Reply Brief — Lewis v. United States

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Susreme Court, U.S.

Fs SLs eS

are 15 196

CLERK

In The

Supreme Court of the United States

October Term, 1995

RAY A. LEWIS,

Petitioner,

UNITED STATES OF AMERICA,

Respondent.

On Writ Of Certiorari

To The United States Court Of Appeals

For The Second Circuit

REPLY BRIEF FOR PETITIONER

Steven M. STATSINGER

THe Lecat Arp Society

Federal Defender Division

Appeals Bureau

52 Duane Street, 10th Floor

New York, New York 10007

Tel. No.: (212) 285-2842

Counsel for Petitioner

Of Counsel:

Henriette D. HOrrMan

Davip A. Lewis

COCKLE LAW BRIEF PRINTING CO., (800) 225-6964

OR CALL COLLECT (402) 342-2831

TABLE OF CONTENTS

TABLE OF CASES AND OTHER AUTHORITIES... ii

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I. THE SIXTH AMENDMENT JURY TRIAL GUAR-

ANTEE ATTACHES TO THE ENTIRE PROSECU-

TION, AND IS NOT “OFFENSE SPECIFIC.” ... 1

Il. THE GOVERNMENT HAS FAILED TO

ADDRESS MR. LEWIS’S ARGUMENT THAT

ONLY THE LEGISLATURE CAN EXTINGUISH

THE RIGHT TO A JURY TRIAL............... 12

EE din bu Nn eS wahnoses 4c bbedsiorse cheeses 16

TABLE OF CASES

Page

Cases

Baldwin v. New York, 399 U.S. 66 (1970) ....... £247

Blanton v. City of North Las Vegas, 489 U.S. 538

CPE ee Fe Se

Bloom v. Illinois, 391 U.S. 194 (1968).............0005- )

Callan v. Wilson, 127 U.S. 540 (1888)................ 2, 6

Codispoti v. Pennsylvania, 418 U.S. 506 (1974)....5, 8, 9, 10

Colgrove v. Battin, 413 U.S. 149 (1973) ..........e eens 5

District of Columbia v. Clawans, 300 U.S. 617 (1937) .... 12

Duncan v. Louisiana, 391 U.S. 145 (1968)....... 5, 10, 12

Faretta v. California, 422 U.S. 806 (1975) ............. 14

Frank v. United States, 395 U.S. 147 (1969)......... 6, 13

The King v. Salomons, 1 T.R. 249-252 (K.B. 1786) ...... 2

The King v. Swallow, 101 Eng. Rep. 1392 (K.B. 1799) ..... 2

Lebron v. National R.R. Passenger Corp., 115 S.Ct.

961 (1996)... cccccccsccvcessesesese een ennnan—EnEE 4

Mayberry v. Pennsylvania, 400 U.S. 455 (1971)......... 9

In ve Oliver, 33838 US. Gi7 CIDER. . on ecccsseeeseunuee 15

Patton v. United States, 281 U.S. 276 (1930) .......... 15

The Queen v. Matthews, 88 Eng. Rep. 609 (Ch. 1710) ..... 2

Schick v. United States, 195 U.S. 65 (1904)............. 3

Scott v. Illinois, 440 U.S. 367 (1979)............... 14, 15

TABLE OF CASES - Continued

Page

Singer v. United States, 380 U.S. 24 (1965).......... 1, 10

United States v. Dixon, 113 S.Ct. 2849 (1993).......... 4

United States v. Goodwin, 457 U.S. 368 (1982) ......... 5

Williams v. Florida, 399 U.S. 78 (1970) ................ 4

Yee v. City of Escondido, 112 S.Ct. 1522 (1992)......... 4

OrTHER AUTHORITIES

EEE AE 17

Albert W. Alschuler & Andrew G. Deiss, A Brief

History of the Criminal Jury in the United States,

se SD Ok) re 11

1 Richard Burn, Justice of the Peace 390 (18th Ed.

EES LEE SLEEP PPP PEPETTTE TTT 3

TT cede pea Sicccccccccescccccceces )

