Petition — Grace v. Butterworth

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EXANDER L. STEVAS,

In The CLERK

SUPREME COURT OF THE UNITED STATES

October Term, 1980

FRANK GRACE, ET AL,

Petitioners

V.

FRED BUTTERWORTH, ETC., ET AL,

Respondents

PETITION FOR A WRIT OF CERTIORARI

TO THE

UNITED STATES COURT OF APPEALS

FOR THE FIRST CIRCUIT

Norman F. Lazarus

7 Water Street

Boston, MA 02109

(617) 227-7830

Of Counsel:

Daniel F. Featherston, Jr.

7 Water Street

Boston, MA 02109

(617) 227-7830

March 31, 1981

°’?

NO.

In The

SUPREME COURT OF THE UNITED STATES

October Term, 1980

FRANK GRACE, ET AL,

Petitioners

oe

FRED BUTTERWORTH, ETC., ET AL,

Respondents

PETITION FOR A WRIT OF CERTIORARI

TO THE

UNITED STATES COURT OF APPEALS

FOR THE FIRST CIRCUIT

Norman F. Lazarus

7 Water Street

Boston, MA 02109

(617) 227-7830

Of Counsel:

Daniel F. Featherston, Jr.

7 Water Street

Boston, MA 02109

(617) 227-7830

March 31, 1981

oa

QUESTIONS PRESENTED

Factual Basis Common To Questions

After these habeas corpus peti-

tioners' Massachusetts murder convictions

were affirmed, the Massachusetts Supreme

Judicial Court granted a new trial in

another case iu which the same trial

judge in an almost identical charge to

the jury defined proof beyond a reason-

able doubt solely in terms of examples of

"important" decisions in their "personal

lives" and informed the jury of the

sentencing and parole consequences of

verdicts of first and second degree murder,

but petitioners’ convictions were then

reaffirmed by the state court by con-

structing supposed distinctions, and on

appeal of the dismissal of their habeas

corpus petition the First Circuit held

the state court had not been "less than

even-handed" because it could be making

the ruling in the other case prospective

only and, alternatively, the charge was

not constitutionally defective anyway.

About a month later, the state court

again held the same trial judge's same

charge to be erroneous in yet a third

case, however, this time it specified

7

-ii-

the same charge was "constitutionally

inadequate” and that "retroactive applica-

tion” of that holding was mandated. A

petition for rehearing was allowed by the

First Circuit, and upon rehearing, that

court recognized that its basis for deny-

ing habeas corpus had now been eliminated

by the state court, but rather than deter-

mine if it were "arbitrary and capricious"

for the state court to deny only these

petitioners a new trial after a convic-

tion under the same unconstitutional

charge, the lower court, in an unprece-

dented procedure, resubmitted the case

to the state court (specifically

"retain[ing] jurisdiction", however) for

it to attempt "in the first instance” to

reconcile its refusal of relief to

petitioners with its other decisions.

The state court, characterizing that

unique referral a "rehearing", then

reaffirmed the convictions by constructing

a new distinction, and then in a three

paragraph Per Curiam opinion the First

Circuit held the state court's "explana-

tion" removed any Fourteenth Amendment

error.

7%

-iii-

1. Was petitioners' jury instruc-

tion, defining "beyond a reasonable doubt"

in terms of specific examples of decisions

in the jurors' “private lives" and informing

the jury of the sentencing and parole

consequences of the available verdicts,

"constitutionally inadequate", as the

highest state court and other Federal

courts substantively so held, and the

conflicting opinion of the court below

erroneous?

2. Was the Massachusetts Supreme

Judicial Court itself “less than even-

handed" by constructing specious distinc-

tions to try and reconcile its other

precedents with its refusal to grant

petitioners a new trial and due process

therefore deniea??

lparties to the proceeding below: the

petitioner-appellants were Frank Grace and his

brother, Ross Grace, and the respondent-

appellees were Fred Butterworth and Michael Fair,

who were the respective Superintendents of the

Massachusetts correctional institutions in

which they were serving life terms when their

petition for habeas corpus was filed, both of

whom were represented in the court below by

the Attorney General for the Commonwealth of

Massachusetts.

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TABLE OF CONTENTS

OPINIONS BELOW..... coccccccccccccce 1

JURISDICTION *eeeenee eeense#eenensenseeeeeee#eee 1A

CONSTITUTIONAL AND STATUTORY

PROVISIONS INVOLVED............ 1A

STATEMENT OF THE CASE............. 2

REASONS FOR GRANTING THE WRIT..... 10

CONCLUSION... 2... ceecsescccccssecees 32

TABLE OF CASES

Bumpus v. Gunther, 452 F.Supp.

1060, 1061 (Mass. 1978)...... 15, 16,

Commonwealth v. Cook, Mass.

Adv. Sh. (1980) 885, 891-892.. 25

Commonwealth v. Garcia, Mass.

399 N.E. 2d 460 (1980)........ 5, 6,

7, 8,

10, 15,

24, 25,

26. oh

28, 30,

32

-V=

Commonwealth v. Frank Grace, 370

Mass. 746, 747-748, 352 N.E.

