BALDWIN v. NEW YORK

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Argument of William E. Hellerstein

Chief Justice Warren E. Burger: Number 188, Baldwin against New York.

If you'll give us just a moment to get ourselves collected Mr. Hellerstein, we'll be right with you.

You may proceed whenever you're ready.

Mr. William E. Hellerstein: Mr. Chief Justice and may it please the Court.

New York City, (Inaudible) which is comprised is the only jurisdiction in this country that denies to its citizens a right to jury trial for a crime punishable by as much as one-year imprisonment.

Indeed in the remaining 57 counties in the State of New York, a person is entitled to a jury trial of six requiring unanimous verdict.

Thus the question which this case brings to this Court whether Section 40 of the New York City Criminal Code Act set forth at pages 3 and 4 of our brief violates the Sixth Amendment as applied to the states in the Fourteenth in denying jury trial for what we deem to be a serious offense and also in view of the provision for jury trial elsewhere in the State of New York whether the Equal Protection Clause is so violated.

The records of facts in this case are relatively simple.

The appellant --

Justice John M. Harlan: (Voice Overlap) The equal -- I miss that, how does the equal protection argument (Inaudible)

Mr. William E. Hellerstein: Primarily Mr. Justice Harlan in that the State of New York making available to all its residents except those who reside in the City of New York, the right to a jury trial.

Justice John M. Harlan: That's it.

Mr. William E. Hellerstein: Yeah.

Chief Justice Warren E. Burger: What you're saying in effect is that every state must be exactly the same, every state, city, county?

Mr. William E. Hellerstein: Well, no Your Honor, I'm saying that where the state has undertaken to provide most of its citizenry apart from one city with the right to jury trial given what this Court has said in Duncan about the importance of right to jury trial as provided by the state.

Indeed in the deciding Duncan, this Court looked to the states to see how important that right was and they found that it was applied and provided for in all the states.

Chief Justice Warren E. Burger: Well, I was really just pushing your argument one step beyond that that once you have a fixed cutoff time in one state, the citizens of every other state which does not comply with that favorably is involved in an equal protection problem.

Mr. William E. Hellerstein: Well, that now I misunderstood Your Honor's question.

If that's all that's involved then there is no problem there because if New York is the only state which, New York City indeed, was the only state which has a problem that is before this Court namely right to a jury trial for a year then we don't have to equalize anything among the other states because this Court has already decided that a six-month period of time on an offense is petty and since all the other states do not deprive anybody of a jury trial for a years a time then there is no equalization required between New York and the rest of the country.

There is equalization required between New York City and the rest of the state, but I would like to get to the equal protection argument a bit later.

Justice John M. Harlan: Well, that was a (Inaudible)

Mr. William E. Hellerstein: The record -- the facts were essentially very simple.

This defendant, appellant was convicted after a one-judge bench trial for the crime of jostling and sentenced to one-year imprisonment.

The evidence in the case was that he was observed with his co-defendant crowding a woman on an escalator and the (Inaudible) terminal.

The arresting officer said that he saw defendant take either a loose cash, money from the woman's handbag or a $10 bill.

A motion for a jury trial was made in the criminal court and it was denied.

The New York Court of Appeals by majority decision, five to two felt that this Court's decision in Duncan did not require a holding that one-year was a serious crime nor did it require any different holding on equal protection.

The justices who dissented, Justice Burke and Keating took a much different view and of course it's much more consonant with our position.

Essentially, our Sixth Amendment argument is really broken down to three parts.

We think that although Duncan did not decide this question, the thrust of Duncan, the logic of Duncan resolves the issue for us.

However, we also feel that if Your Honors would accredit New York's looking at its own historical experience to deprive the appellant of a jury trial that even under what we concede to be erroneous criteria, our argument still prevails.

And the people had misunderstood our argument on this point because they seem to say in their brief that we offer to the Court as an affirmative indication of our position.

We are saying that if we will force to it, we can win our case even under the criteria of New York Court of Appeals followed, even though we think its broad.

Thirdly, I think perhaps the ghost in the closet on this case has to be the question of the impact of the Court's decision on the criminal court, the problem in New York City because I really believe if this case had come from Casanovia, or people -- as the people would have it, this would not be a consideration.