Felix Frankfurter & Thomas G. Corcoran, Petty

Federal Offenses and the Constitutional Guaranty of

Trial by Jury, 39 Harv. L.R. 917 (1926)............ 3, 4

eee

ARGUMENT

I. THE SIXTH AMENDMENT JURY TRIAL GUARAN-

TEE ATTACHES TO THE ENTIRE PROSECUTION,

AND IS NOT “OFFENSE SPECIFIC.”

The government's principal argument in this case is

that the form of a prosecution, rather than its substance,

determines whether the defendant is entitled to a jury

trial. The government accepts that prosecutions at which

the authorized punishment exceeds six months’

imprisonment on any single count must be tried by a jury,

but claims that this rule does not apply when the same

sentence is authorized as the result of the aggregation of

offenses punishable by six months or less. This position

derives from a claim that the jury trial right is “offense

specific.” That assertion, however, is contradicted by the

text of the Sixth Amendment, which attaches the jury trial

right to the “prosecution,” and not to “offenses.”

Moreover, although the government proffers a putative

common-law justificaticn for its position, in fact there is

no evidence that at common law a court of summary

jurisdiction could impose a sentence greater than six

months’ imprisonment, in excess of its jurisdictional

limit, when multiple petty offenses were tried together. In

the end, the government's position in this case character-

izes the choice between a jury trial and a non-jury trial as

nothing more than the choice between two procedural

alternatives. The government fails to acknowledge that

the jury trial is a fundamental structural component of

the American political and legal systems and is the pre-

ferred mode of trying criminal cases. Singer v. United

States, 380 U.S. 24 (1965). The Court has crafted a limited

exception to the requirement of jury trials that applies in

those cases in which the defendant is tried either on a

single petty offense or on multiple offenses whose aggre-

gate maximum punishment is six months’ imprisonment

or less. Callan v. Wilson, 127 U.S. 540 (1888). The common-

law practices cited by the government provide no basis

for the dramatic expansion of this limitation that the

government proposes.

1. The government asserts that the common-law

history of the jury trial right indicates that no jury trial is

required when multiple petty offenses are joined in a

single trial, regardless of the number of offenses so

joined, and regardless of the ultimate sentencing conse-

quences to the defendant. However, the government has

failed to produce any historical support for this position,

because it presents no evidence that a common-law sum-

mary court could exceed its jurisdictional limits when

multiple offenses were joined.

The two early English cases cited by the government

(Government's Brief “G.B.” at 15) suggest only that two

petty offenses could be tried jointly before a justice of the

peace.' They are not dispositive of the instant case. It is

! Both of those cases, The King v. Swallow, 101 Eng. Rep.

1392 (K.B. 1799) and The Queen v. Matthews, 88 Eng. Rep. 609

(Ch. 1710) appear to sanction the trial of multiple petty offenses

in a single proceeding. However, a contemporaneous case, The

King v. Salomons, 1 T.R. 249-252 (K.B. 1786), suggests that that

practice was not universally accepted. There, the defendant was

“charged with two distinct offenses, each of which would

subject him to a separate penalty.” The court noted that “it is to

be doubted” that both offenses “could have been included in

one conviction.” It is also significant that the government cites

late 19th century editions of treatises on practices of the justices

of the peace to support its position. G.B. at 15. The editions of

not Mr. Lewis’s position that all multiple petty offense

prosecutions must be tried by a jury, only those at which

the authorized penalty exceeds six months, the jurisdic-

tional limit for non-jury trials established by this Court in

Baldwin v. New York, 399 U.S. 68 (1970). Common-law

practice generally limited summary jurisdiction to “the

imposition of fines of up to a hundred pounds and sen-

tences with hard labor up to six months.” Felix Frankfur-

ter & Thomas G. Corcoran, Petty Federal Offenses and the

Constitutional Guaranty of Trial by Jury, 39 Harv. L.R. 917,

934 (1926) (footnote omitted); see also Baldwin, 399 U.S. at

71 (“with a few exceptions, crimes triable without a jury

in the American States since the late 18th century were

also generally punishable by no more than a six-month

prison term”) (footnote omitted). The government cites

no historical evidence that a magistrate or a justice of the

peace could, by trying several offenses together, impose a

penalty greater than that ordinary jurisdictional limit.

