Appellants Brief — Ludwig v. Massachusetts

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In the __ ADH ABL POT, 3 » R., Ge m

Supreme Court of the United States

Octoser Term, 1975

No. 75-377

RICHARD I. LUDWIG,

APPELLANT,

COMMONWEALTH OF MASSACHUSETTS,

APPELLEE.

ON APPEAL FROM THE SUPREME JUDICIAL

COURT OF MASSACHUSETTS

BRIEF FOR THE APPELLANT

ROBERT W. HAGOPIAN, ESQ.

Wrentham, Mass. 02093

TABLE OF CONTENTS

Page

Opinion Below ....cseeeeececes 1

FJUPASELSCIER coccccecececesece 2

Questions Presented .......... 4

Statutes Involved ........e06-. 4

Statement of Case ..-eeeeesees 5

Summary of Argument ....-.eee- 7

APRUMONE ccocccccccccccccccccce RX

I - The Two-Tier Trial

De Novo Procedure .. ll

II = The Sixth Amendment

Jury Trial Guaran-

tee Means Trial

by Jury in the

First Instance

and is Made Appli-

cable to Massachu-

setts by the Four-

teenth Amendment ... 14

III - The Interposition

of a Trial Without

Jury Prior to Afford-

ing a Defendant

a Trial by Jury

is an Unconstitu-

tional Burden on

the Right to Trial

By JUPH ccccccccccee OF

Page

IV - The Arguments in

Support of Massa-

chusetts' De Novo

Procedure Are With-

out Constitutional

0 eae

V - There is No Com-

pelling Interest

to Justify Massa-

chusetts' Denial

of a Trial by Jury

in the First In-

PE sei cecucaesé 54

VI - Massachusetts' Proce-

dure of Forcing

an Accused to "Run

the Gantlet Twice"

Violates the Double

Jeopardy Provisions

of the Fifth Amend-

Dt eicsecsacecnes ee ~ ae

ee 67

Brief Appendix ...............- la-l4a

iii

TABLE OF AUTHORITIES

Page

Apodaca v. Oregon, 406 U.S.

BOR (1972). cccccccscsccccceses S35

Argersinger v. Hamlin, 407

U.S. 25 (lUGT2) ccccccscccecs 9,94,

Ashe v. Swenson, 397 U.S.

Se ChE dc cccoseccestevecseececse

Baker v. City of Fairbanks,

Alaska » 471 P. 2d 386

(1970) “eevee *oeeeveeeeeeeeeeeeneeeeee

Baldwin v. New York, 399 U.S.

66 (1970)...... 21,22,26,27,56,60,

Benton v. Maryland 395 U.S.

TES (1969) cccccccccccccccccccess

Blackledge v. Perry, 417 U.S.

2l TRS 66660660066 0005566066004

Boyd v. United States, 116

U.B. GRE (LETS) ccccccceccccccsces

Breed v. Jones, 497 F 2d 1160

(9th cir. 1974), affirmed,

423,U.S. __ (1975)... 44,53,

Callan v. Wilson, 127 U.S.

540 (1888)........ 7,8,9,16,19,21,

oy v. United States, 392

F 2d 10 (D.C cir. ) are

Chaffin v. Stynchone, 412

UB. LT (CUSTZ)eccccccccsccccsce We

57;

Page

Codispoti v. Pennsylvania,

B18 U.B. SOB CASTS) ccccseccececes 21

Colten v. Kentucky, 407 U.S.

108 CIOGTZ) a ccccecceccecceccoce 8,41,42

Commonwealth v. Crapo, 2l2

Mase. 209 ClPLZ)cccccecsececcceccs 12

Commonwealth v. Ludwig, Mass.

Adv. Sht. [1975] 1994; 330

BB. BB Wi cccceceeceesseosscecse 1, 6

Commonwealth v. Mustone, 353

Mass. 4990 (1968). ccccccccccccccces 54

Costarelli v. Massachusetts,

H21 U.S. 193 (1975). cece aceceees 2,51

Costarelli v. Municipal Court

of Boston, Mass. Adv. Sht.

[1975] 481; 323 N.E. 2d 859...... 36

Dana, In re, 7 Benedict 14

Oar PTT TET 31

Duncan v. Lausiana. 391 U.S.

145 (1968)..... 7,18,22,23,24,25,27,56

District of Columbia v. Colts,

288 U.S. 63 (19390). cccccccccccees 52

Endbinder v. Municipal Court

of Boston. Mass. Adv. Sht.

agree 2115. 330 N.E. ed

Frank v. United States, 395

Delte ee Gs 6666666664%% coves Sa

Gault, In re 387 U.S. 1 (1967)... 52

Gravson v. Montgomery, 421

F 2d 1306 (lst cir. 1970)........ 37

Green v. United States, 355

OB. BS CARS deccccecscs TeeTTTT 62

Green v. United States, 356

Fe rrr Te Te 58

Greene v. United States. 10

F. Cas. 1135 (No. 5, 764)

CF RS SO es seoesecee SO

Huffman v. Pursue, Ltd. 421

U.S. 592 (1975). ccccccces errr es 36

Johnson v. Louisiana, 406

- 8 rer eeedeue 25

Jones v. Robbins, 8 Gray 329

[Ds céeeebue 66s beeen eee 3,14,27,45

Ex Parte Lange, 18 Wall see

ns 44050000840006% 50066606086 64

Lefkowitz v. Newsome, 420

O.Ba BSS CHO S dacs cvevncesescesivs 51

Page

Lemieux v. Robbins, 414 F

2d 353 (lst. cir. 1969),

cert. denied, 397 U.S. 1017

CRO Ole coedeceesecesoeees 39,42,49,55

Mann v. Commonwealth, 359

Mass. 661 (1971)........... 16,39,49

Manns v. Commonwealth, 213

Va 26 FBS CAS aleccccevcoessecs 26,27

Manns v. Koontz, 451 F 2d

1345 (4th cir. 1971).......200., . 26

Maver v. City of Chicago,

ROS U.B. 199 CAST) cccccecccecess 50

Miller v. Commonwealth, 14

S.B. BB BGR Chee ie céuesecccse 27,50

North Carolina v. Pearce,

S55 U.B. FER CASS) covecececes 39,43

One Lot Stones v. United States,

ROD U.B. FFE CASTS dccccccstcceses 50

One 1958 Plymouth Sedan v.

Pennsvlvania. 380 U.S. 693

*) 3 Pree rrrrre CTT TT eet 51

Parham v. Municipal Court,

Iowa » 199 N.W. 2d 50

Pointer v. Texas, 380 U.S.

De - CE) 2 6666 0006666486666 40086 54

vii

Page

Price v. Georgia, 398 U.S.

Me GEO s 66 Cobheceeseesccecesoss 64

Railway Express Agency v.

SEs GO Gelbs SOc ccccccecses 3

State v. Gerry. 68 N.H. 495

Peis +cuenenetesanes 30,44,86,49,57

State v. Holliday, 109 R.I.

Oe Cheek Pccecececeseeses 10,26,60,66

United States v. Ball, 163

Delc Se CEP O dc ccwcesccccccceces 64

United States v. Jackson,

SOO G.Bs STO CIPS cccccccccccces 45

United States v. Jorn, 400

Dee STO CART Ede cccececes 44 ,62,64,65

United States v. Perez, 9

Se TD CO Dent caddececeseces 65

United States v. Tateo, 377

is SE CRED so heeecdeesececcess 64

United States v. Wilson, 420

We ey ) er ee 66

Wade v. Hunter, 336 U.S. 684

PED 6 66666 606.66066%606%0600008 65

Walker v. Dillard, 363 F Supp.

BER Gee © AGT Soc ccccccecccccscecs 27

viii

Page

Ward v. Village of Monroeville,

409 U.S. 57 Pt bcc bed be venues 55

Whitmarsh v. Commonwealth,

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

Ti974)..... neeeééecosease Gaueeneate

Williams v. Florida, 399 U.S.

TE CROTO). ccccnces ee FR

Winship, In re, 397 U.S. 358

CAST OP ccccs ii vewewe ee i~itnabeeene: Se

United States Statutes

eee eres eee eee 22

ie ee se adc ene 2,3

Massachusetts Laws

G6... Gh. GD Bam. BBdcccces Seaeave

6.3, Gis Bee is Bikssas cc 3,4,5,12

Oise Gis Te es Binccecaeses San

a Se FS errr TT ee

Butea Gite eee es Be oes taneeas a

O.h.. Ge. Bie BOs Dececcsvccsse BS9

G.h. Ges Ble Bbc Bscce Be%edebeaks

O.%. Gh. Bye BBs Bc ocee Betaaecta

a SS. ee

O.h. Gis Bee BOGs Bee ccscecs cae Sea

S.cs Gis De ek. Be 0646-06600 ene . 14

as SS. f Se rrr Ss 14

Page

G.L. Ch. 278 Sec. 33A-33G........ 14

Article XII - Declaration of

Rights, Massachusetts Con-

SEEM ccesccsecseveseesves O58,9

Ch. 459 of the Massachusetts

RO Bes ices6eedes tocesssciese &

Miscellaneous

Bing & Rosenfeld. The Quality

of Justice in the Lower Courts

of Boston (1970)........+2- 32,36, 38

Constitutionality of the De

Novo Procedure, 55 B.U. Law

BOG. BS Caer epecccecceccescses 86,63

Frankfurter & Corcoran, Petty

Federal Offences and the

Constitutional Guarantee

of Trial by Jury, 38 Harv.

