrent on the exercise of
the accused’s right to trial by jury. For example, in the
instant case, after finding Steven Costarelli guilty, the
The most graphic illustration that the burden of proof is
reduced to the preponderance of the evidence test is a case
reported by Bing and Rosenfeld, The Quality of Justice, at p. 83.
In this decision, the trial judge resolved the conflicting testimony
of the defendant and police officers by holding: “Well I don’t
know who to believe. Just to play safe I will find you guilty.”
30
trial judge in the Municipal Court announced that he
would impose a one year suspended jail sentence if the
detendant would forgo his “right of appeal”’ for a trial
by jury, or otherwise he would impose a One year
sentence. When this attorney objected to the choice the
trial judge addressed Steven Costarelli: “‘Take your pick,
one year suspended with no appeal, or one year with
appeal”.*? Steven Costarelli exercised his right in
accordance with this counsel’s strong advice and over
his own judgment, The trial judge then imposed the one
year sentence (App.-5).33 This type of sentence
conditioning is not the result of personal vindictive-
ness,** Cf. Blackledge y. Perry, 417 U.S. 21, (1974),
but rather it is the product of the institutional interest
of the district court judge in discouraging what he
considers frivolous “appeals”. For another paradigm see
Grayson v. Montgomery, 421 F.2d 1306 (Ist Cir.
1970).
2Se¢ Quality of Justice at p.86-88 for more “detailed”
description of this procedure.
Regarding this alleged impropriety, Steven Costarelli has
petitioned the Supreme Judicial Court for extraordinary relief,
Costarelli v. DeGuglielmo, No. 034.
Bing & Rosenfeld, The Quality of Justice, at p. 86-88: C haffin
v. Stynchone 412 U.S. 17 (1973).
31
In addition to the deterrent sentencing procedures in
the district court, the defendant faces the threat of a
harsher sentence being imposed if he is reconvicted in the
superior court. More specifically in Mann v. Common-
wealth, Mass. ___,271 N.E. 2nd 331, the
Supreme Judicial Court held that a superior court judge
may augment the district court sentence and that he
does not have to affirmatively justify such action. See
also Lemieux v. Robbins, 414 F.2d 353 (st Cir. 1969),
cert. denied, 397 U.S. 1017, (1970) holding the same.
The decisions in both these cases rested upon North
Carolina v. Pearce, 395 U.S. 711 (1969), However, the
issue in Pearce was whether the threat of an increased
penalty being imposed on retrial burdened the “right to
appeal” in contradistinction to the right to trial by
jury. These rights are entirely different. In the first
case, the second trial results “at the defendant’s
behest’. In the second case, the second trial results
from the government’s “behest” as it cannot imprison
the accused unless it is pursuant to the judgment of his
peers, and under these circumstances, the imposition of
an increased penalty constitutes a penalty on the right
to trial by jury:
I find it equally difficult to reconcile the increase
of penalties, upon a conviction after an appeal,
with the unimpaired enjoyment of the right of
trial by jury. The act inflicts a fine of twenty
dollars, if a conviction takes place before a justice
of the peace. It must be that the legislature
considered this the appropriate penalty for the
offence. Certainly it cannot be said that the
offence is aggravated, by the accused having
%G.L. Ch. 218 Sec. 26 (Br. App.-54).
32
claimed a trial by jury. For what, then, is the
additional penalty of eighty dollars, or the
additional imprisonment for thirty days, inflicted?
If the offence remains the same, and the offender
has done nothing but claim an appeal, in order to
have his case tried by a jury, must not these
additional penalties be founded on the exercise of
that right?
Greene v. Briggs, 10 F. Cas. 1135, 1141,
(No. 5,764) (C.C.R.1. 1852).
This distinction was raised in Whitmarsh v. Common-
wealth, Mass., 316 N.E. 2nd 610, 619-620, but the
Supreme Judicial Court rejected it on the authority of
Colten v. Kentucky, 407 U.S. 104 (1972). In Colten,
this Court sustained an augmented sentence imposed
after a trial de novo in the second tier of Kentucky’s
two-tier procedure. But this holding is not controlling
because the two-tier procedure in Kentucky is funda-
mentally different than the Massachusetts procedure. In
the Kentucky procedure, the accused is afforded a jury
trial in the first tier. Colten expressly waived this
right.** Accordingly, his trial de novo in the second tier
of the Kentucky procedure was at his “behest” and as
such was equivalent to retrial subsequent to “appeal” as
was the case in Pearce.