When interpreting the Constitution’s jury trial guar-

antees, the Court has limited its reliance on the common

law to the acceptance of those common-law rules that

were so clearly understood and so universally incorpo-

rated into colonial practice that they could necessarily be

deemed incorporated into the language of the Constitu-

tion. Schick v. United States, 195 U.S. 65 (1904). This cannot

be said about the treatment of multiple petty offenses,

since English antecedents did not produce a uniform

those treatises in use at the time the Constitution and Bill of

Rights were ratified do not contain the language relied upon by

the government. See, e.g., 1 Richard Burn, Justice of the Peace,

390-97 (18th Ed. 1793).

colonial practice. “Different environments evolved differ-

ent applications of trial by jury and its limits.” Frankfur-

ter & Corcoran, supra, at 936. Accordingly, the

government has failed to establish with sufficient clarity

the parameters of either English common-law practice or

colonial practice with respect to the treatment of multiple

petty offenses.

The common law provides no greater support for the

government's argument that the jury trial right is exclu-

sively “offense specific.” The Constitution must be inter-

preted in light of the common law, but the Court has

never read it as incorporating every peculiarity of

common-law practice. In fact, the Court has frequently

deviated from common-law practice when interpreting

the Sixth Amendment. Thus, in Williams v. Florida, the

Court rejected the notion that “every feature of the jury

as it existed at common law . . . was necessarily included

2 Even accepting the government's insistence that the

common-law character of the offense charged determines jury

triability, Mr. Lewis was still entitled to a jury trial. He was

charged with an offense that was serious, and would have been

tried by a jury, at common law. Brief for Petitioner at 24-26. Nor

is the government correct in asserting that this question is “not

properly before this Court.” G.B. at 20, n.9. That the common-

law character of Mr. Lewis’s conduct entitles him to a jury trial

is simply an argument in support of his claim that he was

entitled to jury trial under the Sixth Amendment. “Once a

federal claim is properly presented, a party can make any

argument in support of that claim; parties are not limited to the

precise arguments they made below.” Yee v. City of Escondido,

112 S.Ct. 1522, 1532 (1992). See also, Lebron v. National R.R.

Passenger Corp., 115 S.Ct. 961, 964-65 (1995) (“alternative

argument” first presented in brief on the merits was “fairly

embraced” within the question presented).

in the Constitution when that document referred to a

‘jury.’ ” 399 U.S. 78, 91 (1970) (footnote omitted). See also

Colgrove v. Battin, 413 U.S. 149, 156 (1973) (constitutional

history reveals “no intention on the part of the Framers to

equate the constitution and common-law characteristics

of the jury”) (citation to Williams omitted). Similarly, Dun-

can v. Louisiana explicitly rejected as arbitrary the subjec-

tive process by which jury triability or the designation as

“petty” was determined at common law. 391 U.S. 145,

160-61 (1968). Since Duncan, the Court has defined the

category of cases to which the jury trial right attaches

almost exclusively by the authorized penalty, in full rec-

ognition that this deviates from common-law practice.

Blanton v. City of North Las Vegas, 489 U.S. 438, 542 (1989);

Baldwin, 399 U.S. at 72-74.

