Opposition Brief — Jack F. Davis, Director, Department of Corrections (Formerly James F. Howard, Director, Division of Corrections) and K. R. Purvis, Superintendent, Southampton Farm v. Nelson James Lewis 421 U.S. 999 (1975) (No. 74-750)

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{ JAN 13 197%

SUPREME COURT OF THE UNITED STATES

i October Term, 1974

JACK F. DAVIS, Director, Department of Corrections

(Formerly James F. Howard, Director, Division of Corrections)

and K. R. PURVIS, Superintendent,

Southampton Farm,

Petitioners,

v.

NELSON JAMES LEWIS,

Respondent,

BRIEF IN OPPOSITION TO A PETITION FOR A WRIT OF CERTIORARI

TO THE JUDGEMENT OF THE UNITED STATES COURT OF APPEALS FOR

THE FOURTH CIRCUIT

L. B. CHANDLER, JR.

Chandler and Huff

415 Park Street

Charlottesville, Virginia 22901

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TABLE OF CONTENTS Page

PRELIMINARY STATEMENT 1

STATEMENT OF THE CASE 9

ARGUMENT: F

I. The Fifth Amendment Protection Against Being

Placed Twice In Jeopardy Of Life And Limb For The

Same Offense Applies Through The Fourteenth

Amendment To State Juvenile Court Proceedings. = &

II. The Respondent, Nelson James Lewis, Having Ex-

hausted The Remedie:s Available To Him In The State

Courts Of Virginia Was Properly Awarded A Writ Of

Habeas Corpus From The United States District

Court For The Western District Of Virginia

a

CONCLUSION 7

CERTIFICATE OF SERVICE 7

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PL npn Bee ch

TABLE OF CITATIONS

Cases Page

Anonymous v. Superior Court of Pima, 10 Ariz.

Jones v. Breed, 497 F 2d 1160 (9th Cir. 1974) 4,5

Richard M. v. Superior Court Of Shasta County,

4 Cal. 3rd 370, 482 P. 2d 664 (1971) 4

Rouzie v. Commonwealth 215 Va. 174 (1974) ea

State v. Gibbs, 94 Ida. 108, 500 P 2d 209(1972)_ = (ass 4

Tennessee v. Jackson, 503 S. W. 2d 185 (1973) 4

Tolliver v. Judges of Family Court, 298 N. Y.S. 2d 237

(1969) +

United States v. Jorn, 400 U. S. 470 (1971) 4

App. 253 457 P 2d 956 (1959) 4

pes v. Swenson, 397 U. S. 436 (1970) 4

Benton v. Maryland, 395 U. S. 784 (1969) 4

Collins v. State 429 S W 2d 650 (1968) 4

Ex Parte Lange 18 Wall (85 U.S.) 103 (1874) 4

Fain v. Duff, 488 F2d 218 (5th Cir. 1973) 4,5

Greene v. United States, 355 U. S. 184(1957) 4

Howard v. Lewis, Case No. 74-1568 (4th Cir. 1974) 5

In Re Gault, 387 U. S. 1 (1967) 4,5

In Re Winship 397 U. S. 358 (1970) 5

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Constitutions and Statutes

United States Constitution, Amendment V

United States Constitution, Amendment XIV

28 United Stated Code Section 2241

28 United States Code Section 2254

Other Authorities

Sigler, ““A History of Double Jeopardy”. 7 Amer. Jour.

Legal History 283 (1963)

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In The

SUPREME COURT OF THE UNITED STATES

October Term, 1974

JACK F. DAVIS, Director, Department of Corrections

(Formerly James F. Howard, Director, Division of Corrections) ;

and K. R. PURVIS, Superintendent, ;

Southampton Farm,

Petitioners,

NELSON JAMES LEWIS,

Respondent, i

BRIEF IN OPPOSITION TO A PETITION FOR A WRIT OF CERTIORARI

TO THE JUDGEMENT OF THE UNITED STATES COURT OF APPEALS FOR

THE FOURTH CIRCUIT

PRELIMINARY STATEMENT

Nelson James Lewis, the Respondent, prays that the

petition for a Writ of Certiorari to the judgement of the United

States Court Of Appeals for the Fourth Circuit entered on

November 4, 1974, in the case styled Nelson James Lewis v.

James F. Howard, Director and K. R. Purvis, Superintendent,

Southampton Farm, be denied.

STATEMENT OF THE CASE

The respondent, Nelson James Lewis, adopts the statement

of the case as set out in the petitioners statement of the case.

However, the respondent wishes to point out to the Court, that

on June 9, 1972 at the adjudicatory hearing in the Eighth

Regional Juvenile and Domestic Relations Court in the City of

Charlottesville, Virginia, the Judge of that Court, after hearing

evidence on the merits of the case, did enter a finding of “true”

on all three petitions.

ARGUMENT

I.

