Brief for Appellee — Costarelli v. Massachusetts
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an the
Supreme Court of the Butte 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
Franois X. BetLorri
Attorney General
Joun J. Inwiy, Jr.
Assistant Attorney General
Chief, Criminal Bureau
Davi A. Mrs
Assistant Attorney General
Chief, Criminal Appellate Section
131 Tremont Street
Boston, Massachusetts 02111
February, 1975. Attorneys for the Appellee |
———————
Blanchard Press, Inc., Boston, Mass. — Law Printers
| Supreme Court, U. S,
| j i be 1)
TABLE OF CONTENTS
Page
I. Opinion Below 1
IT. Statement With Respect to Jurisdiction 2
A. The ‘‘Judgment’’ Lacks Prerequisite Fi-
nality. 4
1. The Judgment Of The Boston Munici-
pal Court Is Not An Effective Determi-
nation Of The Litigation. 6
2. Further Appellate Review Is Available
Within The Massachusetts Court Sys-
tem. 8
B. The Judgment Herein Appealed Is Not A
Judgment Rendered By The Highest Court
Of Massachusetts In Which A Decision
Could Be Had. 9
ITI. Constitutional and Statutory Citations 11
IV. Question Presented 12
V. Statement of the Case 12
VI. Summary of Argument 12
VIT. 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 Massachusetis Procedure Provides Jury
Trial in a ‘‘Basie and Fundamental’? Mode. 15
A. The Colonial-Constitutional Experience 19
B. Contemporary States’ Practice 28
IT. The Massachusetts Jury Procedure Effects This
Court’s Enunciation of the Purpose and Func-
tion of Jury Trial in America. 31
III. This Case Does Not Require Consideration of
the Right to a Speedy Trial. 37
il Table of Contents
Page
IV. The Massachusetts Criminal Jury Procedure
Complies With the Fourteenth Amendment’s
Ban Against ‘‘ Double Jeopardy”’’. . | 38
VIII. Conelusion , ... 40
Appendix A. ___. eee aoe eae 41
ee eae rae ere
Cases
Anonymous v. Baker, 360 U.S. 287 (1959) ew
A podaca v. Oregon, 406 U.S. 404 (1972) .... 13, 16, 33, 34
Baldwin v. New York, 399 U.S. 66 (1970) _.. —
Banks v. California, 395 U.S. 708 (1969) ae
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) | ee
Brown v. Epps, 91 Va. 726 (1895) . 27
Building Union v. Leadbetter Co., 344 U.S. 178 (1972)
modified, Construction Laborers v. Curry, 371 U.S.
542 (1963) | | eer re
Cableton v. State, 243 Ark. 351 (1967) | 29
Callan v. Wilson, 127 U.S. 540 (1888) 13, 16, 27, 30,
34, 35, 36
Clark v. Williard, 292 U.S. 112 (1934) . a 5
Commonwealth vy. Blais, 113 Va. 760 (1912) ... 29
Commonwealth v. Duggan, 257 Mass. 465 (1926). ....— 8
Commonwealth v. Locke, 338 Mass. 682 (1959) ... i
Commonwealth v. O’Neil, 72 Mass. 343 (1856) 7
Commonwealth v. 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)... §
Table of Contents ili
Page
Dombrowski vy. Pfister, 380 U.S. 479 (1965) 35
Duncan v. Louisiana, 391 U.S. 145 (1968) 12, 13, 14, 15,
16, 17, 18, 19, 32, 33, 34, 35
Emerick y. Harris, 1 Binney 416 (1808) | 26
Gideon v. Wainwright, 372 U.S. 335 (1963) __. | 18
Goddard v. State, 12 Conn. 448 (1838) Dakes 25
Gorman v. Washington University, 316 U.S. 98 (1942) 4,10
Gospel Army v. Los Angeles, 331 U.S. 543 (1947) .... §
Gotthilf v. Sills, 375 U.S. 79 (1963) . 5
Griffin v. California, 380 U.S. 609 (1965) _. 18
Grovey v. Townsend, 295 U.S. 45 (1935) 10
Herbert v. Louisiana, 272 U.S. 312 (1926) . 18
In re Oliver, 333 U.S. 257 (1948) . Dee SI KLaArt 18
Jones v. Robbins, 8 Gray 329 (1857) | . 16, 17, 20
Johnson’s Case, 1 Me. 230 (| ion ae
Klopfer v. North Carolina, 386 US. 213 (1967) _... 18, 37
Largent v. Texas, 318 U.S. 418 (1943) . TeTreT oe
Lemieux v. Robbins, 414 F.2d 353 (1st Cir. 1969). 34, 35, 36
Leonard v. State, 43 Ala. App. 454 (1966) | ——
Lincoln v. Smith, 27 Vt. 328 << ee | 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)... 35
Mapp v. Ohio, 367 U.S. 643 (1961) at
Market Street Railway Co. v. Railroad Commissioner
of California, 324 U.S. 548 (1945) .. & 11
North Carolina v. Pearce, 395 U.S. 711 (1969) .. 14, 34, 38
Opinion of the Justices, 41 NH. 550 (1860) 23, 24
Palko v. Connecticut, 302 U.S. 319 (1937) 18
Pointer v. Texas, 380 U.S. 400 . 18
Powell v. Texas, 392 U.S. 516 aes oe
Republican Gas Co. v. Oklahoma, 334 U.S. 62 (1948) 4,5
Richfield Oil Corp. v. State Board, 329 U.S. 69 (1946) 5
Robinson v. California, 370 U.S. 660 (1962) ... 18
es
iv Table of Contents
Page
Singer v. 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 N.C. 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. Commonwealth, 1974 Mass. Adv. Sh.
