Amicus Brief — Jackson v. Virginia

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| ”~ Supreme Count, U,

| EIUED

~~ | FEB 21 1979

Supreme Court of the United States. oscax

October Term 1978

No. 78-5283

JAMES A. JACKSON,

Petitioner,

Vv.

COMMONWEALTH OF VIRGINIA,

Respondent.

BRIEF OF AMICUS CURIAE

IN SUPPORT OF RESPONDENT

GEORGE DEUKMEJIAN

Attorney General

JACK R. WINKLER

Chief Assistant Attorney General

ARNOLD O. OVEROYE

Assistant Attorney General

EDDIE T. KELLER

Deputy Attorney General

WILLARD F. JONES

Deputy Attorney General

JANE K. FISCHER

Deputy Attorney General

555 Capitol Mall, Suite 350

Sacramento, California 95814

Telephone: (916) 445-4608

Attorneys for Amicus Curiae

In Support of Respondent

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ae a

TOPICAL INDEX

Pages

INTEREST OF AMICUS CURIAE 1

SUMMARY OF ARGUMENT 2

ARGUMENT

I DUE PROCESS DOES NOT RE-

QUIRE FEDERAL RELITIGATION

OF STATE SUFFICIENCY OF

THE EVIDENCE ISSUES BY AP-

PLICATION OF THE REASONABLE

DOUBT STANDARD, THEREBY UN-

NECESSARILY EXPANDING FED-

ERAL HABEAS JURISDICTION 3

A. Federal Habeas Corpus

Should Not Be Available

To Relitigate Sufticienc

Of The oo In A State

Conviction Unless The

State Failed To Provide

A Full And Fair Hearing 3

B. The Standard of "Some"

or “Any” Evidence on Federal

Habeas Review Satisfied

Due Process; Application

oft the EASE Doubt

Standard Would Constitute

Retrial-By-lranscript 27

CONCLUSION 4l

APPENDICES A, B

o tf 5

TABLE OF AUTHORITIES

CASES

Boyd v. United States

(1886) 116 U.S. 616

Bradshaw v. Ball

(1972) 487 S.W.2d 294

Breithaupt v. Abram

(1957) 352 U.S. 432

Brewer v. Williams

(1977) 430 U.S. 387

Pages

Broadcast Music v. Havana Madrid

Restaurant Corp.

(2nd Cir. 1949)

175 F.2d 77.

Brown v. Allen

(1953) 334 U.S. 443

Burks v. United States

(1977) 437 U.S. 1

Carey v. City of Atlanta

(1915) 84 S.E. 456

Castaneda v. Partida

(1977) 430 U.S. 482

Croker v. State

(1970) 477 P.2d 122

Eric R.R. v. Tompkins

(1938) 304 U.S. 64

5,10,11,13

20,22,23,39

- ili -

TABLE OF AUTHORITIES

CASES

Estelle v. Williams

(1976) 425 U.S. 501

Etheridge v. Bradley

(1972) 502 P.2d 146

Fay v. Noia

(1963) 393 U.S. 391

Francis v. Henderson

(1976) 425 U.S. 536

Freeman v. Zahradnick

(1977) 429 U.S. 1111

Gall v. Wittig

(1969) 167 N.W.2d 577

Garner v. Louisiana

(1961) 368 U.S. 157

Green v. ay ant

(1978) 437 U.S. 19

Harris v. United States

(1971) 404 U.S. 1232

Hunter v. State

(1955) 288 P.2d 425

In re Winship

(1970) 397 U.S. 358

Pages

4,5,7,10

7,8,10

20,27,29

18,31

22,23

32,33

Passim

- iv -

TABLE OF AUTHORITIES

Pages

CASES

Kaufman v. United States

(1969) 394 U.S. 217 6,10

Konigsberg v. State Bar

(1957) 353 U.S. 252 30

Marbury v. Madison

(1803) 5 U.S. (1 Cranch.) 16

Meachum v. Fano

(1976) 427 U.S. 215 28

Mullaney v. Wilbur

(1975) 421 U.S. 684 25,34,37

Murphy v. Pocatello School

District

(1971) 480 P.2d 878 18

NAACP v. Mt. Laurel

(1975) 336 A.2d 713

appeal dis. and cert. den.

(1975) 423 U.S. 808 18

Nason v. Superintendent etc.

(1968) 233 N.E.2d 908 18

Nat. Mtg. Corp. v. Suttles

(1942) 22 S.E.2d 386 18

Oregon v. Hass

(1975) 420 U.S. 714 19

Parham v. Municipal Court

(1972) 199 N. W.2d 501 18

LO LER INS:

ee ee

TABLE OF AUTHORITIES

CASES

Passman v. Oliphant

(1974) 353 S.Y.6. 117

Patterson v. New York

(1977) 432 U.S. 197

People v. Donovan

' (1963) 243 N.Y.S.2d 841

People v. Jackson

; (1974) 217 N.W.2d 22

People v. Kelly

(1974) 353 N.Y.S. 111

Portland v. Welch

: (1961) 364 P.2d 1009

Roberts v. State

(1969) 458 P.2d 340

Rochin v. California

(1952) 342 U.S. 165

Roundtree v. Riddle

(D.C. WD Va. 1976)

417 F.Supp. 1274

Schneckloth v. Bustamonte

(1973) 412 U.S. 218

Schware v. Board of Bar

Examiners

(1957) 353 U.S. 232

Pages

Passim

24,25

5,6,8,10

-vi -

TABLE OF AUTHORITIES

CASES

Shuttlesworth v. Birmingham

(1965) 382 U.S. 87

Speight v. State

(1959) 155 N.E.2d 752

State v. Barquet

(1972) 262 So.2d 431

State v. Brown

(1972) 497 P.2d 1191

State v. Le Blanc

(1966) 217 A.2d 471

State v. Brown

(1972) 497 P.2d 1191

State v. Eichler

(1971) 483 P.2d 887

State v. Johnson

(1975) 346 A.2d 66

State v. Kaluna

(1974) 520 P.2d 51

State v. Sklar

(1974) 317 A.2d 160

State v. Wolf

(1960) 164 A.2d 865

Stone v. Powell

(1976) 428 U.S. 465

Pages

29,31

Passim

- vii -

TABLE OF AUTHORITIES

Pages

CASES

Swisher v. Brady

(1978) U.S.

(98 S.Ct. 2699) 21,23,39,40

Thompson v. Louisville

(1960) 362 U.S. 199 Passim

Townsend v. Sain

(1963) 372 U.S. 293 5

Trammel v. State

(1956) 287 S.W.2d 487 18

Tucker v. State

(1922) 90 So. 845 18

United States v. Taylor

(1972) 464 F.2d 240 38 , 39

Vachon v. New Hampshire

(1974) 414 U.S. 478 32,33

Velarde v. People

(1970) 466 P.2d 919 19

Wainwright v. Sykes 8,11,12

(1977) 433 U.S. 72 14,25

White v. Ragen

(1945) 324 U.S. 760 4

Williams v. United States

(1971) 401 U.S. 646 11

- vili -

TABLE OF AUTHORITIES

Pages

CASES

Young v. Boles

(4th Cir. 1965)

343 F.2d 136 29

CONSTITUTIONS

United States Constitution

Fourth Amendment 25

Fifth Amendment 8

Fourteenth Amendment 17,28

RULES

Rules of the Virginia Supreme

Court, Rule 5.28 24

TEXTS

Allen, The Restoration of In

re Winshi A Comment on

Burdens +? Persuasion In

Criminal Cases After Pat Fterson

Vv. ew yor

Annual Report of the Director

of the Administrative Office of

e Unite ates Court

at p. 189 10

Bator, Finality in Criminal Law and

Federal Habeas Corpus for State

Prisoners (1963) /6 Harv.L.Rev. 441

4,11,13

« te «

TABLE OF AUTHORITIES

Pages

TEXTS

Brennan, Federal Habeas Corpus

and State Prisoners: An Exercise

n Federalism Uta

L.Rev. 423 14

Brennan, State Constitutions and

The Protection o ndividua

Rights (1977) 90 Harv. L.Rev.489 17

119 CONG. REC. S1305

(Jan. 26, 1973) 10

Cover and Aleinikoff, Dialectical

Federalism: Habeas Corpus and the

Court (1977) 86 fort kev.

T035-1059 4

Developments in The Law--

Folerel Habeas Corpus C pus (1970)

arv.L.Rev. 4

Doub, The Case Against Modern

Federal Habeas Corpus (1971)

5 ae _ 7 5

Hearing on S. 895 Before The

Subcom. on Const. Rights of

the Senate Judiciary Comm

92nd Cong. Ist Sess. 3-171 (1971) 6

Jaglom, Protecting Fundamental

Rights in State Court: Fitting a

State Peg to a Federal Hole C1877)

12 Harvard Civil Rights-Civil

Liberties L.Rev. 80-85 4

- xX =

TABLE OF AUTHORITIES

TEXTS

1971 Hearings on S. 895 Before

Subcomm. on Constitutional Rights

of the Senate Judiciary Committee

at pp. 9/-98

Oaks, Legal History in the High

Court--Habeas Corpus

Mich. L.Rev., pp. 451,451-458

Paschal, The Constitution and

Habeas Corpus S hid, O05

Reitz, Federal Habeas Corpus:

Impact of an Abortive State Pro-

ceeding (1961) 74 Harv. L.hlev.