Law Rev. 917 (1926)........6+. 21,57

Hasler, De Novo Jury Trials,

23 Maine Law. Rev. 63 (1971). 32,56

Massachusetts Bar Association's

Minimum Fee Schedule.......eee+- 32

Smith, Massachusetts Criminal

Practice and Procedure.......... l2

in the

Supreme Court of the United States

Octoser Term, 1975

No. 75-377

RICHARD I. LUDWIG,

APPELLANT,

COMMONWEALTH OF MASSACHUSETTS,

APPELLEE.

ON APPEAL FROM THE SUPREME JUDICIAL

COURT OF MASSACHUSETTS

BRIEF FOR THE APPELLANT

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.

afie

JURISDICTION

The jurisdiction of the Supreme

Court to review the decision of

the Supreme Judicial Court on direct

appeal is conferred by 28 U.S.C.

§1257(2).

The judgment from 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. Appellant's

jurisdictional statement was filed

in this Court on September 10,

1975. Probable jurisdiction was

noted on November 11, 1975. Jurisdic-

tion is supported by Costarelli

v. Massachusetts, 421 U.S.

(1975).

Section 1257(2) is specifically

invoked as the constitutionality

of Massachusetts’ statutory two-

tier trial de novo criminal procedure

was held not to be repugnant 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

o%-

of Right s> which provides that

no person "shall be... deprived

of his... liberty... but by the

judgment of his peers"; G.L. Ch.

218 §26 conferring criminal jurisdic-

tion on the courts in the first

tier of Massachusetts' two-tier

criminal procedure; and G.L. Ch.

278 §§18, 18A, providing a "right

to appeal” to the various courts

of the second tier of the system.

These statutory provisions have

been construed by the Supreme Judicial

Court to mean that an accused is

to be tried initially in a lower

court which "sits without a jury”

but that he may have a trial by

jury by claiming an "appeal" to

a second tier court, Jones v. Robbins,

8 Gray 329, 336, 341-342 (1858);

and it is this procedure which

was sustained against constitutional

attack by the Supreme Judicial

Court.

1 For the purpose of §1257(2),

a provision of a state consti-

tution is equivalent to a

state "statute", Railway Express

Agenc v. Virginia, U.S.

931).

-4-

QUESTIONS PRESENTED

1A. Does Massachusetts have

a right to deprive an accused of

one or more fundamental procedural

rights in a criminal trial if it

thereafter accords him a trial

with the full panoply of rights

guaranteed by the Constitution?

1B. Where an accused is entitled

to a jury verdict, does the interposi-

tion of a trial by judge before

a trial by jury impose an unconstitu-

tional burden on the right to trial

by jury?

2. Where an accused is entitled

to a jury trial,does Massachusetts'

procedure of forcing the accused

to stand trial before a judge as

a prerequisite to obtaining a jury

verdict violate the double jeopardy

provisions of the Fifth Amendment?

STATUTES INVOLVED

Article XII of the Declaration

of Rights of the Massachusetts

Constitution, Massachusetts General

Laws (ter. ed.) Ch. 263 §6

Ch. 218 §§26, 27A, Ch. 278 §§2,

18, 18A, 20 and 2k comprise the

framework of Massachusetts’ two-

tier criminal procedure and are

set forth in the appendix to this

brief (hereinafter Br. App.).

-5-

STATEMENT OF THE CASE

Richard I. Ludwig was charged

in the District Court of Northern

Norfolk pursuant to G.L. Ch. 218

§26 with driving an automobile

negligently so that the lives and

safety of the public were endangered,

@ criminal offense set out in G.L.

Ch. 90, §24(2)(a)© carrying a possible

maximum sentence of a fine of $200,

or two years of imprisonment, or

both. At the commencement of his

trial, Ludwig duly moved? the district

court for a “speedy jury trial"

pursuant to his rights under the

Fifth and Sixth Amendments. The

judge denied this motion, and after

a trial, found Ludwig guilty of

the offense charged. Thereupon,

Ludwig claimed an "appeal" for

a trial de novo in the District

Court of Northern Norfolk Six-Man

Jury pursuant to G.L. Ch. 278 §18

and Ch. 218 §27A.

In the de novo proceedings,

Ludwig duly filed a "motion to

2 The relevant parts of G.L. Ch.

90 §24(2) are set out in the

Br. App. at p. l2a.

3 See App. p. 7a.

aie

dismiss" on the grounds that he

was denied a speedy jury trial

in the first instance. This motion

was denied and Ludwig took an ex-

ception pursuant to G.L. Ch. 278

§31. After being found guilty

in a jury-waived trial and sentenced

to pay a $20 fine. payment of which

was stayed, Ludwig filed a bill

of exceptions to the Supreme Judicial

Court pursuant to G.L. Ch. 278

§31 alleging that the denial of

his "motion to dismiss" was error.

The Supreme Judicial Court overruled

the exceptions, Commonwealth v.

Ludwig, Mass. Adv. Sht. [1975]

p. 1994, 330 N.E. 2d 467. It held

that "the 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

Declaration of Rights, and the

guaranty against double jeopardy"

were “properly” before the court

and “untenable”: "We have suffered

no change of mind on the constitutional

issues since the Whitmarsh decision."

4 See App. p. 5a.

afe

SUMMARY OF THE ARGUMENT

Massachusetts maintains a

two-tier de novo criminal procedure.

For most offenses, the accused

is brought to trial initially in

a first tier court where he is

tried before a judge. He cannot

obtain a trial by jury, but if

he is dissatisfied with the judg-

ment of the lower court, he may

"appeal" to the second tier where

he may obtain a trial de novo by

jury as a matter of right. If

the defendant is found guilty in

the second tier court, he can ob-

tain traditional appellate review

of this conviction in the Massachu-

setts Appeals Court or Supreme

Judicial Court.

In Callan v. Wilson, 127 U.S.

540, 557 (1888), this Court unani-

mously held that the right to trial

by jury secured to the accused

"the right to enjoy that mode of

trial from the first moment, and

in whatever court, he is put on

trial for the offense charged".

In Duncan v. Louisiana, 391 U.S.

145, 149, 158 ftn. 30 (1968), this

Court held that the Fourteenth

Amendment guaranteed "a right of

jury trial in all criminal cases

which - were they to be tried in

ais

a federal court -would come within

the Sixth Amendment's guarantee",

and hence, by implication, bound

Massachusetts to the rule of Callan

v. Wilson, subject to the qualifi-

cation in Justice White's ftn.

30 that the Court's decisions in-

terpreting the Sixth Amendment

were “always subject to reconsi-

deration".

Appellant maintains that the

essence of the rule of Callan v.

Wilson is that the accused should

not be put "to the burden of two

trials if he wishes a jury verdict"

and that the interposition of a

trial by magistrate is an uncon-

stitutional imposition on the exer-

cise of the right to trial by jury.

The burden on the right to trial

by jury includes the additional

expense the accused must bear for

a meaningless trial in the lower

court, the embarrassment of being

found guilty and "appealing", the

stigma and anxiety resulting from

conviction, and the threat of an

increased penalty upon reconviction

in the second tier.

The burden of a lower court

trial cannot be circumnavigated

as was the situation in Colten

v. Kentucky, 407 U.S. 104 (1972).

-9-

On the other hand, if the defendant

remains silent and is convicted,

collateral consequences, e.g. loss

of one's driver's license, are

imposed notwithstanding the fact

that the "judgment" of the first

tier court is "vacated" by the

accused's exercising his right

of "appeal" for a de novo jury

trial in the second tier. Likewise,

if the accused fails to "prosecute

his appeal, he shall be defaulted

on recognizance and the superior

court may impose sentence upon

him for the crime of which he was

convicted."

Quite apart from its being

a burden, the interposition of

a trial by magistrate runs counter

to the "purpose" and "function"

of the right to trial by jury,

namely, to protect the accused

from governmental oppression,and

to interpose "between the accused

and his accuser...the commonsense

judgment of a group of laymen."

From this it follows that the rule

of Callan v. Wilson is an essential

element of a jury trial in contra-

distinction to the unanimity or

twelve-man requirements which are

"features" relating to the composition

of a jury.

a16=

In a nutshell, appellant submits

that once a defendant is placed

in jeopardy, Massachusetts has

no more right to deprive him of

his right to trial by jury than

his right to counsel, or his right

to remain silent, or his right to

confront witnesses. It is no

answer on Massachusetts' part to

say that it offers the defendant

a trial de novo with the full panoply

of Sixth Amendment procedural rights.