1403, 316 N.E.2d 610 8, 11, 16, 20
Williams v. Florida, 399 U.S. 78 (1970) 13, 33, 34
Wilmarth v. King, 74 NH. 512 (1908) 23, 24
Younger v. Harris, 401 U.S. 37 (1971) 35
Constitutional Provisions
United States Constitution
Article III . 16
Article III, Section 2 27
Fifth Amendment 17, 38
Sixth Amendment 16, 17
Fourteenth Amendment, Art. I, $$ 6, 11 (1901) 29
Massachusetts Constitution
Article XII 11
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 Court Rules 16(1) (a)
26
36
U.S. 1 Stat. 85 § 25
Mass. Gen. Laws
ce. 90 § 24 ..
e. 211 § 5
211A
212 § 6
218 § 26
218 § 27A
265 § 13A
266 §§ 30, 60
267 § 7
278 § 18 .
278 § 18A
ce. 278 § 28E
Massachusetts
Acts and Resolves of 1721-1722,
1736-1737,
1724-1725,
1741-1742,
SPS eeeen ge
Page
_>- oo: Ss eq eee
vi Table of Contents Table of Contents vii
Page Page
1742-1743, ¢, 6 21 $§44-501 29
1749-1750, ¢. 7 22 §§44-509 29
1750-1751, ¢. 17 20 Kan. Stat. Ann. §622-3609 29
1775-1776, ¢. 23 21 $§22-3610 29
1776-1777, ¢. 36 21 Laws of Government of New Castle, Kent and Suffolk
1779-1780, ¢. 37 21 Upon Delaware 1700-1749 (Franklin and Hall, eds.,
1783, e. 51 91 1752) 28
1794, c. 26 21 Laws of Government of New Castle, Kent and Suffolk
1783 Mass, Stat. e. 51 § 3 20 Upon Delaware 1753-1762 (Adams, ed., 1763) (with
1831 Mass. Stat. c. 70 $1 20 ' October 1763 Session to October 1774 Session
1836 Rev. Mass. Stat. ¢. 85 § 28 20 Supplements) 28
ce. 87 § 36 20 N.H. Rev. Stat. §§502:18, 502A :11, 502A :12 29
e. 138 § 1 20 New Hampshire Laws, e. 45, 64 3, 4 (1828) 24
1845 Mass. Stat. ¢. 166 § 2 20 N.C. Gen, Stat. §§ 7A-177.1, -196, -271, -272, 15-290 29
1849 Mass. Stat. ¢. 31 20 Acts and Laws of Rhode Island 1663-1767, (1767) 29
1860 Mass, Gen. Stat. ¢. 116 ¢ 32 20 Pa. Code tit. 234, Rules 6001, 6006, 6010 29
e. 173 §§ 1, 4 20 Pa. R. Crim. Pro. : 51, 67 29
1882 Mass, Pub. Stat. ¢. 154 § 39 20 3 Statutes at Large of Pennsylvania 229 26
ce. 155 §§ 58, 61 20 246 26
1893 Mass. Stat. ¢. 396, 547 20 4 Statutes at Large of Pennsylvania 194 26
1894 Mass. Stat. e. 431 20) 291 26
1897 Mass, Stat. ¢. 490 § 3 20 15 Statutes at Large of Pennsylvania 110 26
1902 Mass. Stat. ¢, 219 § 22 20 XII Laws of Vermont 1777-1780 (Soule, ed., 1964). 25, 31
1905 Mass. Rey. Laws e. 319 20 XIII Laws of Vermont 1781-1784, 102 (Williams, ed.,
1913 Mass. Stat. ec, 652 20 1965) 29
1929 Mass. Stat. ¢. 216 $4 20 Virginia—1 Hening’s Statutes at Large (1823) 132 26
Ala. Code Ann. tit. 1, §7 . 29 168-168 26
Ala. Code Ann. tit. 13, §321 29 305 27
§326 29 | 273 26
Ariz. Rev. Stat. &§22-301 29 435 27
§$§22-371 through 22-374 29 2 Hening’s Statutes at Large 41 27
Ark Stat. 6644-115 29 Va. Code Ann. §§ 16,1-123, -124, -125, -132, -136 29
$§44-116 29 -
Vili Table of Contents
Page
Miscellaneous In the
Supreme Court of the United States
Frankfurter and Corcoran, Petty Offenses and the
Constitutional Guarantee of Trial by Jury, 39 Harv. Octoser Term, 1974
L.Rev. 917 (1926) 29
17th Annual Report to the Justices of the Supreme
Judicial Court (1973) 6, 31
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
I. Opinion Below
No opinion, findings of fact, or conclusions of law were
reported by the Municipal Court of the City of Boston.