Pages

-_—e

IN THE SUPREME COURT OF THE UNITED STATES

October Term 1978

No. 78-5283

JAMES A. JACKSON,

Petitioner,

Vv.

COMMONWEALTH OF VIRGINIA,

Respondent.

ON WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

BRIEF OF AMICUS CURIAE

IN SUPPORT OF RESPONDENT

INTEREST OF AMICUS CURIAE

The State of California has, as

have most, if not all, of the other forty-

nine states, provided state prisoners with

an appellate review system for full and

fair oathad of all federal constitutional

law claims.

Therefore, amicus curiae is con-

cerned that duplicative federal habeas

jurisdiction may be expanded by constitu-

tionalizing the reasonable doubt standard

as applied to collateral review of suf-

ficiency of the evidence. It is our opin-

a i

ion that if the "any" evidence standard

is replaced by a "reasonable doubt" stan-

dard every state prisoner who presented

such an issue in his state appeal or on

state collateral review will be likely to

embrace the federal remedy.

The State of California has been

authorized by the Attorney General of South

Carolina, the Honorable Daniel R. McLeod;

the Attorney General of the State of

Alabama, the Honorable Charles A. Graddick;

and the Attorney General of West Virginia,

the Honorable Chauncey H. Browning, to in-

form the Court that these states join in

this brief and support the position of

the Commonwealth of Virginia.

SUMMARY OF ARGUMENT

Amicus curiae contends that the

Due Process Clause does not require appli-

cation of the "reasonable doubt" standard

on federal habeas review and that reliti-

gation of all constitutional issues, in-

cluding whether the evidence is sufficient

to comport with due process whatever the

standard, should be limited to those cases

where defendants did not enjoy a full and

fair state hearing.

ie ee ay Sag ee

ARGUMENT

I. DUE PROCESS DOES NOT RE-

QUIRE FEDERAL RELITIGATION

OF STATE SUFFICIENCY OF

THE EVIDENCE ISSUES BY AP-

PLICATION OF THE REASONABLE

DOUBT STANDARD, THEREBY UN-

NECESSARILY EXPANDING FEDERAL

HABEAS JURISDICTION

A. Federal Habeas Corpus

Should Not Be rote ye

To Relitigate Sufficienc

Of The ottanns In A State

Conviction Unless The

State Failed To Provide

air Hearing

The instant c&se arises via the

broad federal habeas corpus avenue for

state prisoners. It is now apparent that

such relief should be limited when the value

of the "Great Writ" is weighed against its

deleterious effects on the federal-state

criminal justice system, (See Stone v.

Powell (1976) 428 U.S. 465, 488-489, 494.)

On the negative side of the balance is the

burden on federal district courts and cir-

cuit courts, the lack of finality of any

state judgment (even after repetitive state

reviews), friction between federal and state

courts, a lack of comity, duplicity of re-

view and interference with punishment and

rehabilitation of state prisoners. On the

positive side of the balance is the pos-

sibility that constitutional error, missed

or ignored by the state court system, will

be ferreted out. This solitary virtue has

lost much of its vitality due to the great-

er competence of the state justice systems,

a a

their increased rence tgghi ye to enforcing

federal constitutional rights as mandated

in recent years by this Court, and their

protection of basic rights by —

of their state constitutions. erefore,

federal habeas corpus should again be

limited to its essential function--to af-

ford an effective remedy where otherwise

there was none. (See White v. Ragen (1945)

324 i “eae Stone v. Powell , supra, 428

U.S. Je

A brief review of the modern

history of the writ indicates its current

role is evolving and in need of further re-

vision and definition.1/

1. More elaborate discussions of the

complete history, purpose and scope of

habeas corpus are plentiful: Cover and

Aleinikoff, Dialectical Federalism: Habeas

Corpus and the Court (1977) 86 Har.L. Rev.

1035-1059: Jaglom, Protecting Fundamental

Rights in State Court: Fitting a State Pe

to a Federal Hole (1977) 12 Harvard Civil

Rights-Civil Liberties L. Rev. 80-85. Com-

are Fay v. Noia (1963) 372 U.S. 391, 399-

26, th id. at 449-63 (Harlan, J., dis-

armen a compare Developments in The Law--

Federal Habeas Corpus (1570) 83 Harv.L. Rev.

2-62, -/4, and Reitz, Federal

Habeas Corpus: Impact of an Abortive State

Proceedi (LOST) 74 Harv.L.Rev. 1315,

TI2L-1 333" with Oaks, Legal History in the

High Court--Habeas Corpus (1966) 64 Mich.

L.Rev., pp. 451,451-458; and Bator, Final-

ity in Criminal Law and Federal Habeas

Corpus for State Prisoners (1963) 76 Harv.

. Rev. - . e scope of fed-

eral habeas corpus for state prisoners has

(Footnote continued p. 5.)

oS,

In 1953, the Court held that, no

matter how fully the state court had con-

sidered a federal constitutional issue,

that issue could be redetermined by a

federal court on habeas corpus. (Brown v.

Allen (1953) 344 U.S. 443.) The Court

reasoned that the state courts needed super-

vision to insure conformity in constitution-

al interpretation. In 1963, the relitiga-

tion rule of Brown, which gave a defendant

a two-tier appeals system, was inevitably

extended by the Court to a prisoner who

had failed to litigate his claim in the

state justice system. (Fay v. Noia, supra,

393 U.S. 391.) Specifically, the Court

held that procedural default by a defendant

in state courts will not preclude habeas

corpus review unless the petitioner delib-

erately bypassed the state procedure. (Id.

at pp. 426-427, 438.) On the same date,

the Court decided Townsend v. Sain (1963)

372 U.S. 293, 312-313, 318, which held that

the federal court was not bound by state

determination of facts and laid down stan-

dards for determining whether a federal

evidentiary hearing was necessary.

evolved from a quite limited inquiry into

whether the committing state court had

jurisdiction, [Citations omitted.], to

whether the applicant had been given an

adequate opportunity in state court to

raise his constitutional claims, [Citation

omitted.]; and finally to actual redeter-

mination in federal court of state court

rulings on a wide variety of constitution-

al contentions ... .'"' Schneckloth v.

Bustamonte (1973) 412 U.S. 218, 255-56

owell, J., concurring).

= oe

Limitation of federal habeas

corpus review has been proposed in var-

ious bills in Congress to curtail the scope

of the writ.2/ The first clear indication

that the Court might reconsider the role

of federal habeas corpus was Schneckloth v.

Bustamonte, supra,412 U.S. 218. The con-

curring opinion of Justice Powell prophesied

his melanite opinion in Stone v. Powell,

supra, 428 U.S. 465. In the concurring

Sptnten. four justices concluded that: 3/

" , . . [F]ederal collateral re-

view of a state prisoner's Fourth

Amendment claims . . . should be

confined solely to the question

of whether the petitioner was pro-

vided a fair opportunity to raise

and have adjudicated the question

in state courts." (Id. at pp. 249-250.)

2. See Paschal, The Constitution and

Habeas Corpus (1970) e L.J. , ;

S.Rep.No. 1797, 89th Cong. 2d Session

e968): S917, 90th Cong., 2d Sess. § 702

1968); 114 boas. tec it, 189 (1968); H.R.

11, 441, 92d Cong., lst Sess. (1971);

S.567, §3 Cong.; lst Sess. (1973); The De-

partment of Justice urged habeas reform as

part of speedy trial reform. See Hear-

ing on S. 895 Before the Subcom. on Const.

s of the Senate Judiciary Comm., 92nd

Cong. Ist Sess. 93-121 (1971).

3, The concurring opinion actually in-

cluded four justices, as Justice Blackmun's

concurring opinion agreed with Justice's

Powell's opinion, except for the necessity

of reconsidering Kaufman v. United States

(1969) 394 U.S. 217.

~ ere >

As a further response to its

recognition of the Brown-Noia expansion

costs, the Court questioned the primary

elements of Fay v. Noia, supra, in three

decisions in” the 1975 term.

Estelle v. Williams (1976) 425

U.S. 501, 508-512 challenged the Fay prin-

ciple of no automatic attribution of coun-

sel's acts or yeti 5s Se CEE MM TP

Francis v. Henderson .S.

modified the Fay criteria of the "delib-

erate bypass" standard by adding "cause"

and "prejudice" requirements:

"In a collateral attack upon

a conviction that rule requires,

contrary to the petitioner's

assertion, not only a showing

of "cause" for the defendant's

failure to challenge the com-

position of the grand jury be-

fore trial, but also a showing

of actual prejudice." (Id., at

p. 542.)4/

Stone v. Powell, supra,428 U.S. 465, the

most important of the trio, held that, at

least as to Fourth Amendment claims, full

and fair litigation of the issues in state

courts would have a res jugicare effect on

ee habeas corpus. (Id., at pp. 481-

482.

The last indication of this

Court's growing trust in the ability of

‘

4. There was a state time limitation

for challenge of grand jury composition

which the Court honored. (Id. at p. 537.)