Similarly, Massachusetts has no

compelling state interest to deny

the accused a trial by jury in

the first instance as it may accomplish

its purpose of conserving its judicial

resources by maintaining a two-

tier structure while simultaneously

allowing a defendant the choice of

proceeding in the first tier ini-

tially or obtaining a jury trial in

the first instance in the second tier

as is the procedure in Rhode Island

in the aftermath of State v. Holliday,

109 R.I. 93 (1971).

Lastly, appellant maintains

that Massachusetts’ de novo procedure

violates the double jeopardy provi-

sions of the Fifth Amendment.

Manifestly, the procedure subjects

a defendant to the threat of multiple

trials. Upon conviction in a lower

court, the accused is subjected

to the "embarrassment" of being

elhin

found guilty and "appealing" in

a criminal proceeding. While awaiting

his "trial de novo" in the second

tier court, he is compelled "to

live in a continuing state of anxiety

and insecurity". Additionally,

the de novo trial in the second

tier subjects the accused a second

time to the “heavy personal strain"

which a criminal trial represents.

As such, this procedure is not

consonant with e Fifth Amendment

mandate of limiting "the government

to a single criminal proceeding

to vindicate its very vital interest

in enforcement of criminal laws".

ARGUMENT

I - THE TWO-TIER TRIAL DE NOVO

PROCEDURE

The first tier of Massachusetts'

two-tier de novo system is comprised

of the district courts and the

Municipal Court of Boston. These

courts have jurisdiction over all

misdemeanors and crimes carrying

a possible maximum prison sentence

of five years or less, and certain

enumerated felonies having possible

maximum prison sentences in excess

aie

of five years. Criminal proceedings

in a first tier court are commenced

by the issuance of/a complaint.

If the defendant pleads guilty

to the complaint at arraignment,

he is sentenced by the district

or municipal court. If he is dis-

satisfied by the sentence, he may

"appeal" the issue of his sentence

to a court in the second tier of

the de novo structure, but he is

not entitled to a de novo trial

in the second tier on his innocence

or guilt, Commonwealth v. Crapo,

212 Mass. 209, 210 (1912).

If the defendant pleads not

guilty in the first tier court,

5 G.L. 218 §26 (Br. App. 2a).

This jurisdiction is concurrent

with the superior court in

the second tier, but as a

matter of practice, prosecution

is almost always commenced

in the first tier courts.

See generally Smith, Massachusetts

Criminal Practice and Procedure,

Say.

6 G.L. Ch. 278 §§18, 18A (Br.

App. 2a, 8a). .

“Y ,

o13<

he must stand trial before a judge

as the first tier court "sits without

jury". If he is convicted ina

district court, he may "appegl"

either to the superior court! where

he may obtain a twelve-man jury

or the Six-Man toned | division of

the.daistrict court’ where he may

obtain a sdx-man jury. If he is

convicted in the Municipal Court

of Boston, he may "appeal" to the

superior court where he may obtain

_a twelve-man jury, or alternatively, 9

he may "appeal" to the Twelve-Man

Jury division of the Municipal

7 ~— Ch. 278 §§2, 18 (Br. App.

a).

8 G.L. Ch. 218-§27A (Br. App. 4a).

The only practical difference

to this alternative is the

shorter time in obtaining

a jury trial as compared to

the time required for obtaining

a jury trial in the superior

court.

9 G.L. Ch. 278 §18A (Br. App. 8a).

-14-

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 convicted, as if

he had been convicted in said court",

G.L. Ch. 278 §24. (emphasis added)

If a defendant is found guilty

in a second tier court, he may

obtain, by right, appellate review

of his conviction in the Massachusetts

Appeals Court .or the Supreme Judicial

Court.11

II - THE SIXTH AMENDMENT JURY TRIAL

GUARANTEE MEANS TRIAL BY JURY

IN THE FIRST INSTANCE AND IS .

MADE APPLICABLE TO MASSACHUSETTS

BY THE FOURTEENTH AMENDMENT

In Jones v. Robbins, 8 Gray

10 Hence, the second tier of the

Massachusetts system is comprised

of the superior court, the

Six-Man Jury division of the

district courts, and the Twelve-

Man Jury division of the Municipal

Court of Boston.

11 G.L. Ch. 278 §§28, 31, 33A-

33G.

-15-

329, 341 (1958), Chief Justice

Shaw of the Massachusetts Supreme

Judicial Court concluded that the

right to trial by jury did not

mean trial by jury in the first

instance, but only that the Common-

wealth must afford an accused a

jury trial at some time. In reaching

this result, the eminent Chief

Justice was construing Article

XII of the Declaration of Rights12

guaranteeing that no law "shall

subject any person to... infamous

punishment... without trial by

jury", a clause which he noted

was "equivalent" to the Sixth Amendment

provision: "...in all criminal

prosecutions the accused shall

enjoy the right to a speedy and

public trial by an impartial jury...".

ae specifically, the Chief Justice

eld:

And we believe it has been

generally understood and prac-

ticed here and in Maine, and

perhaps in other States having

a similar provision, that

as the object of the clause

is to secure a benefit to

the accused, which he may

avail himself or waive, at

12 Br. App. p. la.

o16—

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 autho-

rizes 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 a common liability to give

bail, or to be committed to

jail, to insure his appearance

and to abide the judgment .

to the court appealed to.13

Thirty years later, in Callan

v. Wilson, 127 U.S. 540 (1888),

this Court had occasion to review

the consitutionality of the District

of Columbia's two-tier trial de

novo procedure which was identical

to the Massachusetts system.14

In its decision, Justice Harlan

took note at p. 553-4 of the aforesaid

13 See also Mann v. Commonwealth,

359 Mass. 661, 663-664 (1971).

14 Callan v. Wilson, supra,

p. 551.

eifa

quoted portion of Chief Justice

Shaw's opinion, and then rejected

its reasoning at p. 556-7:

Except in the class or grade

of offenses called petty of-

fenses,...the guarantee of

an impartial jury to the accused

in a criminal prosecution,

conducted either in the name,

or by or under the authority

of the United States, secures

to him the right to enjoy

that mode of trial from the

first moment, and in whatever

court, he is put on trial

for the offense charged.

In such cases, a judgment

of conviction, not based upon

a verdict of guilty by a jury,

is void. To accord to the

accused a right to be tried

by a jury, in an appellate

court, after he has been once

fully tried otherwise than

by a jury, in the court of

original jurisdiction, and

sentenced to pay a fine or

be imprisoned for not paying

it, does not satisfy the re-

quirement of the Constitution.

When, therefore, the appellant

was brought before the Supreme

Court of the District, and

the fact was disclosed that

he had been adjudged guilty

-18-

of the crime of conspiracy

charged in the information

in this case, without ever

having been tried by a jury,

he should have been restored

to his liberty.

This decision, of course,

was not binding upon Massachusetts.

However, in Duncan v. Louisiana,

391 U.S. 145, 149 (1968), this

Court made tne Sixth Amendment

applicable to the states:

[W]e hold that the Fourteenth

Amendment guarantees a right

of jury trial in all criminal

cases which - were they to

be tried in a federal court -

would come within the Sixth

Amendment's guarantee,

and at p. 157:

Our conclusion is that in

the American States, as in

the federal judicial system,

a general grant of jury trial

for serious offences is a

fundamental right, essential

for preventing miscarriages

of justice and for assuring

that fair trials are provided

for all defendants. (empha-

sis added)

-19-

The State of Louisiana argued

against this holding on the grounds

that "if due process is deemed

to include the right to jury trial,

States will be obligated to comply

with all past interpretations of

the Sixth Amendment including. the

guarantee for a twelve-man jury,

the unanimous verdict requirement,

and the a nd Callan v. Wilson,

127 U.S. 540 in ice White” this

agrument, Mr. — te observed

tC p. 8 |

a’ ftn.

It is very unlikely to us

that our decision today will

require widespread changes

in state criminal processes.

First, our decisions interpret-

ing the Sixth Amendment are

always subject to reconsidera-

tion, a fact amply demonstrated

by the instant decision... .

Indeed, there appear to be

only four States in which

juries of fewer than twelve

can be used without the defen-

dant's consent for offenses

carrying a maximum penalty

of greater than one year.

Only in Oregon and Louisiana

can a less-than-unanimous

jury convict for an offense

with a maximum penalty greater

than one year. However, ten

-20-

states authorize first-stage

trials without juries for

crimes carrying lengthy penal-

ties; these States give a

convicted defendant the right

to a de novo trial before

a jury in a different court.

The breadth of the majority

opinion is made clear by Mr. Justice

Fortas in his concurring opinion

at p. 213: "But although I agree

with the decision of the Court,

I cannot agree with the implication,

see ante, at p. 158, ftn. 30, that

the tail must go with the hide:

that when we hold, influenced by

the Sixth Amendment, that ‘due

process' requires that the States

accord the right of jury trial

for all but petty offenses, we

automatically import all of the

ancillary rules which have been

or may hereafter be developed inci-

dental to the right to jury trial

in the federal courts." Similarly,

Mr. Justice Harlan acknowledged

the same in his dissent at p. 181:

Consequently, the court has

compromised on the ease of

the incorporationist position,

without its internal logic.