24 175, 176-177 (1976)... .ccce

Commonwealth v. Ferreira, 373

Mass. 116, 364 N.E. 2d

Dn ET TO 6 & oo oS 6 6 65M be 0 0 ks

Commonwealth v. Mutina, 366 Mass.

Daal See) Pennies be eis oe ee 6 08

Earl v. Commonwealth, 356 Mass.

174, 184 (1960) ...cccccccccees

Grace v. Butterworth, 635 F.2d

i eee, eee. Cir. 3980) ... 0+

Holland v. United States, 348

U.S. LZae aA es ed ek ete a ae

In Re Winship, 397 U.S. 358

(1970 e*e*eeesee#*sts5eesd@e#etc7@*e*es#ee#esecf$ge@esee#e#srs#se#e

Ivan v. New York, 407 U.S. 203

ck ok yt

Sandstrom v. Montana, U.S.

99 Sup. Ct. Rptr. 2450

Cre Site peer bs bade enh eee 66.8

Scurry v. United States, 347 F.2d

468 (D.C. Cir. 1965) cert.

denied, 389 U.S. 883 (1967)...

7

2; 3,

4, Se

6, 10,

14, 15,

19, 20

21, 23,

24, 26,

28, 30,

31, 32

21

25

3, 14

29

Ss, 13,

15, 16

5, 15

25

18, 19

Taylor v. Kentucky, 436 U.S.

478 SE nie acd CR aS: 6. ocho nok ale 8

United States v. Jacobs, 413

Pew Snes 40.Gs Gars.. SER ican

United States v. Moore, 435 F.2d

Dae tikes Che BeTO) ob aeccncece

Wainwright v. Sykes, 433 U.S.

72 hog, SS Oe ere eee

22

23, 24

7%

OPINIONS BELOW

All the opinions of the United States

Court of Appeals for the First Circuit--

the original opinion, the opinion "On

Petition For Rehearing", and the "Opinion

After Submission of Case to State Court”

(sic)--appear at 635 F.2d 1 (1980), and

are also set out in the "separately

presented" Appendix hereto (hereinafter

cited as "App. "), on pages 1-21. 2

-the Massachusetts Supreme Judicial Court

opinions also relevant hereto (opinions on

petitioners and two others) are cited in

those opinions of the court below, but they

are also set out in toto or, where noted,

in relevant part in the "sevarately presented"

Appendix hereto, on pages 37-57; 63-86

and the ones relevant to petitioners are

officially reported at 376 Mass. _, 381 N.E.

2d 139 (1978), and Mass. » 412, N.E. 2d

354 (1980).

7%

-1A-

JURISDICTION

The judgment on the Petition For

Rehearing here sought to be reviewed was

entered on December 31, 1980, and one

issue, which is the subject of the

first question presented, supra, is from

the original opinion of the lower court

of February 5, 1980, the appeal time on

which being tolled by the allowance of

the petition for rehearing. The jurisdic-

tion of this Court is invoked under

28 U.S.C. §§1254(1) and 2101(c), since

petitioners seek review of a decisicn of

a court of appeals on a civil matter

praying the issuance of a writ of

certiorari.

CONSTITUTIONAL AND STATUTORY

PROVISIONS INVOLVED

Section 1., Fourteenth Amendment,

Constitution of the United States of

America (in relevant part): "...[(NJor

shall any State deprive any person of

life, liberty, or property, without due

process of law; nor deny to any person

within its jurisdiction the equal protec-

tion of the laws."

3

o2=

STATEMENT OF THE CASE

The basis for federal habeas corpus

jurisdiction in the court of first

instance was 28 U.S.C. §2254.

Since "the facts material to the

consideration of the questions presented"

herein pertain only to events of legal

significance occurring after petitioners’

murder convictions were initially affirmed

"on the merits" by the Massachusetts

Supreme Judicial Court and the dismissal

of their first petition for habeas corpus

affirmed by the court below here , matters

relating to events of the murder and the

trial testimony need not be alluded to

herein.? Thereafter, on July 22, 1977,

the Massachusetts Supreme Judicial Court

handed down its opinion in Commonwealth

v. Ferreira, 373 Mass. 116, 364 N.E. 2d

1264 (1977) (set out in relevant parts

at App. 63-77), in which it reversed a

murder conviction from years previous and

3411 those previous official opinions are

cited in the opinion here appealed from, 635

F.2d at 3, App. 1-36 should the Court wish to

apprise itself or those facts.

7%

a3e

ordered a new trial, holding that the same

judge who had presided at petitioners'

trial had erroneously defined proof beyond

a reasonable doubt and nad informed the

jury of the sentencing and parole conse-

quences of first and second degree murder

verdicts. A review of the jury instruc-

tions at petitioners’ trial disclosed that

on those same two issues the same trial

judge had, almost word for word, given the very

same instructions now held to be rever-

sible error in the Ferreira case,“ so a

motion for a new trial was filed, alleging

that a new trial for petitioners was now

mandated by Ferreira. The motion was

“there is no question or argument about the

fact that the two charges were almost identical.

The t ‘spondents have admitted that the two

instructions are "substantially the same", Grace

v. Butterworth, 635 F.2d 1, 8, n. 2 (lst Cir.