Now, although the New York Court of Appeals spoke of the problems of New York criminal court on the equal protection issue, I can't help but feel and I would like to come to grips with that, end of the argument on Sixth Amendment lurking behind the problem this Court faces is the problem of the calendar chaos in New York criminal court.

Hence, looking towards the decision in Duncan, as I read the opinion, the Court looked to what it called the objective criteria, chiefly the existing laws and the practices of the nation to decide whether Louisiana's assault statute requiring a two year maximum of imprisonment was a serious or petty offense.

Looking to national criteria, the Court found that nowhere else in the land was a two-year of sentence of countenance without a right to jury trial.

Applying that method of analysis, the Court would arrive at the same conclusion with respect to New York City, namely that nowhere else in the land does the situation prevail in which a defendant faced with one-year imprisonment is denied a right to jury trial.

So Section 4 --

Justice John M. Harlan: How about the other states that gave a jury trial and the one-year, it must have been the type of the case and had (Inaudible)

Mr. William E. Hellerstein: Yes.

I think Mr. Justice Harlan you are getting to what the people -- I think hang their case on, I might say, namely that our position depends on whether we are entitled to a common law jury or not and I think that this is an error for the same reason that it was an error or at least a relevant decision in Duncan.

Primarily in Duncan, the Court, I think Mr. Justice Fortas in his concurring opinion in Bloom, Mr. Justice White's footnote, Mr. Justice Harlan's dissenting opinion all discussed whether the entire bag and baggage of the Sixth Amendment must come with the Duncan decision.

It's a question left opened in the Duncan.

The unanimous jury, the twelve-man jury, I think again that this is a question left open in this case and which -- one which we need not resolve because all and I think in depending on Duncan that we are asking for is some form a jury trial.

For instance in Louisiana after Duncan, the jury trial which is now provided is not a common law. Unanimous jury, is a five man jury for the one-year crime.

What Louisiana did is they knocked a lot of crime down to six months and for the ones that were over, they provided a five man jury.

I don't think the record in this case nor the issue on this case has to depend on whether a Sixth Amendment jury with all its bag and baggage is required.

What the New York Court of Appeals did therefore is they looked away from Duncan and at least read Duncan to authorize looking to its own historical experience, namely that in New York we have always considered a misdemeanor a petty offense and a felony a serious offense and that one-year decided which was which?

But the six-months cutoff nation with -- nationwide and even historically has much more support with respect to the issue of the jury trial than does the one-year cutoff upon which the people and the New York Court of Appeals based their opinion.

Chief Justice Warren E. Burger: Well, if we adopted your argument, this would preclude the idea of any states cutting back if -- as they had find juries, jury trials more difficult to administer?

Mr. William E. Hellerstein: I think Your Honor, it would preclude the state from denying a jury trial for anything more than a six-month period of imprisonment unless of course the Court upon reconsideration of a decision, it could be forthcoming in this case and in Duncan, might -- would reconsider on a full record what the problem warrants.

I think that its interesting in the people's brief, they attempt to call the Court's attention to the Minnesota experience with requiring a jury trial in a certain lesser crime situations by showing that there were delays that will result in.

Their brief doesn't reflect however the next two lines of the Minnesota Law Review Article which also discloses that the Bar Association of Minnesota in a response to the delay and the question of whether the decision of the Minnesota Supreme Court should remain in Vivo, recommend it that it was much more important to retain the jury system than to just disregard it as a result of some momentary shortage of space and the facility but I'd get to that again later.

Unknown Speaker: (Inaudible) cut off.

Mr. William E. Hellerstein: The sixth month cutoff has historical significance.

This Court in the Duncan mentioned the fact that for the most part in the 18th Century, the six-month cutoff with exceptions was a general experience.

Also, the reason why New York's experience doesn't really help is that New York's experience was not the only type of experience the colonies had had.

New York, New Jersey as late Justice Frankfurter in his article -- Mr. Cockrin point out are much harsher than the denial of trial by a jury than many of the other colonies.

So an attempt to locate in history exactly what's at stake is not really a fruitful thing but I think we've got the better of it in terms of the fact that there were and more lenient, there were more lenient policies in the colony.

