Petition — Ludwig v. Massachusetts

Supreme Court, U. S.

wa £2 2 |

SEP 17 1975

= MICHAEL RODAK, JR., CLERK

me oe ee

IN THE

SUPREME COURT OF THE UNITED STATES i

October Term, 1975

25-37%

No.

RICHARD I. LUDWIG, Appellant

VS.

MASSACHUSETTS, Appellee

ON APPEAL FROM THE SUPREME JUDICIAL

COURT OF MASSACHUSETTS

JURISDICTIONAL STATEMENT

Robert W. Hagopian, Esq.

Wrentham, Massachusetts 02093

Counsel for Appellant

Tel. (617) 384-3333

Opinion Below...

Jurisdiction. ..

Questions Presented...

Statutes Involved ,

Statement of the Case

The Questions are Substantial .

INDEX

: 2. eo 6) +e + & & 2

: + * ee & oe 5

7 . . . . . . 5

eee ee ee ee ae eee ee ee ee ee ee

Appendix

A. Opinion and judgment of

the Supreme Judicial Court. la

B. Statutes Involved ..... 4a

C. Appellant's motion for a

jury trial in the District

Court of Northern Norfolk ., l3a

D. Appellant's motion to

dismiss in the Six-Man

Jury Division of the

District Court of North-

ene MANGERE -«.(« «16 5s t « 4

E. Appellant's Notice of

OS ee a a

TABLE OF CASES

Baldwin v. New York, 399 U.S.

66 (1970)

Barker v. Wingo, 407 U.S. 514

(1972)

Callan v. Wilson, 127 U.S. 540

(1888)

Colten v. Kentucky, 407 U.S.

104 (1972)

Commonwealth v. Crapo, 212

Mass. 209 (1912)

Costarelli v. Massachusetts,

US. , 95 &.Ct. 1534,

Z4L.Ed. 2a 76 (1975)

Duncan v. Louisiana, 391 U.S,

145 (1968)

Holliday v. State, 109 R.I.

93 (1971)

Jones v. Robbins, & Gray

329 (1857)

Lemieux v. Robbins, 414

F2d 353 (lst cir.1969)

cert. denied, 397 U.S.

1017 (1970)

Manns v. Commonwealth, 213 VA

233 (1972)

Manns v. Koontz, 451 F.2d

1345 (4th cir. 1971)

li

Page

1l

ll

TABLE OF CASES (cont'd.)

Railway Express Agency v.

Virginia, 282 U.S. 440

United States v. Green, 355

U.S. 184 (1957)

United States v. Jorn, 400

U.S. 470 (1971)

United States v. Marion,

404 U.S. 307 (1970)

Walker v. Dillard, 363 F.

Supp. 921 (W.D.V. 1973)

Ward v. Village of Monroeville,

490 U.S. 57 (1972)

Whitmarsh v. Commonwealtn,

Mass. , 316 N.E.2d

610 (1974) 6,

Williams v. Florida, 399

U.S. 78 (1970)

iii

Page

IN THE

SUPREME COURT OF THE UNITED STATES

October Term, 1975

\T

NO .

RICHARD I. LUDWIG, Appellant

vs.

MASSACHUSETTS, Appellee

ON APPEAL FROM THE SUPREME JUDICIAL

COURT OF MASSACHUSETTS

JURISDICTIONAL STATEMENT

Appellant appeals from the decision

of the Supreme Judicial Court of Massa-

chusetts, entered on June 12, 1975, and

submits this statement to show that the

Supreme Court of the United States has

jurisdiction of the appeal and that a

substantial question is presented.

OPINION BELOW

The opinion of the Supreme Judicial

Court of Massachusetts is reported in

the Massachusetts Advance Sheets p.1194

(1975) and at 330 N.E. 2d 467. A copy

of the opinion is set out in the ap-

pendix to this jurisdictional statement

at p.la.

JURISDICTION

The judgment upon which this appeal

is taken was rendered on June 12, 1975,

by the Supreme Judicial Court and notice

of appeal was filed in the Supreme

Judicial Court on September 3, 1975.

The jurisdiction of the Supreme Court to

review the decision of the Supreme

Judicial Court on direct appeal is con-

ferred by 28 U.S.C. Sec. 1257(2).

Section 1257(2) is specifically in-

voked by appellant as the constitution-

ality of Massachusetts' statutory two-

tier trial de novo criminal procedure

was held not to be repugisant to the

Fifth, Sixth, and Fourteenth Amendments

to the Constitution of the United States.

The statutory procedure is comprised

of Article XII of the Massachusetts'

Declaration of Rights 1 which provides

1 -_

For purroses of Sec.1257(2) a provision

of a state constitution is equivalent to

a state "statute", Railway Express Agency

v. Virginia, 282 U.S. 440,

2

that no person “shall be... deprived of

his ... liberty ... put by the judgment

of his peers"; G.L. Ch. 218 Sec. 26 con-

ferring jurisdiction on the courts in

the first tier of the system; G.L.