1980), never have argued any lack of identity, and

the court below ruled that the two instructions

are "substantially identical." Grace v. Butter-

worth, supra, at 4. In order that the Court may

assure itself that that is so, however, the

relevant portions of the two charges are set out,

word for word, phrase by phrase, in the separate

Appendix hereto on pages 87-94.

ry

-4-

denied by the trial judge and the denial

affirmed by the Massachusetts Supreme

Judicial Court because of supposed

differences in the two cases (App. 37-41)?

A petition for habeas corpus relief was

then filed in the United States District

Court for the District of Massachusetts,

the petition dismissed, and on February 5,

1980, the dismissal affirmed on appeal

without reaching “the merits of the [state]

court's attempts to distinguish the two

cases" because the state court had in pert

relied on the "procedural default" that

no exception was taken at trial, years

before Ferreira, to the reasonable doubt

portion of the charge, there was therefore

"a waiver", and that was “sufficient to

dispose of the issue”, because, even

though Ferreira had not excepted either,

Massachrizetts had complete discretion

over the retroactive application of its

newly established Ferreira rule, and,

alternatively, that the charge was not

constitutionally inadequate. (App. 20-36).

34 Petition For Rehearing was filed (App. 58-62)

in which petitioners pointed out to the court that

its proffered distinctions between this case and

Ferreira were specious and arbitrary and the

court itself was therefore creating needless

constitutional error, but the Petition was

summarily denied without opinion.

7%

-5-

A few weeks before that opinion of the court

below, however, the Massachusetts Supreme

Judicial Court had handed down an opinion

in the case of Commonwealth v. Garcia,

__Mass.__, 399 N.E. 2d 460 (1980),

(set out in relevant parts at App 78-86)

in which, again, the same trial judge's charge

defining reasonable doubt in terms of specific

examples in jurors' private lives was in

issue, but this time the court specifically

held "that the charge...,like that in

Ferreira, supra, is a constitutionally

inadequate definition of ‘beyond a

reasonable doubt'...[{and] that In re

Winship, 397 U.S. 358 (1970), made retro-

active by Ivan v. New York, 407 U.S. 203

(1972), mandates retroactive application

of Ferreira." (emphasis supplied), even

though Garcia had also not raised the errors

at trial. Petitioners filed a petition for

rehearing with the court below forthwith,

pointing out that Garcia wholly eliminated

the state procedure decisional under-

pinning of its opinion in holding Ferreira

retroactive, and also was in conflict with

the court's alternative holding, in that

the "definition of" "beyond a reasonable

doubt" was now specifically held to be

"constitutionally inadequate." The

petition for rehearing was promptly

Fy

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granted, but "limited" "to the [single]

question whether, in light of the decision

in Commonwealth v. Garcia, the Massachusetts

Supreme Judicial Court's failure to apply

its decision in Commonwealth v. Ferreira

retroactively and grant petitioners a

new trial was arbitrary and capricious." 6

Actually, after its

holdings on unconstitutionality and the

retroactivity of Ferreira, the state

court ruled there was "overwhelming

evidence of [Garcia's] guilt", therefore

"harmless error", so his conviction was

affirmed (App. 78-86), but that question is

®rhe questions of the two courts’ conflicting

holdings on the fundamental unconstitutionality

of the definition of “beyond a reasonable doubt"

was not open upon rehearing, was not briefed or

argued by the parties, and neither of the sub-

sequent opinions of the Court of Appeals (App. 1-19)

mentioned the issue. The court's initial

alternative holdings in its first February 5, 1980,

opinion that the definition passes constitutional

muster is, therefore, unchanged, is in direct

conflict with the Massachusetts Supreme Judicial

Court, and is a duly presented question herein:

that even if neither Ferreira nor Garcia existed,

and there was no problem of reconciling them with

Grace, is this jury instruction violative of due

process in and of itself.

ry

P

not involved here in any way. The Court

is assured that “harmless error" does not

lurk in the record to perhaps avoid

reaching the stark constitutional ques-

tions presented or even to diffuse their

fine focus. | After rebriefing and re-

argument, the Court of Appeals, while

recognizing that "[t]he foundation for

{its initial opinion] was severely eroded

if not totally undermined by” the sub-

sequent Garcia opinion (App. 5-19)

did not then even reach the due process

issue, but, in an unprecedented procedure,

"resubmitted" the case to the state court,

"That argument was never assayed by the re-

spondents in any brief or argument in any court,

and when the Massachusetts Supreme Judicial Court

first affirmed petitioners’ convictions on direct

appeal in 1976, it prefaced its summary of the

evidence by saying, "The evidence introduced by the

Commonwealth and the defendants was highly contra-

dictory." Two sentences further, after noting that

the identity of the victim and the place and time

of his dying were uncontradicted, the court con-

ceded: ".../TJhe remainder of the evidence was

sharply disputed, the Commonwealth's witnesses con-

tending that the defendant(s were] present and

shot the victim, and the defendant[s'] witnesses

corroborating the defendant[s']...own testimony

that [they were] elsewhere at the time of the

shooting." See Commonealth v. Frank Grace, 370

Mass. 746, 747-748, 352 NW.E. 2d 175, 176-177 (1976).

