Opposition Brief — Butler v. Thomas

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“Uren Sraves OF Axtenica ex rel. Jojtx Butter, 2 . ( .

SE ae _ Petitioner, { .

—against— _ ;

- JAMES A. THOMAS, Warden, Rikers Island Prison,

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BRIEF IN OPPOSITION TO PETITION -

' FOR CERTIORARI :

14- 14 Hazen Street, Rast Elmhurst, NY., :

Respondent.

J. Ler Rinxiz, ec,

Corporation Counsel of the .

, | City of New York,

: Attorney for Respondent,

Municipal Building, |

New York, N. Y. 10007.

EY REG YR ATI REI RE ETT

StanLey BucHsBauM,

of Counsel.

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“INDEX.

‘ARGUMENT

Baldwin v. New Y ork, '399 U.S. 66 (1970), should:

not be’ applied: to trials completed | before it was - | —

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*(a) the purpose to be served by the néw stand.

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‘ “(b) the extent tof the reliance by law enforcement _ : ;

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‘“(c) the effect onthe administration of justice of» E

a retroactive application of the new stand- 4

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) In THE

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f.. = OcToBER TERM, 197%” :

NO: oneness : .

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Unitep STATES OF AMERICA ex rel. Joux BUTLER,

less 224 | Petitioner? -

—against— ~ : ae

James. A. —-T Homas, Warden, Rikers Island Prison,

14-14. Lrazen Street, East Eimhur st, N.¥.,

rt Respondent.

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BRIEF IN: OPPOSITION TO,PETITION

mo FOR CERTIORARI —

The ° opinions below, ie: jurisdictional requisites, the

question presented, the reference to the constitutional prot

visions involved and the ‘statement of the case aré all ade-

quately cov ered by’ the Petition and w al, therefore, not be’

repeated or restated. :

oe ARGUMENT

| Baldwin v. ‘ New’ York, 399 U. s. 66 (1970), should —

_ not be applied to trials completed before it was decided.

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In People v.. Dargan, 27-NY 2a.100 (1970),-it was ‘held

that the ruling in Baldwin v. New York, 399 U.S. 66.(1970),

should not be applied, retroactively. As a conseqilence,.a

conv iction for a misdemeanor, punishable by a maximum, .

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sentefice of imprisonment for one vear under which- the

appellant therein had, been ‘sentenced to seven months’ im- |

prisonment, was sustained even ‘though the appellant had

been’ denied his request fora jury, trial: bine

“An application for certiorari was denied by tits Court.

Dargan v. New York, 400 U. 8..920 (1970). An application :

~~ for rehearing was denied on January 11, 1971 [400 U.S.

1002 (1971) ]. See, also, DeBacker v. Brainard, 396 U.S. 28,

. 30 Risks

i , (2)

Iti is unnecessary ie give a lengthy analysi sis of the cases®

‘in which this Court has decided whether its determinations

are to be applied retroactively or prospectively. The bases

have been adequately summarized in several recent cases:-

Johnson v. New Jersey, 384 U.S. 719, 726-725 (1966) ;

_ Stovall v. Denno, 388 U. S. 293, 296-301 (1967) ;- Desist v.

United States, 394 U.S. 244; 247-254. (1969) ; Williams v.

United States, 400 U. S. —, 28 L. Ed. 2d 388, 395 (1971).

In. Duncan y. Lotisiana, 391 U. S. 145 (1968), it was

. decided that the Fourteenth Amendment made the Sixth

Amendment applicable to the states, that therefore a state

eriminal trial must be by jury ‘where requested except in

petty cases, and that a crime punishable by two yéars in

' prison is a serious, not a petty,:crime. Bloom vy. Ilinois,

391 U. S. 194° (1968), reached a similar result with re-

spect to criminal contempt proceedings, holding that a re-

quest for a jury trial should have been granted since. the

offense was serious and not petty as shown by the punish-

ment of 24 months’ imprisonment. |

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In beditane. v. Woods, 392 U. S. 631 (1968), it was held&

that neither Duncan nor Bloom shoufd apply retroactively.

The opinion first quoted the governing considerations from

Stovall v. Denno, supra, 388 U. 8S. at p. 297, as follows

(p. 633):

(a) the purpose to be served by the new standards,

'(b) the extent of the reliance by law enforeement au-

‘ thorities on the old standards, and (c) the effect on

the administration of justice of a retroactive applica-

tion of the new standards.” ‘

_It then said that all three factors favored prospective

- application of Duncan, giving the following reasons (pp..