Quite apart from this consideration, this Court took
pains to note that in the Kentucky procedure, “the
record from the lower court is not before the superior
court and is irrelevant to its proceedings’, and “‘[i]n all
likelihood, the trial de novo court is not even informed
of the sentence imposed in the inferior court and can
a “Although appellant here was entitled to a six-man
jury,...which he waived...” Colten, at p. 113. Additionally, it
should be observed that Colten was not even entitled to a jury
trial at any time as the maximum penalty under the statute upon
which he was charged did not exceed six months imprisonment.
TO EE em
33
hardly be said to have ‘enhanced’ the sentence.” As
such, this Court refused to impose the prophylactic rule
of Pearce. In Massachusetts, however, the record of the
lower court proceedings, including the sentence im-
posed, is transmitted to the superior court, G.L. Ch.
278 Sec. 20 (Br. App 4a).°* As a matter of practice,
the resentencing judge usually inquires initially as to
why the district court sentence should not be reimposed.
Such a procedure manifests the institutional weight of
judicial comity between the two tiers in the Massa-
chusetts system. ~
Additionally, in Colten, this Court observed at
p. 119-120, that the defendant in the Kentucky
procedure “can circumnavigate the inferior court simply
by pleading guilty and erasing immediately thereafter
any consequence which would otherwise follow from
tendering the plea.”*’ There is no similar procedure in
Massachusetts. If the accused pleads guilty, his plea is
considered a waiver of his right to a jury trial,
Commonwealth yv. Crapo, 212 Mass. 209-210. The
defendant must stand trial in a proceeding that denies
him his Sixth Amendment right. Accordingly, it is
submitted that Colten does not control.
Appellant submits that the above noted burdens,
namely the additional legal fees, witness fees, bail
The de novo jury is also aware that the accused has been
previously adjudged guilty. Compare Chaffin v. Stynchcombe,
412 U.S. 17, 28, n.13-14.
"Cf. Lemieux v. Robbins, 414 F. 2nd 353, 356 (Ist Cir.
1969), cert. denied 397 U.S. 1017: “[W]e hold the defendant
has no constitutional right to complain of a “chilling effect”
when in effect, he need not stand in the draft in the first
instance.”
34
premium, loss of pay, and the threat of increased
penalties in the superior court are a deterrent on the
exercise of the accused’s right to trial by jury. In a
given case, any one of the above factors may tip the
scales against the accused in exercising his right to trial
by jury. Additionally, and perhaps most important,
there is the deterrent effect of the trial, conviction,
and sentence. When viewed in toto, the conclusion
is inescapable that the interposition of a trial by
magistrate deters the exercise of the right to trial by
jury, and as such, constitutes an unconstitutional
burden on the right, United States y Jackson, 390 U.S.
570, 582, 583 (1967): “A procedure need not be
inherently coercive in order that it be held to impose an
impermissable burden:” for “if the provision had no
other...effect than to chill the assertion of consti-
tutional rights by penalizing those who chose to exercise
them, then it would be patently unconstitutional.’’38
Two arguments have been set forth to establish that
the imposition of a trial by magistrate is not an
unconstitutional burden on the right to trial by jury.
The first is set forth by Mr. Justice Shaw in Jones y.
Robbins, 8 Gray 329, 341 namely, that the only
burden placed on the accused in the two-tier process is
the delay and recognizance which “are the same and no
greater than they would be in case the magistrate,
instead of passing sentence should, on examination,
bind the accused over, or, as the necessary alternative,
*See also Shapiro y, Thompson, 394 U.S. 618, 642 (1969),
Stewart concurring.
~~
~<ee
en ee
a ne ee ee
Let? A ere ee re :
rete ret eee nm
35
commit him to jail”. This theory is fully rebutted by
Chief Justice Carpenter in State v. Gerry, 68 N.H. 495,
505-6 (1896):
To say that the required recognizance upon an
appeal subjects the party to no greater inconven-
ience,—is no greater burden than the recognizance
required upon an examination and binding over,—if
it were true, does not conclude the matter. It is
not merely the recognizance but the judgment of
the magistrate, the sentence without a jury trial,
that burdens. But it is not true. In legal effect, the
difference between recognizances upon a binding
over and upon an appeal is great. In the first case,
the sole consequence of a default or forfeiture is
to create a debt in the amount of the recogni-
zance, payment of which may be enforced. Upon
the forfeiture of the recognizance taken on appeal
not only is the defendant subjected to the payment
of the amount of the recognizance, but he is
also, under the Massachusetts statute, sentenced by
the court appealed to as if he had been convicted
in that court. By his default he is held to waive a
jury trial. Commonwealth v. Whitney, 108 Mass. 5,
6, 7.