It has simply assumec that

the question before us is

afte

whether the Jury Trial Clause

of the Sixth Amendment should

be incorporated into the Fours

teenth jot-for-jot and case-

for-case, or ignored. Then

the Court merely declares

that the clause in question

is ‘in' rather than ‘out’.

Duncan was followed by Baldwin

v. New York, 399 U.S. 66 (1970),

wherein five out of eight members

of this Court "agreed that, at

the very least, the Sixth Amendment

requires a jury trial in all criminal

prosecutions where the term of

imprisonment authorized by statute

exceeds six months".15 Of the

five members, three drew the demarca-

tion line between "petty" and "serious"

crimes at six months1© as is defined

by common lawl7 and in the federal

15 Codispoti SOG ETS pease 4)

qis 5s " tn. 1974).

16 Cf. Callan v. Wilson, 127

U.S. 580, 549, 556 (1888).

17 Frankfurter & Corcoran, Petty

Federal Offenses and the

Constitutional Guarantee to

Rev 917, 938 (1926),

°222

systen!®. and two held that the

jury trial provisions of the Sixth

Amendment were applicable to "all

crimes".

In light of Duncan and Baldwin,

Ludwig maintains that he was entitled

to by a trial by jury in the dis-

trict court of Massachusetts as

the maximum possible sentence under

G.L. Ch. 90 §24(2)(a) was a $200

fine or two years imprisonment,

or both. His contentions, however,

were rejected by the Massachusetts

Supreme Judicial Court which relied

upon Whitmarsh v. Commonwealth,

__Mass. _, 316 N.E. 2d 610 (1974).

In Whitmarsh, the Supreme

Judicial Court held that the "state

of the law on the subject is highly

uncertain" and therefore it was

not “required to conclude either

(a) that the Sixth Amendment would

be interpreted at the present time

by the Supreme Court to require

a trial by jury in the first in-

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

court did reaffirm this rule...

with respect to the Federal Courts,

it would apply such a requirement

in equal fashion to the states".

Appellant submits, however, that

18 18 U.S.C §1.

-23-

it was the duty of the Supreme

Judicial Court under Article VI

of the Constitution to interpret

the decisons of this Court as they

existed and apply them. Instead,

the Supreme Judicial Court evaded

the issue on the grounds that "the

meaning of the Sixth Amendment's

jury trial provision and perhaps

also specific instances of its

application to the States... continues

to be in flux".

In support of its position,

the Supreme Judicial Court relied

upon Williams v. Florida, 399 U.S.

78 (1970), and Apodaca v. Oregon,

406 U.S. 4ou (1972). In wi ams,

this Court held that the States

are not required to afford a de-

fendant a twelve-man jury. In

reaching this conclusion, this

Court in effect overruled the fed--

eral twelve-man requirement and

hence this decision is entirely

consistent with Mr. Justice White's

remark in ftn. 30 in Duncan: "({oJur

decisions interpreting the Sixth

Amendment are always subject to

reconsideration... ." At the same

time, Duncan itself was reaffirmed

by the Court at p. 86 and by Mr.

Justice Black concurring at p.

107:

-24-

We have emphatically "rejected

the notion that the Fourteenth

Amendment applies to the States

only a ‘watered down, subjective

version of the individual

oe toes yt Heng — of

hts. oy V. Chan

37 U.S. -_ l. ay's

decision is in no way attribu-

table to any desire to dilute

the Sixth Amendment in order

more easily to apply it to

the States, but follows solely

as a necessary consequence

of our duty to reexamine prior

decisions to reach the correct

constitutional meaning in

each case. The broad implica-

tions in early cases indicating

that only a body of 12 members

could satisfy the Sixth Amend-

ment requirement arose in

a situation where the issue

was not squarely presented

and were based, in my opinion,

on an improper interpretation

of that amendment. Had the

questions presented here arisen

in a federal court before

our decision in Duncan v.

Louisiana, 391 U.S. 145 (1968),

s Court would still, in

my view, have reached the

result announced today.

=25-

In Apodaca, this Court held

that the unanimous jury requirement

of the Sixth Amendment was not

applicable to the states. In so

holding, four justices impliedly

overruled the requirement as to

federal trials and as such their

plurality opinion is consistent

with Duncan. Mr. Justice Powell

reached the same conclusion, but

was not in "accord with a major

premise upon which that judgment"

was based, namely "that the concept

of jury trial as applicable to

the States under the Fourteenth

Amendment, must be identical in

every detail to the concept required

in federal courts by the Sixth

Amendment", Johnson v. Louisiana,

406 U.S. 356, 369 (1972). Three

justices in dissent felt that the

federal standard should not be

changed and hence, the states should

be bound to the unanimous jury

requirement on the basis of Duncan.

As such, the decision is not a

departure from Duncan in principle,

but rather, it simply redefined

"what is meant by the concept 'jury'"

within the meaning of the Sixth

Amendment. Accordingly, appellant

submits that neither Williams or

Apodaca support the Supreme Judicial

-26- a&fo

Court's position in Whitmarsh.?9 it clear" that the question of

"incorporation" was an "open" one.

See also Hasler, De Novo Jury

Trials, 23 Maine Law Rev.

63, Pp. 82-83 (1971).

-34-

of Justice in the Lower Courts

of Boston, (1970) (hereinafter

The Quality of Justice) at p. 105-

Arguments on motions when

they are brought, pit the

judge and defense counsel

as adversaries. The police

prosecutor, unfamiliar with

controlling court decisions,

participates only to comment

upon the facts. The burden

falls upon the judge first

to develop the arguments in

»pposition to the defense

motion, and then decide who

has made the better argument.

When defense counsel make

motions to suppress illegally

obtained evidence, district

court judges frequently reserve

decision until the entire

case has been heard. If he

thinks the defendant is guilty -

influenced in part by the

questionable evidence - rather

than weighing the motion exclu-

sively on its merits, he is

in a position to balance the

legal merits of the motion

against the seriousness of

the crime.

The trials themselves are

brief. One judge's impatience

-35-

with zealous defenses was

expressed when he remarked

to a defense counsel, "We

don't follow those Supreme ~

Court decisions here.

The formal requirement for

a guilty finding is proof

beyond a reasonable doubt.

In district court trials,

there are strong indications

that the government's burden

is reduced to showing that

the preponderance of the evi-

dence establishes the defen-

dant's guilt....

At the heart of the district

court's attitude, which over-

looks rules of law and guaran-

teed rights, is the belief

that the defendant can always

protect himself by asserting

his right to trial de novo.

The most graphic illustration

that the law of the land is ignored

in the first tier Massachusetts

courts is set forth in Arnold v.

Second District Court, No. 75-321,

now pending in the Supreme Judicial

Court. In this case, the trial

judge of a district court refused

to pass on the constitutional issues

raised by defense counsel, or to

put in his own words:

oft.

I've said it on the record.

It's now going on the record

that I don't have the power

or authority to strike the

statute down in a constitutional

sense, and the only court

that has that power is the

Supreme Court of Massachusetts.

Compare Huffman v. Pursue Ltd.,

421 U.S. 592, 611 (1975): "Yet,

Article VI of the Constitution

declares that ‘the judges in every

state shall be bound' by the Federal

Constitution laws and treaties."

The most graphic illustration

that the burden of proof is reduced

to the preponderance of the evidence

is a case reported by Bing and

Rosenfeld, The Quality of Justice

(1970), at p. 83. n this decision,

the trial judge resolved the conflict-

ing testimony of the defendant

and police officers by holding:

"Well I don't know who to believe.

Just to play safe I will find you

guilty."

Quite apart from the trial

itself, the sentencing procedure

is often a fatal deterrent on the

exercise of the accused's right

to trial by jury. For example,

in Costarelli v. Municipal Court

of Boston, Mass. Adv. Sht. [1975]

=37-

481, 483, 323 N.E. 2d 859, 860,

the trial judge in the Municipal

Court of Boston announced that

he would impose a one year suspended

jail sentence if the defendant

would forgo his "right to appeal"

for a trial by jury, or otherwise

he would impose a one year sentence.

When this attorney objected to

the choice the trial judge addressed

Costarelli: "Take your pick, one

year suspended with no appeal,

or one year with appeal".26 Costa-

relli exercised his "right of appeal"

in accordance with his counsel's

strong advice and over his own

judgment. The trial judge then

imposed the one year sentence.

This type of sentence conditioning

is not the result of personal vindic-

tiveness, cf. Blackledge v. Perry,

417 U.S. 21 (1974), but rather

it is the product of the institu-

26 For a more detailed description

of this technique, see Bing

and Rosenfeld, The Qualit

of Justice (1970), at p. 86-

. For another paradigm,

see Grayson v. Montgomery,

421 F. a3 1306 (ist cir i970).

=38-

tional interest°’ of the district

court judge in discouraging what 28

he considers frivolous "appeals".