2. The government’s “offense specific” argument

leads to outcomes that are clearly out of step with the

proper interpretation of the Sixth Amendment. First,

according to the government, multiple petty offenses can

be disposed of at a non-jury trial even if the authorized

penalty is several years’ imprisonment. But see Codispoti

v. Pennsylvania, 418 U.S. 506 (1974) (jury trial required on

jointly tried petty contempts with aggregate penalty of 39

months’ imprisonment); see, generally, United States v.

Goodwin, 457 U.S. 368, 387 & n.1 (1982) (Brennan, J.,

dissenting) (multiple petty offenses with aggregate

authorized penalty of 28 months’ imprisonment). More-

over, the government's focus on the nature of the offense

rather than the aggregate authorized penalty would mean

that a defendant who was jointly tried on a felony and a

petty offense would have the right to have the jury deter-

mine guilt or innocence only on the felony, but that the

judge would remain the finder of fact on the petty

offense.

The Sixth Amendment guarantees a jury trial in “all

criminal prosecutions.” The government's lengthy string

of citations to cases in which the Court used the term

“offense” in discussing the scope of the Sixth Amend-

ment guarantee (G.B. at 10-14) establishes nothing more

than that the case at bar is one of first impression. The

cases on which the government relies do not establish

that the Sixth Amendment jury trial guarantee is “offense

specific.” They merely establish that the term “criminal”

in the Sixth Amendment refers to “serious,” rather than

“petty,” criminal matters. Callan, 127 U.S. at 549. Since

“criminal” modifies “prosecution,” the question posed by

this case is not whether the charged offense was serious,

but rather whether the “prosecution” itself was serious.

The Court, construing the Sixth Amendment in light

of a universally accepted common-law practice, has

arrived at the conclusion that a trial on a single offense

punishable by less than six months’ imprisonment is not

a “serious” prosecution. Baldwin, 399 U.S. at 72-74. How-

ever, based on this definition of criminal seriousness, any

prosecution at which the authorized penalty exceeds six

months’ imprisonment — whether through aggregation ox

not — must be tried by a jury. See Frank v. United States,

395 U.S. 147, 149 (1969) (“In . . . criminal prosecutions, the

severity of the penalty authorized .. . is the relevant

criterion” determining jury triability). The prosecution in

this case was accordingly “serious” within the meaning

of the Sixth Amendment.

The authorized penalty represents the most accurate

measure of society's judgment of the defendant’s con-

duct. Blanton, 489 U.S. at 541-42; Baldwin, 399 U.S. at 68.

Thus, the applicability of statutes such as 18 U.S.C.

§ 3584(a) is relevant to considering whether the jury trial

right attaches to a particular prosecution. The govern-

ment recognizes that 18 U.S.C. § 3584(a) is a substantive

sentencing statute authorizing consecutive sentences in

multiple petty offense prosecutions. G.B. at 23. The gov-

ernment also recognizes that this statute represents a

congressional judgment that committing multiple

offenses is more serious than committing one. G.B. at

22-23.3 From these propositions flows the conclusion that

the aggregate authorized penalty is a more accurate

gauge of the seriousness of a single prosecution than is

the penalty authorized for just one offense in that pros-

ecution, no matter how many are charged.

This is so even if Congress “cannot asses the serious-

ness of all potential combinations of offenses” (G.B. at 23)

to which § 3584(a) applies, because such an assessment is

not a necessary prerequisite to attaching the jury trial

right to a multiple petty offense prosecution. Congress

cannot assess the ultimate seriousness of all of the poten-

tial combinations of aggravating and mitigating circum-

stances in a case involving a single serious offense, yet

the authorized sentence is still the most accurate measure

of criminal seriousness in that situation.

3 Significantly, in so conceding, the government has

admitted that the principal basis for the decision below was

incorrect.