Ch. 278 Secs. 18, 18A, providing a right

of appeal to the various courts in tie

second tier, and a right to trial by a

jury of six or twelve.2 This procedure

has been construed by the Supreme Judi-

cial Court to mean that an accused is

to be tried initially in a district

court which comprises a judge and that

he shall have a right to a trial by

jury by claiming an "appeal" to the

errom a conviction in certain district

courts in the first tier, a defendant

may “appeal” pursuant to G.L.Ch. 278

Sec. 18, Ch. 218 Sec. 27A, to the six-

man jury division of the district courts

or to the superior court where he may

obtain a trial by jury of twelve pursu-

ant to G.L.Ch. 278 Sec. 2. From a con-

viction of the Municipal Court of

Boston or of a district court of Boston,

an accused may “appeal" pursuant to

G.L.Ch.278 Sec.18A to the twelve-man

jury division of the Municipal Court of

Boston, or to the superior court where

he is also guaranteed a twelve-man jury

pursuant to G.L.Ch.278 Sec.2.

second tier of the Massachusetts system,

See Jones v. Robbins, 8 Gray 329, 341-342

(1858) .2

QUESTIONS PRESENTED

1. Is Massachusetts bound by the

rule of Callan v. Wilson, 127 U.S. 540

(1888) guaranteeing a defendant a trial

by jury in the first instance when

charged with an offense carrying a pos~

sible maximum jail sentence in excess

of six months?

2. Where a defendant is entitled to

a trial by jury, does the interposition

of a trial by magistrate impose an un-

constitutional burden on the Sixth

Amendment right to a speedy trial?

33 particular, G.L. Ch. 218 Sec. 26 con-

fers “original jurisdiction" to the

district courts over certain crimes.

The term "district court" means a court

in which enly a judge presides. Compare

this statute with its partial ancestor

St. 1858 Ch. 448 Sec. 1 which conferred

jurisdiction to “police courts" over

larceny not exceeding $50. "Police

court", as was noted by Chief Justice Shaw

in Jones v. Robbins, supra, at p.336,

simply meant a “court [that] sits without

a jury". (St. 1858 Ch. 448 Sec. 1 is set

in full in Jones at pp. 336, 354.)

3. Where the Sixth Amendment guaran-

tees a trial by jury, do state two-tier

cde novo procedures which deny this right

in the first instance violate the double

jeopardy provisions of the Fifth Amend-

ment?

STATUTES INVOLVED

Article XII of the Declaration of

Rights of the Massachusetts Constitution;

Massachusetts General Laws Ch. 218

Secs. 26, 27A, Ch. 278 Secs. 2, 18, 18A,

and 24, comprise the framework of Massa-

chusetts' two-tier trial de novo criminal

procedure and are set forth in the

appendix at pda.

STATEMENT OF THE CASE

Richard I Ludwig was charged in the

District Court of Northern Norfolk with

driving an automobile negligently so that

the lives and safety of the public were

endangered, a criminal offense set out in

G.L.Ch. 90 Sec. 24(2Xa) carrying a possi-

ble maximum two-year jail sentence. At

the commencement of his trial, Richard I.

Ludwig duly moved the district court

judge for a speedy jury trial, specifically

asserting his rights under the Fifth and

Sixth Amendments. ‘he judge denied this

motion, and after a trial, found Richard I,

Ludwig guilty of the offense charged.

Thereupon, Richard I. Ludwig claimed an

"appeal" for a trial de novo in District

Court of Northern Norfolk Six-Man Jury

pursuant to G.L. Ch. 278 Sec. 18 and

Ch. 218 Sec, 27A.

In the de novo proceedings, appellant

duly filed a “motion to dismiss" on the

grounds that he was denied a jury trial

in the first instance. This motion was

denied and appellant took an exception

pursuant to G.L. Ch. 278 Sec. 30. After

being found guilty and sentenced to pay

a $20 fine, payment of which was stayed,

appellant filed a bill of exceptions to

the Supreme Judicial Court pursuant to

G.u. Ch. 278 Sec. 30 alleging that the

denial of his "motion to dismiss" was

error, The Supreme Judicial Court over-

ruled appellant's exception.

The federal questions underlying this

appeal were raised in the first instance

by appellant at his trial in the District

Court of Northern Norfolk by his motion

for a speedy jury trial, and in the

District Court of Northern Norfolk Six-

Man Jury by his “motion to dismiss" as

defined in Whitmarsh v. Commonwealth, |

Mass. Adv. Sh. (1974), 1403, 316 N.E. 2d,

610, 613 (1974). See also Costarelli v.

Massachusetts, U.S. , 95S. Ct. 1534.

Copies of both motions are set out in the

appendix at pp. 13a l4a.