I think its interesting that to note that at least two commentators, Professor Herbal in our brief think that the New York's denial of jury trial in serious and in petty offenses or serious offenses depending on where you place the label has something to do with the aristocratic structure of the colony.

I view the New York experience, although we affirmed consistently over the years by the Court, sort of a vestige of this old colonial policy.

The dissenting opinion as we do took the position that you couldn't tell even if you cannot look to the New York experience that the citizens of New York had not opted, had not felt that over six months was a serious offense.

For the reason that the legislature had given a jury trial elsewhere in the state and that in the recent constitutional convention, the elected representatives of the people drafted the constitution with a new provision which this Court called attention to in Duncan that would've limited the denial of the jury trial to a six-month period.

Of course the constitution was defeated as a matter of -- it was a package deal, nothing to do, I don't believe, I'm almost certain with the jury trial provision.

So I don't think the New York Court of Appeals is right in saying that New York citizenry does not view a one-year sentence as a serious crime.

Justice Potter Stewart: How long is this dichotomy existed between New York City and the rest of the state (Voice Overlap)?

Mr. William E. Hellerstein: This dichotomy has existed, it was -- the history of New York entirely until 1824 when the legislature cutback and said to the rest of the state, “We will provide some form of jury trial.”

Justice Potter Stewart: Up until 1824 --

Mr. William E. Hellerstein: 24, it was --

Justice Potter Stewart: -- it was all --

Mr. William E. Hellerstein: Right.

The one-year --

Justice Potter Stewart: Now it is --

Mr. William E. Hellerstein: Right.

Justice Potter Stewart: -- (Voice Overlap) the way New York City is now?

Mr. William E. Hellerstein: Its curios, now let me point out in our brief, it's interesting that in 1878, the New York Court of Appeals said when it confronted with the question of validity of that choice, we no longer can see the reason for denying a jury trial for citizens of New York.

Of course now, the reasons have become a bit more sanguine when I say, the city has grown and its problems have become so immense, but in 1878 when New York Court of Appeals not having, not feeling itself possessed of that equal protection argument just declined to answer the question on constitutional basis although it's not a violation of the New York State constitution and let it go at that but they commented that they couldn't see the distinction.

Justice Byron R. White: Is there a legislature pending in the New York (Inaudible)

Mr. William E. Hellerstein: No.

Not to my knowledge Mr. Justice (Voice Overlap) --

Justice Byron R. White: It was included in the constitution, the (Inaudible)

Mr. William E. Hellerstein: Yes.

And there have constant efforts by various groups to have it you know, but there's nothing pending that I know of in the state legislature.

The people have attempted to draw Your Honors' attention in their brief, I think that superficially, it has a lot of attractiveness but I think down deep, it really doesn't cut too deeply by trying to convince you that one-year as cutoff really has a lot of sense, a lot of historical sense in our national history.

But the one-year cutoff which they refer to really is a felony-misdemeanor distinction that goes to such things as the right to jury trial -- a right to indictment for this crime, the collateral effect of the conviction of a misdemeanor distinguished from a felony and the place of incarceration with respect to the both of them.

But it's interesting that this one-year distinction that they attempt to draw is not a distinction as drawn by any state except New York with respect to the right to jury trial.

For example, California still draws the distinction between felony and misdemeanor as a one-year crime in terms of who goes to what prison, but with respect to the jury trial, a common law jury is provided in California for traffic offenses.

So the one-year distinction as to the felony and misdemeanor really doesn't answer anything and combined with what I think to be a much more sensible and stronger historical six-month position really wipes itself out.

Chief Justice Warren E. Burger: Well, can we decide what the question raised under the constitution on the basis of what is sensible?

Mr. William E. Hellerstein: No.

I -- maybe I chose the wrong word Mr. Chief Justice, sensible to me means logically consistent with your prior decisions and I think what I'm suggesting here is logically consistent with the language and the thrust of Duncan.

The commentators who have analyzed Duncan have so read it and those are authorities cited in our brief.

I think since Duncan looked to the nation as a whole and said, “Let us see what they are doing in the other states” that that issue was resolved and the only thing that was left hanging was the New York situation.