EE
2
II. Statement With Respect to Jurisdiction
The jurisdiction of 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).1 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:
*“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 arguments 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. §1257.
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.t 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 v. 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 of appeal under sub-section (2) of §1257
because the judgment does not draw 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;
however, the Massachusetts procedure for providing a jury trial to
an accused is not explicitly defined or prescribed by a particular
statute. Indeed, the appellant has not specified a Massachusetts
Statute as being in question. Rather, the appellant alleges that seven
4
Appellee further notes that upon application to this Court
for review of the judgment of a state court, it is the
petitioner’s burden to affirmatively establish jurisdiction.
Gorman v. 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 vy. Dean, 74 U.S. 342, 345-46.
(Emphasis added.)® However, despite the absence of
Massachusetts statutes and one constitutional provision “comprise
the framework of Massachusetts’ two-tier trial de novo criminal pro-
cedure....” Brief for the Appellant, p. 9.
There is no Massachusetts statute which prohibits a jury in the
Boston Municipal Court or, alternatively, directs that criminal ce-
fendants of particular categories be tried without jury in the first
instance. Rather, the procedure is, it is argued, a practice which
develops because of the definition of jurisdiction of the district and
municipal courts in Massachusetts which happen to be without jury,
in the first instance. The Massachusetts 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 claimeu by the appellant would be more fully
and appropriately developed in a proceeding based upon 42 U.S.C.
$1983 in a federal court.
® No distinction js 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:
€ 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 vy. Curry, 371 US. 542, 552 (1963).
5)
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 $1257 :
(1) The question of ‘‘finality’’ is one of purely
federal law. Goitthilf vy. 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. 542 (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.
69 (1946); Clark v. Williard, 292 U.S. 112 (1934) ;
(4) The judgment must be an effective determi-
nation of the litigation and subject to no further
review or correction in any other state tribunal. Rich-
field Oil Corp., supra; Market Street Railway Co. v.
Railroad Commissioner of California, 324 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 appellate 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.
| a .._aNa@&.:mz&,_
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
arpellate 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, §6), 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.
® 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.
7
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),
depending upon the court of conviction, have available
several options for jury trial within the district court
system.’°
Appellee’s research discloses that the appeai 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 case of Sullivan v. 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).™
More recently the Massachusetts Supreme Judicial Court
has stated its position with respect to the nature of the
de novo 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 Jt should be noted that the “appeal” 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.
8
Court for determination compietely divorced from the
record of the prior trial. Mann v. Commonwealth,
359 Mass. 661, 664 (1971). [Italics added.]
And, appellee suggests that this available and elected
redetermination of the question of guilt, sentencing and
all related matters of appellant’s district court trial contra-
indicates that the district court ‘‘judgment’’ be construed
as an effective determination of the litigation. The judg-
ment in appellant’s district court case was, and is, subject
to further review in a state tribunal, as it is subject to
an available redetermination.
2. Further Appellate Review Is Available Within The
Massachusetts Court System.
The appellant had available to him a traditional avenue
of obtaining appellate review of the action of the district
court 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
to trial.” If such a motion were made, and subsequently
denied, and if the appellant were then found guilty, he
would have had available to him an opportunity for appel-
late review of the ruling on this motion as a matter of right
by saving and perfecting exceptions thereto and proceeding
with the same to the Massachusetts Appeals Court, and,
possibly to the Supreme Judicial Court. See Whitmarsh v.
Commonwealth, 1974 Mass. Adv. Sh. 1403, 316 N.E.2d 610
nn. 1, 3.
Admittedly, the availability of this ordinary review under
the method of exceptions and appeal would be viable only
in the event that the appellant were not acquitted, and
2*The foundation of the jurisdiction of the Superior Court in a
criminal case coming before it on appeal is the complaint made in
rr 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
of the constitutional issues that are presented to this Court.
The appellee recognizes that this Court’s decision in
Largent v. Texas, 318 U.S. 418 (1943), appears to be
authority contrary to the position argued by appellee.
In Largent it is reasonable to conclude that a rule was
established by which a lower court’s judgment would be
considered ‘‘final’’ for purposes of 41257 review if the
state’s procedure provided no method of reviewing the
defendant’s conviction on the record made in the lower
court. And, appellee recognizes that the statement of the
Massachusetts Supreme Judicial Court in Wann v. Common-
wealth, supra, appears to indicate that the superior court
procedure will not constitute a review on the district court
record (‘‘. .. completely divorced from the record of the
prior trial.’’ 359 Mass. at 664.