Another inhibiting sentencing

technique is illustrated in Endbinder

v. Municipal Court of Boston, Mass.

Adv. Sht. [1975] 2115, 330 N.E.

2d 846. In this case, a muncipal

court judge informed the defendant,

at the end of a first tier court

trial, that the court would enter

a not guilty finding if she would

agree to sign a release against

the complaining police officer.

The defendant refused, and solely

because of this refusal, the trial

judge entered a guilty finding.

Thereupon, the defendant "appealed"

to the superior court where she

was aquitted.

27 See Bing and Rosenfeld, The

Quality of Justice (1970),

at pp. 86-88; and Chaffin

v. Stynchone, 412 U.S. 17,27

(i973

28 Ch. 459 §2 of the Massachusetts

Acts of 1975 has abolished

this practice as a "matter

of law".

- 39-

In addition to the deterrent

sentencing procedures in the first

tier courts, the defendant faces

the threat of a harsher sentence

being imposed if he is reconvicted

in the superior court. More speci-

fically in Mann v. Commonwealth,

359 Mass. 661 (1971), the Supreme

Judicial Court held that a superior

court judge may augment the district

court sentence and that he does

not have to affirmatively justify

— a", 2 ay Lemieux

v. Ro ns, 414 F. 24 353 (ist

cir. 1969), cert. denied, 397 U.S.

1017 (1970) holding the same.

The decisions in both these cases

rested upon North Carolina v. Pearce,

395 U.S. 711 (1969). However,

the issue in Pearce was whether

the threat of an increased penalty

being imposed on retrial burdened

the right to appellate review in

contradistinction to the right

to trial by jury. These rights

are entirely different. In the

Pearce situation, the second trial

results at the defendant's "behest".

In the de novo precedure, the second

trial results from the government's

"behest" as it cannot imprison

the accused unless it is pursuant

to the judgment of his peers, and

under these circumstances, the

imposition of an increased penalty

constitutes a penalty on the right

to trial by jury:

-4o-

I’ find it equally difficult

‘to reconcile the increase

of penalties, upon a conviction

after an appeal, with the

unimpaired enjoyment of the

right of trial by jury. The

act inflicts a fine of twenty

dollars, if a conviction takes

place before a justice of

the peace. It must be that

the legislature considered

this the appropriate penalty

for the offense. Certainly

it cannot be said that the

offense is aggravated, by

the accused having claimed

atrial by jury. For what,

then, is the additional penalty

of eighty dollars, or the

additional imprisonment for

thirty days, inflicted? If

the offense ~emains the same,

and the offender has done

nothing but claim an appeal,

in order to have his case

tried by a jury, must not

these additional penalties

be founded on the exercise

of that right? Greene v. Briggs,

10 PF. Cas. 1135, 1141 (No.

5,764) (C.C.R.I. 1852).

This distinction was raised

in Whitmarsh v. Commonwealth, Mass.

-E. 2d 610, 619-620 (1974),

but the Supreme Judicial Court

rejected it on the authority of

BEST COPY AVAILABLE

-4l-

Colten v. Kentucky, 407 U.S. 104

. In Colten, this Court

sustained an augmented sentence

imposed after a trial de novo in

the second tier of Kentucky's two-

tier procedure. But this holding

is not controlling because the

two-tier procedure in Kentucky

is fundamentally different than

the Massachusetts procedure. In

the Kentucky procedure, the accused

is afforded a jury trial in the

first tier. Colten expressly waived

this right.°9 Accordingly, his

trial de novo in the second tier

of the Kentucky procedure was at

his "behest" and as such was equiva-

lent to retrial subsequent to appel-

late reversal as was the case in

29 "Although appellant here was

entitled to a six-man jury,...

which he waived...," Colten,

at p. 113. Additionally,

it should be observed that

Colten was not even entitled

to a jury trial at any time

as a matter of federal right

since the maximum penalty

under the statute upon which

he was charged did not exceed

six months imprisonment.

-~42-

Pearce.>

Quite apart from this conside-

ration, this Court took pains to

note that in the Kentucky procedure,

"the record from the lower court

is not before the superior court

and is irrelevant to its proceedings",

and "(ijn all likelihood, the trial

de novo court is not even informed

of the sentence imposed in the

inferior court and can hardly be

said to have ‘enhanced' the sentence".

As such, this Court refused to

impose the prophylactic rule of

30 Colten is also distinguished

by the fact that the accused

in the Kentucky procedure

"can circumnavigate the inferior

court simply by pleading guilty

and erasing immediately there-

after any consequence which

would otherwise follow from

tendering the plea," Colten,

at. pp. 119-120. Cf. Lemieux

v. Robbins, 414 F. 2a 353,

356 (lst cir. 1969), cert.

denied 397 U.S. 1017 (1970):

"CWJe hold the defendant has

no constitutional right to

complain of the "chilling

effect" when in effect, he

need not stand in the draft

of the first instance."

Pearce. In Massachusetts, however,

the record of the lower court proceed-

ings, including the sentence imposed,

is transmitted to the superior

court, G.L. Ch. 278 §20 (Br. App. 10

a). If the accused is convicted

again, the resentencing judge as

a matter of practice usually inquires

initially as to why the lower court

sentence should not be reimposed.

Such a procedure evidences the

institutional weight of judicial

comity between the two tiers in

the Massachusetts system, and mani-

festly discourages "appeals". 31

When viewed in toto, appellant

submits that the above noted burdens, -

the legal expenses, witness fees,

loss of pay, rigors of a first |

tier trial, threatening sentencing

techniques, and the threat of in-

creased penalties upon retrial -

are a deterrent on the exercise

of the accused's right to trial

31 The de novo jury is also aware

that the accused has been

previously adjudged guilty.

Compare Chaffin v. Stynchone

ia U.S- 17, 20, ftn. = F

1973).

-44e

by jury. Ina given case, any

one of the above factors may wear

down the individual and tip the

scales against the exercise of

his right to trial by jury. Addition-

ally, and, perhaps most important,

there exists the_jnherent "heavy

personal strain"3¢ "- pveqyeiegseas

physical and financial -"33 that

results from the trial and the

epeener= i humiliation and stig-

ma the attach to the conviction

itself. Indeed, the inescapable

32 United States v. Jorn, 400

U.S. 470, 479 (1971).

33 Breed v. Jones, 423 U.S. __

(1975).

34 Argersinger v. Hamlin, 407

U.S. 25, 44 (1972), (Powell

concurring).

35 "{The accused] stands morally,

and in respect to his character

and good name, as if, after

a jury's verdict of guilty,

he is awarded a new trial.

This is a hardship to which

the common law of England

and the common law of the

colony in 1784 he could not be

subjected." State v. Gerry,

68 N.H. 495, 509 (1896).

-45-

conclusion is that the interposition

of a trial by magistrate deters

the exercise of the right to trial

by jury, and as such, constitutes

an unconstitutional burden on the

right, United States v. Jackson,

390 U.S. 570, 582, 583 (1967):

"A procedure need not be inherently

coercive in order that it be held

to impose an impermissable burden;"

for "if the provision had no other...

effect than to chill the assertion

of constitutional rights by penaliz-

ing those who chose to exercise

them, then it would be patently

unconstitutional".

IV - THE ARGUMENTS IN SUPPORT OF

MASSACHUSETTS' TRIAL DE NOVO

PROCEDURE ARE WITHOUT CONSTI-

TUTIONAL MERIT

Two arguments have been set

forth to establish that the imposition

of a trial by magistrate is not

an unconstitutional burden on the

right to trial by jury. The first

is set forth by Mr. Justice Shaw

in Jones v. Robbins, 8 Gray 329,

341 (1858), namely, that the only

burden placed on the accused in

the two-tier process is the delay

and recognizance which "are the

same and no greater than they would

be in case the magistrate, instead

-4 6-

of passing sentence should, on

examination, bind the accused over,

or, as the necessary alternative,

commit him to jail". This theory

is fully rebutted by Chief Justice

Carpenter in State v. Gerry, 68

N.H. 495, 505-6 (1896):

To say that the required recogni-

zance upon an appeal subjects

the party to no greater incon-

venience, - is no greater

burden than the recognizance

required upon an examination

and binding over - if it were

true, does not conclude the

matter. It is not merely

the recognizance but the judgment

of the magistrate, the sentence

without a jury trial, that

burdens. But it is not true.

In legal effect, the difference

between recognizances upon

a binding over and upon an

appeal is great. In the first

case, the sole consequence

of a default or forfeiture

is to create a debt in the

amount of the recognizance,

payment of which may be enforced.