The right to -- also to attempt to tie the one-year serious-petty to the incidence of the right to indictment can't work very well either because only eight states in this country guarantee the right to indictment.

Now most states which guarantee the right to jury trial which was set forth in our appendix don't really care about indictment and I would presume to say that if I thought there was one provision of the Bill of Rights that would probably not be incorporated apart from the Second Amendment would have to be the right to indictment.

Scholarship, the literature on the subject is against grand jury indictment rather than before and I think if any of the old cases perhaps has some longevity, it would be Hurtado.

Also the place of confinement in that 22 states as adversary recites, “Send their felons to state prison while misdemeanants go to county jail.”

I don't think there was any analytical words Your Honors.

Mainly because its only 22 states, but historically, this distinction arises out of concepts of infamy, concepts of finance, why should the local administration have to bear the cost of a serious felon where the state could take a more proper interest and indeed in New York, one of the blunders of the penal law even with its recent modification, is that felons can go to the county jail as we call the New York City penitentiary.

This is something the legislature would like to resolve, but right now, and as a matter of practice felons do go to Rikers Island which is the penitentiary.

So what -- you really don't as I see it get much mileage out of the distinction that has been drawn by the people.

The collateral effect are also time tried and historical.

A felon loses his right to vote in most states, in New York, right to public office, loss of civil right is a board category.

The misdemeanant, all he loses his possible right to livelihood, housing, employment, certain occupations.

The majority of the New York Court of Appeals thought this were not very important compared to the right to vote and the right to public office.

I think given the nature of the New York City criminal population, those people who faced with the misdemeanor conviction, loss of the misdemeanor collateral effect -- collateral consequences are much more severe and I would think certainly neutralized the Court of Appeals emphasis on the felony collateral effect.

I think the most difficult part of the case in terms of psychology of it in both below and perhaps here, is what the Court conceives of is probably New York City criminal court here.

New York City criminal court is in chaos and it has been in chaos for a long time to the extent, I don't know how I could convey to you the feeling I would like to if I could take you through our courthouses.

I've tried to document -- I would not dare make the claims I have made in my brief without documentation of what it is like, what the process of justice has become in our criminal court.

The turnstile feeling, the feeling by the minority population which participates very heavily in the criminal court or what it is like to have a judge to being a part and watch a judge decide his fifteenth case of the day.

The jury trial, the right to jury trial was meant I think by this Court, understood by this Court to protect a defendant against a judge for whatever the reasons maybe, from being casehardened, from being worn down by the system.

And the burdens the court as we've pointed out with the addition of new judges as we assumed the elimination of three-judge court would not create much more difficulty if any.

I don't think it makes any sense to permit New York to stop now and say we have courtrooms only so much -- judges only so much and we think we have enough judges for this and also one of the significant aspects of a jury trial system is a heavy incidence of waiver that it makes any sense to stop or permit New York to say we can now stop the 1969 with our facilities.

I think New York is capable and certainly its necessary for it to respond to what I think the Sixth Amendment requires --

Justice John M. Harlan: Am I right to understand that the present New York law in a case of this kind, the defendant will get a three-judge court as a matter of right by holding a court?

Mr. William E. Hellerstein: Yes.

Justice John M. Harlan: And then if he wants a jury, he has to go to the Supreme Court.

Mr. William E. Hellerstein: Yes.

Justice John M. Harlan: Which will be purely discretionary matter of a (Voice Overlap) --

Mr. William E. Hellerstein: It's exceptionally discretionary Your Honor.

It's a -- it's really titled a motion to remove and for leave to prosecute by indictment and jury trial, the law on that, the discretion which the courts have exercised isn't such an arbitrary.

I could get you decisions where the judges themselves say, “We have no guidance on this” and it is not a procedure that is used very often.

Just briefly then, the equal protection issue we think is a bit more difficult because people I think about -- put their hand on one possible weakness in our case and that is, if we are right on the Sixth Amendment, we're begging the question in a way because we've got the constitutional right.

We don't have to work out a classification problem.

Although I would suggest that if for some reason, I can't convince you, the Sixth Amendment takes us where we would like it that even without having the Sixth Amendment, where as I have said at the outset of my argument, the equal protection clause -- where the state does provide a right to jury trial, that right by its mere provision as this Court interpreted the state's practices in Duncan becomes a right of fundamental importance which then requires a rational and perhaps a compelling interest to deny a citizen within a state.

