LUDWIG v. MASSACHUSETTS

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Argument of Robert W. Hagopian

Chief Justice Warren E. Burger: We will hear arguments next in 75-377, Ludwig against Massachusetts.

Mr. Hagopian.

Mr. Robert W. Hagopian: Mr. Chief Justice and may it please the Court.

The basic underlying issue on the merits of this case is whether that a defendant in a criminal proceedings has a right to trial by jury when he is charged upon an offense on which he faces maximum prison sentence in excess of six months.

In the instant case, the defendant Richard Ludwig was denied a right for trial by jury in the first instance and he was convicted on the first tier in the Massachusetts Court System and he took an appeal, whatever the word might mean, to the second tier in the Massachusetts System.

At that time he presented a motion to dismiss, based on the grounds of double jeopardy and also on the grounds that his first trial was an error that there were errors in the first trial.

I do not know what type of motion to dismiss that is, but leaving that aside that is what Massachusetts calls it, some sort of a motion to dismiss.

In the second tier proceedings he waived his rights for trial by jury and that was on my advice as counsel to present a mootness issue from arising.

That decision took place prior to this Court’s decision in Costarelli versus Massachusetts and I exercise my best judgment as to what I thought the state of law was at that time.

Ludwig was convicted by a judge, eventually took an appeal to the Massachusetts Supreme Judicial Court, which took the position that he was not entitled to a trial by jury in the first instance, that this Court has not made that clear in Duncan versus Louisiana or in subsequent decisions.

They allege that they state of the law was in a flux.

They did not apply the Fourteenth Amendment in the absence of any prior decisions by this Court.

This case comes here on appeal and although the Commonwealth has not raised it, I think that there is somewhat of a problem in the jurisdiction of this Court, at least in view of Costarelli.

In a certain sense, when Mr. Ludwig took an appeal from the first tier to the second tier, he vacated the judgment.

Now, let me see if I can draw an analogy here.

We will make it a little bit clearer what I am talking about.

In a single tier system --

Justice Harry A. Blackmun: At that point at the first tier, there were conviction and the sentence of imprisonment imposed and then a man took an appeal, does he go to prison?

Mr. Robert W. Hagopian: No, he does not.

It is vacated automatically as a matter of law.

The judgment is vacated, but that subject has several limitations.

One is this; he also may lose his license which is in Ludwig’s case.

Now, I would suppose that that is not part of the judgment in the sense that the judge does not write down on the complaint, but the statute says whoever is convicted down in the District Court, the clerk of the Court sends a notice to the Registry and the Registry yanks his license.

To me that is part of the judgment.

It is a criminal punishment that is imposed upon him.

Justice Byron R. White: The judgment does not exist anymore?

Mr. Robert W. Hagopian: But his revocation exists of his license and that is an effect and that is penalty that is being imposed because he is convicted of a criminal offense.

That is not a civil sanction.

It is a criminal sanction.

Justice Potter Stewart: If he has not been convicted, if you set aside, whatever the jury may be, the Law of Massachusetts says that even after it is set aside, his license is revoked.

Is that what you are telling?

Mr. Robert W. Hagopian: That is quite correct and because it arises out of a criminal offense, it is not a civil sanction.

It is a penalty that is imposed if you read Boyd versus United States and those forfeiture cases where they also take -- to forfeit the goods of an automobile because it has been used in a heroin case.

Justice Potter Stewart: Whereas the law of Massachusetts is that a conviction in the District Court, even after it is set aside in a driving case of this kind, has the collateral consequence of depriving a person of his driver’s license?

Mr. Robert W. Hagopian: That is correct.

There is no question about that.

It is clear Massachusetts Law.

Unknown Speaker: (Inaudible) to that effect?

Mr. Robert W. Hagopian: Yes, there is.

Unknown Speaker: Is it in your brief?

Mr. Robert W. Hagopian: No, it is not in my brief --

Unknown Speaker: As I take it?

Mr. Robert W. Hagopian: Yes, it is Boyle and Whitmarsh versus the Registrar of Motor Vehicles and I do not have the citation, but I will say that I raised the same issue in the Federal District Court in the case called Almeida versus Massachusetts in this Court affirmed that decision and I must confess in that --

Justice Harry A. Blackmun: The case is the one that is cited in the Costarelli?

Mr. Robert W. Hagopian: Yes, it is Your Honor.

Wait a minute, I take that back, there were two Whitmarsh decisions.

The first Whitmarsh decision which was cited in the Costarelli brief is the one on the trial de novo issue itself.

Justice Harry A. Blackmun: Whitmarsh decision that is cited in our opinion?

Mr. Robert W. Hagopian: Yes.

Justice Harry A. Blackmun: In the 316 N. E. 2d 610?

Mr. Robert W. Hagopian: No, there was another Whitmarsh decision, Your Honor.

That was against the Registrar of Motor Vehicles.

That Whitmarsh decision which was cited in by this Court in Costarelli involved an aspect of just a criminal aspect.

We have a separate case going on against the Registrar.

Justice Harry A. Blackmun: Do you have the citation on that?

Mr. Robert W. Hagopian: I do not Your Honor, but we will furnish that subsequently.

Justice Thurgood Marshall: You say that a man’s driver’s license can be taken for a conviction that has been completely nullified?

Mr. Robert W. Hagopian: Yes, absolutely and unequivocally and what is worst is, the statute says that once he is acquitted in the second tier --

Justice Thurgood Marshall: It never went to Court?