The Massachusetts statute referred to above was the
predecessor to G.L. Ch. 278 Sec. 24, (Br. App. 1a),
which requires that upon the failure of the defendant
to prosecute his “appeal”, “he shall be defaulted on his
recognizance and the superior court may impose
sentence upon him for the crime of which he was
convicted in.’’ This statute in effect shifts the burden to
the accused, a patently unconstitutional procedure:
A tatal objection to this doctrine is that it puts
the burden of obtaining a jury trial upon the
defendant, instead of the state. It compels him to
36
appear and demand the trial, without which the
constitution expressly declares he shall not be
condemned. The difference between a right to jury
trial upon demand made therefor and the right
not to be convicted or punished until a trial is
had, is wide. A man is not to be imprisoned or
otherwise punished because a corrupt or ignorant
magistrate has found him guilty of crime,... As
long as he remains entirely passive,—as long as he
neither does nor says anything relative to the
charge against him, except to maintain his
innocence by a plea of not guilty,—he is assured
by the express terms of the constitution that he
cannot be punished until the state has obtained a
verdict of guilty from twelve of his neighbors. “No
subject shall be deprived of life, liberty, or estate
but by the judgment of his peers.” This language
does not mean—it cannot reasonably be construed
to mean—that he may be tried and finally
condemned by a magistrate unless he takes certain
prescribed measures to procure a constitutional
trial. State v. Gerry, supra, p. 506.
The second contention is that trial de novo is to the
defendant’s advantage in that he “gives up nothing by
going to trial in the district court,” Lemieux yy.
Robbins, supra, at p. 355, while at the same time “he
actually gains the distinct advantage of a preview of the
prosecution’s case without having to disclose his own”,
Mann vy, Commonwealth, Mass. —271 N.E.2d 331,
334. When viewed in light of some of the collateral
consequences that attach to the accused upon convic-
tion in the district court, e.g. loss of one’s driver's
license, this argument flies in the face of reality. Quite
“Thus, in effect... . the defendant has ‘two bites at the
cherry’, Mann y, Commonwealth,___Mass._, 27} N.E.2d 331,
332.
—_—
ne. ee
37
apart from this, the defendant cannot help but expose
his defense through cross examination of the govern-
ment’s witness.*® Likewise, cross examination has the
tendency of hardening and polishing the government's
witnesses in the de novo trial in the superior court. See
e.g. Ashe v. Swenson, 397 U.S. 436, 439-440 (1970):
and Carsey v. United States, 392 F.2d 810, 813-814
(D.C. cir. 1967) which detail the metamorphasis of
testimony in the first and subsequent trials. Alter-
natively, if defense counsel does not cross examine the
government's witnesses in the district court, and if they
subsequently become unavailable, their unimpeached
testimony will be admitted against the accused since the
opportunity to cross examine the witnesses existed in the
district court. Commonwealth v. Mustone, 353 Mass. 490
1968) distinguishing Pointer v. Texas, 380 U.S. 400
(1965).
Lastly, on this section of the argument, it should be
observed that in addition to being a burden on the
right, the imposition of a trial by magistrate manifestly
runs counter to the “purpose” and “function” of the
right to trial by jury:
As we said in Duncan, the purpose of trial by jury
is to prevent oppressions by the Government by
providing a ‘safeguard against the corrupt or
overzealous prosecutor and against the compliant,
biased, or eccentric judge.’ . . . Given this purpose,
the essential feature of a jury obviously lies in the
interposition between the accused and his accuser
of the commonsense judgment of a group of
“Cf. Myers v. Commonwealth, Mass. __._., 298 N.E.2d
819, 828 (1973).
38
laymen....” Williams y. Florida, supra, at 100.
Apodaca v. Oregon, 406 U.S. 404, 410 (1972).
Accordingly, appellant submi ; that the rule of Callan
v. Wilson is not just a “detail” in the definition of what
is meant by a jury, but rather it is an essential element
of the nght, and for this reason, it should be left
undisturbed.
V.
THERE IS NO COMPELLING INTEREST
ON THE PART OF MASSACHUSETTS TO
JUSTIFY ITS INFRINGEMENT OF THE
RIGHT TO TRIAL BY JURY.