The Court’s recognition of the significance of an

authorized penalty in excess of six months’ imprisonment

animated its decision in Codispoti v. Pennsylvania. There,

the defendant was tried on seven acts of criminal con-

tempt at a single bench trial; after convicting the defen-

dant the judge aggregated the “petty” (that is, six-month

or less) sentences for each count and imposed a 39-month

term of imprisonment. The Court held that the contemnor

should have received a jury trial because this aggregation

of petty penalties rendered the prosecution “serious.” 418

U.S. at 517.4

For the purposes of the jury trial right, the only

difference between criminal contempt and other crimes is

the manner in which the maximum authorized penalty is

set. In contempt cases, where there is no statutory maxi-

mum set by a legislature, the judge determines criminal

seriousness by imposing sentence. Codispoti stands for the

proposition that this inherently “legislative” decision

requires a jury trial in contempt cases when the judge

determines that an aggregate “serious” penalty is autho-

rized. 418 U.S. at 517.5 That reasoning has equal force in

4 The government incorrectly argues that Codispoti did not

involve an aggregation of penalties at all because the contemnor

was in reality tried on “one contempt,” which the government

defines as his “trial conduct as a whole.” G.B. at 29, citation

omitted. The Court explicitly rejected this characterization of

the record in Codispoti. The Court's decision makes clear that it

viewed the contemnor as facing “individual charges” that were

tried in a single proceeding, and for which “separate

sentence[s]” were imposed. 418 U.S. at 516.

5 The government is incorrect in asserting that the rule of

Codispoti derives from “concerns unique to charges of criminal

contempt” - specifically that a jury trial is required because of

those non-contempt cases in which the legislature itself

has made this same determination.®

Codispoti also addresses the issue of the difference

between joint and serial trials of multiple petty offenses.

There, since the defendant was tried on seven petty con- _

tempts in a single proceeding, the aggregation of the

petty penalties rendered that prosecution “serious” under

the Sixth Amendment. Id. But a plurality of the Court also

recognized that if the contempts had been adjudicated

serially a total sentence in excess of six months could

constitutionally have been imposed without a jury trial

because “each contempt [would have] been de.'t with as

the “potential for abuse” inherent in having the judge serve as

both “victim” and the judge. G.B. at 28-29. This argument fails

to recognize that in Codispoti a different judge presided over the

contempt trial. 418 U.S. at 507. In any event, that concern is fully

addressed by the rule of Mayberry v. Pennsylvania, 400 U.S. 455

(1971) and Fed. R. Crim. P. 42(b), which disqualifies the judge if

the contempt charged involves “disrespect to or criticism of”

that judge.

would mean interpreting the Sixth Amendment as affording a

more expansive jury trial right to acts of criminal contempt than

to that same conduct when charged as a violation of a criminal

statute. Cf. United States v. Dixon, 113 S.Ct. 2849, 2853-54 (1993)

(defendants convicted of contempt for conduct that violated

both a court order and a specific criminal statute). Under the

government's position in this case, there is no right to a jury trial

on several petty offenses tried together, no matter how great the

aggregate penalty. But if those same actions violated a court

order and were tried as criminal contempts, the Sixth

Amendment, as applied in Codispoti, would require a jury trial.

This is a particularly anomalous outcome, since historically

contempts were not tried by a jury at all. Bloom v. Illinois, 391

U.S. 194, 195-96 (1968).

a discrete and separate matter.” 418 U.S. at 515. As long

as the authorized penalty for each of those individual

prosecutions was petty, none of them would be consid-

ered “serious.” Thus, even though the ultimate conse-

quence to the defendant would be a lengthy sentence,

such serial prosecutions would not implicate the Sixth

Amendment's jury trial guarantee.

3. Attaching the jury trial right to prosecutions

where the authorized penalty exceeds six months’

imprisonment, whether by aggregation or not, is fully

consistent with the purposes of the jury trial itself. The

government treats the choice between a jury trial and a

non-jury trial as arbitrary and unimportant, in effect

reducing the jury trial to an abstract procedural right that

is of little concern either to the defendant or society. In

fact, the right to a jury trial is of enormous constitutional

significance. The Court has long recognized that it is not

only the preferred mode of adjudicating criminal cases,

but is the “tribunal which the Constitution regards as

most likely to produce a fair result.” Singer v. United

States, 380 U.S. at 36.