Mr. Robert W. Hagopian: Yes, absolutely and unequivocally, Your Honor.

There is no question and no doubt about that.

That is black letter law in Massachusetts if there is such a thing and the statute also provides that after he is convicted, if he is acquitted in the second tier, the registrar gives him back his license as a matter of discretion.

Now, it is a matter administrative procedure, it is automatic.

The minute he is acquitted in the second tier he gets his license back.

So, you see what happened is they have imposed a punishment on him for the price of a trial by jury and that only not only applies to license revocation, it also applies to parole probation revocation.

That issue is now before the Massachusetts Supreme Judicial Court.

What usually happens in these cases when a fellow is on probation, he gets and if he is convicted of a subsequent offense in the District Court and he alleges that a trial de novo, they yank his probation.

Justice William H. Rehnquist: Of course, if Massachusetts wanted to -- if the motor vehicle registrar wanted to suspend his driver’s license and not impose any criminal sanction, they would not have to afford a jury trial for that, would they?

Mr. Robert W. Hagopian: Well, I am not too sure about that Mr. Justice Rehnquist.

Once they are caught in the United States and the case I cited in my brief that holds that they do.

The reason is that it depends upon why they yanked his license.

If it is because he commits a criminal offense as defined by statute in the State Court then I am not sure the burden must be beyond the reasonable doubt.

Now, whether the jury trial issue gets in there is another matter.

Justice William H. Rehnquist: What if Massachusetts simply says that not only as driving while drinking or whatever your client may have been charged with a criminal offense, but is also a basis for revoking ones driver’s license.

If the motor vehicle registrar thinks there is reason to believe that as happened he will hold a hearing, the way he holds other administrative hearings without any jury and to suspend simply he needs a by probable cause that it happened, anything wrong with that constitutionally?

Mr. Robert W. Hagopian: Well, I would say there would be nothing wrong with that at least if the hearing was to determine his competency on the road.

There are State Court decisions which hold that where the revocation is purely as a penalty for committing a criminal offense, whether that is road related or not, that he is entitled to all criminal rights that a criminal defendant has.

Now, there is one case I have cited in my brief up in the State of Alaska and they have held squarely that he is entitled to trial by jury.

If you are going to yank a man’s license for a year because that period of time is such a lengthy period of time and that is such a penalty that he is entitled to it.

And right in this district here, the District of Columbia versus Colts because there was a fine imposed and I think there was maximum prison sentence of two months, but they talk about in District of Columbia versus Colts that that is a penalty in the context that it is being revoked.

Now, I understand what you are saying, but there are a number of similar cases, I think three or four years ago, there was a case called One Lot Emerald Cut Stones which involved this issue.

I think that was a forfeiture case.

Now, I suppose in these forfeiture proceedings, they can be civil in nature and only the civil burdens are required of the government.

But where that impose in Boyd, in Klamath (ph) car case and I have cited those in my brief there are cases in this Court that hold that you must afford the accused criminal protection or criminal rights in this type of situations.

One of these cases is One Lot Emerald Cut Stones versus United States as a footnote in that, I believe Mr. Chief Justice wrote that opinion and the other one is One 1958 Plymouth Sedan versus Pennsylvania and Boyd versus United States.

I have also cited in page 50 and 51, the Alaska -- the decision of Alaska Supreme Court on this particular issue.

But getting back to the jurisdictional issue again, let us take a single tier system.

If a man is convicted in a single tier system, at the end of the trial, he has the option, he may or the state may afford him to grant him a new trial.

He may make a motion for new trial.

The minute he makes that motion for new trial and it is granted, he does not have any right to complaint about what has happen before in the first trial and the de novo procedure is in same sense.

The fellow has an option to elect a trial de novo.

Let us assume, and there are many jurisdictions, I think there are 16 jurisdictions in United States where you can get a jury trial in either the first tier or the second tier.

Now, at the end of the first tier, a fellow has that option to get another trial de novo by jury or by judge.

He does not have to exercise that option and to me, if the state does not grant him a right of Appellate Review with that stage of the proceedings, he has the right to come to this Court, in the United States Supreme Court either by Appeal or certiorari or he may go over to the Federal District Court by habeas corpus or if a fine is imposed he may go over perhaps under the Civil Rights Act.

I have a case where a fellow did not want to go to the second trial.

Justice William H. Rehnquist: Well did not Costarelli last year cast some doubt on your proposition?

Mr. Robert W. Hagopian: Well, in that case, Costarelli exercise his right for trial in his second tier.

But I have cases where a fellow in Cambridge District Court was convicted and fined $65.00 for larceny.

Instead of going for a trial de novo, we walked over to the Federal District Court under the Civil Rights Act, even though a fine was only imposed and are seeking a collateral attack on that first tier of conviction.

I think he is entitled to Federal Review of that conviction without going through the second trial.

That is -- in a sense that is the whole basis of the merits of this case, that an accused does not have to go through two trials. He has a right.

He should have the right to have a trial that comports with the constitution in the first instance and he should have a right for appellate review in a Federal Court if the state does not grant him appellate review at stage of the proceedings.

Justice Harry A. Blackmun: The Massachusetts System, is he able to stand aside at the first tier as was the case in Kentucky -- in Colten against Kentucky?

Mr. Robert W. Hagopian: No, he cannot.