633-634) :

“Duncan held that the States mugt respect the right

to jury trial because in the context of the institu-

tions, and practices by which we adopt and apply our

criminal laws, the right to jury trial generally tends

to prevent arbitrariness and repression. As we stated.

in Duncan, ‘We would not assert, however, that every

criminal trial—or any particular trial—held before a ..

judge alone is unfair or that a defendant may never =

as fairly treated by a judge as he would be by a jury.’

391 U.S., at 158. The values implemented by the right .

to jury trial would not measurably be served by requir-

ing retrial of all persons convicted in the past by pro-°*

cedures not consistent with the Sixth Amendment right

to jury trial. Second, States undoubtedly relied in good. -

faith upon the past opinions of this Court to the effect

that the Sixth Amendment right to jury trial was not

applicable to the States. F.g., Maxwell v. Dow, supra.

Several States denied requests for jury trial in cases

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’ . where jury trial would have been mandatory had they

fallen within the Sixth Amendment guarantee as it had

been construed by this Court. See Duncan v. Louisiana,

supra, at 158, n. 30. Third, the effect of a holding of

general retroactivity on law enforcement and the ad-

ministration of justice would be significant, because

the denial of jury trial has occurred in a very great

number. of cases in those States not until now accept-

ing the Sixth Amendment guarantee.”

KXven though the Court found that the considerations were

more eyenly balanced with regard to Bloom, it also held

that retroactive application was not warranted, stating its

reasons as follows (pp. 634-635): . a

““Qne ground for the Bloom result was the belief that

contempt trials, which often occur before the very

judge who was the object of the allegedly contemp-

tuous behavior, would be more fairly tried if a jury

determined guilt. Unlike the judge, the jurymen will

not have witnessed or suffered the alleged contempt,

nor suggested prosecution for it. However, the tradi-

tion of nonjury trials for contempts Way more firmly

established than the view that States could dispense

with. jury trial in normal criminal prosecutions, and

reliance on the cases overturned by Bloom v. Hlinois

was therefore more justified. Also, the °° ae effects.

on the administration of justice of invalidating all

serious contempt convictions would likely be substan-

tial.”

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° (3)

It is.our contention that an application of the same

considerations require that Baldwin v. New York, 399 U.S.

66 (1970), be given only prospective application from the

_ date’ of its determination, June 22, 1970. ce

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We-can perceive of no valid basis for giving it retro-

active application to the time of: the Duncan decision on

the ground stated by the District Court that Baldwin “is’-

nothing more than a required reiteration of the —

Court’s admonition in Duncan.”

It is evident from a reading of Duncan, which dealt with

a possible maximum punishment of two years’ imprison-

ment, that the Court was refusing to pass upon or antici-

pate whether it-would reqyire a jury trial where the max-

imum punishment was only one year’s imprisonment, the

issue, decided in Baldwin.* The-Court concluded its opin-

ion by saying (391 U.S. at pp. 161-162) :

“We need not, however, settle in this case the exact

location of the line between petty: offenses and_seri-

ous crimes. It is sufficient for -our purposes to hold

that a crime punishable by two years in prison is,

based on past and-contemporary standards in this

country, a serious crime and not a petty offense.”

It is true that footnote 33'on page 161 recites that only

two states other than Louisiana deny jury trials for crimes

punishable by imprisonment for longer than six months.

But this footnote no more intimates that the dividing line

/

*In Johnson v: New Jersey, 384 U.S. 719, 734 (1966), the Court

said that “if we were persuaded that [the standards] had been

fully anticipated by the holding in Escobedo, we would measure

their prospectivity from the same date.” (italics added.) -

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would be set at six months tlan does the sentence to which

* the footnote was dropped intimate that it would be’ set at

2 s *

one year. That sentence reads (p. 161):

“In 49 of the 50 States crimes subject to trial with-

out a jury, which ocecasionally include simple Dat-—

_tery,-are punishable * by no more than one year in

” jail,” oP of res * . ‘

That the question decided in Baldwin was lett completely

‘. open in Duncan is evident from the opinions in other cases.

In Bloom, decided on the same day as Duncan, the Court

pointed out that (391 U.S. at p. 211):

“In Duncan we have said that we ne ed not settle

‘the exact location. of the line between petty offenses

and sezyous crimes’ * * * .”