The federal issues were raised in the

Supreme Judicial Court upon appellant's

bill of exceptions. In its decision the

Supreme Judicial Court held that "the

6

claimed infractions of constitutional

rights — the right to a speedy trial

under the Sixth Amendment, the right to a

jury trial under the Sixth Amendment and

Article 12 of the Massachusetts Declara-

tion of Rights, and the guaranty against

double jeopardy under the Fifth Amendment"

were properly before the court. The

court then passed on the claims and held

them “untenable", — “We have suffered no

change of mind on the constitutional is-

sues since the Whitmarsh decision."4

THE QUESTIONS ARE SUBSTANTIAL

1. The first tier of the Massachu-

setts' two-tier de novo criminal procedure

is comprised of the district courts and

the Municipal Court of Boston. These

courts have jurisdiction over all crimes

carrying a possible prison sentence of

five years or less, and certain enumerated

felonies having possible maximum prison

sentences in excess of five years.>

Criminal proceedings in these courts are

commenced by the issuance of a complaint.

If the defendant pleads guilty at arraign-

ment, he is sentenced by the presiding

judge. If he is dissatisfied by the

sentence, he may “appeal"6 the issue of

The decision of the Supreme Judicial Court

in effect incorporated the decision in

Whitmarsh,

5

G. L. Ch. 218 Sec. 26.

© 6.1. Ch. 278 Secs. 18 and 18A,

5

his sentence to a court in the second

tier in the de novo procedure, but he is

not entitled to a de novo trial in the

second tier on the issue of his inno-

cence Or guilt, Commonwealth v. Crapo,

212 Mass. 209, 210 (1912).

If the defendant pleas not guilty in

the district court or Municipal Court of

Boston, he must stand trial before a

judge. He cannot obtain a trial by jury

as the lower court “sit without jury".

If he is convicted in certain district

courts, he has a right of "appeal" to the

Superior court where he may obtain a de

novo trial by jury’ or to the Six-Man Jury

division of the district court.8 If he is

convicted in a district court of Boston

or the Municipal Court of Boston, he may

“appeal"9 to the superior court for a

de novo trial by a jury of twelve, or al-

ternatively to the twelve-man jury divi-

sion of the Municipal Court of Boston, 10

’G.L. Ch. 278 Secs. 2, 18.

Bok. Ch. 278 Sec. 18 and Ch. 218 Sec.27A,

7 a.b. Ch. 278 Secs. 2, 18A.

10 ence, the second tier of the Massachu-

setts system is comprised of the super-

ior court, the six-man jury division of

the district courts, and the twelve-man

jury division of the Municipal Court of

Boston.

If a defendant fails to “prosecute

his appeal [in the second tier], he shall

be defaulted on his recognizance and the

superior court may impose sentence upon

him for the crime of which he was con-

victed, as if he had been convicted in

said court," G.L. Ch. 278 Sec. 24.

(emphasis added)

In reviewing this two-tier de novo

procedure in Jones v., Robbins, 8 Gray

329, 341 (1858), the Supreme Judicial

Court held that it did not violate

Article XII of the Declaration of Rights

of the Massachusetts Constitution guaran-

teeing that no law "shall subject any

person to ... infamous punishment ...

without trial by jury", which words Chief

Justice Shaw stated were "equivalent" to

the clause -- "in all criminal prosecu-

tions, the accused shall enjoy the right

to a speedy and public trial, by an

impartial jury" -- in the Sixth Amend-

ment. However, thirty years later in

Callan v. Wilson, supra, at 553-4,

Justice Harlan took note of Jones v.

Robbins and rejected its reasoning at

page 556-7 by holding that the Sixth

Amendment guarantee to a trial by jury

meant trial by jury in the first in-

stance: "Except in that class or grade:

of offenses called petty offenses, ...

the guarantee of an impartial jury to

the accused in a criminal prosecution,

conducted either in the name, or by or

under the authority of, the United States,

secures to him the right to enjoy that

mode of trial from the first moment, and

in whatever court he is put on trial

9

for the offense charged." This decision,

of course, only affected the two-tier

de novo procedure in the District of

Columbia and was not binding on Massachu-

setts prior to the decision by this Court

in Duncan v. Louisiana, 391 U.S. 145

(1968).

In Duncan at p. 149, this Court held

"that the Fourteenth Amendment guarantees

a right of jury trial in all criminal

cases which — were they to be tried in

a federal court — would come within the

Sixth Amendment's guarantee", and hence

inferentially bound the states to the

rule of Callan v. Wilson, supra. In

particular see Duncan at p. 148 ftn. 30,

181, 182, ftn. 21, 213. Following

Duncan, this Court held in Baldwin v. New

York, 399 U.S. 66 (1970), that the states

were bound to afford an accused a trial

by jury with respect to all crimes

carrying a maximum prison sentence in

excess of six months.