The most he can do is just sit and with his counsel, the government will plan their witnesses, he cannot, there is an informal procedure, it is not statutory, what is known as submitting to an informal admissions of facts and which means that you are not really going to contest the trial.

You allow, he will say to go on the government still puts his pray to witnesses on, that is a means of speeding up the first tier trial, but he is still convicted, found guilty, but there is no way of bypassing that at all.

Justice Harry A. Blackmun: He finds out what the government’s case is just by keeping quiet if he wants to.

Can he waive appearance at all?

Mr. Robert W. Hagopian: But there is a certain amount of danger Mr. Justice Blackmun because that testimony that is what happened to Whitmarsh.

The Police Chief Officer against Whitmarsh died subsequent to the first trial and then when the second trial came up, they wanted to try Whitmarsh again and introduce his testimony that Police Chief Officer’s testimony from the first trial and if you do not attack his credibility or cross-examining him in the first trial, that evidence can be use against you in the second trial so that a certain amount of --

Justice William H. Rehnquist: Well, that is true but preliminary hearing, preliminary hearing does give you a jury.

Mr. Robert W. Hagopian: Yes, I know that Mr. Justice Rehnquist.

Chief Justice Warren E. Burger: What was imposed at the first trial here?

Mr. Robert W. Hagopian: $20.00 Your Honor.

Chief Justice Warren E. Burger: No prison?

Mr. Robert W. Hagopian: No prison in sentencing involved in the case.

That fundamentally on the merits of the case, Mr. Chief Justice, on the issue of the right to trial I think that the issue was a very simple issue.

There is no reason at all that justify why Massachusetts has a right to take this man right to trial by jury away from him then there is his right to cross-examine witnesses.

His right not to self-incriminate himself.

He has right not to counsel.

I mean, why can Massachusetts not take those rights away from say, hey we will give him a second trial de novo, we will cure all these defects.

I mean, that argument was in Wood versus the Village of Monroeville or the Mayor of Monroeville and I cannot distinguish why the right for trial by jury should be any different than any other fundamental right.

It is true we have a six-month demarcation line, but that came out of historical origins, but there is no historical origins to justify the trial de novo system in England.

At the time that this country was founded that there was trials de novo bench trials and you will find that Colonies in Massachusetts, but they are extremely few colonies or states that ever had a trial de novo system of jury trial system as opposed to bench trial systems at the time the constitution was framed.

That basically is the fundamental issue in the case, Your Honor and I submit that --

Justice Potter Stewart: It really boils down, does it not, to the question of whether the rule of Duncan against Louisiana embraces the doctrine of Callahan against Callan against Wilson?

Mr. Robert W. Hagopian: Well, I think that is true, but I would not rest entirely on that Mr. Justice Stewart.

Let us assume that that Callahan versus Callan versus Wilson was never came about to be.

I think that --

Justice Potter Stewart: Yes, you certainly have -- I hope you are not going to throw that case aside?

Mr. Robert W. Hagopian: Oh! No, certainly not Your Honor.

I think that I agree that that case was decided by unanimous Supreme Court, in this Court here.

Unknown Speaker: By the way your best support (Voice Overlap)

Mr. Robert W. Hagopian: Yes, Your Honor, basically, but the underlying basis of that case is that the defendant in that case was deprived of due process and that is what is basically the argument, the bedrock of Callan is that in fact Mr. Justice Harlan in his words said, the defendant should not have to suffer the burdens of two trials and that is the bedrock of Callan.

I would also like to say, I am not saying we should do away with trial de novo.

All I want is the accused to have that right to have the option for jury trial in the first instance and that is not going to affect Massachusetts.

I do not believe that the compelling interest doctrine should apply to this case, but even if you do apply it to this case, Massachusetts can easily give the defendant the option.

There are very few defendants that are going to exercise that option.

There are certain instances where that option will always be exercised, but in those types of cases, the fellow is almost inevitably going to take the right for trial de novo anyway.

There are cases that if you do give them the option, there will be a slight increase perhaps and very incontestable of the number of jury trials, but it is only going to be in those cases where the fellow has been deterred originally by the do novo system.

And I do not think that the Commonwealth has any right to complain about that end result.

So in effect, what I am simply asking here is in the sense that the accused have the option to go to the jury first and I do not understand why Massachusetts should complain about that issue.

I would like to reserve the rest of my time.

Justice Harry A. Blackmun: Could I ask you a question?

Mr. Robert W. Hagopian: Yes.

Justice Harry A. Blackmun: Supposed a man goes into trial at the first tier unrepresented by counsel --

Mr. Robert W. Hagopian: Yes.

Justice Harry A. Blackmun: -- and he is convicted.

Is he advice as a routine matter in your Massachusetts System that he has a right to appeal?

Mr. Robert W. Hagopian: Yes, they do not advise him his right to a jury trial.

They say, you have a right of appeal and all these convictions where the fellow does not exercise his appeal, if you look at the record, on the face of the record, no where has he waived his right for trial by jury.

He has failed to appeal, whatever that term may mean, but there is nothing on the face of the record to show that he has waived his right to trial by jury and I have cases in the Federal District Court where prisoners have been released from the Massachusetts first tier system, simply because there is nothing.

Even if you sustain or agree with the de novo concept, there is nothing on the face of the record to show that he has waived his right for trial by jury.

Justice Harry A. Blackmun: Another question.

You mentioned the Callan case is one reason that you are not resting on entirely the fact that it was an Article 4 case?

