Petition for Writ of Certiorari — Lawson v. Edwards (No. 73-17999)

IN THE

Supreme Court of the United States

Octoser TERM, 1973

No. & ~ | ¢ 9 9

Catvin JosepH Lawson, Jr.,

Petitioner

v.

D. P. Epvwarps, JrR.,

and

A. E. Stayton, JR.,

Respondents

PETITION FOR A WRIT OF CERTIORARI TO

THE SUPREME COURT OF VIRGINIA

Joun C. Lowe

F. Guturie Gorpon, III

Lowe and Gordon, Ltd.

1111 West Main Street

Charlottesville, Virginia 22903

Attorneys for Petitioner

INDEX

PAGE

SII 1. inlcenasda ineunebionsitndinsseesicenicetasneeesioenis l

SSS EE SS et ee ERT 2

ON i cncenenisreneinieyinneencionmenninpmnnicins 2

I I a casunennahaichiesmeamnonionnnninn 2

Reasons FOR GRANTING THE Writ

I. Petitioner had standing to raise the issue

of sex discrimination in the selection of his

UNNI MINI -cicccsntcssndnierhinndicclacatoipaiinisaielibiaeenpiianiaiins 4

II. Failure to record an incident of the trial and

failure to instruct the jury as to the range

of punishment for a charged offense are

highly prejudicial errors. .............::csceeeeeee 11

a petectaaeccale assscbilaiasaialeiiaine 14

APPENDIX

: Order of the Supreme Court of Virginia denying

Petition for Writ of Error dated March 4,

SRE EER SE nT Sa LE ee la

Opinion and order of the Circuit Court of Rock-

ingham County dated August 7, 1972 .............. 2a

s — RG YEE AED IEG ONE AREER BOE ELBE © a NG SEE A IOAN PPAR LEON ASSES Fae

ii

PAGE

TABLE OF AUTHORITIES

Abbott v. Mines, 411 F.2d, 353(6th Cir. 1969) ...... 5, 6

Adams v. Illinois, 405 U.S. 27801972) ...cccceceeeeeeees 8

Arsenault v. Massachusetts, 393 U.S. 5(1968) ........ 9

Ballard v. United States, 329 U.S. 187, 195(1946) .... 5

Brown v. Allen, 344 U.S. 443, 474(1953) ........e 6

Bruton v. United States, 391 U.S. 123(1968) .......... 9

Cabaniss v. Commonwealth, 203 Va. 330, 143 S.E.2d

ED iad snes esiienenmeaaeimminueamaete 12

Carson v. United States, 147 F.2d 437(9th Cir. 1944) 13

Carter v. Jury Commissioners, 396 U.S. 320, 322,

a clccesiatecesennaiialaimeaaninns 6

Cleveland Board of Education v. LaFleur, 94 S.Ct.

se cali 7, 8, 10

Desist v. United States, 349 U.S. 244, 249(1969) .... 9

Doughty v. Maxwell, 376 U.S. 202(1964) .....:.sse00 9

Douglas v. California, 372 U.S. 353(1963) .........+ 9

Duncan v. Louisiana, 391 U.S. 145(1968) ............00 5

Fernandez v. Texas, 347 U.S. 475, 477, 478(1954) .. 6

Frontiero v. Richardson, 411 U.S. 677(1973) .. 7, 8, 10

Gideon v. Wainwright, 372 U.S. 335(1963) ............ 9

Goessart v. Cleary, 335 U.S. 464(1949) .......cceeeeee 7

Griffin v. Illinois, 341 U.S. 12(1956) ........ cee eeeeeeeees 12

Healy v. Edwards, 363 F. Supp., 1110

SR ONG. 5 GREINER, GRO c REE Cee 5

In Re: Murchison, 349 U.S. 133, 136(1955) ............ 6

Johnson v. Louisiana, 406 U.S. 385(1973) .......... 5

Kahn v. Shevin, 42 U.S.L.W. 4591 (April 24, 1974) 7

Labai v. Bennett, 365 F.2d 398, cert. denied 386 U.S.