» is

state courts to properly apply federal

constitutional gar tay is Wainwright v.

Sykes (1977) 433 U.S. 72. In Sykes, the

Court confirmed its modification of the

"deliberate bypass" standard with a "cause"

and "prejudice" standard as to all claims

not timely raised. However, it was sug-

gested in the dissent that Sykes extended the

Stone v. Powell rule to the Fifth Amendment.

Id. at p. 87 fn. 11 and p. 110 (Brennan,

J. dissenting). )5/

Distillation of Stone, Francis, and

Sykes to their essence should result in a

rule precluding federal habeas review of

all constitutional questions except in cases

where: (1) there was no full and fair state

hearing; and (2) defendant had not waived

his objection under state law, unless there

was ''cause'"’ for the waiver and he had suf-

fered "actual prejudice."

If either of these two factors are

present federal habeas review should be

available, regardless of the type of con-

stitutional issue. As discussed infra,

there is no rational justification for the

Stone rule not being co-extensive with

Sykes. All of the arguments advanced in

Sykes, Stone, Francis and Scheckloth which

Tavor careful exercise of discretionary

habeas power, apply with equal force to all

constitutional issues. Certainly, the

federal courts, on habeas, should not

5, The Court appropriately did not ex-

pressly extend the "full and fair litiga-

tion'"' concept to Fifth Amendment issues as

Sykes was a case of waiver like Francis,

rather than relitigation as in Stone.

o Ss

attempt to exercise their power to review

state convictions for sufficiency of the

evidence, whether "due process" requires

"any" or "some" evidence, or whether it re-

quires "beyond a reasonable doubt" as peti-

tioner urges herein (see Argument I- B

infra) .6/

We advert first to the factors

favoring extension of Stone to all consti-

tutional issues.

The increasing burden of habeas

filings on the federal judiciary merits

consideration, especially in view of the

increased availability of state forums, as

detailed infra. Filings numbered 1,020

in 1961 and 9,063 in 1970. The rapid in-

crease, approximately one thousand addi-

tional cases annually, in habeas corpus

filings in the decade of 1960-1970 seri-

ously clogged the federal courts. Peti-

tions filed by state prisoners continue to

represent a significant portion of the

workload of the U.S. District Courts. In

1977, the 14,846 state prisoner petitions

constituted 11.4% of all civil filings,

whereas federal petitions amounted to only

6. The disagreement between the Dis-

trict Court and the Circuit Court in the

instant case as to whether there is "any

evidence of premeditation is an indica-

tion that state courts are just as capable

of deciding such issues.

= 2

3.6%.7/

"This Court has long recognized

: : r= ggg ore eee of pong ieee

(Francis v. Henderson, at p. 539; see Fa

v. Nola, at pp. G25-426). Federal outs,

in the exercise of this habeas corpus

power, have traditionally considered "the

minimization of friction between our fed-

eral and state systems of justice" and

"the maintenance of constitutional balance

upon which the doctrine of federalism is

founded."8/ (Stone v. Powell, supra, 428

U.S., at p. 465, Footnote 31, referring

to Schneckloth v. Bustamonte, supra,

412° U.S. at p. 259 (Powell, J. concurring),

and Kaufman v. United States (1969)

394 U.S., at p. 231.) ° ATI-

7. Amnual Report of the Director of

The Administrative Office of the United

tates Courts at pp. P 9

Id. (1971) at. p. II 45; 1971 Hearings

on S. 895 Before Subcomm. on Constitu-

tional Rights of the Senate Judiciar

Committee, at PP- 97-98; 119 CONG. REC,

$1305 (Jan. 2 1973). See Brown v.

Allen, supra, 344 U.S. 443, 532, 536

and n. 8, p. 536.

8. Current procedure allowing a federal

district court judge to reopen and possibly

overturn the trial decision of a state su-

preime or other highest court has been at-

tacked over the years as causing needless

tensions between the two court systems.

Critics complain that it is needless be-

cause the state courts are equally bound

to the Constitution and equally subject

to the decisions of this Court. (Doub,

The Case Against Modern Federal Habeas

Corpus TIOFL) ST BoB eheds S43, Sate)

a. Ohce

though Justice Frankfurter rejected the

notion that federal habeas procedure al-

lows a “lower court"’ to sit in judgment

on a “higher court" (Brown v. Allen, 334

U.S., at p. 510), certainly some state

high court justices must disagree.

Another traditional factor in

favor of limited exercise of federal habeas

jurisdiction is "the necessity of finality

in criminal trials.'' (Stone v. Powell,

supra, 428 U.S., at Bs n. 31; Wain-

a ht v. Sykes (1977) 433 U.S. 72, 78.)

The Lack of finality causes various in-

soluble problems for state prosecutors

and prison authorities: (1) it is diffi-

cult to relitigate facts many years after

conviction because witnesses may be miss-

ing, unable to remember, or unwilling to

testify; (2) relitigation of stale facts

may produce a second trial where facts are

no more reliable than the first (see

Williams v. United States (1971) 401 U.S.

: (Harlan, J., dissenting); (3) "It

is of course a commonplace of classical

criminal-law theory that certainty and

immediacy of punishment are more crucial

elements of effective deterrence than its

severity" (Bator, Finality In Criminal Law

supra, /6 Harv.L.Rev. 441, at p. 452

In. 71); and (4) the perpetual lack of

finality impairs the speed and certainty

of punishment esanattal for effective re-

habilitation. (See e.g. 1971 Hearings,

supra at note 2; Bator, supra, at

=. oe

p. 452;9/

In Wainwright v. Sykes, this Court

vesgaet eee acknowledged the possibility

of 'sandbagging":

"We think that the rule of

Fay v. Noia, broadly stated, may

encompass ‘sandbagging' on the

part of defense lawyers, who may

take their chances on a verdict

of not ilty in a state trial

court th the intent to raise

their constitutional claims in

a federal habeas court if their

initial gamble does not pay off."

(433 U.S. at p. 89.)

That same type of gamesmanship can be played

by any state prisoner seeking federal habeas

review. Since there is no time limitation

on his petition, he can seek federal re-

dress at any time that may be advantageous

to him, such as when a crucial witness dies

or absents himself or upon loss of impor-

tant evidence. Obviously, persons on di-

rect review have much less control of the

9, Professor Bator opines: ''The first

step in achieving that aim [rehabilita-

tion of offenders] may be a realization

by the convict that he is justly subject

to sanction, that he stands in. . . need

of rehabilitation, and a process of re-

education cannot, perhaps, even begin if

we make sure the cardinal moral predicate

is missing, if society itself tells the

convict that he may not be justly subject

to reeducation and treatment in the first

place." (Supra, 76 Har.L.Rev., at p. 452.)

é «

timing of the processing of their claims.

The cumulative effect of lack of

finality, coupled with all the afore-

described costs, has now finally tipped

the scales in favor of yielding the primary

remedy for constitutional error to state

process. Balancing the extravagant costs

of federal habeas corpus against the pro-

tection of individual constitutional rights,

Stone should be applied to all constitution-

al claims, just as Francis-Sykes is, be-

cause the state court systems are now cap-

able and willing to protect fundamental

rights.

Historically, the expanding avail-

ability of the habeas corpus writ was in

part due to the state courts’ inability to

enforce constitutional rights. Professor

Bator indicates that the "principal prob-

lem'' in limiting the scope of federal

habeas review in 1963 was the "inadequacy

of state procedures for the vindication of

federal constitutional procedures." (Bator,

supra, 76 Har.L.Rev. 441, at p. 522.) In

Brown v. Allen, Justice Frankfurter ac-

knowledged that the primary responsibility

for enforcing the Constitution must be with

the states, but he supported broad federal

habeas jurisdiction only because of the

possible insensitivity of some state judges

toward the Constitution. (344 U.S., at

pp. 510, 511.) While in 1953 and 1963,

such a fear was well-founded, today such

= a

trepidation would be baseless and this

"Court's willingness to overturn or modify

its earlier views of the scope of the

writ" (Wainwright v. Sykes, supra, at p.

81) may now be employe thout fear of

loss or diminution of the individuals'

federal rights. 10/

This Court has itself recognized

in Stone that state court protection has

come of age:

"The policy arguments that

respondents marshal in support

of the view that federal habeas

corpus review is necessary to

effectuate the Fourth Amendment

stem from a basic mistrust of

the state courts as fair and

competent forums for the ad-

judication of federal consti-

tutional rights. The argument

is that state courts cannot be

trusfed to effectuate Fourth

Amendment values through fair

application of the rule, and

the oversight jurisdiction of

this Court on certiorari is an

inadequate safeguard. The prin-

cipal rationale for this view

10, Mr. Justice Brennan's prediction

that broad federal habeas jurisdiction

would stimulate the states to devise ade-

quate post-conviction procedures has been

fulfilled. (See Brennan, Federal Habeas

Corpus and State Prisoners: An Exercise

in Weta cat ian (1961) 7 Utah L.Rev. 423,

emphasizes the broad dif-

ferences in the respective

institutional settings within

which federal judges and state

judges operate. Despite dif-

ferences in institutional en-

vironment and the unsympath tic

attitude to federal constitr

tional claims of some state } idges

in years past,we are unwilling

to assume that there now exists

a general lack of appropriate

sensitivity to constitutional

rights in the trial and appellate

courts of the several States.