Mr. Robert W. Hagopian: Yes, Your Honor, but the principle underneath Callan is very simple.

It is a deprivation due process.

It is a burden.

The defendant, why should he have to go through two trials? Not only why should he get what he is entitled in the first instance.

Likewise, why should he have to go through two trials before he has a right to federal review?

The jurisdiction issue is --

Justice Harry A. Blackmun: What you are saying is that you are relying on the Fourteenth Amendment?

Mr. Robert W. Hagopian: Yes, Your Honor.

Justice Harry A. Blackmun: As to Callan, they relied on Article 4?

Mr. Robert W. Hagopian: Yes.

Justice William H. Rehnquist: In Callan, I noticed it does mention those Massachusetts' early cases.

Do you think that Court's opinion really expressly disapproves them or just kind of puts them to one side?

Mr. Robert W. Hagopian: Well, Justice Harlan in that case that he would not follow it.

He did not say why he would not follow it.

He disapproved of it, but the decision is not all that clear, what his reasoning is, but you get into this problem of what is required in the Federal System as opposed to what is required in the state and I think Harlan did not obviously address himself to that issue.

No, that is right he did not have to and because that is the problem, but underneath the bedrock of that case is very simple and Harlan expressed it.

He said a man should not have to go through twice what he is entitled to in the first time and that is the bedrock of that decision.

It seems to me that sound under the Fourteenth Amendment and due process.

Justice Harry A. Blackmun: He is entitled to jury trial?

Mr. Robert W. Hagopian: Yes, Your Honor and of course that is interpreting that as to what that meant and I suppose the Sixth Amendment and he in a sense that Callan also interprets what was in the Sixth Amendment too.

The words in the Massachusetts constitution are almost identical or equivalent, that is what Chief Justice Shaw said in the Massachusetts case.

He says, it is the same thing as interpreting the Sixth Amendment, but Chief Justice Shaw also does not show any historical basis sustaining his decision and I do not believe that there is any historical basis to sustain the de novo procedure.

Justice Byron R. White: What id your -- what precisely -- what is the constitutional provision you are relying on?

Mr. Robert W. Hagopian: I rely on the Fourteenth Amendment, Your Honor.

Justice Byron R. White: Relying on the right to jury trial as incorporated?

Mr. Robert W. Hagopian: Yes, Your Honor and also fundamentally due process.

I think it is fundamental issue, due process.

Justice Byron R. White: Which is both of them?

Mr. Robert W. Hagopian: Yes, Your Honor, both of them.

Justice Potter Stewart: And also, a double jeopardy claim?

Mr. Robert W. Hagopian: Yes, there is the double jeopardy issue and the double jeopardy issue, Your Honor is a very simple issue.

It says you cannot force the man to go through two trials to jump the hoop twice.

That is exactly what double jeopardy is that the double jeopardy provision limits the government to a single proceeding, that means a single proceeding that comports with constitutional standards.

I do not see how that the double jeopardy clause can be read in the other way.

I mean, that is the whole underlying basis of the double jeopardy clause.

Justice Harry A. Blackmun: Colten against Kentucky is against you on that one?

Mr. Robert W. Hagopian: No, it is not, Your Honor because in Colten versus Kentucky, the man had aright to a jury trial in the first instance in Colten.

He waived that right in Colten.

I also have a summary of the de novo procedures in 30 jurisdictions that was prepared not by myself, but the Court -- I would like this just briefly there are 30 jurisdictions.

16 of them allow a jury trial in the first tier or the second tier.

One jurisdiction allows a jury trial in either one tier or the other.

You take your pick and the 13 remaining jurisdictions, of those you cannot get a jury trial in seven of them in the first instance and six of them you have a right to bypass the first tier trial and go directly to a jury trial in the second tier trial.

If the Court would like I would be glad to submit all the statutes in the 30 jurisdictions.

Justice Potter Stewart: Have those data been published anywhere?

Mr. Robert W. Hagopian: They are not Your Honor.

There is something by the National State Courts, but it is no where as comprehensive as this.

I submitted for jury information purposes --

Chief Justice Warren E. Burger: (Inaudible) to your friend?

Mr. Robert W. Hagopian: He has a copy, I have supplied him.

Chief Justice Warren E. Burger: When you went to the second tier, you did not want a jury, is that correct?

Mr. Robert W. Hagopian: That is correct Your Honor.

I did not want it.

I did not want to moot out the issue and I thought that if we asked for jury trial that if he was convicted, there would be nothing to complain about and if he was found innocent that would be the end of the battle.

That was just a decision and based on the law at the time, the government never raises.

Chief Justice Warren E. Burger: Are you suggesting you were afraid you might win in the second tier?

Mr. Robert W. Hagopian: No.[Laughter]

Chief Justice Warren E. Burger: It sounded like it?

Mr. Robert W. Hagopian: You mean, before a jury? Well, I do not know, Your Honor.

That gets us back to that things are not in the face of the record.

Unknown Speaker: (Inaudible) $20.00?

Mr. Robert W. Hagopian: Yes, Your Honor $20.00.

Thank you.

Chief Justice Warren E. Burger: Very well.

Mr. Irwin.

Argument of John J. Irwin, Jr.

Mr. John J. Irwin, Jr.: Mr. Chief Justice and may it please the Court.

On behalf of the Commonwealth of Massachusetts, I think that in a preliminary way, I would like to outline probably in an overview fashion the course I hope to pursue in my argument.