Subsequent to Duncan and Baldwin,

state and lower federal courts have

rendered conflicting opinions as to

whether the conjunctive effect of Duncan

and Baldwin bound the states to the rule

of Callan v. Wilson. A unanimous Supreme

Court of Rhode Island answered the ques-

tion in the affirmative in Hollida

v. State, 109 R.I. 93, 103 (I97I) — "We

hold, then that those charged with misde-

meanors that could result, upon conviction,

in the imposition of a sentence of more

than six months are entitled to a speedy

10

and prompt trial by an impartial jury in

the first instance." The Supreme Court

of Virginia reached the opposite con-

clusion in Manns v. Commonwealth, 213 VA,

2nd 233 (1972) holding that Mr. Justice

White's footnote 30 in Duncan "makes it

clear" that the question_of “incorpora-

tion" was an "open" one.t1 To the same

effect, see Walker v. Dillard, 363 F.

Supp. 921 (W.D.V. 1973).

In Whitmarsh v. Commonwealth,

Mass. __, 316 N.E. 2d 610, 618-619, the

Supreme Judicial Court held that the

"state of the law on the subject is high-

ly uncertain" and therefore it was not

"required to conclude either (a) that the

Sixth Amendment would be interpreted at

the present time by the Supreme Court to

require a trial by jury in the first

instance ..., or (b) that even if that

court did reaffirm this rule ... with

respect to the Federal Courts, it would

apply such a requirement in equal rashion

to the states." In other state juris-

dictions, the issue is undecided. See

ftn. 9 and 10 in Colten v. Kentucky, 407

U.S. 514 (1972) citing Massachusetts,

North Carolina, Pennsylvania. Cf. Lemieux

v. Robbins, 414 F2d 353, 355 ftn. 3 (1969),

cert. denied, 397 U.S. 1017 (1970), not-

ing the two-tier procedure in Maine. See

also D. WNon-Jury Trial for Misdemeanors

Subject to De Novo Review, Appendix to

Opinion of Justice Harlan, Williams v.

Florida, 399 U.S. 78, 141 (1970).

—_—---- -

t1e¢. Manns v. Koontz, 451 F.2d 1345 (4th

cir. 1971).

ll

2. A second issue presented by this

appeal is whether the imposition of a

trial without jury is an unconstitutional

burden on the defendant's right to a

speedy trial and violates the double

jeopardy provisions of the Fifth Amend-

ment. The two-tier trial de novo proce-

dure is totally counter-productive to

minimizing the “anxiety and concern of

the accused", Barker v. Wingo, 407 U.S.

514, 532 (1972), one of the main purposes

of a speedy trial guarantee. For the

defendant who chooses not to disclose his

defense, a trial in the district court

is a meaningless proceeding. A conviction

and “appeal" from a district court trial

generates a "cloud of anxiety, suspicion

and often hostility", Barker v. Wingo,

supra, and United States v. Marion, 404

0.8. 307, 328 USPS o and shifts the burden,

in violation of the Fifth Amendment, to

the defendant to prosecute his “appeal"

to prove his innocence, G.L. Ch. 278

Sec. 24. See Holiday v. State, supra, at

page 103, alternatively holding that two-

tier trial de novo procedures violate the

speedy trial provisions of the Sixtna

Amendment.

Similarly, the two-tier trial de novo

system inherently violates the under-

pinnings of the double jeopardy provisions

of the Fifth Amendment — "“[T]he State

with all its resources and power should

not be allowed to make repeated attempts

to convict an individual for an alleged

offense, thereby subjecting him to embar-

-

rassment, expense, and ordeal and con-

,

ic

pelling him to live in a continuing state

of anxiety and insecurity, as well as

enhancing the possibility that even though

innocent he may be found guilty", United

States v. Green, 355 U.S. 184, 187-188

(1957)

Implicit in limiting "the Government

to a single criminal proceeding to vindi-

cate its very vital interest in enforce-

ment of criminal laws", United States v.

Jorn, 400 U.S. 470 (1971), is limiting

1t to a single proceeding which comports

with constitutional standards, and it is

no answer on the part of States to

eventually offer the defendant a constitu-

tional de novo adjudication, Ward v. Vil-

lage of Monroeville, 490 U.S. 57, 61-62

(15972).

Since the above issues effect the

administration of criminal justice in at

least ten states, and since there is a

conflict between at least two of these,

it is submitted that the questions pre-

sented by this appeal are substantial and

of pubiic importance.

CONCLUSION

Appellant maintains that the decision

of the Supreme Judicial Court was error

in that it denied him his fundamental

right to a speedy jury trial under the

Sixth Amendment to the United States

Constitution. Accordingly, he submits

that the questions presented by this

13

appeal are so substantial to require

plenary consideration for their resolu-

tion.

Respectfully submitted,

ine

-p Jj he ani / esate

Robert W. Hagopian, Esq.

Counsel for Appellant

14

COMMONWEALTH

VS.

RICHARD I. LUDWIG

Supreme Judicial Court of

Massachusetts, Norfolk.

Argued April 9, 1975

Decided June 12, 1975

Robert W,. Hagopian, Wrentham, for de-

fendant.

Paul S. Zonderman, Sp. Asst. Dist. Atty.,

for the Commonwealth.

Before TAURO, C.J., and BRAUCHER, HENNES-

SEY, KAPLAN and WILKINS, JJ.

KAPLAN, Justice.