However, appellee suggests that a mechanical application
of the language of Largent would ignore the substantive
nature of the Massachusetts procedure and the substantive
fact to which there seems no dispute: the litigation in the
district court has not, at the election of the appellant in
this case, been effectively determined. Although the record
of the district court may be unreviewable in the Superior
Court, the substantive decisions made by the district court
seem to be substantively non-final.
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
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 particular 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:
* * *
Hence, it is the last state tribunal—* * *—to which the
cause could be brought for review which is the ‘highest
court of a state in 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 suggests that each of these decisions is
susceptible of further review and revision under Massa-
chusetts statutes and practice. The adjudication of guilt
ean 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, if
convicted in either of these courts, then take an appeal,
as of right, to the Massachusetts Appeals Court and, or
alternatively, apply for further or substituted hearings
before the Massachusetts Supreme Judicial Court. See
discussion infra, Appendix A.
ee
11
As to the question of the propriety of the Boston Munici-
pal Court’s ruling upon the motion for jury trial, the
question may be raised, as of right, in the Superior Court
(see Appendix A; Whitmarsh v. Commonwealth, supra)
and again, as of right, in either the Appeals Court or the
Supreme Judicial Court.
In brief, the two decisions made by the Boston Municipal
Court are not ‘‘the final word of a final court.’’ Market
Street Railway Co. v. Railroad Commission of California,
324 U.S. at 551. The decision as to the appellant’s guilt
is subiect to redetermination; the decision upon the motion
for jury trial is subject to review, correction and modifica-
tion. The appellee suggests that the decision of the Boston
Municipal Court did not dispose of the charge and is, in
this respect, distinguishable from Largent v. Texas, supra.
III. Constitutional and Statutory Citations
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
Q27A;
Massachusetts General Laws, Chapter 278, Section
18; and,
Massachusetts General Laws, Chapter 278, Section
18A.
Each is set forth in Appendix B, imfra.
12
IV. Question Presented
Whether or not the Massachusetts criminal jury pro-
cedure adequately complies with the Fourteenth Amend-
ment requirement that an 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
case was, on that date, continued for trial until February
27, 1974. (App. 6A). On February 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-7A). On that date and at 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,
§18A. (See Appendix B.) The record before this Court
is devoid of any indication of 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,
EN aT
13
391 U.S. 145 (1968). However, Duncan did not make the
rule of Callan vy. 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 jary
trial procedure complies with the Duncan requirement
because it 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 basic
and fundamental because it antedated, and remained viable
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
Amendment application.
2. This Court in the cases of Duncan v. Louisiana,
supra, Williams vy. Florida, 399 U.S. 78 (1970), and
Apodaca vy. 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
interposition of the commonsense 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
offense, and that the de noro procedure, though possibly
inconvenient to some, is beneficial to the large majority
of defendants and contraindicates a suggestion of govern-
mental oppression. The Massachusetts jury procedure ful-
fills the purpose and function of criminal jury trial in
America.
3. The right to a speedy trial, a fundamental right,
is not an appropriate issue 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 this ease fails to disclose
any measurable period of time which can be assessed
against the criteria of Barker v. Wingo, 407 U.S. 514
(1972). Finally, the appellant has conceded that the ‘‘de-
lay’’ in this ease is ‘‘short’’. The appellant was not de-
prived a speedy jury trial.
4. The appellant’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-
chusetts, as was the case in Kentucky, a defendant in a
criminal trial ‘‘appeals’’ to the second level of the two-
tier system to receive a trial ‘‘in the criminal courts of
general jurisdiction where the full range of constitutional
guarantees is available.’’ Colten vy. Kentucky, 406 U.S. at
114. In Massachusetts, as was the ease in Kentucky, the
right to the second tier is absolute, and, at the defendant’s
behest, the lower court proceedings are ‘‘wiped out’? e
tirely. On the basis of this Court’s previous decisions,
Massachusetts suggests that its de novo trial procedure
does not violate the Double Jeopardy Clause.
15
VIl. 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 Massacuvusetts Procepvure Provivpes Jury TRIAL
in a ‘*Bastc aND FUNDAMENTAL’’ Mope.
In Duncan vy. 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
eases 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 court —
would come within the Sixth Amendment’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
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 courts by Ar-
13 “None of these cases [Maxwell 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 —
had purported to di entirely with a jury trial in serious crimin
cases.” 391 U.S. at 154-55. [Italics added.]
16
ticle III of the United States Constitution and by the
Sixth Amendment.* This argument is written upon that
understanding and assumption, with the proviso that if
this Court is to hold that Duncan requires the states to
conform to the cases that determine federal jury-trial
right, then the doctrine of Callan v. Wilson, 127 U.S. 540
(1888), should be re-assessed, or, alternatively, made ex-
plicit. In brief, appellee argues, on the basis of its under-
standing, that Duncan secured a right, without defining
precisely the mode in which it shall be enjoyed.”