ERAS SADIE a snieai or <i torre remem errr ee 6

Linkletter v. Walker, 381 U.S. 618(1965) ...........0.. 8

McConnell v. Rhay, 392 U.S. 201968) «0... eeeceeeeeeee i)

Mempa v. Rhay, 389 U.S. 128( 1970) .......ccseeeeeeeeees 9

Miskumas v. Union Carbide Corp., 399 F.2d 847

EE SND > Succ Scrcadesecbaienebonticns 7

ill

Morris v. United States, 156 F.2d 525, 527 (9th Cir.

oh Sareea aie ee a anaaaaiae 13

Peters v. Kiff, 407 U.S. 493( 1972) ............csseeeeeee 7, ll

Quick v. Harris, 214 Va. 632, 202 S.E.2d 869

I Sa ra eek re cdianamsoninte 4, la

Reed v. Reed, 404 U.S. 71( 1971) «.........ceeeeeeee 7, 8, 10

Richards v. C ommonwealth, 161 Va. 1073, 171 S. E.

ao sa cptialoinnbnisininioen 12

Roberts v. Russell, 392 U.S. 293(1968) «0... sees 9

Screws v. United States, 325 U.S. 91(1945) ........... 13

Smith v. Crouse, 378 U.S. 584(1964) 0... ee 9

Smith v. Texas, Tes Se. 4.) ee 5

Stephens v. Cox, 449 F.2d 657(4th Cir. 1971) .......... ll

Stovall v. Denno, $88. 0).S. 29S, ZO7CIGET) ....0..2++---. g

Strauder v. West Virginia, 100 U.S. 303(1880) ...... 6

Thiel v. Southern Pacific, 388 U.S. 217(1946) .......... .

United States v. Levy, 153 F.2d 995 (3rd Cir. 1946) ..

United States v. Noble, 155 F.2d 315, 317(3rd Cir.

ANAM Poe Aa a Ao. Rie) or ee eee RE ae 13

White v. Crook, 251 F.Supp. 4 (M.D. Ala. 1966) .... 6

White v. Maryland, 373 U.S. 59( 1963) ............ssseee 9

Williams v. United States, 401 U.S. 646, 653(1971) 8, 9

Witherspoon v. Illinois, 391 U.S. 510, 519(1968) .... 6

Constitutional Provision:

United States Constitution

eee i Ae Throughout

Fourteenth Amendment ...............::sceeee Throughout

State Statutes:

Va. Code Ann. Sections 8-178 and 182 (Cum.

BUN, IIE: schicscceiessentasectideseesiatennnontnecbaauinness 2

Va. Code Ann. Section 8-181 (Cum. Supp. 1971) .. 3

Va. Code Ann. Section 17-30.1 (Cum Supp. 1970) 12

Va. Code Ann. Section 19.1-291 (Cum. Supp.

(REE APES RE REI no ac Sheerness Cid ire Mane 12

Other Authority:

The Defendant's Challenge to a Racial Criterion in

Jury Selection: A Study in Standing, Due —"

and Equal Protection, 74 Yar L.J. 919(1965) .... 7

Se eeramrse— Re a TS, ABR We ew eS ON ee

IN THE

Supreme Court of the Inited States

OcroserR TERM, 1973

Catvin JosepH Lawson, JR.,

Petitioner

v.

D. P. Epwarps, JrR.,

and

A. E. Stayton, JR.,

Respondents

> a ¢

PETITION FOR A WRIT OF CERTIORARI TO

THE SUPREME COURT OF VIRGINIA

The Petitioner prays that a Writ of Certiorari issue to

review a judgment of the Supreme Court of Virginia en-

tered on March 4, 1974, affirming an order dismissing a

Petition for Writ of Habeas Corpus entered by the Circuit

Court for the County of Rockingham, Virginia entered on

August 12, 1972.

Opinion Below

On March 4, 1974, the Supreme Court of Virginia an-

nounced that it was of the opinion that there was no rever-

sible error in the judgment of the Circuit Court for the

County of Rockingham, thus rejecting the Petition for

Appeal and refusing a Writ of Error in this case; the

effect of which was to affirm the judgment of the Circuit

Court for Rockingham County. The order of the Supreme

Court of Virginia and the Circuit Court for Rockingham

County are included in the Appendix, infra.