This is one of a series of cases in

which the defendant's counsel, represent-

ing a number of clients, has sought to

test the constitutionality of the Common-

wealth's “two-tier” or "trial de novo"

system,1 a procedure by which those ac-

1. see the listing of such cases in Whit-

marsh v. Commonwealth, Mass. , 316

N.B.2da 610, f£n.4 (1974) (Mass.Adyv.Sh.

[1974] 1403, 1408-1409, fn.4). Costarel-

li v. Municipal Court of the City of

Boston, Mass. , 325 N.E.2a o55,

fn.3 (1975) (Mass.Adv.Sh.[1975] 481,

487-488, fn.3). See also a connected

case, Costarelli v. Massachusetts, U.S.

, 95 S.Ct. 1534, 44 L.Ed.2d 76 (1575).

la

cused of certain offenses may be tried

first in a District Court without a jury,

and, if convicted there may secure a

fresh trial, to a jury, at the next

higher court level. See G.L.c.278,818.>

We need to refer here to one of the

prior proceedings. In Whitmarsh v. Com-

monwealth, Mass. ,2 316 N.E.2d 610

(1974), Whitmarsh was tried in a District

Court on a charge of operating a motor

vehicle while under the influence of in-

toxicating liquor; he moved at the out-

set for trial by jury; the motion was

denied. On trial he was found guilty.

He appealed to the Superior Court where

he would be entitled to a trial de novo

witn a jury. He moved in that court to

dismiss, insisting on the invalidity of

the procedure from the start. Pending

decision of the motion, he filed a so

called “interlocutory appeal" in this

court for Suffolk County asking a declar-

ation that the two-tier system was un-

constitutional, and an injunction against

further prosecution of the criminal

charge. A single justice of this court

denied the injunction and reserved and

reported the case. We held that the

“interlocutory appeal" could not be main-

tained, and we declined exercise of extra-

ordinary power under our superintendency

statute, G.L. c.211, 83. But “in view of

the nature of the question which...

[Whitmarsh] attempted to raise and in

view of the fact that . .. [Whitmarsh's]

counsel appears determined to raise the

same question in other cases" (id. at__

@-mass.Adv.Sh. (1974) 1403.

la (cont‘d.)

_ __, 316 N.E.2a at 614, we undertook

to state our opinion on the claimed in-

fractions of constitutional rights— the

right to a speedy trial under the Sixth.

Amendment, the right to jury trial under

the Sixth Amendment and art.12 of the

Massachusetts Declaration of Rights, and

the guaranty against double jeopardy

under the Fifth Amendment. We held each

of these claims to be untenable. Id. at

__ _ —__s,& 316 N.E.2d 610.

In holding that the "interlocutory

appeal" was not available, we indicated

how a final decision might be obtained

that would be subject to regular appel-

late review. We said, "If his motion

were denied [i.e., Whitmarsh's motion in

the Superior Court to dismiss], and if he

were thereafter tried in the Superior

Court and found guilty .. . [Whitmarsh]

would have available to him an opportu-

nity for appellate review of the ruling

on his motion as matter of right by sav-

ing and perfecting exceptions thereto."

(Id. at ,2 316 N.E.2d at 613). Counsel

followed that line in the present case.

Here the defendant Ludwig, charged in the

District Court of Northern Norfolk with

driving to endanger (G.L.c.90 824[2] [a],

moved for a jury trial which the judge

denied; the defendant was then found

guilty. In the de novo proceeding in the

District Court of Northern Norfolk, Six

Man Jury Session (similar for present pur-

D-Mass.Adv.Sh. (1974) at 1408-1409.

©*mMass.Adv.Sh. (1974) at 1408-1418.

2a

poses to a de novo proceeding in the Su-

perior Court, see G.L. c.278, 818), the

defendant moved to dismiss, claiming

among Other things that the court lacked

"jurisdiction" because of the improper ~

refusal of a jury at first instance. The

motion was denied over due exception and

the defendant was fined $20. Imposition

of sentence was stayed, and the case is

before this court on a bill of exceptions,

as amended, which in effect raises again

the constitutional claims,

The case is properly here for review.

The attack on "jurisdiction" is but a

flourish, and add nothing to the constitu-

tional points above mentioned which the

defendant's counsel has been pressing with

repetitious insistence. We have suffered

no change of mind on the constitutional

issued since the Whitmarsh decision.

Lxceptions overruled,

2a (cont'd,.)

COMMONWEALTH OF MASSACHUSETTS

SUPREME JUDICIAL COURT FOR

THE COMMONWEALTH, AT BOSTON

IN THE CASE OF June 12, 1975.

COMMONWEALTH

vs.

RICHARD I. LUDWIG

pending in the District Court of Northern

Norfolk for the County of Norfolk, Nos.

4157, 4158 and 4159

ORDERED, that the following entry be

made in the docket; viz. ,—

Exceptions overruled.

By the Court,

William M. Cloran, Asst.

Clerk.