Chief Justice Warren E. Burger: Thank you Mr. Hellerstein.

Mr. Juviler.

Argument of Michael R. Juviler

Mr. Michael R. Juviler: Mr. Chief Justice and may it please the Court.

The boundaries of the petty offense category as Mr. Justice White said in Duncan against Louisiana are ill-defined if not ambulatory.

This case presents the opportunity to define those boundaries.

A subsidiary question raised by appellant's claims relates to the alleged denial of equal protection of the laws in the geographical classification adopted by the New York legislature.

I propose to rest entirely or almost entirely on our brief as to that issue, although I might perhaps say something about it in closing tomorrow morning.

The difficult question which the Court left open in Duncan as to the boundaries of the petty offense category does not have to be resolved without guidelines for indeed there have been substantial guidelines set down by this Court.

The Court has made clear that imprisonment of itself does not render an offense serious such as to require trial by jury.

It has also been stated unequivocally that an offense punishable by no more than six months imprisonment is a petty offense.

On the other hand, a crime punishable by two years is a serious offense, that was the holding in Duncan.

So we have essentially in this case a choice between the six-month cutoff proposed by appellant and the one-year cutoff which we urge upon the Court.

There is a temptation in choosing between these alternatives to what are priority judgment to say while this is serious or it isn't, I know it when I see it.

But there are extensive indications, there are extensive circumstantial evidence in the experience of the states in the federal system of justice which point predominantly to the one-year cutoff as the proper boundary, as an objective boundary.

Appellant claims that New York city in provisions for jury trials stands alone in the entire nation in withholding trial by a jury from offenses punishable by up to one-year.

But it is not that clear as Mr. Justice Harlan implied in his question to Mr. Hellerstein, there are juries and and there are juries and since the issue before this Court is a constitutional issue under the Sixth Amendment, we would best look to the constitutional law as to what is a jury trial.

That is a jury which consists of twelve persons rendering a unanimous verdict at a trial in the first instance.

This common law, Sixth Amendment jury is withheld in 13 states for trials of crimes punishable by up to one-year.

Thirteen states have adopted this boundary if it --

Justice Potter Stewart: It includes New York?

Mr. Michael R. Juviler: Including New York --

Justice Potter Stewart: Because out of New York City as I understand it the right is to a six-man jury?

Mr. Michael R. Juviler: The right is to a six-man jury in all of other counties for crimes punishable by up to one-year.

If the crime is punishable by more than one-year, there is right in the entire state to a common law Sixth Amendment jury.

And thirteen other states have the same boundary line between this hybrid jury which the states built free to experiment with for crimes punishable by up to a year and the full fledged common law constitutional jury for crimes punishable by more than one-year, by more than one-year.

Justice Potter Stewart: Now in a hybrid, you're including jurors -- a jury of less than 12 people and also you're including a trial de novo?

Mr. Michael R. Juviler: Yes there are for example 9 states in which there are fewer than twelve jurors for crimes punishable explicitly by no more than one-year, that is the explicit cutoff in 9 states.

In one state, a non-unanimous verdict can be rendered in a case punishable by up to one-year as the precise cutoff and in five states there is a trial de novo with a jury at the second trial for persons who are found guilty of crimes punishable by up to one-year as the expressly defined cutoff.

If you add this all together, its 15, but they're really are 13 separate states because some of the states have adopted several of these hybrid procedures.

Justice Thurgood Marshall: But the real problem with three judges and six jurors, is that the real problem?

Mr. Michael R. Juviler: The problem is that three judges or even 12 judges are not a jury.

They are not citizens, private citizens interposed between the accused and the Government and we do not urge that a three-judge bench is a jury of three persons.

We concede --

Justice Thurgood Marshall: Well, why have three instead of one?

Mr. Michael R. Juviler: That is a legislative determination in New York which is based on a long standing history and the --

Justice Thurgood Marshall: Well, I -- maybe you say that the difference is between the judge and the jury and now you've got a three judge bench?