7%

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specifically retaining jursidiction, how-

ever, as a matter of "comity", in order

that the state court "in the first

instance” could attempt to "reconcile"

its refusal of relief to these petitioners

with its other decisions (App. 5-19).°

In the interim, between its Garcia opinion

and these petitioners' asking for re-

consideration per the Court of Appeals'

order, the Supreme Judicial Court happened

to hand down two other opinions on alleged

errors in defining reasonable doubt, one

of which particularly seemed only to com-

pound the confusion, signal a retreat from

the Garcia constitutional error holding,

and assay a distinction between this case

and Garcia. It was brought to the atten-

tion of the court below with the inquiry

whether it did not sufficiently demonstrate

the reconciliation the state court would

attempt in this case to make unnecessary

the ordered reconsideration. Petitioners

were ordered to persevere before the state

court.

Spetitioners do not contend that the Court of

Appeals did not have the inherent power to re-

submit the case to the state court so that it

could address the due process issue "in the

first instance."

7%

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Characterizing that unique referral

as a "rehearing" the state court then again

denied the petitioners a new trial, now

distinguishing their case because the jury

instruction had "emphasized 'moral

certainty' " and they had waived the

constitutional error by not raising the

"defect in the charge on reasonable doubt"

at trial after it "had been disclosed in

an Opinion...published before the charge

was given", so the due process issue was

"not fairly presented" (App. 42-57).

Petitioners, as they had been directed

("to keep the court advised"), immediately

brought the state court opinion to the

attention of the Court of Appeals, pointing

out that the two words "moral certainty"

were mentioned in passing only twice (only

once, actually, with reference to the

definition of "beyond a reasonable doubt"),

not “emphasized”, and were not a suffi-

cient prophylactic to constitutional error

anyway, and that the "waiver" distinction

was specious because the error in denying

"beyond a reasonable doubt” was not only

not "disclosed" in the earlier cited case,

but the definition had been approved, and

that counsel for Ferreira and Garcia had

also not thereafter raised the error at

?%

-~10=-

trial but they had not been foreclosed

from arguing the issue by any rule of

"waiver", because, as the court had said

in Garcia: "...we do not require that

defense counsel foresee developments in

the case law" (App. 78-86), and the rule

of Ferreira was new law in Massachusetts,

so the state court was anew “arbitrary

and capricious” in requiring that only

petitioners' counsel be somehow prescient.

In a brief three paragraph Per Curiam

opinion the lower court then "adhere[d]"

to its original affirmance of the denial

of the petition for habeas corpus, because

"as explained" by the state court its

"disposition" did "not...even approach"

the constitutional dimension of Four-

teenth Amendment error. No explication

was proffered.

This petition for the issuance of a

writ of certiorari is now timely and duly

filed.

REASONS FOR GRANTING THE WRIT

The Court of Appeals holding here that

"the jury charge as a whole... [was]

essentially sound" and did not “amount to

a denial of due process" is in direct

conflict with holdings of the Massachusetts

Supreme Judicial Court, clear dicta in

-ll-

three opinions of the District of Columbia

Circuit, a square holding of a District

Court, and with the spirit, thrust and

purpose of recent opinions of this Court.

Such conflicts, traditionally, are

sufficient reason to evoke this Court's

clarifying interdiction, but this case

has another even more catholic and compel-

ling dimension warranting the Court's

increasingly seiged attention. It is a

clean and attractive vehicle to inject

some understandable reality into the often

semantic quagmire of the "constitutional

jury instruction" rubric. The two errors

in this charge, which petitioners maintain,

at least in tandum, are of constitutional

dimension, can be easily described and

denominated and excised with surgical

precision from the cherished essence of

Due Process--evermore a clear and useful

guide for every trial judge. Admittedly,

the cleanly drawable lines this case

permits have a narrow focus, would mark

no fundamental changes, but they would

assist clarity, be real, and be fair.

Lastly (sadly, always lastly, in the rari-

fied special advocacy these petitions

demand) were the Court to grant certiorari

and eventually hold due process was not

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here done, the resulting new trial would

be proof that justice can be done, and

two young men maybe not imprisoned for

life.

Here the trial judge defined proof

beyond a reasonable doubt almost entirely

in terms of the surety the jurors would

have had in "important economic or social

decisions" in their “own personal lives",

such as "(w]hether to quit school or get

a job, or to go on with your education or

whether to get married or stay single, or

whether to stay married or get divorced,

whether to buy a house or continue to rent,

or whether to pick up and move to another

location and leave your friends for the

offer of a better job." (App. 87-94 ).

These homely examples were essentially the

entire charge on the standard of reasonable

doubt, undiluted by some of the other

traditionally utilized equivalent concepts

(App. 87-94), and it is the use of these

examples as the essential explanation of

the burden of proof that petitioners

maintain was here a denial of due process.

People decide whether "to get a job", "to

buy a house", to "move", "or get divorced”

oftentimes on no rational basis, but, at

best, the decision is made by balancing

ry

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the pros and cons. That does not comport

at all with the very special and far more

rigorous standard of "proof beyond a

reasonable doubt"--that is a preponderance

of the evidence test, and that is error

of constitutional dimension, contrary to

the holding of the court below.