—_— GELATIN LE IR IT RSE TELE ER PN ON LTO IIE I A PREFER

2

i

Jurisdiction

The judgment of the Supreme Court of Virginia was

entered on March 4, 1974. The jurisdiction of this Court

is invoked pursuant to 98 U.S.C. $1257(3).

Questions Presented

1. Whether it was error to rule rule that Petitioner, a

male, had no standing to raise the issue of systematic ex-

clusion of women from his trial jury, particularly when he

was charged with rape and raised the defense of consent,

in violation of the Constitution of Virginia and the Sixth

and Fourteenth Amendmenst to the Constitution of the

United States?

2. Whether the failure to record an incident of trial

and the failure to instruct the trial jury as to the punish-

ment for one of the charged offenses constitutes highly

rejudicial error and a denial of Due Process and Equal

rotection under the Fourteenth Amendment to the Con-

stitution of the United States thus entitling Petitioner to a

new trial?

Statement of ‘the Case |

On July 24, 1970, Petitioner, a male, was tried by a

jury selected from the master jury list for Rockingham

County, Virginia upon the felony charges of rape and

abduction with intent to defile. At that time, under Va.

Cope. ANN. §§ 8-178 and 182 (Cum. Supp. 1970), any

- housewife, notified by the jury commissioners that she had

been chosen for the master jury list, could advise the com-

missioners that she did not wish to serve and her name

would be removed from the master jury list. Further, the

list was chosen by jury commissioners having taken an

oath that persons selected from the master jury list be

Riera

2 ELL UNO ENR IOS EE AEE BA 5 OR le KI

3

believed by the Commissioners to be of good repute for

intelligence and honesty. Va. Cove Ann. §8-181 (Cum.

Supp. 1971). As a result, the master jury list for Rock-

ingham County contained only 23 women out of 307 per-

sons and from this disproportionate array there were 22

jurors of the venire summoned and present, three of whom

were women. From the venire summoned, the actual panel

of twelve was chosen and none of these persons were

women; all were men.

For unknown reasons the recording of the July 24, 1970

trial did not begin until after the indictments had been

read, the plea entered, and the jury selected. There was

no evidence that a charge to the jury or the indictment

itself was read to the jury at the beginning of the trial; and

no evidence that the penalty limits to be imposed upon

conviction were specified for the rape charge. If a charge

was read, it was read prior to the recording device being

turned on.

When the jury was given its instructions by the court

at the conclusion of the evidence, they were instructed as

to the range of punishment for abduction with intent to

defile, but not as to the range of punishment for rape.

Lawson was found guilty of the felonies of abduction with

intent to defile, for which he received a penitentiary sen-

tence of six years, and rape, for which he received a peni-

tentiary sentence of ten years.

Lawson filed a Petition for Writ of Habeas Corpus in

1972 in the Circuit Court of Rockingham County, Virginia

alleging the above stated facts and praying to be released

or retried. At a hearing held on July 10, 1972, George W.

Kemper, Circuit Court Clerk for Rockingham County, and

Jack F. DePoy, Commonwealth Attorney for Rockingham

County, testified that they had no conscious recollection of

the charges having been read at the beginning of the trial,

although the reading of the charge at the beginning of a

trial was the practice of the Circuit Court of Rockingham

SLANE ALIS LG MERE RE SE SITET GENE GEREN SEITE A TEMS, LORD PARTS pn ee ba WT i IN

a

4

County at that time. However, even if a charge of some

sort had been read, per custom, they could not state

whether a charge for rape had been read during the trial

of Calvin Lawson, giving punishment limits, or merely an

abduction charge, or both. Lawson’s Petition for a Writ

of Habeas Corpus was denied by the Circuit Court for

Rockingham County.

On March 4, 1974, referring to Quick v. Harris, 214

Va. 632, 202 S.E.2d 869(1974) decided the same day,

the SupremeCourt of Virginia found there was no rever-

sible error in the judgment of the Circuit Court for Rock-

ingham County, rejected Lawson’s Petition for Appeal and

refused to award a Writ of Error. By that opinion, the

Lg Supreme Court affirmed the judgment of the

Rockingham County Circuit Court.