The Fifth Amendment Protection Against Being Placed Twice

In Jeopardy Of Life Or Limb For The Same Offense

Applies Through The Fourteenth Amendment To State

Juvenile Court Proceedings.

The Commonwealth in its petition attempts to characterize

, the proceedings in the juvenile court within the context of a

+ waiver hearing, and states that “The action of the juvenile court

> was roughly analagous to the action of a judge of a Court not of

+ record holding a preliminary hearing in a criminal case and dis-

_ missing the charge”. (Commonwealth’s petition, page 24)

+ However, the Honorable District Court Judge in his opinion

recognized that the proceedings were much more than a mere

>) waiver proceeding, and that the petitions against Nelson James

| Lewis were adjudicated to be true, and that he was committed

> to the State Department of Welfare and Institutions.

j It is submitted that once the juvenile court judge entered the

» adjudicatory stages of the proceedings, and having heard the

case on its merits found the petitions to be true, that at this

point jeopardy attached. A finding of true within the Juvenile

Court System in Virginia is for all practical purposes akin to a

finding of guilty by a court trying an adult for any given

offense.

In attempting to equate a court not of record dismissing a

felony charge with a juvenile court’s decision to retain juris-

diction and dispose of the case on its merits, the Common-

wealth has not taken into account one serious difference in the

two proceedings. A court not of record conducting a prelimin-

ary hearing in Virginia on an adult felony charge is not hearing

the case on its merits which would result in a finding of guilty

or not guilty. Its sole purpose is to determine whether the

Commonwealth has proved probable cause to have the case cer-

tified to a grand jury.

Until recently, the Virginia Supreme Court had consistently

held that jeopardy does not attach in such a proceeding because

the court not of record lacks the jurisdiction to adjudicate a

felony charge on its merits. The situation in a juvenile court

however has always been quite different, in that the juvenile

court possessed the necessary jurisdiction to adjudicate the

felony charges against the Respondent, Lewis, on their merits.

A recent decision of the Supreme Court of Virginia has

held that jeopardy now attaches when a court not of record ina

preliminary hearing convicts the accused of a lesser included

misdemeanor offense, and that such a conviction is a bar to any

further prosecution of the original felony charge. Rouzie v.

Commonwealth, 215 Va. 174 (1974). In addressing an argu-

ment similar to one proposed by petitioner the Court at 179

said:

“Before concluding, we notice a final argument ad-

vanced by the Commonwealth: where the Commonwealth

seeks at a preliminary hearing to show only probable cause

of a felony, it would be ‘inequitable’ to permit a con-

viction of a lesser included misdemeanor to bar subsequent

prosecution of the felony. The ready answer to this argu-

ment is that any equity involved in a double jeopardy plea

inures to the benefit of the accused.”

1,

Pe PRS yt POE Hen EIR Se

The concept of double jeopardy is one deeply rooted in our

history. It can be traced back at least as far as the Greek and

Roman Empires, where it found expression in both the Digest

of Justinian and the Canon Law of the Roman Empire. See,

Jay A. Sigler “A History of Double Jeopardy”, 7 Amer. Jour.

Legal History 283 (1963)

This Honorable Court has defined the scope of the protec-

tion on numerous occasions: Ex Parte Lange, 18 Wall (85 U. S.)

163 (1874); Green v. United States, 355 U. S. 184 (1957);

Benton v. Maryland, 395 U. S. 784 (1969); Ashe v. Swenson,

397 U. S. 436 (1970) and United States v. Jorn, 400 U. S. 470

(1971). Your Honors have ruled that a defendent is placed in

jeopardy once he is “put to trial before the trier of facts, whether

the trier be a jury or a judge.”” United States v. Jorn supra at

479.

This Court has not yet decided whether double jeopardy pro-

tections apply to juvenile courts, but the trend of recent

decisions of inferior courts that have considered the question is

strongly in favor of application. Collins v. State, (Tex. Cir.

App.) 429 S. W. 2d 650 (1968); Anonymous v. Superior Court

of Pima, 10 Ariz. App. 253, 457 P. 2d 956 (1969); Tolliver

v. Judges of Family Court, 298 N. Y. S. 2d 237 (1969); Richard

M. v. Superior Court of Shasta Co., 4 Cal. 3rd 370, 482 P. 2d

664 (1971); State v. Gibbs, 94 Ida. 108, 500 P. 2d ---- 503 S. W.

2d 185 (1973); Tennessee v. Jackson and Avery, ---- Tenn. ----

503 S. W. 2d 185 (1973); Fain v. Duff, 488 F 2d 218 (5th Cir.

1973) and Jones v. Breed, 497 F 2d 1160 (9th Cir. 1974), cert.

‘granted No. 73-1995.