I would first touch on the jurisdictional situation that I think is appropriate to bring before this Court.

I then would proceed to a discussion of what, at least in the judgment of the Commonwealth, the Massachusetts Court said in a Ludwig decision.

I would then try to impress upon the Court what we conceive to be the notion of de novo procedure in Massachusetts and what is all about.

Thereafter, I would try to evaluate that particular procedure in the light of what this Court said in Duncan and Louisiana, stating at least minimally that our position if that Duncan and Louisiana stated a right to trial by jury rather than a mode.

Then trying to establish to the Court what the mode of delivery of that right is in Massachusetts and whether or not it fulfills the basic concept, a constitutional concept of jury trial as has been enunciated by this Court and finally, hopefully to discuss the double jeopardy considerations.

Proceeding in that outline, I would like first of all in a jurisdictional way to ask this Court to consider that the record before it constitutes a petition for certiorari, rather than an appeal.

The Commonwealth does that fully knowing that we have not briefed it, but in preparing for the particular argument, I was referenced to the decision of this Court in Costarelli where this subject matter was raised by footnote and also in reviewing the brief of the Commonwealth from a Costarelli case, it was footnoted there.

I think it is significant and I would suggest to the Court that if we got this procedure, this review a certiorari rather than appeal for the following reasons.

Section 2 which is used by the appellant to invoke the jurisdiction of this Court, I think quite clearly suggests that a statute has to have been put in issue before the State Court, allegedly repugnant to the constitution which statute was decided in favor of the Commonwealth or in favor of the state at the highest Court possible for the defendant -- the appellant to have a judgment.

I regard that is being construed or that which statute being construed literally, I would respectfully suggest to the Court that what is an issue here really is an assertion of a right that is I suppose comprise out of a procedure in Massachusetts that is of all at least arguably over a period of two centuries at least and probably three centuries.

To that extent, what he is doing is asserting a right under Section 3, and therefore, if the Court agrees that certiorari is the appropriate way in which this Court has review, I would further suggest to the Court that it has broad jurisdiction or discretionary jurisdiction in whether or not it would in fact grant that particular writ.

And having in mind the scope of the relief that the appellant seeks here, it would seem to me appropriate that this Court have before it, a much broader, detailed record dealing with the issues that he claims to deprives him of a constitutional right of jury trial and absent that the Court would deny his application for writ of certiorari.

Justice William H. Rehnquist: And you say the reason this is not properly an appeal is because the challenge is not to the Massachusetts statute, but to the custom and practice followed in the Massachusetts Court System?

Mr. John J. Irwin, Jr.: Yes, that is the primary reason that I assert Mr. Justice Rehnquist.

I would suggest that there is no statute in Massachusetts that says specifically that in a fairest situation, the defendant has no right to a trial by jury.

I think that has developed historically.

Justice Potter Stewart: But it is well settled Massachusetts Law as a matter of judicial construction of the statute, is it not?

Mr. John J. Irwin, Jr.: Yes, it is Mr. Justice Stewart.

Justice Potter Stewart: Well, that is what the statute means because that is what the Massachusetts Courts have said that means, would that follow?

Mr. John J. Irwin, Jr.: I would suggest that does follow.

I think what I am suggesting is that he is under Section 3 asserting more of a right rather that by a statutory situation, and that therefore, the Court I suppose just in terms of by the appellate procedure should construed that statute very literally.

Justice Potter Stewart: It is not up to us to construe the statute that has been done for us by the Massachusetts Court which had made it clear that there is no right to a jury trial at the first tier.

Mr. John J. Irwin, Jr.: That is right.

Justice William H. Rehnquist: It this not the reason that they made it clear is not because of any provision of the statute, but because of their own ruling as to the right of jury trial in Massachusetts Trial Court?

Mr. John J. Irwin, Jr.: That is exactly right Mr. Justice Rehnquist.

Proceeding line to analysis of what the Massachusetts Court did in the Ludwig case which is the case before this Court, I think it safe to say or fair to say that the Court simply reaffirmed its judgment in the case of Commonwealth versus Whitmarsh and I think that probably a succinct analysis of that decision would be that Massachusetts said that its de novo trial procedure as outlined here before this Court, at least partially outlined here before this Court, is in fact a constitutionally permissible mode of jury trial in the light of the Duncan and Louisiana case.

I think the Massachusetts Court arguably went one step further and said that it regarded Duncan and Louisiana not as setting forth an absolute right to trial by jury with all of the appendages, if you want to put it that way of the federal system, but as establishing a right rather than a mode.

And that in order for us to determine here today whether or not the mode that Massachusetts applies is constitutionally valid, it seems to me that we have to examine to a great extent the mechanics or the definition, if you want, of the Massachusetts de novo procedure.

Very briefly there are four levels of Courts in Massachusetts which deal with criminal cases. There are other District Courts.

They are 73 in number.

They are geographically located throughout the Commonwealth of the Massachusetts.

They are in their composition I suppose rural, urban, and suburban.

Some of the have several criminal sessions.

It includes also -- that 73 includes the Boston Municipal Court.

Its jurisdiction in criminal cases is covered by Chapter 218, Section 4 the Massachusetts General Laws which covers really all misdemeanors and certain felonies punishable by up to five years imprisonment.

Although I think it should be noted that District Court Judges had that first tier level if they take jurisdiction in terms of a felony involving possible punishment up to five years imprisonment, the District Court judge cannot sentence to the Massachusetts State Prison.