A Petition for Writ of Certiorari is filed this day re-

uesting review in Quick v. Harris, 214 Va. 632, 202

.E.2d 869(1974) as well.

REASONS FOR GRANTING THE WRIT

1. Petitioner had standing to raise the issue of sex

discrimination in the selection of his trial jury.

The Court below ruled that, as a male, Lawson had no

standing to raise the issue of systematic exclusion of

women from his jury. Petitioner contends that the law is

plainly in support of his challenge to the exclusion of

women fram his jury; thus the lower courts erred in deny-

- ing him standing.

The error of the lower courts is particularly pi 8

in that Petitioner Lawson faced charges of the sex-related

crimes of rape and abduction with intent to defile and that

he depended upon a defense of consent. The distinctive

Mw

5

medly of views influenced by differences in biology, cul-

tural impact and life experience of women was an indis-

pensable ingredient for a fair and just fact-finding in the

Petitiouer’s case. Healy v. Edwards, 363 F. Supp, 1110

(E.D.La. 1973). The systematic exclusion of women can

not be justified on the grounds of saving them a distasteful

or embarrassing experience, Abbott v. Mines, 411 F. 2d

353 (6th Cir. 1969), nor on any other; their exclusion

was constitutionally impermissible.

Central to Petitioner’s argument is the case of Duncan

vy. Louisiana, 391 U.S. 145(1968), holding that a trial by

jury in serious criminal cases is fundamental to the Ameri-

can scheme of justice, and that the fourteenth Amend-

ment extends to the citizens of the states the Sixth Amend-

ment guarantee of trial by jury. When the Sixth Amend-

ment was extended in its application to the citizens of the

states in Duncan, it brought with it the full force of this

Court’s past Sixth Amendment interpretations. Johnson

v. Louisiana, 406 U.S. 385(1973). These past decisions

serve to interpret and clarify the minimum requirements

below which no constitutionally permissible jury may fall.

It is Lawson’s position that his jury was constitutionally

defective in that women had been systematically excluded

from participation. A brief review of the holdings of

pertinent decisions by this Court supports Plaintiff's con-

tention.

In a successful challenge to the exclusion of women

from jury service, this Court held that not only the sys-

tematic and intentional exclusion of a racial group, Smith

v. Texas, 311 U.S. 128(1940), or an economic class,

Thiel v. Southern Pacific, 388 U.S. 217(1946), but also

of one of the sexes, deprives the jury system of the broad

base it was designed to have in our democratic society.

Ballard v. United States, 329 U.S. 187, 195(1946).

Despite the Court’s reliance on its supervisory powers

6

of the federal courts and the resulting absence of a con-

stitutional footing, there can be no doubt about the essen-

tial quality attributed by the hoiding in Ballard to women’s

participation in jury processes. At page 194 of the Ballari

opinion, the Court suggests that participation by women

may be even more important than that of a racial group

or economic or social class. “. . . a distinct quality is lost

if either sex is excluded. Exclusion of one may indeed

make the jury less representative of the community than

would be true if an economic or racial group were ex-

cluded.” :

See also the line of cases beginning with Fernandez v.

Texas, 347 U.S. 475, 477, 478(1954); Brown v. Allen,

344 U.S. 443, 474(1953); in Re: Murchison, 349 US.

133, 136(1955); Labat v. Bennett, 365 F.2d. 398, cert.

denied 386 U.S. 991( 1967); Witherspoon v. Illinois, 39}

U.S. 510, 519(1968); Carter v. Jury Commissioners,

396 U.S. 320, 322, 333( 1970).

But out of these affirmations by the Supreme Court

as to the impermissibility of systematic exclusion of racial

groups, economic classes, or a sex grew questions of stand-

ing. Who had standing to challenge the exclusion of a

black person, a working person, or a woman? Must the

Petitioner be a member of the excluded group in order to

complain and seek redress in the Courts?