The Court has made it ineluctably

Clear that proof beyond a reasonable doubt

is a constitutional command”, and, ironic-

ally, perhaps the most specific recogni-

tion that the use of these very same

examples, even by the very same judge,

denies due process are two opinions by

the Massachusetts Supreme Judicial

Court. The first was the case that

prompted these petitioners to seek a

new trial, particularly when the jury

charge in issue was almost word for word +

the same as theirs' (App. 63-77), and a

new trial was ordered, even though the

error was not couched specifically in

*rhe Court held in In re Winship, 397 U.S.

358 (1970), on page 364: "Lest there remain any

doubt about the constitutional stature of the

reasonable doubt standard, we explicitly hold

that the Due Process clause protects the accused

against conviction except upon proof beyond a

reasonable doubt...."

Fy

-14-

10 The second case,

constitutional terms.

however, handed down only a month after

the First Circuit had held this very

charge was not "a denial of due process",

specifically held that the use of these

same specific examples in the same charge

11

1074 Commonwealth v. Ferreira, 373 Mass. 116,

364 N.E. 2 1264 (1977), the court said (App. 20-36).

"We think these examples understated and tended to

trivialize the awesome duty of the jury to determine

whether defendant's guilt was proved beyond a reason-

able doubt...."

",...We think the examples used here, far from

emphasizing the seriousness of the decision before

them, detracted both from the sericusness of the

dectston and the Commonwealth's burden of proof."

"Accordingly, we conclude that the judgment mst

be reversed. We think that there was reversible

error both in the portion of the judge's charge

dealing with sentencing and parole consequences

and in his charge on the reasonable doubt

standard....The degree of certainty required to

convict ts unique to the criminal law. We do not

think that people customarily make private decisions

according to this standard nor may it even be possi-

ble to do so...."

lltne court below held that even though "this

use of the type of analogies invoked by the trial

judge to help explain the reasonable doubt standard

may in fact understate the degree of certainty

required for a criminal conviction,...the ordinary

life analogies...[did not have] a significantly...

detrimental impact on appellants' rights...[or] on

the trial to amount to a dental of due process."

Grace v. Butterworth, supra (App. 20-36).

-15-

by the same judge was error of constitu-

tional dimension. ** The only supporting

authority cited was Bumpus v. Gunther,

452 F.Supp. 1060, 1061 (Mass. 1978). In

that case, the trial judge had used only

one example of "the major affairs of your

life", whether or not to have heart sur-

gery, and that was used to define "'moral

certainty’ theretofore used in defining

proof beyond a reasonable doubt", and used

some otl.er expianations the court deemed

erroneous, yet the court had little

difficulty in holding that "the errors

in explaining the prosecutor's burden

12h court in Commonwealth v. Garcia, supra

(App. 78-8), made two decisive holdings which

impact on this case: "...We hold that the

charge in this case, like that in Ferreira ra

ts a constitutionally t e definition 7

"beyond a reasonable doubt.’ The use of specific

examples 'trivializes' the standard of proof in

the direction of the yor egg of evidence '

standard. Cf. Bumpus v. Gunther, 452 F.Supp.

1060, 1061 (D.Mase. 1978). Although we find

constitutional error in this charge, we mst also

consider whether this holding applies to the

present defendant, whose trial took place some

seven years before our decision in Ferreira

We believe that In re Winsh U.S.

68 (1970) made retroactive by Ivan v. New York

407 U.S. 203 (1972), mandates retroactive applica-

tion of Ferreira."

-16-

of proof were of constitutional dimen-

sion....*** The court below did not

mention this Bumpus v. Gunther case in

holding in this case that the use of

the examples did not have "a sufficiently

devastating impact on the trial to

amount to a denial of due process", but

there is no doubt, at least now, that the

First Circuit has considered well this

l3the court explained, citing In re Winship,

supra, and other decisions of this Court, on

pages 1062-1063:

",..Moreover, under the hypotheses stated to the

jury, a decision ‘either to have the operation or

not to have it’ could not be free from reasonable

doubt since death might reasonably follow either

course. Principally the analogy ts inherently

and necessarily confusing: to decide upon a

future course of action, whether to have an opera-

tion, change a job, get a divorce, etc., is

essentially different from accepting or rejecting

the truth of a factual proposition such as a

criminal indictment...."

”

",..Medical diagnosis is a form of opinion which

seldom rests upon proof beyond a reasonable doubt.

It ts almost always based upon a preponderance of

the evidence. A verdict in a criminal case is not

an optnion or diagnosis comparable to a medical

diagnosis....A much higher degree -, Pramaigasie

must exist in the minds of jurors before reaching

@ guilty verdict in a criminal case...."

-17-

patently conflicting holding, only to

reaffirm its holding in this case.

Eventually the District Court in Bumpus

v. Gunther, supra, held that the erroneous

instruction, "while of constitutional

dimension [was] harmless beyond a reason-

able doubt" because the evidence of guilt

was “overwhelming” (not an issue here, as

noted above) and, overall, the error did

not significantly effect the entire trial,

and the dismissal of the habeas corpus

petition was recently affirmed, but on a

slightly different "mode of analysis."