Mr. Michael R. Juviler: I think it was felt Mr. Justice Marshall that in adopting a system which had no jurors at all there might be a ameliorating factor by interposing at the option of the defendant more than one judge so that you could have deliberations --

Justice Thurgood Marshall: And it would be more ameliorating with a jury of six?

Mr. Michael R. Juviler: No question and it would be even more with a jury of twelve.

But the question here is what the constitution requires New York City -- New York State or New York City to provide.

Justice Byron R. White: In the de novo states, what's the situation?

Mr. Michael R. Juviler: There are five states which provide a trial only de novo with a common law jury for crimes punishable by up to one-year, that's the cutoff.

If the crime is punishable by less than a year --

Justice Byron R. White: Well, what do you mean by de novo?

Mr. Michael R. Juviler: That means in the first instance, there is a trial --

Justice Byron R. White: Without a jury?

Mr. Michael R. Juviler: Without any jury or is in the case of Virginia which is one of these things, there are five jurors.

Then on appeal there is a full fledged common law jury of twelve for persons who have already been found guilty.

Justice Byron R. White: But the penalty is of the same possible (Voice Overlap) --

Mr. Michael R. Juviler: The penalty is the same, punishment by up to one-year.

Now of course as Mr. Justice White pointed out in Duncan, these procedures are subject to reconsideration as in the case that was ordered for review yesterday from Florida involving six jurors.

But we take the law as we find it and the prosecution can also find solace in the constitutional law as we find it.

At the moment, there are thirteen states which would be in violation of the constitution if this Court accepts the appellant's argument that a one-year sentence renders a crime serious under the Sixth Amendment.

There are only 6 states on the other hand which have adopted a six-month cutoff for the provision for a jury trial of any kind in the first instance.

And that is not a bulk -- a bulky evidence of a nationwide feeling of seriousness supporting the six months cutoff which appellant proposes.

Justice Byron R. White: What do the rest of the states do?

Mr. Michael R. Juviler: The majority of states provide for a common law jury at various levels of a sentence.

For example, in 18 states, including California, a full fledged jury trial is provided for any crime punishable by any imprisonment whatsoever, but since the choice here is between a six-month cutoff and a one-year cutoff, these provisions in 18 states which go far beyond what is required by the constitution offer no guidance as to which of these two cutoffs should be chosen by the Court.

California has made clear elsewhere in its law that there are two classes of crimes, felonies punishable by more than one-year in the state prison or penitentiary and misdemeanors punishable by up to one-year, one-year in the county jail but California has chosen in its legislative wisdom to apply a full fledged jury trial even for the petty offenses.

Justice Byron R. White: What about the other states?

I believe, it's what 13 -

Mr. Michael R. Juviler: We list a quite a few other states in our brief, in our argument and in our appendix, Mr. Justice White.

And we have broken them down by the specific cutoff shows that in each state, there are 18 states with a six-month cut -- with a -- no cutoff whatsoever, every crime is triable by a jury.

There is a handful of states, I think there are two states with a one month cutoff, crimes punishable by more than one month have a jury trial; two states with a three-month cutoff and only six with the six-month cutoff that the appellant proposes.

Justice Hugo L. Black: How many did you say requires a fair jury (Voice Overlap)?

Mr. Michael R. Juviler: Under the common understanding of the Sixth Amendment, twelve jurors rendering a unanimous verdict.

Justice Hugo L. Black: What state?

How many states?

Mr. Michael R. Juviler: Well, there are 18 states which provide such a jury in every criminal case regardless of the punishment.

There are two states in the three-month cases, two states in two, in one-month cases and only six states in six-month cases.

We do not hang our hats on the jury trial provisions that I have discussed contrary to the appellant's argument.

We recognize that we're dealing here with circumstantial evidence of seriousness and the jury trial provisions are merely one source of guidance to this Court.

We do point to the clear law relating to the prosecution of infamous crimes under the Fifth Amendment.

Infamous crimes are those punishable by more than one-year of imprisonment in the state penitentiary or at hard labor.

And this is --

Justice Hugo L. Black: Including New York?

Mr. Michael R. Juviler: Including New York and this is the federal system of justice incorporated in the federal rules of criminal procedure.