State courts, like federal

courts, have a constitutional

piles gt se to safeguard per-

sonal liberties and to uphold

federal law. Martin v. Hunter's

Lessee, 1 Wheat. 304, 34I-

(I8I6). Moreover, the argument

that federal judges are more. ex-

pert in bm federal consti-

tutional law is especially un-

persuasive in the context of

search-and-seizure claims, since

they are dealt with on a daily

basis by trial level judges in

both systems. In sum, there is

"no intrinsic reason why the

fact that a man is a federal

judge should make him more com-

petent, or conscientious, or

learned with respect to the [con-

sideration of Fourth Amendment

claims] than his neighbor in the

state courthouse.’ (Bator

supra, n. 7, at 509.)" (428 U.S.

at pp. 493-494, fn. 35.)

—" we

This expression of trust in state

processes in Stone is well based in view of

the time state courts have had to digest

and apply this Court's decisions of the

last two decades, the increasing number of

state courts enforcing fundamental rights

based on "independent state grounds," and

the beginning of a decline in the number

of prisoners finding need to resort to

federal forums. 1l/

Perhaps the greatest evidence of

the fact that state courts are concerned

with fundamental rights, and therefore must

be capable and willing to follow the Court's

mandate of the last two decades, if their

own willingness to exceed those mandates by

even more zealous protection. Mr. Justice

Brennan recently recognized this phenomena

by noting that " .. . numerous state courts

11. The ability of state courts to de-

velop their bills of rights independently

of the Federal Constitution derives direct-

ly from the fundamental nature of our dual

judicial system. Under article III the

jurisdiction of the federal courts is re-

stricted to nine classes of cases. While

the federal courts are empowered to review

issues arising under federal law, the Con-

stitution grants no authority for the Su-

preme Court or the lower federal courts to

review a state court interpretation of state

law. (Eric R.R. v. Tompkins (1938) 304 U.S.

64, 78.) Neither may Congress expand the

Court's review authority as set out in ar-

ticle III. (Marbury v. Madison (1803) 5

U.S. (1 Cranch.))

- 17 >

. have already extended to their citi-

zens via state constitutions, greater pro-

tections than the Supreme Court has held

are applicable to the Federal Bill of

Rights."" (Brennan, State Constitutions

and The Protection of Individual Rights

arv. . ev. . ust ce

Brennan opines " . these state courts

discern, and disagree with, a trend in

recent opinions of the United States Court

to pull back from, or at least suspend the

Boyd principle with respect to application

of the federal Bill of Rights and the re-

straints of the due process and equal pro-

tection principles of the Fourteenth Amend-

ment."" (Id., at p. 495.)12/

If the states find it necessary

to employ their own bills of rights to ex-

pand rights and liberties, a fortiori they

must, at a minimum, be willing and compe-

tent to conform to federal constitutional

requirements imposed by this Court during

the last two decades,

The extent of the use of "an ade-

quate and independent state ground" has

spread ae the last decade. We are aware

of at least 19 different state appellate

courts which have interpreted their own

12. The "Boyd principle" refers to Boyd

v. United States (1886) 116 U.S. 616, :

" oy. constitutional provisions for the

security of person and property should be

liberally construed... . It is the duty

of the courts to be watchful for the con-

stitutional rights of the citizen, and

against any stealthy encroachments there-

on.

constitutions in ways more protective of

basic rights than extant or anticipated

Supreme Court decisions. 13/ Also, many

13. Those states are: California

(numerous decisions); New Jersey (State v.

Johnson (1975) 346 A.2d 66, 68; NAACP v.

Mt. Laurel (1975) 336 A.2d 713, appeal

dismissed and cert. den., (1975) 423 U.S.

808) ;Hawaii (State v. Kaluna (1974) 520

P.2d 51);Michigan (People v. Jackson (1974)

217 N.W. 2d 22);South Dakota (Parham v.

Municipal Court (1972) 199 N.W.2d 501);

Maine (State v. Sklar (1974) 317 A.2d 160);

Alaska (Roberts v. State (1969) 458 P.2d

340 and Etheridge v. Bradley (1972) 502

P.2d 146); Delaware (State v. Wolf (1960)

164 A.2d 865); Flordia (State v. Barquet

(1972) 262 So.2d 431);Georgia (Nat, Mtge,

Corp. v. Suttles (1942) 22 S.E.2d 386 and

arey v. City of Atlanta (1915) 84 S.E.

Z56F1 daho (Mur hy v. Pocatello School

District (1971) ZO P.2d 878); Indiana

(Speight v. State (1959) 155 N.E.2d 752);

Kéntucky (Bradshaw v. Ball (1972) 487 S.W.

2d 294 Mass. (Nason v. Superi :

(1968) 233 N.E.2d 908); Mississippi (Tucker

v. State (1922) 90 So. 845); New York

(People v. Donovan (1963) 243 N.Y.S.2d

8 : lahoma (Hunter v. State (1955) 288

P.2d 425); Oregon (Portland v. Welch (1961)

364 'P.2d 1009; State v. Brown (1972) 497

P.2d 1191, 1196);Rhode Island (State v. Le

Blanc (1966) 217 A.2d 471); Texas (Trammel

v. State (1956) 287 S.W.2d 487); Utah

(State v. Eichler (1971) 483 P.2d 887); and

Wisconsin (Gall v. Wittig (1969) 167 N.W.

2d 577). Many of these states have sev-

eral other decisions based wholly or par-

tially on state constitutional grounds.

state courts, as in their prerogative

(Oregon v. Hass (1975) 420 U.S. 714, 719),

have imposed, without resorting to their

own constitution, greater restrictions on

police activity than those the Supreme

Court has held to be necessary under fed-

eral constitutional standards. 14/

Finally, filing of federal habeas

petitions by state prisoners increased by

at least one thousand per year from 1962

to 1970, dropped slightly in 1971 and there-

after increased from 1971 to 1976 at a

much slower cate, and then dropped again

in 1977. (1977 Annual Report, supra, at

pp. 188-189, 205-) 157 The Admin strative

Office of the United States Courts opined

in 1971 that"... it is quite likely

that the availability of more legal ser-

vices to state prisoners and the improve-

ments being made in judicial and veal

viction procedure in many states have begun

to open other legal routes which prisoners

must exhaust before approaching Federal

Court."" (1971 Annual Report, supra, at p.

II-50.) That conclusion is even more un-

questionably correct given the state courts’

usage of "independent state grounds" and

their concomitant capability and willing-

14, e.g. Wyoming (Croker v. State (1970)

477 P.2d #52): Colorado (Velarde v. People

(1970) 466 P.2d 122); Colorado (Velarde v.

People (1970) 466 P.2d 919);New York

(P T

eople v. Kelly (1974) 353 N.Y.S. 111,

Ye) maar re:

15, The 1977 Report at p. 205 notes that

state prisoner petitions decreased more

than 12% during the present 12-month period.

ness to apply federal constitutional prin-

ciples.

In addition to the consideration

detailed supra, there are other factors

that are particularly relevant to the scope

of federal habeas jurisdiction with res-

pect to sufficiency of the evidence.

Obviously, if evidentiary suf-

ficiency on habeas review is further con-

stitutionalized, habeas jurisdiction will

necessarily be expanded, contrary to the

trend of cautious limitation so apparent

and so fully justified in Stone, Francis,

and Sykes. Justice Stewart recognized

that problem in his proposal in Freeman v.

Zahradnick (1977) 429 U.S. 1111,

e approach I suggest would expand the

contours of one kind of claim cognizable

on federal habeas corpus."

Secondly, constitutionalizing

sufficiency of the evidence is in direct

contradiction of the limited role of a

federal judge when a jury is the trier-

of-fact. "Even the trial court, which

has heard the testimony of witnesses first

hand, is not to weigh the evidence or as-

sess the credibility of witnesses when it

judges the merits of a motion for acquit-

tal. er (Burks v. United States (1977) 437

U.S. 1, 16.) How much more futile it

would be for federal judges to pore over

state transcripts to determine if the

prosecution case was proved beyond a

reasonable doubt. Such a retrial-by-

transcript would be wasteful exercise:

"A stenographic trans-

script correct in every detail

« 22 =

fails to reproduce tones of

voice and hesitations of speech

that often make a sentence

mean the reverse of what the

words signify. The best and

most accurate record is like

a dehydrated peach; it has

neither the substance nor

the flavor of the fruit be-

fore it was dried."" (Broad-

cast Music v. Havana Madrid

Restaurant Corp. (2nd Cir.

) Pe

Justices Marshall, Brennan and

Powell in their dissent in Swisher v.

Brady (1978) U.S. made a

perfect case against expanding federal

a review of sufficiency of the evi-

ence:

"In a criminal proceeding,

where the issue posed is

the threshold one of whether

a defendant has been proven

guilty of a crime beyond a

reasonable doubt, the same

considerations surely have

at least as much force. In-

deed, the need for achieving

the most reliable determina-

tions of evidentiary facts,

and particularly of credibility,

exists a fortiori where the

factual determinations must

be made beyond a reasonable

doubt.