He can only sentence to the House of Correction and obviously there are no juries at that particular level.

The Superior Court is the Court which I suppose is most adequately described as our great trial court.

It has a original jurisdiction in all criminal cases.

It serves as an appeal court for the cases coming out of the District Court.

There is somewhat of a interposition, approximately 11 years ago of a six-man jury trial where on appeal from the District Court, what you can in effect do is waive your 12-man jury trial in the Superior Court and opt for a six-man jury trial, so probably the six-man jury is better described as being in for the purposes of our discussion, the appeal level or the Superior Court type of level.

Justice Potter Stewart: Is there a Superior Court in every county in Massachusetts?

Mr. John J. Irwin, Jr.: Yes, there is Mr. Justice Stewart.

We have 14 counties in Massachusetts and we have Superior Court that covers all of those counties.

Justice Potter Stewart: Being multi-judge?

Mr. John J. Irwin, Jr.: Some of them --

Justice Potter Stewart: Some being maybe a single-judge?

Mr. John J. Irwin, Jr.: That is right.

We have 46 justices on the Court, in the Superior Court.

They sit on Circuit, usually month to month different assignments in different counties.

Beyond that, in terms of getting Appellate review of cases that are tried in those two tiers, we have just recently three years ago enacted legislation which gives us intermediate appellate court which in the first instance, I suppose, reviews all criminal cases except for some very specific exception.

Those would be first degree murder cases, cases in which the punishment imposed in the trial was life imprisonment or death and a situation ironically where you can get a direct appeal from a six-man jury verdict to the Supreme Judicial Court.

Our Supreme Judicial Court of course of last resort and that is the Court that decided the issue in Ludwig here before us.

I think the next thing that we should consider is that in the context of that particular structure of judicial dealing with criminal cases, what happens at the first tier and I think that Mr. Justice Blackmun raised a very pertinent point when he asked, I think in connection probably having in mind Colten and Kentucky whether or not the defendant in the Massachusetts Trial Court, the first tier court has the ability to evade or to otherwise move away from that particular procedure in some sort of waive the posture.

I would suggest to the Court that there is a procedure and it was alluding to somewhat by counsel for the appellant.

There is a procedure known as admitting sufficient findings of fact wherein the District Court and this is not a statutory procedure, but an accepted procedure that has evolved over years in the Court, where the District Court Justice will hear just sufficiently enough evidence I suppose to want him in concluding that there is probable cause for the existence of the complaint because that is how we begin in the first tier system by complaint.

Once having satisfied himself of that, he then can go ahead and enter a finding of guilty and as a matter of fact impose a sentence on that from which at least in the contention of the Commonwealth that person who has just made that admission has an immediate right to wipe the slate clean once and forever.

Justice Potter Stewart: So functionally, that is not unlike just the binding over proceeding, is that what you are --?

Mr. John J. Irwin, Jr.: That is right Mr. Justice Stewart.

Justice Potter Stewart: Alright and is that practice availed of when its clear that the defendant has to go to the Superior Court, it is done only then?

Mr. John J. Irwin, Jr.: Yes, it is.

It is done only then.

As a matter of fact it is almost in the category of waiver I would say because what counsel does ordinarily is go to the Trial Justice in the Court and indicate that he really sees nothing to contest here, but he feels that it would be better off in the Superior Court and he would be better off moving there quickly.

Justice Potter Stewart: It is almost by agreement that tradition is evolved that this has been converted into a traditional binding over?

Mr. John J. Irwin, Jr.: That is right Mr. Justice, yes it is.

Justice Potter Stewart: Except of course on his record is this conviction that is now been set aside --

Mr. John J. Irwin, Jr.: That is right.

Justice Potter Stewart: -- which your brother told us might have, in a vehicle case might have the collateral consequence of the deprivation of the defendants driving license for a period?

Mr. John J. Irwin, Jr.: Yes, it might.

Justice Lewis F. Powell: Is the motion to appeal need made substantially simultaneously with the entry to plead guilty?

Mr. John J. Irwin, Jr.: Yes, it is Your Honor.

Justice Lewis F. Powell: So all of this can happen in a matter of 15 minutes?

Mr. John J. Irwin, Jr.: It could happen in a matter of 10 minutes if you Your Honor please and many times it does.

Justice Lewis F. Powell: So in effect you stipulate to probable cause, guilty, a judgment of conviction --

Mr. John J. Irwin, Jr.: Right.

Justice Lewis F. Powell: You say, I appeal and the judgment is (Inaudible)?

Mr. John J. Irwin, Jr.: That is correct, Your Honor and his appeal is entered and I think when we are talking about appeal, my conviction is or the Commonwealth's conviction is that that is not very well denominated.

I would prefer to call it an assertion of his inevitable right to trial by jury in Massachusetts and I think it is important for this Court to understand that in Massachusetts, if a defendant wants in any criminal case from the most minute parking violation to first-degree murder, he can in fact get a jury trial of 12.

Justice Potter Stewart: He does not even need to report to a larger error in the first trial in order to go to (Inaudible)?

Mr. John J. Irwin, Jr.: He does not Mr. Justice Stewart.

Justice John Paul Stevens: Are there any costs imposed as a result of first trial?

Mr. John J. Irwin, Jr.: They are not Mr. Justice Stevens.

Justice John Paul Stevens: What is the purpose of the first trial?

Mr. John J. Irwin, Jr.: I am sorry.