Ballard v. United States, supra, settled that women have

a right to be tried under a jury system free from discrimi-

nation against women, and it has been long settled that

the Equal Protection Clause of the Fourteenth Amend-

ment protects blacks from being tried by juries chosen by

discriminatory selection procedures against blacks. Strau-

der v. West Virginia, 100 U.S. 303(1880); See also

White v. Crook, 251 F. Supp. 41(M.D. Ala. 1966). But

it had been widely held by state and federal courts that a

white defendant did not have standing to raise procedural

defects that related to jury discrimination against blacks.

7

See The Defendant’s Challenge to a Racial Criterion in

Jury Selections A Study in Standing, Due Process, and

Equal Protection, 74 Yave L. J. 919(1965); Peters v.

Kiff, 407 U.S. 493, n4(1972). And further it had been

argued by many and upheld in some courts that the Equal

Protection Clause of the Fourteenth Amendment protected

against racial discrimination but not discrimination based

on sex. Goessaert v. Cleary, 353 U.S. 464(1949); Mis-

kumas v. Union Carbide Corp., 399 F.2d. 847(7th Cir.

1968).

Then in June of 1972 this Court ruled that a white state

court defendant had an absolute right to trial by a jury

selected without racial discrimination against blacks.

Peters v. Kiff, 407 U.S. 493(1972). The lead opinion of

three justices also plainly implies that any criminal de-

fendant would have standing to object to the sysytematic

exclusion of women from his jury:

Thus, if the Sixth Amendment were applicable here,

and Petitioner were challenging a post-Duncan petit

jury, he would clearly have standing to challenge the

systematic exclusion of any identifiable group from

jury service.

Peters v. Kiff, supra.

This language buttressed by the Supreme Court decision

in Reed v. Reed, 404 U.S. 71(1971) making it clear that

the Equal Protection Clause extends protection to women

from discrimination based on sex leads to the inescapable

conclusion that a male has standing to raise female exclu-

sion from the jury process. See also: Frontiero v. Rich-

ardson, 411 U.S. 677(1973), and Cleveland Board of

Education v. LaFleur, 94 S.Ct. 791(1974)

This Court has recently decided the case of Kahn v.

Shevin, 42 U.S.L.W. 4591 (April 24, 1974) ruling that

8

a Florida statute giving widows, but not widowers a $500

property tax exemption does not unconstitutionally dis-

criminate against widowers on the basis of sex. This hold-

ing is distinguished from Reed, Frontiero and Cleveland

Board of Education, supra, in that Florida was not denying

substantive and procedural benefits to one sex and not the

other. Further, the challenged Florida statute in Kahn is

a state tax law. The Court has long recognized that the

States have large leeway in making classifications and

drawing lines which in their judgement produce reasonable

systems of taxation.

However, the question has been raised to as wether or

not Peters v. Kiff should be accorded retroactive effect so

as to extend coverage to convictions taking place before its

decision date as is true in the instant case.

Retroactivity

Peters v. Kiff plainly falls within that category of

cases which should be given retroactive application. This

Court has fashioned a rule stating that in cases “where

the major purpose of new constitution doctrine is to over-

come an aspect of the criminal trial that substantially

impairs its truth finding function and so raises serious

questions about the accuracy of guilty verdicts in past

trials, the new rule has been given complete retroactive

effect.” Williams v. United States, 401 U.S. 646, 653

(1971); Adams v. Illinois, 405 U.S. 278, 280(1972).

Nothing is more essential to the reliability of the fact-

finding or truth-determining process, than a properly

selected jury.

In other opinions dealing with retroactivity, the ap-

proach mandated by Linkletter v. Walker, 381 US.

618(1965) has come to be summarized in terms of a

three-fold analysis directed at discovery of:

1. the purpose to be served by the new standard,

9

2. the extent of reliance by law enforcement authorities

on old standards, and

3. the effect on administration of justice of retroactive

application of the new standards.

Stovall v. Denno, 388 U.S. 293, 297(1967), Desist v.

United States, 394 U.S. 244, 249(1969). By either the

test of VWiilliams v. United States, 401 U.S. 646(1971)

or Stovall ». Denno, 388 U.S. 293, 297( 1967), Peters v.