In DeStefano v..Woods, supra, the Court said (392 US.

at p. 633): coma

“Both Duncan and Bloom lett open de question whether

a Soe? punished by imprisonment for one year

, by virtue of that sentence, a sufficiently serious

nae to require that a request for.a jury trial be

\ - honored.” -

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It cannot be denied that Duncan indieated a possibility

that it would ultimately be held that a crime punishable

by a sentence of mor e than six months was a serious crime,

requiring a jury trial.. The opinion, however, also indicated

the possibility that the dividing line, left open by Duncan,

would be drawn at one. year. The latter result, if it’ had

been reached by this Court, would have been completely

consistent with all that was decided by and said in Duncan.

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Nor do the standards applied ‘in determining whether a+

Supreme Court ruling adopting new doctrines in criminal

law should be applied prospectively or retroactively require

a retroactive application of Baldwin. The three standards

have been quoted herein at page 3.0 |

““(a) the purpose to be served by the new standards”

In DeStefano v. Woods, siipra, 392 U.S. at p. 634, the

Court concluded that the values implemented by the right

to a jury trial would not be'méasurably served by requir-

ing a retrial of all persons previously convicted by pro-

cedures not consistent with the right to jury trial provided

by ‘the Sixth Amendment.

“(b) the extent of the reliance by law enforcement authorities

on the old standards” % - fe

In DeStefano, supra, 392.U. S. at p. 634, the Court

found that this factor also favored prospective applica-

tion because several states had denied jury trials in cir-

_ cumstances in which such a trial would have been manda-

tory under Duncan. It is obvious that the Court was re-.

ferring to three states: Louisiana, New Jersey and New

York. Although only one state, instead of three, w@nld be

affected. by retroactive application of Baldwin, the num-.

ber-of cases affected in that state (those in the New York

City Criminal Court) is substantial. Undoubtedly, the num-

her of misdemeanor cases in New York .City would equal,

if not exceed, the cases in the other two states in which,

under Diincan and Baldwin, jury trials, theretofore denied,

would be required. .

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- “(e) the effect on the administration of justice of@ retro-

active application of the new standards” |

_ The impact of a retroactive application would ie substan-

tial. If Baldwin had.been applied retroactively immediately

after it had been decided, it would have required new trials

for the several thousands of prisoners then serving sen-

tences after having been convicted of misdeme&nors for

which the sentence would have been as much as a year.

Even today a ‘retroactive application vould create col-.

lateral problems with respect to all of those convicted for

misdemeanors since the Duncan decision on May 20, 1968.

Increased penalties may be imposed for several New York

crimes if the: defendant has been previously convicted of

any crime. See, e.g., N LY. Penal Law §§ 265. 05(3),. 265.05

(5), 265.05(9).. In addition, a prior conviction may be con-

sidered generally in imposing sentence. At least one Appel-.

late Division in New York has held that, under analogous

circumstances, a person who had been found to be a juvenile

delinquent could bring a proceeding to set aside that de-

termination many years after the completion of his confine- °

ment on the basis of giving a Supreme Court decision ret-

roactive effect. Matter of Roy M. (Anonymous) v. People,

33 A D 2d 232 (2d Dept., 1970). Ct. Sibrun v. New Fork,

392 U.S. 40, 55 (19

A retroactive a plication of Baldwin: ‘would seriously dis-

rupt the administration of justice. Whether attacks on con-

victions since Duncan ‘were made in independent: proceed-

ings or in course of future criminal proceedings, courts

and progecutors, already having great difficulty in keep- °

ing up with current cases, would have to devote substan-

tial time to the reviving of these earliet cases.*

*Some indication of. the number of misdemeanor* convictions

in the New York City Criminal Court during the period involved

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In discussing the standards witff regard to prospective

_or retrospective application, we have referred to the De-

Stefano case insofar as it held that Duncan showld be

given a prospective application. In that regard the Court

found that: (392 U.S. at p. 633): “All three factors favor

only prospective application * * *.” It should be noted,

however, that the Court also held that Bloom should |

be applied prospectively even though it concluded that j :

(392 U.S. at p. 634): 7 oe

“The _considerations are some what more evenly

balanced with regard to the rule announced in ¢

Bloom vy. Illinois [391 U.S. 194].” | ¢

CONCLUSION :

The petition for a writ of certiorari-should be ‘denied. 3

July .7; 1971.

Respectfully submitted, f

| J. Lee Rayxiy, : Bhar a 2

Corporation Counsel of the ; ae

City of New York, i '

(° Attorney for Respondent. — |

STaNLEY BucHsBaum, e

. of Counsel.

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may be gleaned from a statistical table in the Fifteenth Annual . .

Report of the Judicial Conference of the State of New. York .

(1970), p. A179, which shows the convictions for misdemeanors _ &§

or lesser offenses in that Court for the counties within New York ~~ 3

ae 100,000 during the calendar year 1968.

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