"As the Maryland courts have

have held, In re Brown, 13 Md.

App. 625, 632- 6335, 204 A.2d 441,

444-445 (1971), and as is

self-evident from the struc-

ture of Rule 911, the master's

function at the hearing is, in

large part, to assess the credi-

bility of the witnesses. That

function simply cannot be repli-

cated by the 'judge,‘ acting in

his essentially appellate capac-

ity reviewing the record;

"ke ok o*

"But more importantly, when a

juvenile seeks to reopen the

proceeding before the judge--

in order to avoid having a

case decided against him on

the basis of a cold record in

violation of the Due Process

Clause--he is being subjected

to a second trial of the sort

clearly prohibited by the

Double Jeopardy Clause." (

v.s, [98 S.Ct. 2699 at pp.

2714, 2715] .)16/

16, Of course, if an evidentiary hear-

ing were held in every case, retrying the

entire case, assuming the witnesses were

available with their full recall, the

federal judge would be in a position to

assess the evidence. However, such an

evidentiary hearing would, at a minimun,

violate the spirit of Double Jeopardy.

(Burks v. United States, supra, fd Ll:

Green v. Massey (1978) 43 > ee. 2

The majority in Sykes also recognized

the value of determinations by "the judge

who observed the demeanor of the witnesses

o « 433. U.5.,. ee ae

+ x

Assuming the dissent in Swisher

is correct in its assessment of the diffi-

culty in judging "reasonable doubt" from

a "cold record", another factor against

expanding habeas corpus b — the

sufficiency standard is the potential of

erroneous decisions without a remedy for

the prosecution, Under Burks v. United

States, supra, 437 U.S. T and Green v.

Massey, supra, 437 U.S. 19, if the federal

court retries the state case by transcript

and determines the evidence was insuffi-

cient, then double jeopardy prevents a re-

trial.17/ This harsh result cannot be jus-

tified considering the substantial likeli-

hood of judicial error in trial-by-trans-

cript.

In conclusion, it seems highly in-

congruous that under Sykes, the Court has

apparently extended federal habeas Limita-

tion to all types of claims when a defen-

dant failed to obtain a hearing of the

constitutional issue in the state courts,

but in cases where issues have been given

a "full and fair hearing" only Fourth Amend-

ment claims are precluded from redundant

federal habeas litigation. In other words,

discretionary habeas power should be even

more aight restrained where a state pris-

oner has had one (state) hearing, than

where he has had none. This Court's hos-

tility to duplication and relitigation as

expressed in Francis and Sykes, which

17, As discussed infra, from a cold

record it is undoubtedly easier to judge

"some evidence" than "beyond a reasonable

doubt.

— oe

require defendants to raise their con-

stitutional claims in state trial courts,

is even more well founded in cases such

as this one where the defendant has al-

ready litigated his claim in the state

court system.18/ For the preclusive con-

18, Amicus will not attempt to fully

brief whether petitioner failed to raise

his "constitutional" issue in the state

court system or whether he enjoyed a "full

and fair hearing." sone exploration

of that subject is better left to the re-

spondent. However, according to Roundtree

v. Riddle(D.C. W.D.Va. 1976) 417 F.Supp.1274,

petitioner had the benefit of afull and

fair asendouy The identical state pro-

cedure was followed in Roundtree (see p.

1275). Petitioner Jackson appealed his

conviction in the Virginia Supreme Court

which was fully considered by the Court

(according to their recitation) and they

found no error (Appendices A & B). Of

course, there was no formal oral argument

or written opinion. However, it can be

—. that petitioner failed to prop-

erly raise his "constitutional" issue by

waiving his right to orally argue for the

——o of his petition. Petitioner's

conclusion in his Petition for Writ of

Error stated:

"The attorney for Petitioner

adopts this as his opening brief

in the event a Writ of Error is

awarded, and does not demand to

state orally the reasons for

granting the petition." (Appendix A.)

Under the pertinent rules (Rule 5.28 of

(Footnote continued p. 25.)

ws .

sequences of failure to raise a claim in

state proceedings to apply to the entire

spectrum of constitutional issues, but the

preclusive consequences of fully litiga-

ting a claim in state courts to apply only

to Fourth Amendment issues, is, at best,

inconsistent.

the Rules of the Virginia Supreme Court),

petitioner had a right to appear before

one Virginia Supreme Court Justice, which

he waived.

It is at least arguable that petitioner

falls within orkes for one other reason.

In his brief to the Virginia Supreme Court

he complained that Virginia violated

Mullaney v. Wilbur (1975) 421 U.S. 684,

by requiring to prove he was too drunk

to deliberate and premediate (Appendix A).

He did not specifically contend, as he

does now, that the state failed to prove

premeditation beyond a reasonable doubt.

Apparently, the first time he pressed his

specific point was in his petition for

collateral review in the United States

District Court for the Eastern District of

Virginia (Petition for Cert. p. 6). Since

the Supreme Court of Virginia has never

been presented with the constitutional

issue herein raised, it would appear that

the District Court should have refrained

from collateral review a la Wainwright v.

Sykes.

In any event, if petitioner's brief

to the Virginia Supreme Court presented

the issue raised herein petitioner had

a "full and fair hearing" (Roundtree v.

Riddle, supra, 417 F.Supp. 1274);or, if

(Footnote continued Pp. 6.3"

o 26 «

Both Chief Justice Burger and

Justice Powell have indicated their be-

lief that Stone should be extended to

other claims. In Brewer v. Williams

(1977) 430 U.S. 387, 415-430, the Chief

Justice, in dissent, opined that Stone

should have barred relitigation of the

Massiah-type counsel claim in that case.

n v. Partida (1977) 430 U.S.

482, Justice Powell, in dissent, opined

that Stone should be extended to discrim-

inatory grand jury claims.

It is submitted that a piecemeal

approach to the application of Stone is

not warranted. A general application

could provide more assurance of individual

rights than Sykes did because the "full

and fair heattae™ requirement of Stone

insures at least one full litigation of a

defendant's claim.

Sey Se, Sy. “ey Se

the brief missed the mark in presenting

the instant issue, petitioner should have

been precluded from collateral review ab-

sent a showing of "cause' and "actual pre-

judice."

~~ a

B. The Standard of "Some" or

ny” Evidence on Federa

Habeas Review Satisties

Due Process; Application

of the Neasenebis Doubt

Standard Would Constitute

Retrial-by-Transcript

Petitioner seeks to use Justice

Stewart's single justice dissent in

Freeman v. Zahradnick, supra, 429 U.S.

ITIT, 1112, which suggests the expansion

of In re Winship (1970) 397 U.S. 358,

to bootstrap himself into an argument

that the Due Process Clause requires fed-

eral courts on habeas corpus to review

cold state records to determine whether

any "rational trier of fact could find

guilt beyond a reasonable doubt." Peti-

tioner makes this contention notwithstand-

ing the equivocation in the lone dissent;

the lack of a fundamental claim; the con-

comitant expansion of habeas jurisdiction;

the fact that such review would constitute

trial-by-transcript, and the fact that

Patterson v. New York (1977) 432 U.S. 197

and other intervening cases make it abun-

dantly clear that In re Winship was never

meant to overrule or in any way modify

Thompson v. Louisville (1960) 362 U.S.

199.

Petitioner's contentions are

patently fallacious unless due process

is to be extended in this area of suffi-

ciency of the evidence, far beyond its

bounds elsewhere.

While the term "due process of

law'' has been "the center of substantial

legal debate over the years " (see In re

~~ 2

Winship, supra, 397 U.S. 358, 378 (J. Black

aaseaEhoayy. broadly interpreted, ''due

process of law'' means fundamental fairness

within our system of laws. (See e.g. In

re Winship, supra, at 381; Rochin v.

California ( 342 U.S. 165, 169).

Due process of law protects an individual

from arbitrary action of the government

and action which shocks the conscience by

failing to comport with traditional ideas

of fair play and decency. (See e.g.

Meachum v. Fano (1976) 427 U.S. 215, 226;

Breithaupt v. Abram (1957) 352 U.S. 432,

435. “Traditionally, due process has

required that only the most basic proce-

dural safeguards be observed...’

(Patterson v. New York, supra, at p. 210).

The question then is whether the tradi-

tional "some" or "any'' evidence standard

on federal habeas review "offends some

principle of justice so deeply rooted in

traditions and conscience of our people

as to be ranked as fundamental." (Id., at

p. 202.)

To render a criminal conviction

unconstitutional under the Due Process

Clause of the Fourteenth Amendment, the

conviction must be "totally devoid of evi-

dentiary support." (Garner v. Louisiana

(1961) 368 U.S. 157, 163.) As noted by

Chief Justice Warren, this Court's due

process of law inquiry does not turn on

a question of the sufficiency of evidence

to support the conviction, but on whether

the conviction rests upon "any'' evidence

- 29 -

which would support the finding of guilt.19/

Id., at 163-164; see also Shuttlesworth v.

irmingham (1965) 382 U.S. 87, 94-955;

Thompson v. Louisville, supra, 362 U.S.

199, 204, 206) Since federal habeas

review only involves the requisite afore-

described due process standard, the pro-

bative strength of evidence has never been

permitted to be an issue in habeas corpus.