Kiff is appropriate for retroactive application.

Among the rules that have been held to be appropriate

for retroactive application are:

Gideon v. Wainwright, 372 U.S. 335(1963) (right to

counsel), held retroactive in Doughty v. Maxwell, 376

U.S. 202(1964);

Bruton v. United States, 391 U.S. 123(1968) (right to

confront and cross examine witnesses), held retroactive

in Roverts v. Russell, 392 U.S. 293(1968);

Douglas v. California, 372 US. 353(1963) (right to

counsel on appeal), held retroactive in Smith v. Crouse,

378 U.S. 584(1964};

Mempa v. Rhay, 389 U.S. 128(1970) (right to counsel

at sentencirg) held retroactive in McConnell v. Rhay,

392 U.S. 2(1968);

White v. Maryland, 373 U.S. 59(1963) (right to coun-

sel at preliminary hearing in which substantial rights

may be adversely affected), held retroactive in Arsen-

ault v. Massachusetts, 393 U.S. 5(1968).

The right to a jury selected without systematic exclusion

on the basis of sex in the instant case rises to at least the

level of importance as the above-mentioned rights.

SPE EI IS PRL SS TL LT AG NE ELT ET ERI IPA LEE AGI

10

A Case of First Impression

Although the Peters v. Kiff decision involved a three,

three split among the six majority justices, the plurality

lead opinion in Peters provides the basis for the result

Petitioner seeks here. This Court is facing squarely for

the first time the question of whether a male Defendant

in a rape case may challenge the systematic exclusion of

women from his or her jury. This case also presents the

larger question of whether any Defendant may challenge

the systematic exclusion of any identifiable group from

his or her jury.

Petitioner contends that the state cannot subject him

to a jury that is plainly illegal and give hirn no recourse.

Just as this court had never before considered a white de-

fendant’s challenge to systematic exclusion of blacks from

his jury prior to Peters v. Kiff, so too, this Court has never

before considered a male’s challenge to the systematic ex-

clusion of women from his jury in a rape case prior to the

instant case. In this first case the Court should grant Pe-

titioner a writ, reverse the decision of the Virginia Su-

preme Court and announce the rule that a man has stand-

ing to challenge the systematic exclusion of women from

his jury.

Two important and emerging doctrines meet in this

case. The first of course is the non-member standing rule

of Peters, supra. The other is the growing recognition of

sex discrimination as forbidden by the Fourteenth Amend-

ment. Reed v. Reed, 404 U.S. 71(1971); Frontiero v.

Richardson, 411 U.S. 677(1973); Cleveland Board of

Education v. LaFleur, 94 S.Ct. 791(1974). Here, curi-

ously enough a male suffers the sex discrimination com-

plained of. Were the Petitioner a woman, the Common-

wealth of Virginia would not dispute that Petitioner would

have standing to raise the issue of jury selection which is

the subject of this attack. Because Petitioner is a male,

he was not permitted by the Virginia courts to raise the

PERLE POL CLONE TLIO SE ELEC ETS SEBEL, ERA te CANES TEEN

1]

issue. There is no valid reason for the distinction, espe-

cially when, as here, in a sex related crime, the presence

of women on the jury is essential to a fair trial.

Granted Standing, Petitioner Should Prevail on the Merits

Once it is conceded by the retroactive application and

construction of Peters v. Kiff or by the announcement of a

new rule from this case of first impression that Lawson

is entitled to raise the sex discriminattion question, we

must turn our attention to the merits of the claim. On the

merits, the case is plainly made. Even at the beginning,

when a “tentative selection” for the master jury list was

made, only 33% of the jurors on the prospective list were

women. Over 50% of the population in the jurisdiction

were women at this time. Thus, even at the very first

step in the jury selection process, there was a disparity of

17%. See Stephens v. Cox, 449 F.2d 657 (4th Cir.

1971).

After the women notified returned their refusals as per-

mitted by Virginia statute, only 23 women remained on

the list of 307 persons. This is less than 8% women of the

total jury list.