When Steven Costarelli was placed in jeopardy before
the Municipal Court of Boston, it was his right to
obtain a jury verdict, Duncan y. Louisiana, 391 U.S.
145. Massachusetts had no more right to deny him this
fundamental right than the right to confront witnesses
against him, or the right to counsel of his own
“De novo jury trials for serious offenses were not existent at
common law or in America in 1784. De novo bench trials were
in existence in England for petty offenses, Frankfurter &
Corcoran, Petty Federal Offenses and the Constitutional
Guarantee of Trial By Jury, 39 Harv. L. Rev. 917, 932-36 &
n.85 (1926). In New Hampshire a de novo jury was afforded the
accused in case of misdemeanors. “In all other cases trial by jury
was free. The accused was not obliged to purchase, or even to
demand, it....The burden rested not upon him to procure
either a trial or an acquittal. It rested on the state—to obtain a
trial by jury, as well as a conviction by their verdict.” State y.
Gerry, 68 N.H. 495, 499.500 (1896).
et tle
LA ES AS cyl tte Mapes’ te
39
choosing, or the right to remain silent. The abridgment of
this right by the trial judge of the Municipal Court was a
denial of the right, and it is no answer on the
part of Massachusetts to say that it offered the
defendant a trial de novo with the full panolpy of Sixth
Amendment procedural rights. This argument was
rejected in Ward vy. Village of Monroeville, 409 U.S. 57,
61-62, wherein the accused was initially denied an
impartial tribunal:
Respondent also argues that any unfairness at the
trial level can be corrected on appeal and trial de
novo in the County Court of Common Pleas. We
disagree. This “procedural safeguard” does not
guarantee a fair trial in the mayor's court;... Nor
in any event may the State’s trial court procedure
be deemed constitutionally acceptable simply
because the State eventually offers a defendant an
impartial adjudication. Petitioner is entitled to a
neutral and detached judge in the first instance.
But even if it assumed, arguendo, that the interposi-
tion of a trial by magistrate is an incidental burden on
the right to trial by jury, appellant maintains that there
is no “compelling state interest” to justify the
infringement on the fundamental right to trial by jury,
Roe v. Wade, 410 U.S. 113, 155; Shapiro v. Thompson,
394 U.S. 618, 631-634 (1969); Sherbert v. Verner, 374
U.S. 398 403-406 (1963). Massachusetts, of course, has
an interest in allocating its judicial resources by
maintaining a two-tier structure.*? but this interest can
*? Lemieux v. Robbins, 414 F.2d 353, 355 (Ist cir. 1969), cert.
denied, 397 U.S. 1017; Hasler, De Novo Jury Trials, 23 Maine Law
Rev. 63 (1971). But see Mr. Justice Black’s retort in Green v. U.S.,
356 U.S. 165, 216 (1958): “It is undoubtedly true that a judge can
dispose of charges . . . faster and cheaper than a jury.
40
be achieved equally as well, if not more efficiently, by
allowing the accused the option of proceeding initially
in the first tier or obtaining a jury trial in the first
instance in the second tier. See Holliday v. State, 109
R.I. 93 (1971); and Baldwin vy. New York, 399 U.S. 66,
74, n.22 (1969). Indeed the allowing of the accused
this option would more than likely effect a saving of
Massachusetts judicial resources.*?
But such trifling economies as may result have not generally been
thought sufficient reason for abandoning our great constitutional
safeguards aimed at Protecting freedom and other basic human
rights of incalculable value. Cheap easy convictions were not the
primary concern of those who adopted the Constitution and Bill
of Rights. Every procedural safeguard they established purposely
made it more difficult for the government to convict those it
accused of crimes. On their scale of values justice occupied at
least as high a position as economy.”
“There are certain types of cases in which a defendant, if
given an option, will always choose a trial by jury in the first
instance, or if not given the option, will always “appeal” for a
trial de novo. This is particularly true in driving under the
influence of intoxicating liquors cases where conviction results in
the loss of one’s driver’s license for a minimum of one year and
where the reversal rate of district court convictions by juries is
extremely high. See Boston Herald American, Feb. 24, 1973,
which reported that in one session of Suffolk Superior Court “19
out of 22 defendants who appealed lower court findings of guilty
mnpaned by judges were subsequently acquitted by juries of their
peers!
4]
V1.