1¢ 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 v. Common-
wealth, supra, at 1412-16. We concur with the views of Mr. Justice
Powell as expressed in his concurring opinion in Johnson v. Louisiana
and Apodaca v. Oregon, 406 U.S. 356, 369-77 (1972), wherein
he stated:
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
the instant decision.* * * 391 U.S. at 158-59, n. 30.
16 In Jones v. Robbins, 8 Gray 329 (1857), 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:
*> =» *
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 criminal prosecu-
tions, the accused shall enjoy the right to a speedy and public
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. Specific-
ally, the Court revisited earlier ‘‘Fourteenth Amend-
ment’’ decisions, and said:
*** The question has been phrased in a variety of
ways in the opinions of this Court. The question has
been asked whether a right is among those ‘‘ ‘funda-
mental principles of liberty and justice which lie at
the base of all our civil and political institutions,’ ”’
trial, by an impartial jury.” We believe it has been so practi-
cally understood; and where, by the terms of any law, a justice
of the peace or police court has been authorized to hear and
pass sentence, it has always been accompanied by a right of
appeal. And we believe it has been generally understood and
practised here and in Maine, and perhaps ja 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 of 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 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 ensure his appearance
and to abide the judgment of the court appealed to. This is
a necessary inconvenience, as is also the delay of the tria!
till the sitting of such court they 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, commit him to jail. Such seems
to have been the construction of a similar provision in other
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 v. Adams, 3 Gray 477. It appears to us,
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.
18
Powell vy. Alabama, 287 U.S. 45, 67 (1932),’? whether
it is ‘‘basie 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
‘fessence of a scheme of ordered liberty’’ test (Palko v.
Connecticui, 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 England and
in this country. The question thus is whether given
this kind of system 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 maintained
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, a
basic and fundamental procedure which has its roots
clearly within the Anglo-American regime of ordered
liberty in a constitutional-historical sense, as well as in
the light of contemporary developing jury procedures 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
suggests that its existing procedure can be justified as
adequate by the same criteria, providing a basic and
fundamental right in a basic and fundamental mode.
A. The Colonial-Constitutional Experience
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.
(
Y 20
Lo
1647 when the General Court enacted a provision afford-
ing all persons the ‘‘libertye’’ of an:
Appeal from the sentence of one magistrate . . . and
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 MASSACHUSETTS, PUBLISHED IN
CAMBRIDGE ACCORDING TO AN ORDER OF THE GENERAL Court 2
(1660) . Our research of legislation enacted since 1647 dis-
closes that this provision has never been repealed and that
the trial de novo procedure, with some modification, has
continued in use from that date to the present.2?_ See
Whitmarsh v. Commonwealth, 1974 Mass. Adv. Sh. at 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 Guarantee 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.
*2 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
21
The exact parameters of the procedure in 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 the
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.
23 Ch. 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 v.
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).
25 Ch. 51, Laws and Resolves of 1783.
22
stolen government property;”° or, a petty larceny or
offense of similar degree.”
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, (26; Ch. 267, §7; Ch. 265, §13A; Ch. 266,
§§ 30, 60.
The New Hampshire two-tier jury procedure has been
traced by that state’s Supreme Court to a 1646 law of
the Massachusetts Colony, State v. Jackson, 69 N.H. 511
(1898), although it is clear that the New Hampshire
practice enjoys a history separate and apart from the
Massachusetts law:
***Tn 1679, immediately after Charles II 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
26 Ch. 36, Acts and Resolves of 1776-77 (maximum fine: three-
times value of property stolen).
27 THe Book OF THE GENERAL LAWs AND 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
1779-80).
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
Karly 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. Jb., 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 N.H. 550 (1860); State
v. Ray, 63 N.H. 406 (1885); State v. Griffin, 66 N.H. 326
(1890); State v. Gerry, 68 N.H. 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
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.
ee
24
right to trial by jury, such as the Constitution intends, is
secured to everyone in the last resort... ,’’ Opinion of
the Justices, 41 N.H. at 552, and ‘‘final judgment 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.
In 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. King, 74 N.H. at 513. 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, Ԥ 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.H. at 516-17) : drunkenness;
stealing (where the damage did not exceed forty 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 of Vermont, and some
available portions of early Vermont legislation, establish
that two-tier criminal jury procedures were a part of the
constitutional experience in Vermont.
The first constitution of Vermont was adopted in
1/77. The act of the legislature of 1786 empowered
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.
RR
25
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 Island and the District of Maine similarly
employed a trial de novo procedure for furnishing, during
the colonial period, jury trial to criminal defendants who
were tried first before a magistrate or justice of the
peace without a jury. In Connecticut that procedure seems
to date from at least 1702. See Goddard v. State, 12 Conn.
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).
26
And, in the District of Maine, 1783. See State v. Sklar,
Me, 317 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 Our research of Pennsylvania legislation of the colonial and
constitutional periods does not disclose a uniform jury practice in the
case of all 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 constitutionally 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
ary what appears to have been an unqualified right to a jury trial.