Upon the forfeiture of the

recognizance taken on appeal

not only is the defendant

subjected to the payment of

the amount of the recognizance,

but he is also, under the

-47-

Massachusetts statute, sentenced

by the court appealed to as

if he had been convicted in

that court. By his default

he is held to waive a jury

trial. Commonwealth v. Whitney

108 Mass. 56-7. :

The Massachusetts statute referred

to above was the predecessor to

G.L. Ch. 278 §24, (Br. App. lla),

which requires that upon the failure

of the defendant to prosecute his

"appeal", "he shall be defaulted

on his recognizance and the superior

court may impose sentence upon

him for the crime of which he was

convicted."36 This statute in

36 The constitutionality of this

procedure is pending before

the Supreme Judicial Court

in Costarelli v. Sheriff of

Middlesex, No. 75-277. In

this case, Costarelli was

arrested for allegedly being

in default on his "appeal"

to a second tier court. There-

upon, he was brought before

a judge (without his counsel

being present) who imposed

the one year prison sentence

of the lower court from which

his appeal had been taken.

-48- -49-

effect shifts the burden to the

accused, a patently unconstitutional

procedure:

liberty, or estate but by

the judgment of his peers."

This language does not mean -

A fatal objection to this

doctrine is that it puts the

burden of obtaining a jury

trial upon the defendant,

instead of the state. It

compels him to appear and

demand the trial, without

which the constitution expressly

declares he shall not be condemn-

ed. The difference between

a right to jury trial upon

demand made therefor and the

right not to be convicted

or punished until a trial

is had, is wide. A man is

not to be imprisoned or other-

wise punished because a corrupt

or ignorant magistrate has

found him guilty of crime,...

As long as he remains entirely

passive, -as long as he neither

does nor says anything relative

to the charge against him,

except to maintain his inno-

cence by a plea of not guilty, -

he is assured by the express

terms of the constitution

that he cannot be punished

until the state has obtained

a verdict of guilty from twelve

of his neighbors. "No subject

shall be deprived of life,

it cannot reasonably be con-

strued to mean - that he may

be tried and finally condemned

by a magistrate unless he

takes certain prescribed mea-

sures to procure a constitu-

tional trial. State v. Gerry

supra, p. 506. ;

The second contention is that

trial de novo is to the defendant's

advantage in that he "gives up

nothing by going to trial in the

district court", Lemieux v. Robbins,

supra, at p. 355, while at the

same time "he actually gains the

distinct advantage of a preview

of the prosecution's case without

having to disclose his own", Mann

v. Commonwealth, 359 Mass. 664,

666 (1971). Thus, in effect...the

defendant has 'two bites at the

cherry'," Mann v. Commonwealth,

supra, at p. 663. Such an argument

ignores the "collateral consequences"

-50-

that attach to a conyiction® 37 in

a first tier court. For example,

in the instant case, Richard l.

Ludwig's automobile license was

automatically revoked upon his

conviction for driving to endanger

pursuant to G.L. Ch. 90 §24(2).

Since this revocation is predicated

on “the commission of a criminal

offense," One Lot Stones v. United

States, 409 U.S. 232, 236 ftn.

6 (1972), it is a criminal penalty,

37 "Nor is it an answer to this

to say that, when the accused

is tried before a jury in

the appellate court, he stands

unprejudiced by his previous

conviction. This may be so

in theory of the statute,

but it is so theoretically

only; for naturally the moral

effect of the conviction has

a tendancy, at least, to preju-

dice his case in the estimation

of the jury." Miller v. Common-

wealth, 14 S.E. 2d 161 (1892).

38 cf. Mayer v. City of Chicago,

4O4 189, 197 (1 oT

"The practical effects of

conviction of even petty of-

fenses...are not to be mini-

mized."

-5l-

One 8 Fly Flymouth Sedan v. Pennsyl-

wes 804-3 U.S. 693, 701 (1565);

United States v. United States

goin and Currency, 401 U.S. 715,

718; and Boyd v. STS HEE) Ss gees:

116 U.S. Sib. 634 (i886

such, at least one Shakes sente

court has held that the revocation

cannot be imposed except pursuant

to a jury verdict:

In extending the right to

a jury trial, we define the

category of "criminal" pro-

secutions as including any

offense a direct penalty for

which may be incarceration

in a jail or penal institu-

tion. It also includes of-

fenses which may result in

the loss of a valuable license,

such as a driver's license

or a license to pursue a com-

mon calling, occupation, or

business.* It must also in-

39 As a matter of state law, this

penalty is not part of the

"Judgment" of the first tier

court. Cf. Costarelli v.

Massachusetts, 421 U.S. 93,

ftn. 2 (1975). Compare

Lefkowitz v. Newsome, 420

U.S. 283, 294 (1975), White

yb neBhes By

-52-

clude offenses which, even

if incarceration is not a

possible punishment, still

connote criminal coné¢uct in

the traditional sense of the

term.

* This does not cover revoca-

tion of licenses pursuant

to administrative proceedings

where lawful criteria other

than criminality are a proper

concern in protecting public

welfare and safety, as the

basis of revocation or suspen-

sion in such instances is

not that one has committed

a criminal offense, but that

the individual is not fit

to be licensed, apart from

consideration of only guilt

or innocence of crime. Baker

v. City of Fairbanks,

Alaska, . od 386,

402 (1970). 40

40 See also District of Columbia

v. Colts, O62 U.S. 63, 73

(1930); and Parham v. Municipal

Court, Iowa » 199 N.W.

2d 50 (1972). Cf. In re Winship,

397 U.S. 358, 363-4, 367 (1970);

In re Gault, 387 U.S. 1, 50

(i967); and Frank v. United

States, 395 U.S. 147, 159-

169 (1969).

-53-

The threat of the collateral

consequences which attach upon

conviction compels an accused to

try his case in the lower court

before a judge. Such a procedure

forces the accused to expuse his

defense and is inherently unfair

as is called to our attention by

the Court of Appeals for the Ninth

Circuit in Breed v. Jones, 497

F 2d 1160, 1168 (19749), aff'd 423

U.S. _— (1975):

There are basic issues of

fairness upon which we should

comment. Nowhere in our crimi-

nal system do we allow the

prosecution to review in advance

the accused's defense and,

as here, hear him testify

about the crime charged.

The most heinous and despicable

criminal is saved from such

an invasion of his fundamental

rights.... This offends our

concepts of basic, even-handed

fairness.

Likewise, cross examination of

prosecution witnesses has the tenden-

cy of hardening and polishing the

government's case for the de novo

trial in the superior court. See

+ i Ashe v. Swenson, 397 U.S.

436, 439-440 (1970); and Carse

v. United States, 392 F. 2d 810,

eee

-54-

813-814 (D.C. cir. 1967) which

detail the metamorphasis of testimony

in first and subsequent trials.

Alternatively, if defense counsel

does not cross examine the government's

witnesses in the lower court, and

if they subsequently become unavail-

able, their unimpeached testimony

will be admitted against the accused

since he had the opportunity to

cross examine the witnesses in

the lower court. See Commonwealth

v. Mustone,353 Mass. 4 9

distinguishing Pointer v. Texas,

380 U.S. 400 a ;

V - THERE IS NO COMPELLING INTEREST

TO JUSTIFY MASSACHUSETTS' DENIAL

OF A TRIAL BY JURY IN THE FIRST

INSTANCE

When Richard I. Ludwig was

placed in jeopardy before the District

Court of Northern Norfolk, it was

his right to obtain a judgment

of his peers. Massachusetts had

no more right to deny him this

fundamental right than it would

have to deny him his right to confront

his accusers, his right to counsel

of his own choosing, his right

to an impartial tribunal, or the

right to remain silent. It is no

answer on Massachusetts’ part to

-55-

say that it offered Richard I.

Ludwig a "trial de novo" with the

full panoply of constitutional

procedural rights. This argument

was rejected in Ward v. Village

of Monroeville, 409 U.S. 57, eT.

62 » wherein the accused

was initially denied an impartial

tribunal:

Respondent also argues that

any unfairness at the trial

level can be corrected on

appeal and trial de novo in

the County Court of Common

Pleas. We disagree. This

"procedural safeguard" does

not guarantee a fair trial

in the mayor's court;...Nor

in any event may the State's

trial court procedure be deemed

constitutionally acceptable

simply because the State eventu-

ally offers a defendant an

impartial adjudication. Pe-

titioner is entitled to a

neutral and detached judge

in the first instance.

Massachusetts, of course,

has a legitimate interest in allocat-

ing its judicial resources by main-

taining a two-tier structure, Lemieux

v. Robbins, 414 F 2d 353, 355 (lst

cir. 1969), cert. denied, 397 U.S.

1017 (1970). ‘he basis underlying

this interest and the two-tier

structure is that the state may

prosecute marginally serious crimes

more efficiently in a manner other

than trial by jury. Be this as

it may, Massachusetts is foreclosed

from differentiating between degrees

of serious crimes by the conjunctive

effect of, Duncan, Baldwin and

Williams.4I These cases define

the “petty-serious" dividing line

and hold that in a "serious" crime,

the accused has an unqualified

right to be insulated from the

full resources of the state by

the interposition of the community's

judgment. Accordingly, appellant

submits that if Massachusetts is

to maintain a two-tier structure

which denies the accused a jury

in the first instance, then it

must tailor the procedure to the

constitutional line between petty

41 See Hasler, De Novo Jury Trials,

23 Maine Law Rev. 56, 79,

81-85 (1971).