This is clear evidence we submit as to the content of serious crimes under the Sixth Amendment, particularly since both provisions in the Bill of Rights serve the same purpose and that is to prevent the arbitrary action of officials of the Government that Mr. Hellerstein has referred to, to protect the citizen against such action by the interposition of private citizens between him and the crowd.

Chief Justice Warren E. Burger: Well, isn't the adjustment of three judges aimed at the same - I believe what Mr. Hellerstein was talking about the arbitrariness of one judge?

Mr. Michael R. Juviler: Yes.

One of the purposes is to see that there are three persons brought to bear on the complaint against a defendant with their deliberations that if you have one judge who has a disposition for or against the defendant or a certain type of crime that will be ameliorated by two other finders of fact.

Chief Justice Warren E. Burger: Is the demand for a three-judge trial exercised frequently?

Mr. Michael R. Juviler: I would estimate in approximately 5 to 10% of the cases, perhaps 5 to 10% of the cases that are actually tried brought to trial.

The defendant in this case did not exercise that option.

There is a broad field of law in American jurisprudence pointing further to the one-year cutoff and that is the classification of crimes throughout the United States and in the federal system of justice.

In 28 states, and in federal courts, there is a felony-misdemeanor distinction and the misdemeanors are punishable by no more than one-year of imprisonment.

Now, this is not dispositive of this case, but it is some evidence as to the community's view in the nation as to the location of this boundary between two distinct classes of crimes, the petty offenses and the serious offenses.

There are other expressions of seriousness pointing to the one-year cutoff, many of which have come after this Court's decision in the Duncan case, many of which have been effective after the Duncan decision.

The Omnibus Crime Control and Safe Streets Acts provides a provision for eavesdropping by state law enforcement officials pursuant to court order and one of the categories of crimes that Congress has authorized to be the subject of electronic eavesdropping is crimes punishable by more than one-year of imprisonment, not six months of imprisonment.

The selection of petit jurors and grand jurors for federal prosecutions has been enacted by Congress after Duncan to exclude and disqualify from these panels persons convicted of crimes punishable by more than one-year, not more than six months.

These are the serious crimes which disqualify American citizens from sitting on a grand or petit jury in the federal system of justice.

The Uniform Criminal Extradition Act which has been adopted in 45 states, Section 14 of that Act which I've neglected to cite in the brief adopts also a one-year cutoff, not a six year cutoff for crimes which may -- for which fugitives may be apprehended without a warrant.

If he is a fugitive from a crime punishable by more than one-year, there may be an arrest for purposes of extradition without a warrant.

Now if the crime is punishable by up to one-year is considered not serious enough and therefore a judge has to issue a warrant.

Now this again is an item of circumstantial evidence guiding this Court in choosing between the six-month boundary and the one-year boundary.

Justice Hugo L. Black: You mean, guiding (Inaudible)

Mr. Michael R. Juviler: Pardon?

Justice Hugo L. Black: -- as I understand it?

Mr. Michael R. Juviler: Excuse me.

In guiding the Court in choosing between these two boundaries.

We do not urge that this issue is crystal clear.

If it were, we wouldn't be here today, the Duncan would've disposed of it.

But I think that the appellant has failed to point to any considerable body of evidence leading to the six-month cutoff.

The one-year cutoff is the predominant one.

It is true that in federal contempt cases, the Court in the exercise of this supervisory function over federal justice has seized upon perhaps out of desperation the six-month cutoff for the maximum penalty that maybe imposed without a jury and the Court was guided in that instance by Section 1 of Title 18 of the U.S. Code which define petty offenses as those punishable by up to six months.

But Congress, since those decisions, has enacted the Federal Magistrates Act which substantially changes the congressional view of seriousness of offenses and creates a new offense, the minor offense punishable by up to one-year and it removes the jurisdiction of such minor offenses from the Federal District Court to the federal magistrate.

If --

Justice Hugo L. Black: Isn't that highly relevant (Inaudible) in connection with the destruction of the constitution?

Mr. Michael R. Juviler: No.

I don't think it's highly relevant, but if you could -- if the Court puts all of these provisions together, the provisions for the common law jury in cases punishable by more than one-year, the provisions for classification of crimes that I have recounted to the Court, all of those together point to a predominant cutoff of one-year --

Justice Hugo L. Black: You mean a predominant sentiment?