(youn 33:3 (4th Cir. 1965) 343 F.2d

: °

Petitioner's reliance on Justice

Stewart's dissenting remarks in the denial

of certiorari in Freeman v. Zahradnick,

supra, 429 U.S, 1III, is ill-founded.

Justice Stewart was apparently only throw-

ing out an idea; he had not decided that

the reasonable doubt standard should be

introduced into federal habeas jurisdic-

tion:

19. Chief Justice Warren stated:

¥ . - we hold that the convictions

in these cases are so totally devoid

of evidentiary support as to render

them unconstitutional under the Due

Process sy yg Fr the Fourteenth Amend-

ment. As in Thompson v. City of Louis-

ville, 362 U.S. 15° our inquiry does

not turn on a question of sufficiency

of evidence to support a conviction,

but on whether these convictions rest

upon any evidence which would support

a finding that the petitioners' acts

caused a disturbance of the peace."

(Id., at pp. 163-164.)

—. oe

"What I am suggesting is

simply that the question whether

there was sufficient evidence to

support a finding by a rational

trier of fact of guilt beyond

a reasonable doubt may be of

constitutional dimension."

(Emphasis added, at p. 1115.)

The history of due process as

it relates to sufficiency of the evidence

and the reasonable doubt standard esta-

blishes that the Court has never intended

to impose the reasonable doubt formula-

tion on federal habeas review. It is

unworkable and not a part of due process;

it is only required at the trial level.

Thompson v. Louisville was the

first criminal case where lack of eviden-

tiary support was elevated to constitu-

tional proportions. 20/It seems probable

that the Court embarked on constitution-

alizing the quantitative aspect of evidence

20. However, a similar analysis by

Mr. Justice Black presaged Thompson in

Konigsberg v. State Bar (1957) oe U.S.

252. The Court held that it was a denial

of due process for the bar to refuse to

certify an applicant for bar admission

because he had failed to prove that he was

of good moral character. In Konigsberg,

as in Thompson, the Court made an indepen-

dent examination of the sufficiency of the

evidence to determine if the adjudicating

body was justified in reaching the result

it did,

- 3] -

and departing from its historical reluc-

tance to intervene in state fact-finding

because of the peculiar facts in Thompson

which included no state review, suspected

persecution and harassment of petitioner,

the fact that petitioner was black, and

the uncontested nature of the evidence.

(See 80 ALR2d, 1355, 1376.) Review of the

quantitative value of evidence requires

the Court to determine whether the fact-

finder could reasonably infer the ultimate

fact of guilt from the sum of the evidence

presented by the state. (See Schware v.

Board of Bar Examiners (1957) 353 U.S.

e “no”, “any”, or “some evidence

due process standard was confirmed in

Garner v. Louisiana, supra, 368 U.S. 157,

163, and ShuttIesworth v. Birminghan,

supra, 382 U.S. 87, 94-95.

This standard has not changed

since those cases, although petitioner

attempts to assert that Winship consti-

tutionalized the reasonable doubt standard

for collateral review. Winship merely

applied the traditional reasonable doubt

standard at the trial level to juvenile

proceedings: the standard is "required

during the adjudicatory stage of a delin-

quency proceedings.” (Id. at p. 368.)

The Court had never before held that the

reasonable doubt standard was constitu-

tionally required, even in adult criminal

proceedings. (Id., at p. 385 (Black J.,

dissenting.) The Court did not state or

even imply that appellate or collateral

review required a finding that the trier-

of-fact properly concluded that the stan-

dard had been met,

« 2 «

Four years subsequent to Winship,

the Court was presented with an opportunity

to apply the Winship rule to federal col-

latewat eoctin in Vachon v. New Hampshire

(1974) 414 U.S. 478. Instead, the court,

citing Harris v. United States (1971)

404 U.S. 1232, 1233 (Douglas, J., in cham-

bers), Thompson v. Louisville and other

cases stated: "It is beyond question,

of course, that a conviction based on a

record lacking any relevant evidence as

to a crucial element of the offense charged

. . « violates[s] due process."' (Vachon,

at p. 480.) Chief Justice Burger and

Justice White, in their dissent, confirmed

how limited due process is when applied

to sufficiency of the evidence:

"Even if appellant's

sufficiency-of-the-evidence

contention in the Supreme Court

of New Hampshire could be said

to have been presented as a fed-

eral constitutional claim based ©

on Thompson v. Louisville [citation],

I would nonetheless be unable to join

in the Court's disposition of it.

In Thompson, the only state court

proceedings reaching the merits

of the case were in the Louisville

Police Court from which there

was no right of appeal to any

higher state court, and there

was therefore no state court

opinion written which construed

the statute under which Thompson

was convicted. This Court there-

fore had no choice but to engage

in its own construction of the

Ribas

statute and upon doing so it

concluded that the record was

‘entirely lacking in evidence to

Support any of the charges.'

Id., at 204, 4 L.Ed. 2d 654,

Thompson was obviously an extra-

ordinary case, and up until now

has been saved for extraordinary

situations; it has not heretofore

been broadened so as to make Lack

of evidentiary support for onl

one of several cloments of an

offense a constitutional infirmit

n a state conviction. t

p. 6/1; emphasis added. )

The statement in the emphasized

quote refers to the fact that Justice

Douglas in his single justice opinion in

Harris v-United States, first grafted on

the every element criteria to the Thompson

test.21/ The majority in Vachon surpris-

ingly adopted it without explanatory

comment. Therefore, it is questionable

that the "elements" requirement applies to

the Thompson test.

Apart from Vachon, the decisions

between Winship and Patterson v. New York,

Supra, indicate that the reaSonable doubt

Standard is not appropriate or required by

21. Of course, the Winship case did

include similar language with respect to

the reasonable doubt standard at the trial

level: " . . , of every fact necessary

to constitute the crime with which he is

charged."" (Id. at p. 264, 364.)

= oe

due process in appellate or collateral

review.

The vitality of Winship at the

trial stage was confirmed in fatlaney Vv.

Wilbur (1975) 421 U.S. 684, where the

court employed Winship to invalidate

Maine's affirmative defense of provocation.

The rationale was that to require the

defendant to prove provocation by a pre-

ponderance of the evidence violated

Winship's requirement that the state prove

beyond a reasonable doubt "every fact

necessary to constitute the crime." Man-

slaughter was distinguished from murder

by the absence of provocation, Therefore,

the Court held that at trial, Maine had to

prove the absence of provocation beyond a

reasonable doubt when the issue was raised

by the defense.

Just two years later, however,

in Patterson v. New York, supra, 432 U.S.

197, 1t became clear that Mullaney did not

portend further extension of Winshi such

as to appellate or collateral review.

Professor Allen has summed up his opinion

why Mullaney should only be considered to

be a temporary forage into extending the

reasonable doubt standard by use of due

process:

"In his dissent in Patterson,

Justice Powell accused the Court

of 'drain[ing] In re Winship : a

of much of its vitality. Justice

Powell was veg Patterson

did not ‘drain Winship o ts

vitality'; rather, it rejected

Mullaney's extension of Winshi

beyond the latter's legitimate

Bish e

boundaries, and thus it restored

Winship to its original purpose.

taretat examination of these three

cases shows not only that Patterson

rightly rejected the due process

analysis employed in Mullaney, but

also indicates the proper scope of

the federal interest in the reason-

able doubt standard.

eek #

"The important point to note

about the Winship Court's treat-

ment of burdens of proof in criminal

cases is that the Court's due

process analysis relied heavily

on the common practice in the

states and only supported the

implications of that practice by

reference to the interests pro-

tected. The Court attempted no

thorough examination of those

interests and did not purport to

consider fully the states’ burden-

of-persuasion practices. Indeed,

affirmative defenses were never

even mentioned by the Court. In

Mullaney, by contrast, the Court

reversed its order of reasoning,

concentrating first on the

interests protected by the reason-

able doubt standard rather than on

whether Maine's statute ‘offends

some principle of justice so deeply

rooted in the traditions and con-

science of our people as to be

ranked as fundamental.' This

reversal of the analysis in Mullaney

was the-cause of Patterson's subse-

quent disavowal of Mullaney, for

« 3%

it had implications far beyond

what Winship could support.

"One can now see more clearly

the shift of analysis in Mullaney

that permitted it to accomplish a

result that Winship could not

sustain, Mullaney invoked Winshi

not to invalidate a burden-of-proof

practice demonstrably inconsis-

tent with the ‘traditions and

conscience of our people,’ but

instead used that case in a fashion

that would provide the means to

invalidate a practice long accepted

throughout the country. Thus

Mullaney, which gr nde pe

‘apply’ Winship, drastically

altered that case from one that

looks to traditional practice and

prevailing usage by the states to

aid in due process analysis to one

that frees the federal courts to

impose their own view about the

appropriate use of the reasonable

doubt standard on the states

notwithstanding widely shared

views to the contrary.