June 12, 1975

Brief statement of the grounds and reasons

of the decision;

See opinion on file,

3a

APPENDIX

Article XII of the Massachusetts Declaration of Rights:

No subject shall be held to answer for any

crimes or offense, until the same is fully and

plainly, substantially and formally, described to

hin: or be compelled to accuse, or” furnish

evidence against himself. And every subject shall

have a right to produce all proofs, that may be

favorable to him; to meet the witnesses against

him face to face, and to be fully heard in his

defense by himself, or his counsel, at his election.

And no. subject shall be arrested, imprisoned,

despoiled, or deprived of his property, immunities,

or privileges, put out of the protection of the law,

exiled, or deprived of his life, liberty, or estate,

but by the judgment of his peers, or the law of

the land.

And the legislature shall not make any law, that

shall subject any person to a capital or infamous

punishment excepting for the government of the

army and navy, without trial by jury.

G.L. CH. 218 Sec. 26

District courts shall have original jurisdiction,

concurrent with the superior court, of the

following offenses committed within their respec-

tive district or otherwise made punishable therein:

all violations of by-laws, orders, ordinances, rules

and regulations, made by cities, towns and public

officers, all misdemeanors, except libels, all

felonies punishable by imprisonment in the state

prison for not more than five years, the crimes

mentioned in sections sixteen, seventeen, eighteen,

nineteen, twenty-cight and forty-nine of chapter

two hundred and. sixty-six, and the crimes of

forgery of a promissory note, or of an order for

4a

>»

money or other property, and of uttering as true

such a forged note or order, knowing the same to

be forged. They shall have jurisdiction of proceed-

ings referred to them under the provisions of

section four A of chapter two hundred and eleven.

Amended by St.1958, c. 138; St.1962, c. 722, §8;

St.1964, c. 140; St.1969, c. 496; St.1973, c. 585.

G.L. CH. 278 Sec. 18

Whoever is convicted of a crime before a district

court may appeal the finding of guilty or the

sentence imposed thereon to the superior court or

may appeal to and claim a jury of six in a district

court in accordance with section twenty-seven A

of chapter two hundred and eighteen and at the

time of conviction shall be notified of his right to

take such appeal. The case shall be entered into

the superior court on the return day next after the

appeal is taken, and the appellant shall be released

On personal recognizance or committed, in accord-

ance with the procedures set forth in section

fifty-eight of chapter two hundred seventy-six,

until he recognizes to the commonwealth, in such

sum and with such surety or sureties as the court

requires, with condition to appear at the superior

court on said return day and at any subsequent

time to which the case may be continued, if not

previously surrendered and discharged, and so from

time to time until the final sentence, order or

decree, and not depart without leave, and in the

meantime to keep the peace and be of good

behavior. If the appellant is not released on

personal recognizance and is committed for failure

to recognize, the superior court shall thereupon

have jurisdiction of the case for the purpose of

revising the amount of bail required as aforesaid.

5a

The appellant shall not be required to advance any

fees upon claiming his appeal or in prosecuting the

same. Notwithstanding any other provision of law,

a defendant, after a finding of guilty in a district

court, may appeal therefrom and shall thereafter

be entitied to a trial de novo in the superior court

or may app. il to and claim a jury of six in a

district court in accordance with said section

twenty-seven A. Amended by St.1973, c. 657.

Massachusetts General Laws, Chapter 278. Section ISA:

| Trial of misdemeanors in Suttolk county or in municipal

court of Boston |

Any defendant, in any distriet 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 eity or town or publie officer or of any

other misdemeanor, exeept libel, may appeal and claim

a jury of twelve in the municipal court of the city of

Boston. By claiming sueh appeal, the said claimant shall

he deemed to have waived any claim of appeal io a trial

by a jury in the superior court or other disposition in

said superior court,

Any defendant, found guilty in any district court of

Suffolk county or in the municipal court of the city of

Boston, of a violation of any of the offenses enumerated

in the first paragraph of this section who has appealed

to the superior court, may, at any time before trial on

such appeal, elaim 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

6a

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

minnicipal court of the eity of Boston all the papers in

the case whieh have been filed in the superior court,

The justice presiding at such session over a jury “of

twelve in said municipal eourt 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 justiee so sitting shall aet in a ease in which he has

either sat or held an inquest in the distriet court or other-

wise has an interest.

Trials by sueh juries of twelve shall proceed in accord.

anee with the provisions of law and rules of court apph

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 ease are

entitled. Jurors shall be drawn from the pool of jurors

available for the jury sessions in the superior court for

Suffolk county. The district attorney for the Suffolk dis-

trict shall appear for the commonwealth in all eases. The

chief justice of the municipal court of the city of Boston

shall arrange for jury sessions in the said municipal court

and shall assign justices and special justices thereto, to

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 direetly by the supreme

judieial court, by a bill of exceptions, appeal, report or

otherwise in the same manner provided for trials by jury

In the superior eourt. Any person taking an appeal under

this section shall be subject to the municipal court of the

city of Boston in aatters 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.