THE FORCED INTERPOSITION OF A
TRIAL BY MAGISTRATE PRIOR TO AF-
FORDING THE ACCUSED A TRIAL BY
JURY IS AN UNCONSTITUTIONAL IMPO-
SITION ON THE RIGHT TO A SPEEDY
TRIAL.
Referring again to Justice Thomas’ dissent in Jones vy.
Robbins, supra, it is observed that he objected to the
“unnecessary delay between accusation and trial by...
[the defendant’s} peers’, on the grounds that a
defendant ought to obtain his right to a trial by jury
“ “freely, and without delay’”’. The latter words come
from Article XI of the Massachusetts Constitution
which reads:
Every subject of the Commonwealth ought to find
a certain remedy by having recourse to the laws,
for all injuries or wrongs he may receive in his
person, property, or character. He ought to obtain
right and justice freely and without being obliged
to purchase it; completely and without denial,
promptly and without delay; comformably to the
law.
Article XI is in essence the underpinning to the
speedy trial guarantee of the Sixth Amendment which
this Court made applicable to the states in Klopfer vy.
North Carolina, 386 U.S. 213, 222-3, 225-6 n.21
(1966):
We hold here that the right to a speedy trial is as
fundarae .tal as any of the rights secured by the
Sixth Amendment.
Initially, appellant maintains that it is unnecessary to
decide whether the total time elapsed between arrest,
42
trial in the district court, and trial de novo in the
superior court is impermissable per se in light of the
Sixth Amendment standards, Cf. United States ex rel.
Frizer v. McMann, 437 F.2d 1312, (2nd cir. 1971): United
States v. Butler, 426 F.2d 1275 (Ist cir. 1970), However,
some passing observations are helpful. First, the time
schedule in the superior court for trial of misdemeanors
and less serious felonies jis deplorable. Chief Justice
Tauro of the ssc Judicial Court summarized the
judicial log-jam succinctly in his 1972 State of the
Judiciary address, 57 M.L.Q. 209, 2, 3: “The dismal
plight of the superior court cannot in any sense support
even guarded optimism.” See also Ad Hoc Committee
on Judicial Administration v. Commonwealth of
Massachusetts, 488 F.2d 1271, (Ist cir. 1973) cert.
denied U.S. (1974). When one considers the
added delay of a trial in the district court, the intervening
time between “appeal” and docketing in the superior
court, it is observed that the total time between arrest
and trial by jury may be between six months and a year
and a half.** No doubt exists that this time period, in
itself, would violate the speedy trial provisions applied in
many jurisdictions. See e.g. Rule 4 of the Second Circuit
Court of Appeals: “In all cases the government must be
ready for trial within six months from the date of arrest.
service of summons, detention, or the filing of a com-
plaint or of a formal charge upon which the defendant is
to be tried.”; and ABA, Project on Minimum Standards
for Criminal Justice, Standards Relating to Speedy Trial
(1968).
aw
In Suffolk County, the misdemeanor session sits con-
tinuously in the i j ia 46 :
em y superior court and the time delay in appeal” is
43
Although Massachusetts’ court congestion is entitled
to some weight in excusing delay, this Court has stated
in Barker v. Wingo, 407 U.S. 514 (1972) that “the
ultimate responsibility for such circumstances must rest
with the government rather than with the defendant”.
In a concurring opinion Justice White emphasized this
point more strongly at p. 537-538:
A defendant desiring a speedy trial, therefore,
should have it within some reasonable time; and,
only special circumstances presenting a more
pressing public need with respect to the case itself
should suffice to justify delay. Only if such special
considerations are in the case and if tcy outweigh
the inevitable personal prejudice resulting from
delay would it be necessary to consider whether
there has been or would be prejudice to the
defense at trial. “(T]he evils protected against by
the speedy trial guarantee exist quite apart from
actual or possible prejudice to an accused’s
defense.”
In light of this criteria, it is submitted that the
“unnecessary delay” noted by Justice Thomas is not a
factor entitled to some weight in justifying Massa-
chusetts’ delay in bringing a defendant to trial. Indeed,
in light of the expense and burden a defendant must
suffer by a district court trial, the “unnecessary delay”
is more akin to a “deliberate attempt to delay the trial
in order to hamper the defense” and “should be
weighed heavily against the government”, Barker y.