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 mode in
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. “ossibly,
a trial de novo procedure had already been implementec.. 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 to 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
Callan v. Wilson, supra, on the ground that Article III, Section 2
of the United States Constitution requires that all federal trials
“shall be by jury” which literally leaves no 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 jury trial was
provided for all offenses, petty and serious.
B. Contemporary 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 vy. Pearce, supra; Baldwin v.
New York, supra; Williams vy. 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 procedures of
most of the states. See, e.g., Duncan v. Louisiana, supra;
Brief for Appellant, pp. 3a-8a; Brief for Appellee, pp.
101-113.
The appellee has examined contemporary state prac-
tice and suggests that a de novo procedure, comparable
to the Massachusetts procedure, is currently being utilized
Castle, Kent and Suffolk upon Delaware 1700-1749, at 139, 159, 184,
194, 218 (Franklin und Hall, eds. 1752); Laws of the Government
of New Castle, Kerc 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 legislative 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
material 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 least, Arizona, Arkansas,”
Alabama,* Kansas,* North Carolina, New Hampshire,”
Pennsylvania * and Virginia.* 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. Rev. 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.
34See Ala. Const. art. I, §§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. Rev. 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 thousand dollars or imprisonment not
exceeding one year or both. /bid. ”"
38 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 defendant of
his right to appeal for a trial de novo by jury. If the defendant does
appeal, the district attorney must proceed to a grand jury and, upon
return of an indictment, proceedings continue as in other cases
involving indictable offenses.
39 Va. Code Ann. §§16.1-123, -124, -125, -132, -136. See Common-
wealth v. Blais, 113 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).
30
‘‘first tier’? seems to represent (with the possible excep-
tion of Alabama) the extreme with respect to powers of
fines and inearceration. However, the concept of de novo
adjudication, in » procedure comparable to the Massachu-
setts system im respects other than potential sentencing,
seems to be recognized as a legitimate form of jury pro-
cedure by a substantial number of states.”
40 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 silver, 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
II. Tue Massacnusetts Jury Procepure Errects THIs
Court’s ENUNCIATION OF THE PURPOSE AND FuNCTION
or Jury TriaL 1s AMERICA.
In addition to an examination of historical and con-
temporary practices among the states, the Court, in recent
eases 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. 3RD
1780” reprinted in XII 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 pillor_.
State v. Nichols, 27 R.1. 69, 82 (1905).
In summary, appellee argues that the propriety of the present
Massachusetts system should not be diluted because of ostensible,
rather than actual, enlargements of jurisdiction as originally entrusted
to justices of the peace. Appellee asks the Court to recognize that
the Massachusetts procedure is not an imaginary scheme, but a
functioning and developing process with a three-hundred year history,
presently accommodating in excess of one million criminal matters
each year. Seventeenth Annual Report to the Justices, op. cit., supra,
note 7, at 52.
32
porary society. In Duncan vy. Louisiana, supra, the Court
noted:
*** Perhaps because the right to jury trial was not
directly at stake, the Court’s remarks about the jury
in Palko and Snyder [Palko v. Connecticut, 302 U.S.
319 (1937); and Snyder v. 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 erim-
inal defendants in order to prevent oppression by the
Government.’’ [citing Singer v. United States, 380 U.S.
24, 31 (1965)] 591 U.S. at 155. The Court continued with
categories of potential governmental oppression based
upon history and experience:
1. unfounded criminal charges brought to eliminate
enemies ;
2. judges too responsive to the voice of higher au-
thority ;
3. protection against arbitrary action;
4. the corrupt and overzealous prosecutor ;
d. the compliant, biased, or eccentric judge;
6. the exercise of plenary powers over the life and
liberty of the citizen to one judge or a group of
judges ;
7. unchecked power; and,
8. arbitrary law enforcement,
concluding, inter alia, that: ‘‘even where defendants are
satisfied with bench trials, the right to a jury trial very
likely serves its intended purpose of making judicial or
prosecutorial unfairness less likely.’’ 391 U.S. at 158.
———
33
In Williams vy. 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 Court stated:
*** The relevant inquiry, as we see it, must be the
function that the particular feature performs in its
relation to 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
lies in the interposition between the accused and his
accuser of the commonsense judgment of a group of
laymen, 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 to
think that these goals are in any meaningful sense less
likely to be achieved when the jury numbers six, than
when it numbers twelve. Ibid.
In Apodaca v. 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:
34
. . . that in determining what is meant by a jury we
must turn to other than purely historical considera-
tions. 406 U.S. at 410.
The Court’s inquiry then explicitly foeused 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 commonsense judgment.’’ Jbid. [Emphasis added. ]
In view of the ‘‘purpose and function’’ analyses of
Puncan, Williams, and Apodaca, appellee suggests that
it is appropriate in the instant case to examine the Mas-
sachusetts jury procedure to determine whether or noi
the ‘‘essential feature’’ of the jury is effected. The issue
is governmental oppression and whether or not the Massa-
chusetts system, in a meaningful sense, prevents such
oppression by the interposition of the commonsense judg-
ment of a body of laypersons between the accused and
his accuser.™
#1 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 v. 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.I. 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
U.S. 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 directly upon the question
of jury purpose. In Lemieux v. Robbins, 414 F.2d 353 (1st Cir.