-57-

and serious crimes. ‘2

In addition to these consi-

derations, appellant maintains

that Massachusetts has no compell-

ing state interest to justify denying

the accused a trial by jury in

the first instance even if, arguendo,

it is assumed that the compelling

interest doctrine is applicable

to test the constitutionality of

the deprivation of a fundamental

rocedural right in a criminal

proceeding. e state's interest

42 The six month demarcation line

applies only with respect

to the right to trial by jury

and not to other Fifth or

Sixth Amendment procedural

rights. Cf. Argersinger v.

Hamlin, 407 oe. 25, 30, 45-

46 (1975). Its historical

origins are deep-rooted in

common law whereas de novo

jury trials were non-existent

at common law or in America

in 1784. See Frankfurter

& Corcoran, Petty Federal

offences ang ihe const tut tonal

uarantee of al by Jury,

38 Harv. L. Rev- O17 535

362 ftn. 85 (1926); and State

v. Gerry, 68 N.H. 495, 499-

500 6).

-58-

in economy cannot justify its depriv-

ing the accused of his right to

jury verdict once placed in jeopardy.

Justice Black made this quite clear

in Green v. United States, 356

U.S. 165, 216 (1958):

It is undoubtedly true that

a judge can dispose of charges...

faster and cheaper than a

jury. But such trifling economies

as may result have not generally

been thought sufficient reason

for abandoning our great consti-

tutional safeguards aimed

at protecting freedom and

other basic human rights of

incalculable value. Cheap

easy convictions were not

the primary concern of those

who adopted the Constitution

and Bill of Rights. Every

procedural safeguard they

established purposely made

it more difficult for the

government to convict those

it accused of crimes. On

their scale of value justice

occupied at least as high

a position as economy.

Additionally, it should be observed

that Massachusetts' interest in

maintaining a two-tier structure

can be achieved equally as well,

if not more efficiently, by allowing

the accused the option of proceeding

-59-

initially in the first tier or,

alternatively, allowing him to

obtain a jury trial in the first

instance in the second tier.

More specifically, there are

certain cases in which a defendant,

if given an option, will always

choose a trial by jury in the first

instance, or if not given the option,

will aiways "appeal" for a trial

de novo unless deterred therefrom.

These cases include offenses where

conviction carries serious collateral

consequences such as the revocation

of one's driver's license, or revoca-

tion of parole, or the loss of

one's right to carry on a. trade

or practice a profession.43 They

also included instances where

43 This is particularly true in

driving under the influence

of intostcating liquor cases

where the reversal rate of

district court convictions

ey —_ . extremely high.

ee Boston Herald American,

Feb. 24, 1973, which reported

that in one session of Suffolk

Superior Court "19 out of

22 defendants who appealed

lower court findings of guilty

imposed by judges were subse-

quently acquitted by juries

of their peers!"

ufo

there exists a close issue of reason-

able doubt or high probability

that the integrity of the trial

process would be impaired by multiple

trials. If the defendant is allowed

the option of a jury verdict in

the first instance in these cases,

the meaningless first tier proceedings

will be eliminated, thereby increasing

the efficiency of the state's two-

tier system. On the other hand,

the option procedure would preserve

the state's interest as, statisti-

cally, most defendants would waive

their right to a Jupy trial in

the first instance. Indeed,

the only appreciable additional

burden on the state would be the

granting of jury trials in those

cases where the accused would have

been deterred by the interposition

of trial by magistrate, a result

44 The two-tier option procedure

has been in operation in Rhode

Island in the aftermath of

State v. Holliday, 109 R.I.

93 (1971). Currently statistics

show 97.2 percent of all defen-

dants waive their right to

a jury trial in the first

instance. See also Baldwin

v. New York, 399 U.S. 66,

74 ftn. 22 (1970).

@-6l-

of which Massachusetts cannot com-

plain. This burden, in itself,

is constitutionally insignificant

in comparison to the burden placed

on the states by this Court's deci-

Sion in Baldwin v. New York, 399

U.S. 71, 75, ftn. 22 (1970), guaran-

teeing the accused "the important

right to trial by jury where the

possible penalty exceeds six months

imprisonment". Accordingly, appellant

submits that, on balance, the over-

all interest of Massachusetts in

maintaining a two-tier structure

will not be significantly impaired

by its granting the accused an

option of a Jury verdict in the

first instance. 45

VI - MASSACHUSETTS' PROCEDURE OF

FORCING AN ACCUSED TO "RUN

THE GANTLET TWICE" VIOLATES

THE DOUBLE JEOPARY PROVISIONS

OF THE FIFTH AMENDMENT

In Benton v. Maryland, 395

U.S. 784, 794 (1969), this Court

45 See Constitutionality of the

De Novo Procedure, 55 B.U.

Law Rev. 25, 54-59 (1975).

-62-

bound the states to the double

jeopardy provisions of the Fifth

Amendment by incorporating them

in the Fourteenth Amendment. The

underpinnings of these provisions

are set forth by Justice Harlan

in United States v. Jorn, 400 U.S.

470, 479 (1971):

A power in government to subject

the individual to repeated

prosecutions for the same

offense would cut deeply into

the framework of procedural

protections which the Constitu-

tion establishes for the conduct

of a criminal trial. And

society's awareness of the

heavy personal strain which

a criminal trial represents

for the individual defendant

is manifested in the willing-

ness to limit the Government

to a single criminal proceeding

to vindicate its very vital

interest in enforcement of

criminal laws. Both these

considerations are expressed

in Green v. United States,

355 U.S. 184, 187-188 (1957),

where the Court noted that

the policy underlying this

provision "is that the State

with all its resources and

power should not be allowed

to make repeated attempts

=63-

to convict an individual for

an alleged offense, thereby

subjecting him to embarrassment,

expense, and ordeal and com-

pelling him to live in a continu-

ing state of anxiety and inse-

curity, as well as enhancing

the possibility that even

though innocent he may be

found guilty.”

Judged in light of these princi-

ples, Massachusetts' two-tier proce-+

dure inherently runs counter to

the Fifth Amendment since it exposes

the accused to the threat of multiple

trials. Upon conviction in a lower

court, the accused is subjected

to the "embarrassment" of being

found guilty and "appealing" in

a criminal proceeding. While awaiting

his "trial de novo" in the second

tier, he is compelled "to live

in a continuing state of anxiety

and insecurity" while at the same

time the conviction "[enhances]

the possibility that even though

innocent he may be found guilty".

Additionally, the de novo trial

in the second tier subjects the

accused a second time to the "heavy

personal strain which a criminal

trial represents". Such a procedure

is not consonant with limiting

the government to a single criminal

proceeding to vindicate its very

-64-

vital interest in enforcement of

criminal laws", and implicit in

limiting the government to one

crack at the defendant is limiting

it to a proceeding which comports

with Sixth Amendment standards.

The prohibitions of the double

jeopardy clause not only bar punishing

a defendant twice for the same

crime, but bar placing him to his

defense a second time, Ex Parte

Lange, 18 Wall 163, 169 (1893).

he prohibitions thus relate to

a "potential or risk of trial and

conviction, not punishment ," Price

v. Georgia, 398 U.S. 323, 329 (1970),

emphasis added in Breed v. Jones,

423 U.S. . » (1975). Fer

this reason, the double jeopardy

clause bars the government from

seeking to overturn an acquittal

of the accused, United States v.

Ball, 163 U.S. 662, 069-671 (1896),

or from retrying the accused whose

conviction is set aside on the

grounds of "prosecutorial or judi-

cial overreaching", United States

v. Tateo, 377 U.S. 463, 468, ftn.

3 (1965); United States v. Jorn,

supra, at pp. 464-85.

But a second trial is not

barred in all circumstances. For

instance, where a second trial

results from a conviction being

-65-

set aside upon appellate review

initiated at the defendant's "behest",

retrial is not barred as the accused's

double jeopardy interests, however

defined, do not go so far as to

compel society to so mobilize its

decisionmaking resources that it

will be prepared to assure the

defendant a single proceeding free

from harmful governmental or judicial

error,” United States v. Jorn,

supra, p. 46%. Similarly, a second

trial is not barred where the first

trial is aborted due to a "manifest

necessity," United States v. Perez,

9 Wheat. 579, 580 (18245), as such

a result "would be too high a price

to pay for the added assurance

of personal security and freedom

from governmental harassment which

such a mechanical rule would provide,"

United States v. Jorn, supra, at

p- 480.46 However, the short of

46 In these circumstances, the

"defendant's valued right

to have his trial completed

by a particular tribunal must...

be subordinated to the public's

interest in fair trials designed

ae ane in just judgments",

ade v. Hunter, 336 U.S. 684

689 (1949).

-66-

the matter is that "(t]he policy

of avoiding multiple trials has

been regarded as so important that

exceptions to principle have been

only grudgingly allowed", United

States v. Wilson, 420 U.S. 332,

343 (1975).