As expressed in the Constitution, the right to a jury

trial in serious criminal cases represented a fundamental

cornerstone of the Framers’ conception of liberty. The

Court has repeatedly emphasized the importance of inter-

posing the lay jury as the finder of fact in those cases in

which the government seeks the imposition of a lengthy

period of imprisonment. Singer, 380 U.S. at 31 (jury trial

right “clearly intended to protect the accused from

oppression by the government”); Duncan, 391 U.S. at 156.

The jury trial provides a critical buffer between the indi-

vidual and the state’s power to deprive him of liberty. It

thus serves to protect all citizens from the “corrupt or

overzealous” prosecutor or the “compliant, biased or

eccentric” judge. Id.

The requirement of jury trials in serious cases accord-

ingly benefits all of society, not just the defendant on

trial. It is more than a rule of criminal procedure. It is a

political right - “an allocation of political power to the

citizenry.” Albert W. Alschuler & Andrew G. Deiss, A

Brief History of the Criminal Jury in the United States, 61

U.Chi. L. Rev. 867, 876 (1994). Civic participation in the

criminal justice system has always been recognized as the

most satisfactory means of curtailing the possibility of

“unchecked power.” Duncan, 391 U.S. at 156. As such, it

assures that the public will continue to accept the legit-

imacy of the criminal justice system in general and its

ability to mete out serious punishments in particular.

This democratic function holds true whether the

serious penalty derives from a single count or from sev-

eral counts. With respect to the core concerns of the jury

trial right, these two situations are indistinguishable.

They present equivalent opportunities for prosecutorial

or judicial abuse, and are equally liable to result in a

serious punishment.

Il. THE GOVERNMENT HAS FAILED TO ADDRESS

MR. LEWIS’S ARGUMENT THAT ONLY THE LEG-

ISLATURE CAN EXTINGUISH THE RIGHT TO A

JURY TRIAL.

In his main brief, Mr. Lewis demonstrates that there

exists no common-law or constitutional precedent for

allowing the jury trial right to be unilaterally extin-

guished by the sentencing judge. Brief for Petitioner at

27-31. The government has simply ignored this argument,

and in fact has presented no historical evidence to sup-

port its view that a pretrial sentencing stipulation can

deprive a defendant of a jury trial. Instead, the govern-

ment merely invokes arguments that have repeatedly, and

with sound justification, been rejected by the Court.

The government argues that either a pretrial sentenc-

ing promise or the actual sentence imposed determines

jury triability. G.B. at 31. But in statutory offense cases the

Court has consistently held that the subjective sentencing

consequences faced by the particular defendant are in no

way relevant to the jury trial right. The authorized pen-

alty set by the legislature, and not the judge’s own view

of the defendant’s conduct, determines jury triability.

That is why the sentence actually imposed is irrelevant to

whether the defendant was entitled to a jury trial. Blanton

v. City of North Las Vegas, 489 U.S. at 541-42; Duncan v.

Louisiana, 391 U.S. at 160-61; District of Columbia v.

Clawans, 300 U.S. 617, 628 (1937). The government fails to

explain how the right to a jury trial could be extinguished

by a pretrial sentencing stipulation, when it is never

extinguished by the sentence actually imposed.

A criminal prosecution at which the authorized pen-

alty exceeds six months’ imprisonment is serious whether

that penalty results from aggregation or not. Other than

to restate its view that the aggregate penalty should not

trigger a jury trial at all (G.B. at 31, n.18), the government

has failed to assert a rational distinction between pros-

ecutions that are “serious” as the result of the aggrega-

tion of authorized penalties and those that are “serious”

because the penalty authorized for a single count exceeds

six months’ imprisonment. Thus, the government's posi-

tion would permit a judge to utilize a pretrial stipulation

to deprive a defendant of a jury trial in any case, even

where serious felonies were charged.