Mr. Michael R. Juviler: A community sentiment rather than a judicial sentiment and as Mr. Justice Marshall pointed out in the Frank case in the last term of this Court, the difficult task of defining serious offenses should be undertaken without regard to the judicial sentiment, but rather with regard to some objective criteria as to how the national community views crimes.

Justice Hugo L. Black: (Inaudible)

Mr. Michael R. Juviler: By the legislative enactments by the judicial decisions and to some extent by the history of the administration of justice in the various states.

Chief Justice Warren E. Burger: I take it you wouldn't be making these points except that your friend has urged a different drawing on these sources for a different cutoff date?

Mr. Michael R. Juviler: I think that they not only rebut Mr. Chief Justice the appellant's arguments but they point the Court towards the one-year cutoff provision because this is the real choice, is it going to be six months or is it going to be one-year.

If the sentiment were the answer, I think --

Chief Justice Warren E. Burger: Well, if the third alternative --

Mr. Michael R. Juviler: The third alternative --

Chief Justice Warren E. Burger: -- or is it going to be left to the states?

Mr. Michael R. Juviler: If that alternative is adopted I suppose there would be some limits on the state, for example the State of Louisiana chose a two-year cutoff and that was deemed to be impermissible under the Sixth Amendment.

But the state we urge can chose a cutoff which is not far out of line with the prevailing standards of seriousness and the one-year cutoff is the prevailing standard, the six-month cutoff is out of line.

The other alternative is to say that in every criminal case as two members of the court have said, where there is any imprisonment prescribed whatever the defendant is entitled to a trial by a jury because as to him, that is a serious offense.

But the Court has reject -- the majority of the Court has consistently rejected that approach and so we urge that guided by these objective criterion, the Court, he simplest and most substantially based decision would be to accept the one-year -- accept the state provision providing for a one-year cutoff.

Chief Justice Warren E. Burger: You have about seven minutes and we'll continue and let you get back to your homes tonight.

Rebuttal of William E. Hellerstein

Mr. William E. Hellerstein: Thank you Mr. Chief Justice.

I only have three matters I think of.

Mr. Juviler has tried to tell you that Congress has placed a different emphasis on what a serious -- I'm not quite so sure that -- it was Justice Black that suggested it's relevant but even if it were relevant, it's not quite that accurate for the following reasons.

In Duncan, this Court pointed to Title 18, Section 1, six-month cutoff and said in a way indicia of Duncan by it be whether the case were triable in the federal court.

That Title 1 still remains, still stands very similar to the New York penal law, the New York's structure of the penal law both prior to the revision now.

The Federal Magistrates Act which Mr. Juviler speaks off, the rights of it has not changed anything at all with respect to the availability of a right to jury trial, putting aside constitutional considerations, the validity of the Magistrates Act because it may erase problems of non-Article 3 courts.

But the fact is that even under the Federal Magistrates Act which has the new classification, you are still entitled to a jury trial for anything over six months.

Mr. Chief Justice asked the question about the three-judge court and the demand how frequently and I don't know if its proper for me to comment on this since there is nothing in the record but if -- as member of the bar in this attorney joint legal society, I feel at least obligated to tell the Court that in the hall below, the criminal court system, there is a pressure upon defendants not to seek a three-judge court.

This is one of the things that doesn't -- to turn to plea bargain, namely what the defendant give up with respect to a plea.

A three-judge court is not a highly local thing among the people who must work with the court. And lastly, I would only point out that in Frank, Mr. Justice Marshall wrote for the Court the maximum term of imprisonment even though there was a three year provision, it was only six months whereas in New York, if it were a class of misdemeanor, you can get a year imprisonment and three years probation.

Last thing, I have set forth in Appendix B a break down of the criminal code of the penal law of New York and I think Your Honors will see if you were even curious to looking to the nature of the offense rather than the term of punishment imposed that New York class a misdemeanor does not strike a court in terms of the petty offenses that one might find in history.

You will find the concept of petty offenses historically is quite a stranger to the class of misdemeanor in New York.

Thank you.

Chief Justice Warren E. Burger: Thank you.

Thank you gentlemen for your submissions.

The case is submitted.