Justice John Paul Stevens: What is the purpose it serves -- what interest does the Commonwealth have in having the first trial?

Mr. John J. Irwin, Jr.: I would suggest that the Commonwealth has this interest that there is before the Court in the record here and in the briefs an indication that the Massachusetts District Court system as we know it, handles approximately one million criminal matters a year.

That de novo approach allows the District court in our judgment to weed out those cases that appropriately should not go on in to the Superior Court where a proper exercise or judicial judgment will terminate the case by way of a not guilty in the first instance.

Justice Potter Stewart: By way of it guilty and a minor punishment that --

Mr. John J. Irwin, Jr.: Exactly, that would be acceptable to the defendant.

Justice Potter Stewart: (Voice Overlap) case and there is no reason to appeal?

Mr. John J. Irwin, Jr.: Exactly.

Justice Thurgood Marshall: What about – the Court of Appeals would say, well, since you are going to appeal and you are going to a jury trial, you do not have to go through this over.

What good is the first tier into the state where you know the man is going to appeal and ask for a jury trial.

What benefit does the state have in the first tier?

Mr. John J. Irwin, Jr.: Well, in this situation that you posited Mr. Justice Marshall, I would say the state really has no benefit if what you are suggesting is the situation that I think you are that where they know he is going to appeal.

Justice Thurgood Marshall: I am suggesting the situation you said.

You said that that where the man goes in and it tells the judge, look I am going for an appeal and I am going because I want a jury trial.

Now, why does not he just not go and get the jury trial.

Why does the state say, whoop before you do that you got to go through this charade?

Mr. John J. Irwin, Jr.: Well, in the situation that you just posited Mr. Justice Marshall, the Court, the District Court in question, given the situation that you just posted, in my judgment would do nothing more than satisfy itself that there is probable cause for the existence of that complaint and to a finding of guilty and say, leave and go have your appeal because it is the expeditious way to handle the matter in my judgment.

Justice Thurgood Marshall: That is the way because you just transferred to the other Court?

Mr. John J. Irwin, Jr.: Well, that is in effect what they are doing.

Chief Justice Warren E. Burger: The legislature has to do it by this particular mechanism except for the judge has no option, does it?

Mr. John J. Irwin, Jr.: The judge has no option.

Justice Byron R. White: He may not just accept the plea of guilty?

Mr. John J. Irwin, Jr.: He may accept the plea of guilty.

Justice Byron R. White: Without any evidence?

Mr. John J. Irwin, Jr.: Well no, I think what he would do Mr. Justice White if a plea of guilty was entered in the District Court where he had final jurisdiction.

Justice Byron R. White: Can he appeal for a plea of guilty?

Mr. John J. Irwin, Jr.: Yes, he can, but the only thing that is open to him on a an appeal from a plea of guilty is the disposition of the case, the sentencing.

Justice Byron R. White: So that he may not have a jury trial if he pleads guilty?

Mr. John J. Irwin, Jr.: He may not.

Chief Justice Warren E. Burger: This hypothetical we have done putting to you about his standing aside in order to get a jury trial do not fit this case, do they, because he did not want a jury trial in the second tier?

Mr. John J. Irwin, Jr.: That is right.

He apparently waived that jury trial and again I suppose that is one of the options that is open to him.

What he could do even if he gets to the Superior Court where he might be claiming a 12-man jury, he is empowered under our Massachusetts set up to go ahead and waive his jury trial there.

Chief Justice Warren E. Burger: You said normally the purpose in most cases of bypassing or standing mute at the first tier trial is in order to get a jury?

Mr. John J. Irwin, Jr.: Exactly.

Chief Justice Warren E. Burger: But that is not the objective in this case?

Mr. John J. Irwin, Jr.: Apparently it was not.

Justice Potter Stewart: Mr. Irwin, you sister state of Rhode Island I think has a very similar not almost identical statutory system which I understand has been declared to be invalid.

It was declared invalid by a District Court in Rhode Island has now moved it would adapt to the District Court’s decree, am I mistaken in this?

Mr. John J. Irwin, Jr.: No, I think your are correct, Your Honor.

Justice Potter Stewart: And how does Rhode Island go about it now?

Mr. John J. Irwin, Jr.: I am not sure if Your Honor please how Rhode Island goes about it except that apparently my understanding is that what they do now is offer a jury trial in the first instance at the District Court level, allow the defendant to assert his right to jury trial and set it out for a jury trial.

I think what you have in mind is probably the consequences of the Holiday case.

Yes.

Chief Justice Warren E. Burger: (Inaudible) without an amendment to your statute?

Mr. John J. Irwin, Jr.: I would say Massachusetts I suppose could advance a Court rule by Rule of Court or probably without legislative change do exactly that if Your Honor please.

What I would suggest the Court though is that constitutionally I do not think that is necessary.

Justice Potter Stewart: As for Mr. Chief Justice's question you said at the very outset that the statute itself does not explicitly deny a jury trial?

Mr. John J. Irwin, Jr.: It does not.

Justice Potter Stewart: At the first tier?

Mr. John J. Irwin, Jr.: It does not.

Justice Potter Stewart: So presumably the answer to the Chief Justice's question is yes, Massachusetts could do this without an amendment to the statute?

Mr. John J. Irwin, Jr.: I would say yes.

I would say yes Mr. Justice Stewart.

Justice Byron R. White: I understand you could not just sort of refer the case to the second tier?