From the total jury list, a venire was chosen. There

were twenty-two persons from the venire present on the

day of Petitioner’s trial; three of whom were women. The

actual panel of twelve jurors was chosen from the venire

and not one of the jurors was a woman. This is plainly a

showing of discrimination. The Commonwealth bears the

burden of refuting it and having failed to do so, the Peti-

tioner is entitled to relief. Stephens v. Cox, supra.

2. Failure to record an incident of the trial and

failure to instruct the jury as to the range of punish-

ment for a charged offense are highly prejudicial

errors.

12

Va. Cope ANN. $17-30.1 (Cum. Supp. 1970), spells

out clearly the requirement that the incidents of trial and

the evidence must be recorded. It is undisputed that the

reading of the charge and the range of penalty to the jury

are incidents of trial. /d. Thus the trial court failed to meet

its obligation under Virginia statute and the inability of

the Court to be able to provide a full transcript entitles the

defendant to a new trial. ‘This was settled in Cabiness v.

Commonwealth, 203 Va. 350, 143 S.E.2d 911(1965),

which jn turn relied upon this Court’s decision in Griffin

v. Illinois, 351 U.S. 12(1956).

Certainly the failure to record the reading of any charge

to the jury was doubly important in the instant case be-

cause the trial court also failed te instruct the jury as to

the range of punishment for rape before the jury’s delibera-

tions. In Virginia, and unlike the federal system, the jury

is responsible for fixing the sentence of a convicted de-

fendant. Va. Copr ANN. $19.1-291, (Cum. Supp. 1970).

At .ae conclusion of the presentation o the evidence in

Petitioner’s trial, Judge Haas instructe’. the jury on the

penalties for abduction with intent to defile and a lesser

included offense of abduction, but he failed to instruct the

jury on the penalty for rape. There is no evidence that

the jurors were ever told such matters at the beginning of

the trial; as far as the record shows, they were never in-

structed as to the permissible range of penalties for rape.

In Richards v. Commonwailth, 161 Va. 1073, 171 S.E.

525(1933), the Virginia Supreme Court dealt with a set

of jury instructions that included penalties which failed

to conform to the charge. The Court reversed the con-

viction, fearing that the jury could have been misled by

the instructions which did not clearly set forth the range

of penalties in the case at bar. The court so ruled, even

though the verdict rendered did fall within the permissible

range. It was the possibility of misleading the jury that

led to a reversal.

Here this situation is very much the same. As far as

BES LBL IS MOREL MILE LRA ILL PEED LPR TILEY IAMS EBM Ni

|

13

the record shows, the jury did not know what the permis-

sible range of punishment was and could very well have

been motivated by an erronecus belief that the minimum

sentence for rape was ten years.

Because in the federal system the jury does not bear

the responsibility for sentencing, there is no direct auth-

ority on which to rely. The most ready analogy is the

failure of the federal trial judge to instruct the jury as

to the nature and elements of a charged offense or the

statutes and regulations defining and governing an offense.

Circuit Judge Maris has written:

We think it is self-evident that a jury can not perform

its duty of determining the guilt or innocence of a

defendant accused of a crime unless they know the

essential elements of the crime which he is alleged

to have committed. We think it equally self-evident

that the only appropriate source of that knowledge is

the trial judge. . . . it was because of the failure of

the trial judge to give this necessary guidance to the

jury that we recently reversed the judgment of con-

viction in United States v. Levy, 153 F.2d 995(3d

Cir. 1946).

United States v. Noble, 155 F.2d 315, 317(3d Cir. 1946).

See also Carson v. United States, 147 F.2d 437(9th Cir.

1944) and Screws v. United States, 325 U.S. 91(1945).

Such errors have been considered so fundamental and

plainly prejudicial as to merit review even in the absence

of an assignment of error. Screws v. United States, supra,

at page 107; Morris v. United States, 156 F.2d 525, 527

(9th Cir. 1946).

In the instant case, the failure to record an incident of

trial and the failure of the trial judge to instruct the jury

as to the permissible range of punishment for a charged

offense is fundamental and highly prejudicial. This is a

denial of Due Process and Equal Protection under the

oo Amendment and Petitioner is entitled to a new

trial.

