# Motion to Dismiss — Ludwig v. Massachusetts > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385003_1012%3A3 ## Record - **Collection:** Supreme Court brief - **Document type:** Motion to Dismiss - **Published:** January 1, 1976 - **Citation:** 427 U.S. 618 ## Text Supreme Court, U. FILED OCT 20 1975 arn “K sR Zn the ed Supreme Court of the United States Ocroser Term, 1975 MICH AE No. 75-377 RICHARD I. LUDWIG, APPELLANT, Vv. COMMONWEALTH OF MASSACHUSETTS, APPELLEE, ON APPEAL FROM THE SUPREME JUDICIAL COURT OF MASSACHUSETTS APPELLEE’S MOTION TO DISMISS Francis X. BELLorti Attorney General Joun J. Inwin, Jr. Assistant Attorney General Chief, Criminal Division Terence M. Troyer Assistant Attorney General Chief, Criminal Appellate Section Joun P. Consett Assistant Attorney General One Ashburton Place Boston, Massachusetts 02108 ee Blanchard Press, Inc., Boston, Mass. — Law Printers in the Supreme Court of the United States Octoser Term, 1975 No. 75-377 RICHARD I. LUDWIG, APPELLANT, v. COMMONWEALTH OF MASSACHUSETTS, APPELLEE. ON APPEAL FROM THE SUPREME JUDICIAL COURT OF MASSACHUSETTS APPELLEE’S MOTION TO DISMISS Appellee, pursuant to Rule 16(1)(b) of the Rules of this Court moves to dismiss the appeal for want of a sub- stantial federal question. Opinion Below The opinion of the Supreme Judicial Court of Massa- chusetts is reported in 1975 Massachusetts Advance Sheets 1994 and at 330 N.E. 2d 467. 2 Jurisdiction The appellant invoked the jurisdiction of this Court pur- suant to 28 U.S.C. § 1257(2). Statement of the Case The appellant, Richard I. Ludwig, was charged in the District Court, District of Northern Norfolk, with viola- tion of G.L. e. 90, § 24(2)(a) (driving to endanger). He moved the District Court for a speedy jury trial, which motion was denied, a defendant not being entitled to a trial by jury in the first instance under the Massachusetts two tiered system of criminal trials. Upon conviction, ap- pellant prosecuted an appeal, which is available as of right, to a six man jury. G.L. c. 278, § 18; G.L. ¢, 218, § 27A. At the de novo proceedings, appellant moved to dismiss the complaint alleging that he was denied a jury trial in the first instance. The motion was denied and upon con- viction appellant was fined twenty dollars. He then pro- secuted exeeptions to the Supreme Judicial Court of Massa- chusetts. The exceptions were overruled. Questions Presented Whether the denial of a trial by jury in the first instance when a de novo proceeding before a jury is available at the defendant’s opinion presents a substantial federal question. Argument 1. In Duncan v. Louisiana, 391 U.S. 145 (1968) this Court held that the due process clause of the Fourteenth Amendment made applicable to the states the jury trial provision of the Sixth Amendment. The holding in that 3 case was based upon the conclusion that, ‘‘trial by jury in criminal cases is fundamental to the American scheme of justice ....’’ Ibid at 149. The two tiered system of criminal trials in Massachu- setts does not interfere in any appreciable way with the criminal defendant’s right to a jury trial. A defendant has an absolute right ultimately to be tried by a jury of his peers. It is submitted that appellant’s contention that Duncan v. Louisiana, supra, in conjunction with Baldwin v. New York, 399 U.S. 66 (1970), requires trial by jury in the first instance, is not substantial. While the right to trial by jury has been held to be fundamental within the meaning of the concept of due process, the application of general principles of the Sixth Amendment do not, and should not, necessitate a holding that specific applications of the concept in the federal sys- tem are binding upon the states. See Johnson v. Louisiana, 406 U.S. 356 (1972). (Powell, J. concurring). Cf. Apodaca v. Oregon, 406 U.S. 404 (1972). Since, under the Massachusetts system, a criminal de- fendant cannot be ultimately adjudicated guilty of an offense without first having an opportunity to present the question to a jury, it cannot be said that Massachusetts is in violation of the mandate of Duncan v. Louisiana, supra. 2. The system of de novo review utilized by the Commonwealth of Massachusetts does not place an un- constitutional burden upon a defendant’s Sixth Amend- ment right to a speedy trial. In Barker v. Wingo, 407 U.S. 514 (1972) this Court outlined, standards which courts should employ when con- sidering a claim of denial of a speedy trial. They include, ‘‘Length of delay, the reason for delay, the defendant’s assertion of his right, and prejudice to the defendant.’’ Ibid at 530. 4 Language in Colten v. Kentucky, 407 U.S. 104, 118, 119 (1972) indicated that a speedy trial argument based on the standards announced in Barker does not present, in the circumstances of this case, a question of substantial merit. The court stated: ‘*Proceedings in the inferior courts are simple and speedy, and... . the penalty is not characteristically severe. Such proceedings offer a defendant the op- portunity to learn about the prosecutions case and, if he chooses, he need not reveal his own. He may also plead guilty without a trial and promptly secure a de novo trial in a court of general criminal jurisdic- tion.”’ The above language is applicable to the Massachusetts system as well. There is no unwarranted delay caused by the two tiered system and the opportunities for discovery and rapid disposition of proceedings in the lower court does not occasion prejudice to the defendant. 3. Colten v. Kentucky, supra at 119-20 also indicates that a double jeopardy attack on the two tiered system of criminal justice in Massachusetts is without merit. There an argument based on double jeopardy implications of the possibility of enhanced punishment upon de novo trial was summarily rejected. The Massachusetts system does not allow the Common- wealth to ‘‘make repeated attempts to convict an individual for an alleged offense ... .’’ United States v. Green, 355 U.S. 184, 187-88 (1957). Acquittal in the District Court is conclusive. It is only when a judgment of guilt is returned, and then only at the option of the defendant, that a re-trial is possible. 5 Conclusion For the reasons stated, it is respectfully suggested that the appeal be dismissed for failure to present a substantial federal question. Respectfully submitted, Francis X. BELLOTTI Attorney General Joun J. Inwiy, JR. Assistant Attorney General Chief, Criminal Division Terence M. Troyer Assistant Attorney General Chief, Criminal Appellate Section Joun P. Consett Assistant Attorney General One Ashburton Place Boston, Massachusetts 02108 --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385003_1012%3A3. Public record. Not legal advice.