Bumpus v. Gunther, ___F.2d__, No. 80-1114,

(lst. Cir. Dec. 3, 1980). As to the heart

surgery analysis, the court cited its

opinion in this case ("...recently we

refused to classify such a comparison

as constitutional error..."), noted that

"the ordinary-life analogies accepted in

Grace were less momentous than the heart

operation described here", and concluded

that it did not “undermine the govern-

ment's burden, elsewhere reiterated, to

establish guilt beyond a reasonable

doubt" (Slip opinion, at 10).

Both the opinion below and the District

Court opinion holding the use of examples

was constitutional error cited Scurry v.

-18-

United States, 347 F.2d 468 (D.C. Cir.

1965), cert-denied, 389 U.S. 883 (1967).

The instruction there in issue had only

referred generally to "the more important

affairs of your own life", without the

use of specific examples, in defining

in part proof "beyond a reasonable

doubt." No objection had been taken at

trial to the instruction, so the court

affirmed the conviction, but said that

the analogy could not be equated with

beyond a reasonable doubt and to do so

was a denial of the defendant's rights,

rights this Court was of course later

14

Lanne court explained, on page 470:

",..4 prudent person called upon to act in

an important business or family matter would

certainly gravely weigh the often neatly balanced

considerations and risks tending in both direc-

tions. But, in making and acting on a judgment

after so doing, such a person would not necessarily

be convinced beyond a reasonable doubt that he had

made the right judgment. Hwnan experience,

unfortunately, ts to the contrary.

"...Thus there is a substantial difference

between a juror's verdict of guilt beyond a

reasonable doubt and a person making a judgment

in a matter of personal importance to him. To

equate the two in the juror's mind is to deny

the defendant the benefit of reasonable doubt."

|

-19-

to hold were of constitutional dimension.

The Scurry court again criticized similar

general references to the jurors' important

personal decisions in two later cases

15 and which

were not cited by any of the courts below.

It can therefore be seen that the

lower court's recent holding that the

otherwise inapposite here,

use of the examples in defining proof

beyond a reasonable doubt did not deny the

petitioners’ rights to due process is in

direct conflict with holdings of the

Massachusetts Supreme Judicial Court, and

the Massachusetts District Court, and dicta

of the Court of Appeals for the District

of Columbia. This Court should promptly

resolve this still very new conflict in.

such an important area of criminal law? ®

before it spawns increasing mischief.

The petitioners also maintain, as

noted above, that the jury charge

lSunited States v. Moore, 435 F.2d 113 (D.C.

Cir..1970), and Unit. United States v. Jacobs, 413 F.2d

1105 (D.C. Cir. 1969).

l6rhe Massachusetts Supreme Judicial Court,

for instance, noted in its Ferreira opinion, on

page 128, "that no part of the usual instructions

to juries in criminal cases is of more significance

than the discussion of reasonable doubt.”

7%

-20-

contains a second error of constitutional

dimension: the trial judge informed the

jury of the parole and sentencing

consequences of verdicts of first and

second degree murder. He had done the

same thing in Ferreira, and in ordering the

new trial in that case the Supreme Judicial

Court discussed at length the long-

standing Massachusetts rule that a jury

should not be informed of those consequences

and concluded that Ferreira had been

prejudiced as a result of the judge's

ignoring that rule. It is hard to

determine from the court's opinion whether

that error alone was considered so fun-

damental that a new trial was mandated,

because after expostulating the error

and holding thet the defendant was

prejudiced thereby, the court said, on

page 128:

"We conclude, nonethe-

less that the defendant

is to have a new trial....

Any doubt we may have on

this score is resolved by

the judge's charge on

reasonable doubt."

(The court then went on to detail that

second error.)

-

-21-

The authorities relied on by the

state court were all opinions of that

court, so it at first might seem that

this is not error of constitutional

dimension, however the court's conceptual

basis smacks of due process considera-

tions, and one section of the opinion in

particular, in conjunction with a recent

decision of this Court, well makes the ©

point that this Court should now see

the error as of constitutional import.

The state court said, on page 125, of

Ferreira quoting from Commonwealth v.

Mutina, 366 Mass. 810, 817 (1975):

"The principal argu-

ment for rejecting the

practice of instructing

juries as to the legal

consequences of their

verdicts in criminal

cases seems to lie in

the conviction that, in

reaching their verdicts,

jurors should be shielded

from extraneous influences

and should arrive at their

verdicts only on a dis-

passionate consideration

of the relevant and credible

evidence presented to them

in the adversary process....

To inform jurors of the

consequences of their ver-

dicts is apprently seen...

as inviting result-oriented

verdicts and possible devia-

**%@

7%

o22@

from the basic issues of a

defendant's guilt or innocence.

This process, if allowed with-

out restriction, could lead

to the jury's usurpation of

the judge's sentencing preroga-

tives and duties and the Leg-

islature's policy determining

functions." (Emphasis supplied.)