14

CONCLUSION

For the reasons set forth abo~e, this Petition for

Certiorari should be granted.

Respectfully submitted

Joun C. Lowe

Lowe and Gordon, Ltd.

1111 West Main Street

Charlottesville, Virginia 22903

F. Guturie Gorpon, III

Lowe and Gordon, Ltd.

1111 West Main Street

Ckarlottesville, Virginia 22903

Attorneys for Petitioner

June 2, 1974

MAILING CERTIFICATE

I hereby certify that on or before the 2nd day of June,

1974, I mailed three true copies of the foregoing Petition

for Writ of Certiorari to The Honorable Andrew P. Miller,

Attorney General of Virginia, Supreme Court Building,

Richmond, Virginia, and three copies to Robert E. Shep-

herd, Jr., Esquire, Assistant Attorney General, Life of

Virginia Building, Richmond, Virginia.

/s/John C. Lowe

Joun C. Lowe

Attorney for Petitioner

— PORE ESLER EN LINEN LNT NERS IMI A PTR UNE

OT OPC NINA eR RN

APPENDIX

aia

ne eet

APPENDIX

Order of the Supreme Court of Virginia denying

Petition for Writ of Error dated Mare® 4, 1974

VIRGINIA:

IN THE SUPREME COURT OF VIRGINIA HELD

AT THE SUPREME COURT BUILDING IN THE

CITY OF RICHMOND ON MONDAY, THE 4TH

DAY OF MARCH, 1974.

The petition of Calvin Joseph Lawson for a writ of

error to a juagment rendered by the Circuit Court of

Rockingham County cn the 7th day of August, 1972, in

a certain proceeding then therein pending, wherein Cal-

vin Joseph Lawson was the petitioner and D. P. Edwards,

Superintendent of the Bureau of Correctional Field Units

and another were respondents, 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, doth reject said petition, and refuse said writ

of error, the effect of which is to affirm the judgment of

the said court. See Quick v. Harris, Sheriff, etc., et al.,

2i4 Va, ——., this day decided.

A Copy,

Teste:

/s/ H. G. Turner

Clerk

LEPTIN TRAN NRG EN EEA IT IE, MOIR NE TITRE MERRY WEMILT SOE BRE APL ACID STUNNER TPN Ses i REDACTED

-- ae ~—~

2a

Opinion and Order of the Circuit Court of Rock-

ingham County dated August 7, 1972.

VIRGINIA:

In the Circuit Court of Rockingham County

CALVIN JOSEPH LAWSON

Petitioner

v.

D. P. EDWARDS, Superintendent

Bureau of Correctional Field Units

and

A. E. SLAYTON, JR., Superintendent

Virginia State Penitentiary

Respondents

OPINION AND ORDER

This proceeding came on io be heard on July 10, 1972,

upun tie getline ane steeieatite Gansta. of ES

Lawson for a writ of habeas corpus and the answers of

respondents, the petitioner appearing in person and by

John C. Lowe, Esquire, counsel of his own choosing, and

the respondents appearing by Robert E. Shepherd

Assistant Attorney General. Whereupon the

hereof, and, for the reasons stated from the bench during

rse of and at the conclusion of that hearing, the

:

LO EG ON POI EE <a wet

3a

Court is of the opinion that the writ should not issue as

prayed.

It is, therefore, ADJUDGED and ORDERED that the

petition for a writ of habeas corpus be, and it is hereby,

denied and dismissed, the writ discharged, and the peti-

tioner remanded to the custody of the respondents, to all

of which action of the Court, the petitioner, by counsel,

objects and excepts.

Let the Clerk of this Court certify a copy of this order

to the petitioner, the respondents, counsel for the petition-

er, and to Robert E. Shepherd, Jr., Assistant Attorney

General of Virginia.

Enter this 7th day of August, 1972

/s/ Joshua L. Robinson

Judge

I ask for this:

/s/ Robert E. Shepherd, Jr.

Counsel for Respondent

Seen and objected to:

/s/ John C. Lowe

Counsel for Petitioner

OE DE SES AE oe RE a