Wingo, supra, p. 531. implicit in the right to a speedy
trial is the right to a speedy trial by jury, and the
interposition of a tria! without a jury is an unnecessary
burden on the right.
di
Quite apart from these considerations, the more
serious charge against the trial de novo system is that it
is totally counterproductive in minimizing the “‘anxiety
and concern of the accused”, Barker v. Wingo, supra,
p. 532 one of the main purposes of the speedy trial
guarantee. This object is set out more fully by this
Court in United States v. Marion, 404 U.S. 307, 321
(1971):
Arrest is a public act that may seriously interfere
with the defendant’s liberty, whether he is free on
bail or not, and that may disrupt his employment,
drain his financial resources, curtail his associa-
tions, subject him to public obloquy, and create
anxiety in him, his family and his friends. These
considerations were substantial underpinnings for
the decision in Klopfer v. North Carolina, supra.
The same reasoning is also applicable to the
defendant who is not arrested: “Finally even if an
accused is not incarcerated prior to trial, he is still
disadvantaged by restraints on his liberty and by living
under a cloud of anxiety, suspicion, and often
hostility’’, Barker vy. Wingo, supra, p. 533.
For the defendant who simply listens to the
government’s case, and wishes not to disclose his
defence, a trial in the district court is a meaningless
proceeding which may “drain his financial resources’’.
The finding of guilty and ‘appeal’? do not minimize
anxiety but amplify it; and the ordinary inference
drawn from “appealing” generates a “cloud of suspi-
cion”. In short, the two-tier de novo procedure cuts
away the right to a speedy trial at its roots. See State y.
Holliday, 109 R.1. 93, 103:—“The Constitutional right to
a speedy trial by a jury contemplates that the accused
45
shall be entitled to a trial by a jury at the time he is
initially subjected to judicial process which could
subject him to a loss of liberty by imprisonment in
excess of a period of six months.”
Vil.
MASSACHUSETTS’ TWO-TIER TRIAL DE
NOVO PROCEDURE VIOLATES' THE
DOUBLE JEOPARDY PROVISIONS OF THE
FIFTH AMENDMENT.
In Benton vy. Maryland, 395 U.S. 784, 794, (1969),
this Court bound the states to the double jeopardy
provisions of the Fifth Amendment by incorporating
them in the Fourteenth Amendment. The underpinnings
of these provisions are set out by Justice Harlan in
United States v. Jorn, 400 U.S. 470, 479 (1971):
A power in governmeni to subject the individual
to repeated prosecutions for the same offense
would cut deeply into the framework of procedu-
ral protections which the Constitution establishes
for the conduct of a criminal trial. And society’s
awareness of the heavy personal strain which a
criminal trial represents for the individual defend-
ant is manifested in the willingness to limit the
Government to a single criminal proceeding to
vindicate its very vital interest in enforcement of
criminal laws. Both those considerations are
expressed in Green v. United States, 355 U.S. 184,
187-188 (1957), where the Court noted that the
policy underlying this provision “is that the State
with all its resources and power should not be
allowed to make repeated attempts to convict an
46
individual for an alleged offense, thereby subject-
ing him to embarrassment, expense, and ordeal and
compelling him to live in a continuing state of
anxiety and insecurity, as well as enhancing the
possibility that even though innocent he may be
found guilty.”
Appellant alleges that Massachusetts’ trial de novo
procedure, if tested in the light of these criteria, cannot
sustain constitutional validity.
The two-tier procedure inherently subjects a defend-
ant twice to the heavy “personal strain which a criminal
trial represents”. A conviction in the district court
subjects him in the eyes of the community to the
“embarrassment” of being “found guilty” and “appeal-
ing” in a criminal proceeding. Similarly, conviction in
the district court “burdens the defendant with a
meaningless expense and ordeal and compells him “to
live in a continuing state of anxiety and insecurity, as
well as enhancing the possibility that even though
innocent he may be found guilty”. In short, such a
procedure is not consonant with limiting ‘the Govern-
ment to a single criminal proceeding to vindicate its
vital interest in enforcement of criminal laws”. Implicit
in limiting the government to one crack ai the
defendant is limiting it to a proceeding which comports
with Sixth Amendment standards.
Similarly, appellant maintains that the prohibitions of
double jeopardy clause not only bar punishing a
defendant twice for the same crime, but bar placing him
to his defense a second time, Ex Parte Lange 18 Wall
163, 169 (1893). While it is true that retrial is not
barred by double jeopardy principles in the case of the
defendant who perfects a successful appeal, United
States v. Ball, 163 U.S. 662 (1896), it is equally true
47
that the bar to reprosecution is not “confined to
prevention of prosecutorial or judicial overreaching”
United States v. Jorn, supra, 484, but extends to designed
governmental procedures that place a defendant to his
defense a second time to obtain that which he is entitled
to in the first instance.