" £ @ &

"Thus, one significant aspect of

Patterson is, in short, the

restoration of Winship to its

original purpose and the concomitant

refusal to permit Winship to be

misconstrued and then employed as

| , 7 ii

a SF

(Allen, The Restoration of

In re Winship: A Comment on

Burdens of Persuasion in Criminal

Cases After Patterson v. New York

Sle ls A é

The recognition in Patterson

and Sykes that "common practice™ supports

findings of constitutionality is nothing

more than a reaffirmation that due process

is a very limited and basic concept:

"It goes without saying that

preventing and dealing with crime

is much more the business of the

States than it is of the Federal

Government, Irvine v. California,

347 U.S. 128, I34 (1954) (plurality

opinion), and that we should not

lightly construe the Constitution

so as to intrude upon the adminis-

tration of justice by the indivi-

dual States. Among other things,

it is normally ‘within the power

of the State to regulate procedures

under which its laws are carried

out, including the burden of pro-

ducing evidence and the burden of

persuasion,’ and its decision in

this regard is not subject to

proscription under the Due Pro-

cess Clause unless ‘it offends

some principle of justice so

rooted in the traditions and

conscience of our people as to

be ranked as fundamental,"

(Patterson, at pp. 201-202.) -

The Patterson opinion is careful to specifi-

cally limit the parameters of the Due Pro-

cess Clause as it was employed in Mullaney:

the basis for unjustifiable

extensions of federal authority."

<< a

"There is some language in

Mullaney that has been under-

stood as perhaps construing the

Due Process Clause to require the

prosecution to prove beyond a

reasonable doubt any fact affect-

ing 'the degree of criminal

pe, Ae, any . « - The Court did

not intend Mullaney to have such

raga 9, effect." (Footnote 15,

at pp. 214-215.)

Petitioner attempts to argue that

since federal judges must apply the reason-

able doubt standard on motions for acquit-

tal they are fully equipped to do so on

collateral review of state convictions

(Petition for Certiorari p. 17). Peti-

tioner cites United States v. Taylor

(1972) 464 F.2d 240, the case where the

circuits achieved uniformity in the stan-

dard they apply. Chief Judge Friendly,

quoting from another case, stated the

uniform rule;

"The true rule, therefore, is

that a trial judge, in passing

upon a motion for directed ver-

dict of acquittal, must determine

whether upon the evidence,

giving full play to the right of

the jury to determine credibility,

weigh the evidence, and draw

justifiable inferences of fact, a

reasonable mind might fairly

conclude guilt beyond a reason-

able doubt. If he concludes

that upon the evidence there must

be such a doubt in a reasonable

mind, he must grant the motion;

or, to state it another way, if

o: a

there is no evidence upon which a

reasonable mind might fairly con-

clude guilt beyond a reasonable

doubt, the motion must be granted,

If he concludes that either of the

two results, a reasonable doubt or

no reasonable doubt, is fairly

possible, he must let the jury

decide the matter," (Id., at

DS. 242.)

The crucial point which petitioner

omits, or fails to comprehend, is that

Winshi may require such criteria on motion

for acquittal because the proceedings are

during trial. (Taylor, at p. 242.)

Even te Winship does not compel the judge

to apply the reasonable doubt standard,

it can be easily applied by the trial

judge because he is not working with a

cold record, but has +) cased heard the

testimony first hand.22/

The dissenters in Swisher v.

Brady, supra, U.S. S.Ct.

TE55y, thoroughly explored the difficul-

ties of judges applying the reasonable

22. This Court recently reiterated the

rule that "[e]ven the trial court, which

has heard the testimony of the witnesses

first hand, is not to weigh the evidence

or assess the credibility of witnesses

when it judges the merits of a motion for

acquittal [citations omitted]." (Burks v.

United States, supra, at p. 16.) Realis-

tically, a tria udge cannot help but

consider credibility and weight.

cla

- 40 - a

doubt standard to cold records made by CONCLUSION

juvenile hearing masters (see Argument

I.A). Certainly, the reliability of For the foregoing reasons

determinations of evidentiary facts is more amicus curiae State of California joins

in question where a federal judge is : respondent Commonwealth of Virginia in

reviewing a state record, sometimes urging that the judgment of the United

decades old. It may be almost impossible States Court of Appeals for the Fourth

for the judge to determine with any cer- Circuit be affirmed

tainty on such a record whether a rational ;

“ trier of fact could have found the defend-

ant guilty beyond a reasonable doubt, RASPREETEEAT See

In comparison, it was much easier in UKME

Swisher for a judge to review a master's a a vanmy SECOEeey Seettes

fresh record. JACK R, WINKLER, Chief Assistant

Finally, as discussed supra Attorney General-Criminal Division

? Pate hte

ee on me federal court system ARNOLD 0, OVEROYE,

would be overwhelming. The issue of :

sufficiency rt pass evidence necessarily Asstatent AtteEMey Goucral

involves a reading and understanding of

the entire record. The higher standard ae eae

proposed would require even more careful

consideration of the record and almost all

state appeals involving the sufficiency of -~

the evidence would be presented to federal WILLARD F

courts, This second sufficiency review Deputy Att

would certainly double the current federal

habeas workload, if not in filings, JANE K. FISCHER

certainly in man hours. Deputy Attorney General

WFJ:mls/mt

79US0004

2-13-79

=. a a “ee: “Se

APPENDIX A

eA aT pon PO

o hak

IN THE

SUPREME COURT OF VIRCINIA

AT RICHMOND |

Clerk

Supreme Court

of Virginia

No. RECEIVED

DEC 16 1975

Richmond, Virginia

COMMONWEALTH OF VIRGINIA,

Appellee,

Vv.

JAMES A, JACKSON, Appellant.

PETITION FOR WRIT OF ERROR

TO THE

CIRCUIT COURT OF

CHESTERFIELD COUNTY,

VIRGINIA

MACK T. DANIELS, ESQUIRE

P. O. Box 580

Chester, Virginia 23831

« -ad<

IN THE SUPREME COURT OF VIRGINIA

JAMES A. JACKSON, Plaintiff in Error,

COMMONWEALTH OF VIRGINIA, Defendant in

Error.

PETITION FOR WRIT OF ERROR

TO THE HONORABLE CHIEF JUSTICE AND ASSOCT-

ATE JUSTICES OF THE SUPREME COURT OF

VIRGINIA:

Your Petitioner, James A. Jackson,

represents that he is aggrieved by a final

judgment of the Circuit Court of the County

of Chesterfield, Virginia, entered August

21, 1975, as a result of a trial without

the intervention of a jury, whereupon the

Petitioner was convicted of murder in the

first degree and had imposed upon him a

sentence of thirty (30) years in the

Virginia State Penitentiary.

MATERIAL PROCEEDINGS IN THE LOWER COURT

On March 27, 1975, Petitioner was

tried on a plea of not guilty, without in-

tervention of a jury, before the Honorable

Ernest P. Gates. Judge of the Circuit

Court of Chesterfield County, Virginia,

upon an indictment charging him with the

murder of Mary Huston Cole. The evidence

consisted of testimony from various wit-

nesses on behalf of the Commonwealth as to

the relationship between Petitioner and the

deceased and their respective physical con-

ditions on the evening deceased was last

« ee

seen alive. Also, evidence on behalf of

the Commonwealth in the form of medical

examiner's reports, ballistic expert testi-

mony, photographs, and a .38 caliber pistol

identified as belonging to Petitioner, with

which he had been seen prior to the death

of the decedent. After the evidence was in,

the Court found Petitioner guilty of first

degree murder and ordered a pre-sentence

report which was introduced on August 21,

1995, whereupon Petitioner was sentenced

to thirty (30) years in the Virginia State

Penitentiary. Then Petitioner, by counsel,

moved the Court to set aside the judgment

on the grounds that the judgment was con-

trary to the law and the evidence.

ASSIGNMENTS OF ERROR

That the trial court erred in finding

and refusing to set aside its judgment as

contrary to the law and the evidence in

that unwarranted inferences were drawn by

the Court from the Commonwealth's evidence,

and that the Court erred in failing and re-

— to grant a new trial, the motion

for which was made on the ground that the

Petitioner's conviction was contrary to the

law and the evidence.

QUESTIONS INVOLVED

Whether the trial Court erred in find-+

ing the Petitioner guilty of first degree

murder in light of the evidence introduced

on behalf of the Commonwealth, and on un-

warranted inferences drawn from this evi-

dence.

STATEMENT OF FACTS

On August 26, 1974, a warrant was

issued in Chesterfield County, Virginia,

charging James A. Jackson with the murder

of Mary Huston Cole on August 24, 1974.

Your Petitioner, James A. Jackson, was

subsequently arrested in Fayetteville,

North Carolina, waived extradition and was

brought back to Chesterfield County,

Virginia. On March 27, 1975, trial was

held, without intervention of a jury, be-

fore the Honorable Ernest P. Gates, Judge

of the Circuit Court of Chesterfield

County, Virginia, upon the Petitioner's

plea of not guilty.

Witness of the Commonwealth, Sally

Cole, testified that Petitioner and her

husband had several bottles and went to

the store and came back with two six-packs

(TR 33-37).

Curtis Cole, witness for the Common-

wealth, testified that Petitioner had been

drinking and was pretty well loaded (TR

55-57).