7a

| BEST COPY AVAILABLE

° Any defendant in the district court of Marlborough, the

Massachusetts General Taws Chapter 218, Section 27A: district court of Natick, first distriet court of southern

[Trial by jury of six in certain courts] Middlesex, the distriet court of central Middlesex or the

. <> ; second district court of eastern Middlesex found guilty of

ti 4 en ePisecaisini drial obipeti commy an offense or crime over which the distriet courts have

found silty of an oftense ei erie over which the district original jurisdiction under the provisions of section twenty-

courts have ortginal jurisdiction under the provisions of six may appeal and claim a jury of six in the first district

section twenty-six may appeal and claim a jury of six in court of southern Middlesex.

the district court of Central Berkshire. Any defendant in the first district court of eastern

Any defendant in a district court of Bristol county found Middlesex, the third distriet court of eastern Middlesex,

euilty of an offense or crime over which the Cistrict courts the district court of Somerville, or the district court of

have original jurisdiction under the provisions of section Newton, found guilty of an offense or erime over which

twenty-six may appeal and claim a jury of six in the second the dtsirtet courts have original jurisdiction under the

or third district court of Bristol. ProVvistons of seetion went ~1X rica supepreand wed chlatm oa

Any defendant in a district court of Essex county found Jury of six inthe third district court ef eastern Middlesex,

guilty of an offense or crime over which the district courts Any defendant tia distriet court of Norfolk county found

have original jurisdiction under the provisions of section euilty of an offense or erie over witel the district courts

twenty-six may appeal and claim a jury of six in the first ° have original jurisdiction under the provisions of section

district court of Essex or the eentral district court of twenty-six may appednband elatm a jury of six in the district

northern Essex, , court of northern Norfolk or the district court of East

Any defendant in a distriet court of Hampden county Norfolk,

fonnd guilty of an offense or crime over which the district Any defendant ina district court of Plymouth county

courts have original jurisdiction under the provisions of found guilty ef an offense or erime over witch the district

section twenty-six may appeal and elaim a jury of six in courts have ortginal jurisdtetion undor the provistons of

the district court of Springfield. section twenty-six may appeal and clatm a jury of six in

Any defendant in the first district court of northern the distriet court of Brockton.

Middlesex, the fourth district court of eastern Middlesex ANA defendant inoa distriet court of Woreester cOMMTN

or the distriet court of Lowell found guilty of an offense fonned guilty of an offense or erin over which the district

or crime over which the district courts have original juris- courts have original jurisdiction under the provisions of

diction under the provisions of section twenty-six may seetion fwenty-six may appeal and elaine a jury of six im

appeal and claim a jury of six in the district court of the contral distriet court of Worcester,

Lowell, Sueh claim of appeal shall be oteowritine and shall eon

a:

sfitmte a waiver of anv claim of appenl te oa trink by jury

1) t}ye SHperior court oor ofttper clispeosttion ny write Superior

eourt,

8a

Ga

BEST COPY AVAILABLE

Neevoelefemeloont found endliv rm cn ef said distriet eouirts,

of nn atfense or erine ever whieh the distriet ecaurts have

a A } Mine ‘ ? } 1) ~tertis cof setetpanm twentv

~ } ’ ’ 1Pee'P lee eourrt ? j 1 tha

‘ ast rie mht auto cane Canes

| ¢ vt ry ef <r 7 thy

sryt elesies tout UM SUT eS Es ret = @n7 thyrevrrerty ten ot

Sueh claim shall be in and shall con

- vaiver « rit tes ce tytarl dew gy ture am the

cnnerior court er other dispe<ifion in said sunerior court.

When acelnim for ao trinh ta ines of sis has decom anede

tretee the prevtstiens of this parcgraph. the elerk of the

superior court shall forthwith forward to the clerk of the

said district court all the papers in the ease which have

heen filed in the superior court,

The justice presiding at such session over a jury of six

shall have and exercise all the powers and duties which

a justice of the superior court has any may exereise in

the trial and disposition of such 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 therem.

Trials by such juries of six ina distriet court shall be

hekd in the courthonse of said court or a courthouse of

the superior court within the same county, and shall pro-

coed in accordance with the provisions of law applicable

to trials by jury in the superier court, except that the

number of peremntory challenges shall be limited to two

to each defendant. The commonwealth shall be entitled to

asorany ehallenges as equal the whole number to which

oll of the defendants in the ease are entitled, Jurors shall

be drawn from the pool of jurors available for the jury

sessions in either civil or eriminal sessions in the superior

court. The distriet attorney for the district in which the

alleged offense or offenses occurred shall appear for the

commonwealth in all eases) The chief justice of the district

10a

courts shall arrange for the jury sessions of the said

distriet 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 tha

supreme judicial court by a bill of exceptions, appeal,

report or otherwise, in the same manner provided for trials

by jury in the superior court. The defendant may elect

fo waive a jury of six in the manner provided by acai

six of chapter two hundred and sixty-three, but such waiver

shall not revive anv right to a trial by jury or other

disposition in the superior court which had been waived

under the provisions of the eleventh or twelfth paragraphs,

of this seetion.