Applying these principles

to the Massachusetts procedure

in question, it is observed that

the de novo procedure forces the

accused to the "risk" of two trials

and as such runs counter to the

policy underlying the double jeopardy

provisions of "avoiding multiple

trials", United States v. Wilson,

supra, at p. 343. Besides this,

the second trial in the de novo

procedure is not a retrial at the

defendant's request, although it

is denominated as an "appeal",

but rather, the second trial is

at the government's "behest" as

it cannot imprison the defendant

without affording him a jury verdict.

Such retrials, however, are barred

under the principles enunciated

in United States v. Ball, supra,

p. 669-671.

Conversely, Richard I. Ludwig

maintains that once he was placed

in jeopardy, Massachusetts had

no more right to intentionally

deprive him of his right to a jury

-67-

verdict than it would have to deprive

him of his right to counsel, or

his right to confront his accusers,

or his right to remain silent.

Moreover, the intentional denial

of the right to trial by jury is

equivalent to "prosecutorial over-

reaching" which prevents a fair

trial from taking place, or to

the declaration of a mistrial,

absent a "manifest necessity" or

without the defendant's consent,

which prevents a verdict from being

reached at all. By either analogy,

retrial is barred by the double

jeopardy provisions of the Fifth

Amendment and accordingly, appellant

submits that Massachusetts' procedure

of forcing the accused to "run

the gantlet twice" to obtain that

which the Constitution guarantees

is patently unconstitutional.

CONCLUSION

Appellant submits 1) that

his conviction in the District

Court of Northern Norfolk was unconsti-

tutional since he was denied his

Sixth Amendment right to a trial

by jury in the first instance;

and 2) that reprosecution in the

District Court of Northern Norfolk

ee Eee a a...

~68-

Six-Man Jury division was barred

by the double jeopardy provisions

of the Fifth Amendment.

WHEREFORE, appellant prays

this Court to reverse the decision

of the Supreme Judical Court.

Respectfully submitted,

pepo

Robert W. Hagopian, Esq.

Wrentham, Massachusetts

02093

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, sub-

stantially 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

favorable to him; to meet the wit-

nesses 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, immu-

nities, 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 per-

son to a capital or infamous punish-

ment 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 re-

spective district or otherwise made

punishable therein: all violations

of by-laws, orders, ordinances, rules

and regulations, made by cities,

towns and public officers, all mis-

demeanors, except libels, all felo-

nies punishable by imprisonment

in the state prison for not more

than five years, the crimes mentioned

in sections sixteen, seventeen,

eighteen, nineteen, twenty-eight

and forty-nine of chapter two hundred

and sixty-six, and the crimes of

forgery of a promissory note, or

of an order for money or other pro-

perty, 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 provi-

sions of section four A of chapter

two hundred and eleven.

G.L. Ch. 278 Sec. 18

Whoever is convicted of a crime

before a district court may appeal

the finding of guilty or the sen-

tence 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 con-

viction 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 seventy-six,

until he recognized to the common-

wealth, in such sum and with such

surety or sureties as the court

requires, with condition to appear

at the superior court on said return

day and at any subsequent time to

which the case may be continued,

if not previously surrendered and

discharged, and so from time to

time until the final sentence, order

or decree, and not depart without

leave, and in the meantime to keep

the peace and be of good behavior.

If the appellant is not released

on personal recognizance and is

committed for failure to recognize,

the superior court shall thereupon

have jurisdiction of the case for

the purpose of revising the amount

of bail required as aforesaid.

The appellant shall not be required

to advance any fees upon claiming

his appeal or in prosecuting the

same. Notwithstanding any other

provision of law, a defendant, after

a finding of guilty ina district

court, may appeal therefrom and

shall therafter be entitied to a

trial de novo in the superior court

or may appeal to and claim a jury

of six in a district court in ac-

cordance with said section twenty-

seven A.

G.L. Ch. 218 Sec. 27A reads in part:

Any defendant in a district court

of Norfolk county found guilty of

an offense or crime over which the

district court have original jurisdic-

tion under the provisions of section

twenty-six may appeal and claim

a jury of six in the district court

of norther Norfolk or the district

court of East Norfolk.

Such claim of appeal shall be in

writing and shall constitute 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 orginal 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 para-

graphs one through ten of this section.

Such claim shall be in writing and

shall constitute a wiaver 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 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 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 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

proceed in accordance with the pro-

visions 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 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 stenographer, who shall be sworn,

and who shall take stenographic

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; provided, 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.

8 eeeeeeeeeeeeeeeeeeeeeeR=<Re_aQjE~w eR SeeE

G.L. 278 Sec. 18A

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 regulation

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.

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 municipal

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 otherwise has an interest.

Trials by such juries of twelve

shall proceed in accordance with

the provisions of law and rules

of court applicalbe to trials by

jury in the superior court. 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 the superior court for

Suffolk county. The district attorney

for the Suffolk district shall appear

10a

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 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 to the

supreme judicial court by a bill

of exceptions, appeal, report or

otherwise in the same manner pro-

vided 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.

G.L. Ch. 278 Sec. 20

Upon such appeal, the clerk of the

district court shall transmit to

the clerk of the superior court

a copy of the complaint and of the

record of conviction, the original

recognizances, a list of the witnesses,

the appearance of the attorney for

the defendant, if any is entered,

and a statement of the expenses

and no other papers need be transmitted.

lla

G.L. Ch. 278 Sec. 24-

If the appellant fails to enter

and prosecute his appeal, he shall

be defaulted on his recognizance

and the superior court may impose

sentence upon him for the crime

of which he was convicted, as if

he had been convicted in said court,

and, if he is not then in custody,

may issue process to bring him into

court to receive sentence. wi

G.L. Ch. 278 Sec. 2

Issues of fact joined upon an indict-

ment or complaint shall, in the

superior court, be tried by a jury

drawn and returned in the manner

provided for the trial of issues

of fact in civil causes, unless

the person indicted or complained

against elects to be tried by the

court as provided by law.

G.L. Ch. 263 Sec. 6

A person indicted for a crime shall

not be convicted thereof except

by confessing his guilty in open

court, by admitting the truth of

the charge against him by his plea

or demurrer or by the verdict of

a jury accepted and recorded by

the court or, in any criminal case

other than a capital case, whether

12a

begun by indictment or upon complaint

or any defendant in the housing

ocurt of the city of Boston or in

the housing court of the county

of Hampden in a criminal case, may,

if he shall so elect, when called

upon to plead, or later and before

a jury has been impanelled to try

him upon such indictment or complaint,

waive his right to trial by jury

by signing a written waiver thereof

and filing the same with the clerk

of the court, whereupon he shall

be tried by the court instead of

by a jury, but not, however, unless

all the defendants, if there are

two or more charged with offenses

growing out of the same single chain

of circumstances or events whether

prosecuted under the same or different

indictments or complaints shall

have exercised such election before

a jury has been impanelled to try

any of the defendants; and in every

such case the court shall have jurisdic-

tion to hear and try such cause

and render judgment and sentence

thereon.

G.L. Ch. 90 Sec. 24 reads in part:

(2)(a) Whoever upon any way or in

any place to which the public has

a right of access, or any place

to which members of the public have

access as invitees or licensees,

operates a motor vehicle recklessly,

13a

or operates such a vehicle negligently

so that the lives or safety of the

public might be endangered...shall

be punished by a fine of not less

than twenty dollars nor more than

two hundred dollars or by imprisonment

for rot less than two weeks nor

more than two years, or both;...

(b) A conviction of a violation

of the preceding paragraph of this

section shall be reported forthwith

by the court or magistrate to the

registrar, who may in any event,

and shall unless the court or magistrate

recommends otherwise, revoke immediate-

ly the license or right to operate

of the person so convicted, and

no appeal, motion for new trial

or exceptions shall operate to stay

the revocation of the license or

right to operate. If it appears

by the records of the registrar

that the person so convicted is

the owner of a motor vehicle or

has exclusive control of any motor

vehicle as a manufacturer or dealer

or otherwise, the registrar may

revoke the certificate of registration

of any or all motor vehicles so

owned or exclusively controlled.

revoked the license or right to

operate of any person under the

preceding paragraph of this section,

in his discretion may issue a new

lua

license or reinstate the right to

operate to him, if the prosecution

of such person in the superior court

has terminated in favor of the defen-

dant, or, after an investigation

or upon hearing, may issue a new

license or reinstate the right to

operate to a person convicted in

any court of the violation of any

provision of paragraph (a) of subdivi-

sion (2) of this section; provided,

that no new license or right to

operate shall be issued by the registrar

to...any person convicted of violating

any other provision of paragraph

(a) of subdivision (2) of this section

until sixty days after the date

of his original conviction if for

a first offense, or one year after

the date of any subsequent conviction

within a period of three years.

But the registrar, after investi-

gation, may at any time rescind

the revocation of a license or right

to operate revoked because of a

conviction of operating a motor

vehicle upon any way or in any place

to which the public has a right

of access, or any place to which

members of the public have access

as invitees or licensees, negligently

so that the lives or safety of the

public might be endangered.

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.