It is of no relevance here that in contempt cases either

a pretrial sentencing promise or the sentence actually

imposed determines jury triability. Frank v. United States,

395 U.S. at 149-50. There is no legislatively determined

statutory maximum in criminal contempt cases. Thus,

although the Court disfavors making jury triability con-

tingent on the judge’s subjective view of criminal serious-

ness, in criminal contempt cases there is no other measure

of seriousness available. In any event, deferring to the

court's own view of criminal seriousness is appropriate in

such cases, since the offense is against the court itself.”

But where the offense is against society, it is society's

judgment alone that determines the jury trial right. “In

? Moreover, absent such a rule all contempts would have to

be tried by a jury. Since there is no maximum sentence set by the

legislature, any contempt is potentially punishable by more

than six months’ imprisonment unless the judge decides

otherwise.

[non-contempt] criminal prosecutions, the severity of the

penalty authorized, not the penalty actually imposed, is

the relevant criterion.” Id. at 149.

Finally, it is significant that the government does not

argue that the procedure authorized in Scott v. Illinois is

applicable to the jury trial right. In Scott, the Court held

that the Sixth Amendment does not require the appoint-

ment of counsel in state court misdemeanor cases if the

court promises in advance of trial not to impose a sen-

tence of imprisonment. 440 U.S. 367, 374 (1979). There are

persuasive reasons for the Court to confine the holding of

Scott to that particular situation.

The nature of the rights implicated in Scott and in

this case are dramatically different. At stake in Scott was

the issue of who would represent the defendant at trial -

appointed counsel, retained counsel, or no counsel. While

this is an extremely important decision, it is primarily of

concern only to the defendant himself. In contrast, the

potential deprivation of a jury trial implicates the consid-

erably broader question of who will judge guilt or inno-

cence. This is a decision in which all of society, and not

just the defendant on trial, has an interest. This difference

is illustrated by the fact that a defendant cannot be com-

pelled to be represented by counsel against his will (Fa-

retta v. California, 422 U.S. 806, 836 (1975)), but can be

compelled to be tried by a jury against his will. Singer v.

United States, 380 U.S. at 36. “[T]he maintenance of the

jury as a fact-finding body in criminal cases is of such

importance and has such a place in our traditions, that,

before any waiver can become effective, the consent of

the government ... and .. . the court must be had.” /d. at

34 (quoting Patton v. United States, 281 U.S. 276, 312-13

(1930)).

There is another important difference between Scott

and the instant situation. Here, the magistrate judge

wielded the pre-trial stipulation as a means of extinguish-

ing the jury trial right in its entirety. This went far beyond

the bounds of Scott. Scott did not sanction the extinction

of the core of the Sixth Amendment right —- which guaran-

tees the “Assistance of Counsel” — in its entirety. Rather,

by refusing to extend the rule of Gideon to state court

misdemeanor cases, it affected only the right to appoin-

ted counsel. 440 U.S. at 370. Even under Scott, a defen-

dant in a state court misdemeanor case has an indelible

right to be represented by counsel, and no unilateral

action by the trial court can extinguish that right.*

’ The government has failed to identify a single Sixth

Amendment right that is unilaterally extinguishable by the trial

court. The court certainly cannot promise to impose a lenient

sentence and then try the defendant in secret, or deny him

notice, the opportunity to be heard, or to confront the evidence

against him, even when the defendant is charged with a single

petty offense. See, e.g., In re Oliver, 333 U.S. 257, 273 (1948) (Sixth

Amendment rights to notice, opportunity to be heard, public

trial, confrontation and counsel attach to prosecution for a

single petty offense).

CONCLUSION

For the reasons stated herein, as well as those in his

main brief, petitioner prays that the judgment below be

reversed.

Respectfully submitted,

Steven M. STATSINGER

THe Lecat Ai Soctery