David A. Andres, Deputy Sheriff,

Chesterfield County, testified that he

and two police officers, in uniform, had

seen deceased and Petitioner shortly be-

fore decedent's death; that both were

drinking and Petitioner was in pretty

rough shape (TR 65-66). That Petitioner

had the pistol identified as Common-

wealth's Exhibit 1. That Andrews gave

the pistol back and observed butcher knife

in decedent's car (TR 68). That Andrews

wanted to get them outside the diner be-

cause they had been drinking and she was

— ae

a fellow employee (TR 69). Andrews was

asked if they were loaded and he replied

that Petitioner was. Andrews stated he

then asked Petitioner to let him keep the

gun but was told they were going home, so

Andrews told deceased to drive because

Petitioner was too drunk (RT 72). Andrews

also testified that the couple indicated

to him that they were going to engage in

a activity and laughed about it (TR

Mark E. Wilson, detective for Chester-

field County Police Department, testified

that he later found, at the scene where

deceased was found, six shell casings later

identified as having come from Petitioner's

pistol. Also introduced through this wit-

mess was a statement by Petitioner as to

what had happened after leaving Deputy

Sheriff Andrews, a color photograph of de-

ceased, numbered Commonwealth's Exhibit 9

but designated Number 8 in transcript, the

autopsy report, Commonwealth's Exhibit 13

showing probable cause of death, no trauma,

skull normal and no fractures, along with

an unnumbered exhibit of laboratory report

showing deceased's blood alcohol content

of 0.17 by weight by volume.

Petitioner's statement, testified to

by Wilson, stated that he and deceased

rode to the churchyard (where she was

found) and that she wanted to have sex with

him, that he didn't want to, that an argu-

ment ensured, that she tried to stab him

with the knife that Andrews had seen, and

that he shot five or six times into the

ground, and that he reloaded and when she

tried to take the from him, "that's

when it happened" eR 90). Petitioner's

—

statement to Wilson was also that he and

deceased had consumed "a fifth of Old Crow,

a fifth of Wild Turkey and a pint of “a

and they bought two six-packs of beer

(TR 92).

At the conclusion of the evidence the

Commonwealth's Attorney argued that it was

a case of second degree murder (TR 111-

112).

However, the Court observed the color

picture, Commonwealth's Exhibit 9, and re-

fered to the mutilation, which was never

referred to in the autopsy report (TR 115,

line 16). Again (TR 115, line 21) the

Court said it was a very horrible looking

picture. Again at line 25 the Court said,

"look at the face".

The Court indicated (TR 116, line 12)

that if the Petitioner were drunk he would

have been arrested.

Whereupon Petitioner was found guilty

of first degree murder and a pre-sentence

report was ordered.

On August 21, 1975, a pre-sentence re-

port was introduced and the Commonwealth's

Attorney based his argument for punishment

on a previous jury verdict of thirty years

in the State Penitentiary in a different

and dissimilar case (TR 121); whereupon

the Judge followed this argument and sen-

tenced Petitioner to thirty (30) years in

the Virginia State Penitentiary (TR 125).

Whereupon, counsel for Petitioner moved

to set aside the judgment as being con-

trary to the law and evidence, which mo-

o Ae? «

tion was denied and excepted to.

ARGUMENT

Petitioner contends that statements

made by the trial judge show that the evi-

dence on behalf of the Commonwealth was

either excluded from consideration (i.e.,

evidence of Petitioner's drunken condi-

tion), or that unfounded inferences were

drawn by the trial judge from other Common-

wealth's evidence (i.e., Commonwealth's

Exhibit 9).

While it is conceded that the Common-

wealth's evidence does not fix the time

of decedent's death, the use of the state-

ment made 2 | Petitioner as to events lead-

ing up to shooting led one to infer that

it happened shortly after Petitioner and

deceased left the company of Deputy Sheriff

Andrews on August 24, 1974, Since it is

the ye credible, uncontradicted evidence

as to when the shooting took place, Peti-

tioner contends that the Court was bound

by it. There was no indication by the

Court that its decision was based on the

possibility that by the time of the shoot-

ing, Petitioner had become sober; the con-

trary indication was given by the Court

that if Petitioner were dr he would

have been arrested by Andrews (TR 116,

line 12). This inference is in direct

conflict with Andrews' testimony that

Petitioner was "loaded" (TR 72) and that

Petitioner was too drunk to drive. Since

the Commonwealth's evidence showed that

Petitioner was drunk shortly before the

pot pean Petitioner contends that to re-

quire him to actually prove that he was

too drunk to deliberate and premeditate,

as required for first degree murder in

Virginia (Johnson v. Commonwealth, 135 Va.

524), would be in direct conflict with the

Due Process Clause of the Fourteenth Amend-

ment to the United States Constitution as

ge in Mullaney v. Wilbur, 95 S. Ct.

1881 (1975).

Commonwealth's Exhibit 9 shows the

condition of deceased some time after

death. The trial court, without any evi-

dence whatsoever, and indeed contrary to

the other evidence, infered that deceased's

face had been mutilated (TR 115, line 16).

Under no theory can this inference be

allowed to stand. Since deceased was

found face down (Commonwealth's Exhibits

2 through 7), the blood sepage and dis-

coloration were natural processes.

This case does not involve a situation m

wherein all evidence was considered and

resolved in favor of the Commonwealth, but

a situation wherein the trial court openly

disregarded the evidence in favor of un-

warranted inferences, thereby convicting

and sentencing Petitioner according to a

jury verdict in a different, unrelated

case, all of which is contrary to the law

in this Commonwealth and the evidence in

this case.

CONCLUSION

For the foregoing reasons, it is re-

spectfully submitted that a Writ of Error

should be allowed to the judgment of the

Circuit Court of the County of Chester-

field, Virginia, entered in this cause on

the 21st day of August, 1975, and that

the judgment then entered should be re-

viewed and reversed by this Court.

The attorney for Petitioner adopts

this as his opening brief in the event

os be «

a Writ of Error is awarded, and does not

demand to state orally the reasons for

granting the petition.

Pursuant to Rule 5:22 of this Court,

your Petitioner is James Alex Jackson; his

attorney is Mack T. Daniels, 4401 Old

Hundred Road, Chester, Virginia; the re-

spondent is the Commonwealth of Virginia;

and the attorney for the Commonwealth of

Virginia is Oliver D. Rudy, Commonwealth's

Attorney for Chesterfield County, Virginia.

There is no other party of interest in the

present action.

This petition will be filed in the

Clerk's Office of the Supreme Court of

Virginia, at Richmond, Virginia, on

December 15, 1975.

I egg? that on the 12th day of

December, 1975, before filing, a copy of

this petition was mailed to Oliver D. Rudy,

Commonwealth's Attorney for Chesterfield

County, Virginia, counsel of record for

the Commonwealth of Virginia in this case.

JAMES ALEX JACKSON

Appointed Counsel

MACK T. DANIELS, ESQUIRE

4401 Old Hundred Road

P. O. Box 580

Chester, Virginia 23831

- A-10 -

I, the undersigned Attorney at Law,

practicing in the Supreme Court of

Virginia, do hereby certify that, in my

opinion, the said verdict and conviction

complained of should be reviewed and re-

versed by this Honorable Court.

- A-ll -

INDEX

PAGE

A. Material Proceedings in

the Lower Court 1

B. Assignments of Error 2

C. Questions Involved 2

D. Statement of Facts 3

E. Argument 5

F. Conclusion 7

CITATIONS

CASES PAGE

Johnson v. Commonwealth,

135 Va. 424 6

Mullaney v. Wilbur

95 S. Ct. 1881 (1975) 6

APPENDIX 5B

NE SSSSeaeeSaLaeSSaSaSaa.Q5Q°8Qgk SS.

VIRGINIA:

In the Supreme Court of Virginia held

at the Supreme Court a oe in the City

of Richmond on Tuesday the 10th day of

February, 1976.

The petition of James A. Jackson for

a writ of error and supersedeas to a judg-

ment rendered by the Circuit Court of

Chesterfield County on the lst day of

August, 1975, in a prosecution by the

Commonwealth against the said petitioner

for a felony, having been maturely con-

sidered and a transcript of the record of

the judgment aforesaid seen and inspected,

the court being of opinion that there is

no reversible error in the judgment com-

plained of, both reject said petition and

refuse said writ of error and supersedeas,

the effect of which is to affirm the judg-

ment of the said court, which court shal

allow court-appointed counsel the sum of

$100 as compensation for services rendered

on this appeal, and also his necessary

direct out-of-pocket expenses.

And it is ordered that the Common-

wealth recover of the plaintiff in error

the said amount paid counsel appointed to

represent him on this appeal, his nec-

essary direct out-of-pocket expenses, the

costs to be taxed by the clerk of this

court, the amount paid counsel appointed

by the courts below to represent the said

petitioner therein, his necessary direct

out-of-pocket expenses, and the costs to

be assessed in this case by the said

courts below.

—

A Copy,

Record No. 751474

Teste:

Howard G. Turner,

Clerk

By:

Deputy Clerk

Costs due the Common-

Wealth by plaintiff in

error in Supreme Court

of Virginia:

Attorney's fee $100.00 plus his

costs and expenses

Filing fee 1.50

Teste:

Howard G. Turner, Clerk

By:

Deputy Clerk

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.