1969) (cited with approval by the court in State v. 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
Rea AA Chen etatinaas enti
A Ee ct
eS a
35
An examination of the Massachusetts jury system dis-
closes that an accused has an absolute right to a body of
laymen whose judgment will stand between himself and
his aceuser after a preliminary adjudication at which he
need do nothing.* In fact, the defendant obtains the dis-
U.S. 711 (1969). In its opinion, the Circuit Court made the following
statement with respect to the practical nature of the de novo procedure:
...LA] 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
a one way street. Here we deal with a two way street.
Defendant has the benefit of two full opportunities for acquittal.
If he fails to gain acquittal in the district court, his mere
exercise of his right to “appeal” not only gives him a new trial
but vacates the judgment and removes the entire case to the
Superior Court. The state is willing to accept this in the
long-run interest of reducing the load on the Superior Court.
The defendant need not accept it at all. [Footnote omitted.]
If he does accept it, both he and the state start at parity;
should he elect to take advantage of a second and fresh oppor-
tunity, it does not seem unfair to us that, absent affirmative
proof of vindictiveness, they should start again at parity. 414
F.2d at 355.
Although the statement is not explicitly addressed to the issue of
governmental oppression, the appellee suggests that the Circuit
Court’s observation implicitly contraindicates government oppression
in the de novo process.
In Manns v. “oontz, 451 F.2d 1344 (4th Cir. 1971), the
Circuit Court affirmed a federal district court’s refusal to grant relief
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 the Virginia procedure.
42 In Callan v. 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 several successive convictions
are neither theoretically possible nor actually permissible in the
Commonwealth of Massachusetts. The “appeal” and jury trial may
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
he 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 offering his own and, if
found guilty, appealing, which is what appellant Costa-
relli did in this ease. Brief for the Appellant, p. 9. On
appeal, the district or municipal court proceeding becomes
a nullity: the appeal ‘‘wipes out the lower court action
entirely.’’ Mann v. Commonwealth, 359 Mass. at 666.
Admittedly, the de novo procedure effects a minimal
degree of restriction and, arguably, inconvenience. We
see, however, the question as one of oppression, and not
of inconvenience: can it be said that the de novo pro-
cedure materially dilutes the function of a jury when the
defendant may listen to the government’s case, without
disclosing his own, and have, immediately thereafter and
of absolute right, the further community participation
in the process of adjudication of guilt or innocence and
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
should be in the negative. The function of the jury is
preserved.
be elected immediately by a convicted district court defendant and,
as such, should be distinguished from the possibility of prolonged
litigation which was suggested by this Court in Callan.
*8 The Commonwealth justifies the inconvenience by pointing out
that the district courts are designed, in the interest of both the
defendant and the Commonwealth, to provide speedier and less costly
adjudications than are possible on the second level of the Massachu-
setts two-tier system. The de novo system alleviates the burden in
the Superior Court, where the full range of constitutional guarantees
is available to all on appeal. Cf., Colten v. Kentucky, 407 U.S.
104, 114 (1972).
etn me eats NN A et ne tian
en en ee ee, rene anweel
37
III. Tis Cast Dors Nor Require ConsipERATION OF THE
Ricut to a Speepy TRriau.
The Court’s opinion in Klopfer v. North Carolina, 386
U.S. 213 (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.
And the Court, in Barker v. 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-instanee-every-instance jury trial, then a considera-
tion of the appellant’s speedy trial claim becomes unne-
cessary.
Alternatively, should the Court agree that the Massa-
chusetts criminal jury procedure complies with the Dun-
can requirement, then it is suggested that the appellant’s
claim is without substance, as, among other things, the
record in this fails to disclose any measurable period of
time which can be assessed against the Barker v. Wingo
factors. Indeed, the appellant acknowledges that the time
delay in appeal to the misdemeanor session in the County
of Suffolk is ‘‘short’’. Brief for the Appellant, p. 42, n. 44.
We assume this to be an acknowledgment that it is the
de novo aspect of the Massachusetts procedure to which
the appellant primarily objects. Assuming, then, the pro-
priety of that procedure, it is suggested that a ‘‘short’’
delay is inadequate as a claim of violation of the right
to a speedy trial.
38
IV. Tue Massacuvusetts CriminaL Jury Procepure Com-
plies With Tue FovurtTeENTH AMENDMENT’s Ban
Acatnst ‘‘DovusBLeE 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 fundamen‘al
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 v. Ball,
163 U.S. 662, was decided, it has been settled that this
constitutional guarantee imposes no limitations what-
ever upon the power to retry a defendant who has 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 ‘‘well-established
part of our constitutional jurisprudence’’ has been
variously verbalized, it rests ultimately upon the
premise that the original conviction has, at the de-
fendant’s behest, been wholly nullified and the slate
wiped clean.