Although the state court did not then

have before it this Court's opinion in

Taylor v. Kentucky, 436 U.S. 478 (1978),

the conceptual underpinnings of the

improprieties of informing the jury of

the sentencing and parole consequences in

verdicts of first and second degree and

even the language used is the same as

this Court's opinion. The court noted

that the presumption of innocence,as a

legal scholar would know, was but a way

of describing the prosecutor's duty to

prove guilt beyond a reasonable donbt,

but that the jury may draw additional

guidance from a separate instruction on

the presumption. The Court ruled, on

page 485 that a criminal defendant "is

entitled to have his guilt or innocence

determined solely on the evidence intro-

duced at trial, and not on the grounds of

official suspicion, indictment, continued

~2 3e

custody or other circumstances not

adduced at trial"--what it also termed,

on page 488 "extraneous considerations"--

exactly the same phrase as the state

court utilized in reversing in Ferreira.

When the jurors were told about the

sentencing and parole consequences of

their verdict, this obviously injected

"extraneous considerations" into the

jury's decision; petitioners were not

"Judged solely on the basis of proof |

adduced at trial", and that was constitu-

tional error.

The court below held (App. 20-36)

alternatively, that the mention of parole

and sentencing consequences was not of

sufficient detrimental impact to constitute

a denial of due process, and, since the

defendants had not argued this error in

their initial state appeal, the court

agreed with the state court's initial

holding that the error had been waived,

and that procedural default precluded

habeas corpus review even under the

rule of Wainwright v. Sykes, 433 U.S. 72

(1977). Under this court's Sykes rule

such a procedural default is not waived

if petitioners can demonstrate both

7%

-24-

"prejudice" resulting from the trial

‘court's rule and "cause" for their

failure to argue the issue in their

initial appeal. The lower court here

apparently accepted the fact that there

was sufficient "prejudice" but, noting

that this court had not defined either of

the crucial terms in Sykes, held that

petitioners had not demonstrated such a

sufficient cause.

Petitioners maintain in the court

below that until the Supreme Judicial

Court's opinion in Ferreira, handed down

after their initial appeal, informing

a jury of the sentencing and parole

consequences, had not as yet been held

to be reversible error in Massachusetts,

the state court's opinion notwithstanding.

They maintain that such is the case, and

that the Sykes rule should not be held

to have waived this error.

The second alleged error in the

charge is, petitioners maintain, of

constitutional dimension. The charge

in Garcia did not contain this error, so

the state court has yet to specify that

it is error of constitutional dimension

but a reference to the court's opinion

(App. 63-77) will demonstrate that the

7%

-25-

court speaks in essentially constitutional

tones. That being so, it is the long-

established law in Massachusetts that

there is no discretion to deny a new

trial when "the original trial was

infected with prejudicial constitutional

error." Earl v. Commonwealth, 356 Mass.

174, 184 (1960). The most recent restate-

ment of that rule of law, citing Earl ,

is Commonwealth v. Cook, Mass. Adv. Sh.

(1980) 885, 891-892. Such a rule is not

special to Massachusetts; it reflects

"the long...settled" holdings of this

court. See, Sandstrom v. Montana, _ U.S.

__-« 99 Sup.Ct. Rptr. 2450 (1979), and the

cases cited on page 2460.

Even if the erroneous disclosure

of the sentencing and parole consequences

of the prospective verdict is not sufficient

in and of itself to merit the new trial

here sought, when considered in conjunc-

tion with the constitutionally erroneous

instruction on proof beyond a reasonable

doubt, the two errors should at least

compel thé new trial.

After the state court handed down its

opinion in Commonwealth v. Garcia, Mass.

Adv. Sh. (1980) 21, the First Circuit

recognized, upon rehearing, that the state

ere ws

7%

-26-

court's opinion in that case, was,

ostensibly, directly contradictory to

its opinion affirming the denial of the

motion for new trial for petitioners here.

It uniquely ordered that petitioners bring

that issue before the highest state court,

and upon doing so, the Supreme Judicial

Court reaffirmed its affirmance of

the denial of petitioners' motion for a

new trial. This time, however, it

recognized that its Garcia opinion had

removed two of the three attempts to

distinguish this case from Ferreira, and

this time endeavored to construct a new

distinction. The point that the petitioners

had raised upon the Garcia case having

been handed down was that the state court

was “arbitrary and capricious” in a

"knowing refusal to apply precedent with

an even hand", as the First Circuit had

put it in its second opinion herein (App.

5-19).

The essence of the state court's last

opinion herein evolves like this:

1. the standard of review on a

collateral attack upon the denial of a

motion for new trial based upon an error

not previously raised is "to prevent a

miscarriage of justice;" (App. 42-57).

7

a27e

2. that standard is "discretionary",

involving an assessment of various

"factors"; (App. 42-57 ).

3. that the "main defect in the

charge on reasonable doubt [the use of

specific examples] had been disclosed in an

opinion of [the state court] published

before the charge was given", i.e. in

Commonwealth v. Bumpus (App. 42-57 ); and

4. that since there was "no objection

or exception" taken to the error at trial

and “experienced counsel failed to raise

the point in his first motion for a new

trial or in his first appeal", that

"suggest[s] that it was not thought to be

critical", therefore the court would

"adhere to [its] prior decision."