More specifically, the double jeopardy clause bars
reprosecution when absent a “manifest necessity’, the
accused is deprived of “his valued right to have his trial
completed by a particular tribunal,” Wade v. Hunter,
336 U.S. 684, 688 (1949); United States v. Jorn, supra,
484. In Jorn, this Court held reprosecution was barred
after a mistrial was declared by the trial judge, sua
sponte, since the defendant was denied his option to go
to the jury once he was placed in jeopardy. Similarly,
in the instant case, once Steven Costarelli was placed in
jeopardy, he was entitled to the judgment of his peers
and the denial of his motion for a jury trial was
equivalent to the trial judge’s declaration of a mistrial
in Jorn. In both cases, the defendant was deprived on
his jury verdict once he was put to trial.
CONCLUSION
Appellant submits (1) that his conviction in the
Municipal Court of Boston was unconstitutional since
he was denied his Sixth Amendment right to a trial by
jury; (2) that reprosecution is barred since his Sixth
Amendment right to a speedy trial was abridged;
and (3) that reprosecution is barred by the double
jeopardy provisions of the Fifth Amendment.
48 la
WHEREFORE, appellant prays that this Court APPENDIX
reverse his conviction and remand this case to the
Municipal Court of the City of Boston with instructions Article XII of the Massachusetts Declaration of Rights:
that the complaint upon which he was charged should No subject shall be held to answer for any
be dismissed with prejudice. crimes or offense, until the same is fully and
Respectfully submitted, plainly, substantially and formally, described to
him; or be compelled to accuse, or furnish
Robert W. Hagopian, Esq. ) evidence against himself. And every subject shall
have a right to produce all proofs, that may be
favorable to him; to meet the witnesses against
him face to face, and to be fully heard in his
: defense by himself, or his counsel, at his election.
And no subject shall be arrested, imprisoned,
despoiled, or deprived of his property, immunities,
or privileges, put out of the protection of the law,
exiled, or deprived of his life, liberty, or estate,
. but by the judgment of his peers, or the law of
; the land.
And the legislature shall not make any law, that
shall subject any person to a capital or infamous
punishment excepting for the government of the
army and navy, without trial by jury.
G.L. Ch. 263 Sec. 4
No person shall be held to answer in any court
for an alleged crime, except upon an indictment
by a grand jury or upon a complaint before a
district court or in proceedings before a court-
martial.
G.L. Ch. 278 Sec. 24
If the appellant fails to enter and prosecute his
appeal, he shall be defaulted on his recognizance
and the superior court may impose sentence upon
him for the crime of which he was convicted, as if
he had been convicted in said court, and, if he is
not then in custody, may issue process to bring
him into court to receive sentence.
Wrentham, Massachusetts 02093 !
2a
G.L. Ch. 278 Sec. 2
Issues of fact joined upon an indictment or
complaint shall, in the superior court, be tried by
a jury drawn and returned in the manner provided
for the trial of issues of fact in civil causes, unless
the person indicted or complained against elects to
be tried by the court as provided by law.
G.L. Ch. 263 Sec. 6
A person indicted for a crime shall not be
convicted thereof except by confessing his guilt in
open court, by admitting the truth of the charge
against him by his plea or demurrer or by the
verdict of a jury accepted and recorded by the
court or, in any criminal case other than a capital
case, by judgment of the court rendered as
hereinafter provided. Any defendant in the su-
perior court in a criminal case other than a capital
case, whether begun by indictment or upon
complaint or any defendant in the housing court
of the city of Boston or in the housing court of
the county of Hampden in a criminal case, may, if
he shall so elect, when called upon to plead, or
later and before a jury has been impanelled to try
him upon such indictment or complaint, waive his
right to trial by jury by signing a written waiver
thereof and filing the same with the clerk of the
court, whereupon he shall be tried by the court
instead of by a jury, but not, however, unless all
the defendants, if there are two or more charged
with offenses growing out of the same single chain
of circumstances or events whether prosecuted
under the same or different indictments or
complaints shall have exercised such election
before a jury has been impanelled to try any of
the defendants; and in every such case the court
shall have jurisdiction to hear and try such cause
and render judgment and sentence thereon.
i Nl bg COR ee
Dens. wt eee sw ed
3a
Amended by St. 1971, c. 843, §21; St. 1973,
c. 591, §20.
