# Petition for Writ of Certiorari — Lawson v. Edwards (No. 73-17999) > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385607_2199%3A1 ## Record - **Collection:** Supreme Court brief - **Document type:** Petition for Writ of Certiorari - **Published:** January 1, 1973 ## Text 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 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