# Amicus Brief — Jackson v. Virginia > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385006_0421%3A08 ## Record - **Collection:** Supreme Court brief - **Document type:** Amicus Brief - **Published:** January 1, 1979 - **Citation:** 443 U.S. 307 ## Text | ”~ 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 | INTERIM PRINTING & MAILING COMPANY | 1105 WEST MORENA BOULEVARD. SAN DIEGO, CALIFORNIA 92110 — 275-3050 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 17 18 28 26 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 21 5,10,11,13 20,22,23,39 18 26 19 16 - 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 18 4,5,7,10 7,8,10 20,27,29 18,31 28 22,23 32,33 18 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 18 Passim 18 18 19 18 18 28 24,25 5,6,8,10 31 -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 18 18 18 18 18 18 18 18 18 18 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 10 - 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 10 -_—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 es 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. t 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. 35 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, ae 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. a 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, a 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.) a 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 a 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. i "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 4401 Old Hundred Road © P. O. Box 580 Chester, Virginia 23831 « -ad< IN THE SUPREME COURT OF VIRGINIA JAMES A. JACKSON, Plaintiff in Error, Ve 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. ae 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 =e 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 By 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 --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385006_0421%3A08. Public record. Not legal advice.