The fundamental holding, obviously,

is that since Bumpus made it clear that

the use of specific examples was reversible

error, the petitioners had waived the issue

by failing to except or argue it in their

first appeal. This was a newly devised

effort to distinguish th.s case from

Garcia, and this new theory of "waiver"

is not valid--it must be held to be

"knowing reversible error to apply

precedent with an even hand."

-%

=-28-

Petitioners will admit that if the

state court's opinion in Bumpus had set

out what was to be its opinion in .

Ferreira and Garcia, that the "waiver"

rule would foreclose the petitioners, but

the lack of "even handedness", the

"arbitrary and capricious" rulings of the

state court are obvious when its opinion

in Bumpus is examined. Bumpus was

published in 1972 and petitioners trial

was in 1974, but, counting a footnote,

only seven sentences in the 12-page

Opinion are even arguably relevant to

the instant issue and they are herein

set forth in their entire context, pages

681-682:

"10. The defendant

assigns as error certain as-

pects of the judge's instruc-

tions to the jury on reason-

able doubt. The defendant

argues that it was error for

the judge to illustrate the

meaning of reasonable doubt

by comparing the degree of

certainty required a juror

would want before he decided

to undergo major heart surgery.

We have previously approved

the practice of alluding to

important decisions in the

personal lives of jurors in

an attempt to explain the

concept of reasonable doubt.

|

-29-

See Commonwealth v. Libby,

358 Mass. 617, 621. The

inherent difficulty in using

such examples is that, while

,they may assist in explaining

the seriousness of the deci-

sion before the jury, they

may not be illustrative of

the degree of certainty re-

quired. It may be argued that

problems concerning health and

medical treatment, such as

the illustration used in this

case, are sometimes not sus-

ceptible to a decision based

upon proof beyond a reasonable

doubt. [The court's footnote 1.

there inserted reads thusly:

"Such illustrations undoubtedly

are of assistance to the jury,

but the examples must be

selected and described with

care, for the reasons shown

in the above discussion. ' ]

Even assuming the validity

of that argument in this

instance, the instructions as

a whole were comprehensive,

were based upon traditional

language, and adequately con-

veyed the concept of reasonable

doubt to the jury. See Holland

v. United States, 348 U.S. 121,

140."

It is, quite simply, incomprehensible

how the Supreme Judicial Court could

possibly infer from its opinion in

Bumpus the slightest hint that it held

or implied that the use of specific

examples was reversible error. On the

7%

-30-

contrary, any fair reading of Bumpus

plainly says that the court approved

of the use of specific examples, that

they “undoubtedly are of assistance to

the jury." Surely, it cannot be said

that Bumpus constituted such a clear and

definitive ruling of the state court that

petitioners trial and appellate counsel

should have perceived that the portion

of the subject charge constituted

reversible error such that their failure

to object made out "waiver."

Ferreira made new law on this point

in Massachusetts, subsequently, in Garcia,

held to be error of constitutional

dimension. The Commonwealth has never

controverted that contention. All

arguments accepted it as a "given" as,

impliedly at least, the court below also

did in its first two opinions in this case.

This rule of "waiver" was not

applied to counsel in Ferreira nor in

Garcia--only to counsel for petitioners.

In its Garcia opinion, the state court

pointed out that no objection or exception

was taken to the errors in the charge

(as none was taken here), and that it

would only review that error and reverse

if there were a “substantial likelihood

that a miscarriage of justice has occurred",

the same standard specified in the state

rs

-3l1-

court's i 29st recent opinion in this case

(App. 42-57; 80. The very next sentence

in the court's opinion (App. 78-86) reads

as follows: :

"...Because we do not

require that defense counsel

foresee developments in the

case law, we shall consider this

issue, and review the propriety

of the reasonable doubt charge

according to the standard stated

above ("miscarriage of justice".]"

The court then proceeded to hold that

the "constitutionally significant error",

"the use of specific examples" made "the

charge in this case, like that in Ferreira,

supra...a constitutionally inadequate

definition of 'beyond a reasonable doubt'."

Ferreira is the only case cited--it made

new law. Why was not the waiver rule

invoked against Garcia and the substantive

question of whether a "miscarriage of

justice" occurred there determined, but

never reached in petitioners' case?

The latter opinion arbitrarily never

hazards an explanation. Would not the

possibility of such a fundamental error

as a “miscarriage of justice” be so

transcendent that it would mandate over-

looking any technical procedural rule of

i

-32-

waiver? That seems to be what the state

court did in every other case except the

Graces. It would seem that that action

can surely be termed “arbitrary and

capricious." The holdings in Ferreira

and in Garcia are irreconcilable with the

state court's opinion in this case, and

display a "lack of even-handedness",

sufficient that the writ should issue

and a new trial be ordered, as is mandated

by the Fourteenth Amendment.

CONCLUSION

For the reasons set forth above, it

is respectfully submitted that this

petition for a writ of certiorari should

be granted.

Respectfully submitted,

Norman F. Lazarus

7 Water Street

Boston, MA 02109

(617) 227-7830

Of Counsel:

Daniel F. Featherston, Jr.

7 Water Street

Boston, MA 02109

(617) 227-7830