G.L. CH. 218 Sec. 26
District courts shall have original jurisdiction,
concurrent with the superior court, of the
following offenses committed within their respec-
tive district or otherwise made punishable therein:
all violations of by-laws, orders, ordinances, rules
and regulations, made by cities, towns and public
officers, all misdemeanors, except libels, all
felonies punishable by imprisonment in the state
prison for not more than five years, the crimes
mentioned in sections sixteen, seventeen, eighteen,
nineteen, twenty-eight and forty-nine of chapter
two hundred and sixty-six, and the crimes of
forgery of a promissory note, or of an order for
money or other property, and of uttering as true
such a forged note or order, knowing the same to
be forged. They shall have jurisdiction of proceed-
ings referred to them under the provisions of
section four A of chapter two hundred and eleven.
Amended by St.1958, c. 138; St.1962, c. 722, §8;
St.1964, c. 140; St.1969, c. 496; St.1973, c. 585.
G.L. CH. 278 Sec. 18
Whoever is convicted of a crime before a district
court may appeal the finding of guilty or the
sentence imposed thereon to the superior court or
may appeal to and claim a jury of six in a district
court in accordance with section twenty-seven A
of chapter two hundred and eighteen and at the
time of conviction shall be notified of his right to
take such appeal. The case shall be entered into
the superior court on the return day next after the
appeal is taxen, and the appellant shall be released
on personal recognizance or committed, in accord-
ance with the procedures set forth in section
fifty-eight of chapter two hundred seventy-six,
4a
until he recognizes to the commonwealth, 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 not
previously surrendered and discharged, and so from
time to time until the final sentence, order or
decree, and not depart without leave, and in the
meantime to keep the peace and be of good
behavior. If the appellant is not released on
personal recognizance and is committed for failure
to recognize, the superior court shall thereupon
have jurisdiction of the case for the purpose of
revising the amount of bail required as aforesaid.
The appellant shall not be required to advance any
fees upon claiming his appeal or in prosecuting the
same. Notwithstanding any other provision of law,
a defendant, after a finding of guilty in a district
court, may appeal therefrom and shall thereafter
be entitied to a trial de nove in the superior court
or may appeal to and claim a jury of six in a
district court in accordance with said section
twenty-seven A. Amended by St.1973, c. 657.
G.L. CH. 278 Sec. 20
Upon such appeal, the clerk of the district court
shall transmit to the clerk of the superior court a
copy of the complaint and of the record of
conviction, the original recognizances, a list of the
witnesses, the appearance of the attorney for the
defendant, if any is entered, and a statement of
the expenses; and no other papers need be
transmitted.
G.L. Ch. 90 Sec. 24 (2) reads in part:
(a) ....and whoever uses a motor vehicle
without authority knowing that such use is
unauthorized shall, for the first offense be
punished by a fine of not less than fifty dollars
Bebe sme s
Sa
nor more than five hundred dollars or by
imprisonment for not less than thirty days nor
more than two years, or both, and for a
subsequent offense by imprisonment in the state
prison for not more than five years or in a house
of correction for not less than thirty days nor
more than two and one half years, or by a fine of
not more than one thousand dollars, or by both
(b) A conviction of a violation of the preceding
paragraph of this section shall be reported
forthwith by the court or magistrate to the
registrar, who may in any event, and shall unless
the court or magistrate recommends otherwise,
revoke immediately the license or right to operate
of the person so convicted, and no appeal, motion
for new trial or exceptions shall operate to stay
the revocation of the license or right to operate. If
it appears by the records of the registrar that the
person so convicted is the owner of a motor
vehicle or has exclusive control of any motor
vehicle as a manufacturer or dealer or otherwise,
the registrar may revoke the certificate of
registration of any or all motor vehicles so owned
or exclusively controlled.
(c) The registrar, after having revoked the
license or right to operate of any person under
the preceding paragraph of this section, in his
discretion may issue a new license or reinstate the
right to operate to him, if the prosecution of such
person in the superior court has terminated in
favor of the defendant, or, after an investigation or
upon hearing, may issue a new license or reinstate
the right to operate to a person convicted in any
court of the violation of any provision of
paragraph (a) of subdivision (2) of this section;
provided, that no new license or right to operate
shall be issued by the registrar to...any person
6a
convicted of violating any other provision of
paragraph (a) of subdivision (2) of this section
until sixty days after the date of his original
conviction if for a first offense, or one year after
the date of any subsequent conviction within a
period of three years.
This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.