The petitioners attempt to characterize juvenile proceedings

as protective and not penal, civil and not criminal to support the

proposition that double jeopardy protections do not apply to

juvenile proceedings. However, this Honorable Court.on several

occasions has stated that due process rights cannot be denied

under the guise of semantic labelings.

In re Gault, 387 U.S. 1 (1967), this Court held that the mere

labeling of a juvenile proceeding as “civil” rather than “‘crim-

’ LO ER ORES FED AMIE

inal” could not be used as a rationale without more, for denying

due process rights of children. Three years later in Jn Re Win-

ship, 397 v.s. 358 (1970). This court made it clear that the

language in Gault that juvenile proceedings to determine delin-

quency ‘“‘must be regarded as ‘criminal’ for purposes of the priv-

ilege against self-incrimination,” 387 U.S. at 49, “stood for a

general condemnation of any deprivation of any due process

right if based merely on the simplistic argument that juvenile

proceedings are “civil” and that a charge of delinquency is not a

“crime.” The Supreme Court of Tennessee in State v. Jackson,

supra held that under the mandate of Jn re Gault, supra, the

state of Tennessee could no longer hold that the double jeo-

pardy protections do not apply to juvenile proceedings because

they are civil in nature and not criminal or penal.

The clear pattern that emerges from these recent decisions is

that one must look beyond euphemisms to the substance of the

juvenile proceeding. Attaching importance to labels such as

“civil” and “criminal” has been roundly condemned as a super-

ficial and inadequate means of determining what constitutional

protections are due. Whatever the label, the juvenile adjudi-

catory hearing is plainly a full fact-finding process, no different

in that respect from the adult criminal trial.

The United States Court of Appeals for the Fourth, Fifth

and Ninth Circuits have recently held that the double jeopardy

provisions of the Fifth Amendment apply to juvenile pro-

ceedings. See: Fain v. Duff, supra; Jones v. Breed, supra and

Howard v. Lewis (4th Cir. November 4, 1974).

The respondent was tried, convicted and sentenced within

the context of the juvenile court proceedings, and to try him

again as an adult is a classic case of a violation of his rights

under the Fifth Amendment not to be placed in jeopardy twice

for the same offense. The decision of The United States Court

Of Appeals For The Fourth Circuit should not be disturbed and

the petition for a writ of certiorari should be denied.

The Respondent Nelson James Lewis, Having Exhausted The

Remedies Available To Him In The State Courts Of

Virginia Was Properly Awarded A Writ Of Habeas Corpus

From The United States District Court For The Western

District Of Virginia.

In order to be entitled to a writ of habeas corpus, a peti-

tioner must meet certain requirements. First, he must be in cus-

tody in violation of the Constitution or Jaws or treaties of the

United States. See 28 United States, Code Section 2241 (c) (3).

The respondent was at the time of the filing of the writ in the

custody of the Virginia Department Of Corrections. He had

also alleged in his petition that he was being detained in viola-

tion of the Fifth and Fourteenth Amendments of the United

States Constitution.

In addition to the aforesaid criteria, a petitioner must show

that he has exhausted the remedies available in the Courts of the

state, or that there is either an absence of available state correc-

tive process or the existence of circumstances rendering such

process ineffective to protect the rights of the prisoner. See 28

United States Code Section 2254 (h).

The Honorable District Court Judge in his opinion, (p. 2),

specifically found that the respondent, Nelson James Lewis,

had exhausted his state remedies by having presented his claim

to the Supreme Court Of Virginia. Therefore, the criteria for

being awarded a writ of habeas corpus has been met by the res-

pondent. The Commonwealth in its petition asserts that the

District Court and The Court Of Appeals had to specifically find

that the state court procedures for hearing federal constitutional

claims were inadequate before a writ could issue from the Court.

Such an assertation is not supportable by the federal habeas

corpus statutes nor by any citations to relevant court decisions.

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CONCLUSION

For the aforementioned reasons it is respectfully submitted

that the Writ of Certiorari should not be granted, and that the

order of The United States Court Of Appeals For The Fourth

Circuit should be continued in full force and effect.

Respectfully submitted,

L. B. CHANDLER, JR.

Counsel for Respondent

Nelson James Lewis

415 Park Street

Charlottesville, Virginia 22901

CERTIFICATE OF SERVICE

I, L. B. Chandler, Jr., Counsel for the respondent Nelson

James Lewis, in the captioned matter and a member of the bar

of the Supreme Court Of The United States, do hereby certify

the on the 10th day of January, 1975, I mailed a copy of the

foregoing Brief In Opposition to a Petition for a Writ of Cer-

tiorari to the judgement of the United States Court of Appeals

for the Fourth Circuit by first class mail to Robert E. Shepherd,

Jr. Assistant Attorney General Of Virginia, Supreme Court-State

Library Building, Richmond, Virginia, 23219, Counsel for the

petitioners herein.

L. B. CHANDLER, JR.

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