This rationale was applied to a two-tier system of crim-
inal 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, inter alia, the constitutionality
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
case, 395 U.S., at 719-720. Colten urges that his claim
is stronger because the Kentucky system forces 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 defendant
can bypass the inferior court simply by pleading
guilty and erasing immediately thereafter any con-
sequence that would otherwise follow 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,
this Court held, a fortiori, that retrial and reconviction
in the Kentucky two-tier system were constitutionally
permissible.
In Massachusetts, as was the case in Kentucky, the de-
fendant in a criminal trial ‘‘appeals’’ to the second level
of the two-tier system to receive a trial ‘‘in the criminal
courts of general jurisdiction where the full range of
constitutional guarantees is available.’’ Colten v. Ken-
tucky, 406 U.S. at 114. In Massachusetts, as was the case
in Kentucky, the right to the second-tier is absolute and,
at the defendant’s behest the lower court proceedings are
‘‘wiped out entirely.’’ Mann v. Commonwealth, 359 Mass.
at 666. See Colten 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 lerein ap-
pealed is not a final judgment rendered by the highest
court of Massachusetts in which a decision coulc be had.
Alternatively, the appellee suggests that the appeal
should not be treated as a case upon petition fer writ of
certiorari; however, if so treated, that certiorari de Genied.
Alternatively, if determination be made upon tie merits,
appellee suggests that this Court conclude tha: 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. BeLLorri
Attorney General
Joun J. Irwin, Jr.
Assistant Attorney General
Chief, Criminal Bureau
Davin A. Mitts
Assistant Attorney Generil
Chief, Criminal Appellate Section
131 Tremont Street
Boston, Massachusetts 02111
Attorneys for the Appellee
** 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 Commonwealh 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 courts 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, §4. The criminal
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 cities, towns and public officers, all misde-
meanors, 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 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 proceedings referred to
them under the provisions of section four A of chapter
two hundred and eleven. Mass. Gen. Laws, ch. 218, §26.*
* 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,
42
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 jurisdic-
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 Scituate described 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 county and in Plymouth county, and
arrests and service of process in such cases may be
made by an officer qualified to serve criminal process
in Cohasset. Crimes committed in any part of Cam-
bridge, Watertown or Newton lying 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. 1953, e. 319, § 24. Mass. Gen.
Laws, ch. 212, §6.
3. 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, ch. 211A.
That court, subject to such further appellate review by
the Supreme Judicial Court as may be permitted pursuant
to Massachusetts law (Mass. Gen. Laws, ch. 211A, 611, 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
of 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
en statutes or applicable case law. See, Brief for Appellant,
p. 2, n. 1.
43
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 case 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 ‘‘general superin-
tendence of all courts of inferior jurisdiction to correct and
prevent errors and abuses therein.’’ Mass. Gen. Laws,
ch. 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
United States and of the State wherein they reside. No
State shall make or enforce 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 crimes or
offense, until the same is fully and plainly, substantially
and formally, described to him; or be compelled to accuse,
or furnish evidence against himself. And every subject
shall have a right to produce all proofs, that may be 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
counsel, 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 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.
a Ne ees ca Lt
rl ROOD Ea OP PE. Cs eee
EDR.
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’’ includes 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 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 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 previsions 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 disirict 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 @istrict
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
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the district courts have original jurisdiction under the
provisions of section twenty-six may appeal and claim a
jury of six in the third district court of eastern Middlesex.
Any defendant in a 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 claim 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 has 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
48
superior court shall forthwith forward to the clerk of the
said district court all the papers in the case which have
been 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 exercise in
the trial and disposition of such cases.
No justice so sitting shall act in a case in which he
has either sat or held an inquest 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 commonwealth shall be entitled to
as many challenges as equal the whole number to which
all of the defendants in the case 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
to waive a jury of six in 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 section 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 - 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 superior court or may appeal to and claim
a jury of six in a distr.ct 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,
50
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 mean-
time 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. 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 district court in accordance with said section twenty-
seven A.
Massachusetts General Laws, Chapter 278, Section 18A:
[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 or of any
other misdemeanor, except libel, may appeal and claim
a jury of twelve in the municipal court of the city of
Boston. By claiming such appeal, the said claimant shall
be deemed to have waived any claim of appeal to a trial
by a jury in the superior court or other disposition in
said superior court.
Se ene ast oe 4
oe
a re nee cent tien actin kate wine At Alte tal EA AL a Ase | on
51
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 section who has appealed
to the superior court, may, at any time before trial on
such appeal, claim a trial by a jury of twelve in the munici-
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 city 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 cases.
No justice so sitting shall act in a case 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-
ance with the provisions of law and rules of court appli
eable 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 case are
entitled. Jurors shall be drawn from the poo! 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 cases. 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
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 said
municipal 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. Any person taking an appeal under
this section shall be subject to the municipal court of the
city of Boston in matters of recognizance. In such matters,
the said municipal court shall have all of the powers and
duties of, and shall proceed in the same manner as the
superior court.
This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.