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 <teno-

graphie 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

whieh he shall he 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 scetion eighty-eight of chapter two hundred

and twenty-one. Said chief justiee may make regulations

not Inconsistent with law relative to the assignments, duties

and service of stenographer. 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.

lla

- , DISTRICT COURT OF

ok re oe NORTHERN NORFOLK

G.L. CH. 278 Sec. 20

Upon such appeal, the clerk of the district court . COMMONWEALTH OF MASSACHUSETTS

shall transmit to the clerk of the superior court a ,

: | | vs.

copy ot the complaint and of the record of

conviction, the original recognizances, a list of the

Witnesses. the appearance of the attorney for the

defendant, if any is entered, and a statement of

the expenses: and no other papers need be MOTION FOR JURY TRIAL

transmitted.

RICHARD I. LUDWIG

Now comes the defendant and moves this

court for a trial by jury in the first

G.L. Ch. 278 See. ? instance, a right guaranteed by the

sm Rae Sixth Amendment to the Constitution,

Issues of fact joined upon an indictment or Callan v. Wilson, 117 U.S. 540, Duncan v.

complaint shall, in the superior court, be tried by Louisiana, 391 U.S. 145, ftn. 30; and a

4 jury drawn and returned in the manner provided rignt guaranteed by the speedy trial

for the trial of issues of fact in civil causes, unless : provision of the Sixth Amendment, Klopfer

the person indicted or complained against elects to v. North Carolina, U.S. , Holliday v.

be tried by the court as provided by law. State, 280 A 2d 333; and a right guaran-

. teed under the couble jeopardy provisions

of the Fifti: Amendment, Benton v. ‘iiaryland,

89 S.Ct. 2056, United States v. Jorn, 400

U.S. 470.

By his attorney,

(s) ROBERT W. HAGOPIAN

Robert ‘Il. lUagopian, Esq.

Wrentham, Massachusetts 02093

l2a

l3a

COMMONWEALTH OF MASSACHUSETTS

NORFOLK, SS DISTRICT COURT OF

NORTHERN NORFOLK

SIX MAN JURY

No. 4157-9

COMMONWEALTH

V

LUDWIG

MOTION TO DISMISS

Now comes the defendant in the above

entitled action and says:

1. On March 11, 1974, he was charged

in the District Court of Northern Norfolk

on the above entitled complaints;

2. at the beginning of the proceedings

he moved the court for a trial by jury in

the first instance, asserting his Sixth

Amendment right to a speedy trial by jury

in tne first instance. A copy of said

motion is attached and made a part hereof.

3. The district court denied said

motion.

4. The defendant was found guilty.

Wherefore, the defendant alleges that

his conviction in the district court was

void for being incontravention to the

Constitution of the United States, Callan

v. Wilson, 127 U.S. 540, 556-7; Duncan v.

Louisiana, 391 U.S. 145, 158 ftn. 30, 181,

182 ftn. 21, 213; Holliday v. State, 380

A.2d 323; and as such the district court

lack jurisdiction, Jones v. Robbins, 8

Gray 329, 330. Additionally, this court

also lacks jurisdiction as this court's

appellate jurisdiction must be predicated

14a

on the jurisdiction of the district court.

And the defendant further maintains

that to try him a second time in these

circumstances would violate the douple

jeopardy provisions of the Fifth Amend-

ment to the Constitution, and the speedy

trial provisions of the Sixth Amendment.

By his attorney,

(s) ROBERT W. HAGOPIAN

Robert W. Hagopian, Esq.

Wrentnam, Massachusetts 02093

4/5/74 Denied. Defendant's exception

noted.

(s) VIROSTEK SJ

l4a (cont'd,)

COMMONWEALTH OF MASSACHUSETTS

SUPREME JUDICIAL COURT

CRIMINAL NO.150 of 1974

COMMONWEALTH OF MASSACHUSETTS

VS.

RICHARD I. LUDWIG

NOTICE OF APPEAL TO THE SUPREME

COURT OF THE UNITZD STATES

Notice is hereby given that Richard I.

Ludwig,

appeals

the appellant above named, hereby

to the Supreme Court of the United

States from the judgment of the Supreme

Judicial Court on Juhe 12, 1975. This ap-

peal is

1257(2).

taken pursuant to 28 U.S.C. Sec.

By his attorney,

Robert W. Hagopian, Esq.

Wrentham, Massachusetts 02093

15a

CERTIFICATE OF SERVICE

Now comes Robert W, Hagopian, Esq., and

certifies that he has served a copy of

the above Notice of Appeal on Jonn P. Con-

nor, Jr., Esq., Assistant District Attor-

ney, by mailing a copy of same first class,

postage prepaid, to him at Norfolk Superi-

or Court House, High Street, Dedham,

Massachusetts 02026, on September 2, 1975.

Robert W. Hagopian, Esq.

Wrentham, Massachusetts 02093

15a (cont'd.)