Mr. John J. Irwin, Jr.: I do not think you could do that now.

I do not Mr. Justice White.

Justice Byron R. White: Or just permit an appeal from a guilty plea?

Mr. John J. Irwin, Jr.: No, you could not.

Justice Potter Stewart: Do you know the Holiday case that was cited in the briefs?

I thought it was --

Mr. John J. Irwin, Jr.: Yes, I believe it is if Your Honor please.

I believe it is if Your Honor please.

Justice William J. Brennan: What Court?

Mr. John J. Irwin, Jr.: The Rhode Island Supreme Court, if your Honor please.

Justice William J. Brennan: A Rhode Constitution or the State?

Mr. John J. Irwin, Jr.: I think they decided as a matter of state constitutional law.

Justice Potter Stewart: (Inaudible) Under Rhode Island 93, is that it?

Mr. John J. Irwin, Jr.: Yes, it is if Your Honor please.

Justice Potter Stewart: Thank you.

Mr. John J. Irwin, Jr.: Your Honor it is moving along in the argument, the Commonwealth's position is that when this Court enunciated Duncan and Louisiana, what it did really was a establish a right to trial by jury, but did not establish a mode to constitutional jury trial, and therefore, it is open to Massachusetts and other de novo states to examine whether or not the de novo procedures that they have in effect deliver constitutionally mandated jury trial in a constitutional mode.

And I would respectfully suggest to the Court that on the intense analysis that this Court is made by its procedure and in weighing it against the perspectives that was set out in analyzing the jury trial right in Duncan and Louisiana, we can find that the Massachusetts system is basic and fundamental, first by way of historical analysis, second by way of contemporary practice as among other states and thirdly, to the extent that it fulfills the stated function and purpose of the jury trial in America to wit I suppose to stand as a bastion against depression and to allow a person accused of crime to have the judgment of his peers in any given criminal case that is presented against him.

It seems to me that by that analysis and by a fair and objective appraisal of the Massachusetts system, we can find that the Massachusetts system does serve to prevent (1) unfounded criminal charges brought to eliminate enemies, (2) Judges who are too responsive to the voice of higher authority, (3) Protection against arbitrary action, (4) The Massachusetts system does prevent the corrupt an overzealous prosecutor, (5) It does prevent the situation where you have a compliant or a biased or eccentric judge, (6) It does preserve to present the exercise of plainary powers over the life and liberty of the citizens by one judge or a group of judges and (7) It does prevent un-checked power and it does prevent arbitrary law enforcement.

It seems to me that going back and analyzing Duncan against Louisiana, this Court try to determine what constitutional jury trial was in terms of its history and in terms of its contemporary use I suppose in our society.

But it seem to me that thereafter that when this Court decided cases such as Apodaca and such as Williams in Florida or Apodaca in Oregon, that what it did really was lean more toward an evaluation of whether or not this particular jury system that is put in question serves those basic purposes that I just told and if the answer to that is in the affirmative then the system that is challenged in the given state stands the test of constitutionally fair jury trial.

Finally, the Commonwealth would direct itself for a few moments to the issue of double jeopardy.

Justice Potter Stewart: What do you do about Callan against Wilson?

Mr. John J. Irwin, Jr.: Well, again I think that my position in Callan against Wilson, of the Callan and Wilson case is this if your Honor please.

Duncan and Louisiana in interpreting Callan and Wilson as I suppose was imposed upon the states, in effect said, that where you would be entitled to a jury trial in a federal system for a particular offense that is beyond petty, you are entitled to a jury trial in the given state.

My understanding of the Duncan and Louisiana case was that there was a statute which provided for no jury trial and yet allowed a punishment up to two years in prison.

The Callan case apparently involved imprisonment potential over six months.

Six months or over and the Court I think simply said in Duncan and Louisiana in interpreting Callan and Wilson, that where a state seeks to impose punishment of over six months in as much as you would be entitled to a jury trial in the Federal Court if that were the case, you are entitled to a jury trial in the state.

So, I guess what I am saying is, I know what I am saying is that if this state now that is in a position where it can sentence somebody to more than six months imprisonment, this Court would say in terms of Duncan and Louisiana and Callan and Wilson that that state has to provide a jury trial.

I do not suggest to the Court that in Duncan and Louisiana, this Court have enunciated what mode of jury trial that had to take.

As a matter of fact, I think the Court has gone on later on in Apodaca and then Williams to indicate that certain guarantees in terms of Federal Jury Trial certainly are not binding on the states.

Justice Potter Stewart: Mr. Justice Ford has in his concurring opinion in Duncan?

Mr. John J. Irwin, Jr.: Exactly.

In which he said we can have to hide, but we do not have to rub the tail.

Justice Potter Stewart: Now, what was the maximum sentence of imposable under the offense for which he was tried?

Mr. John J. Irwin, Jr.: Two years in the House of Correction and a fine up to $200.00.

Justice Potter Stewart: And one more question while I have interrupted.

I an correct, am I, in my understanding that on this trial de novo, first of all will the jury know or will not know about the first trial on the first judgment?

Mr. John J. Irwin, Jr.: The jury will not know about it.

Justice Potter Stewart: If there is a waiver of the jury, will the judge know?

Mr. John J. Irwin, Jr.: If there is a waiver at the District Court?

Justice Potter Stewart: As in this case there was?

Mr. John J. Irwin, Jr.: The judge would know.

Yes, he would.

Justice Potter Stewart: And if the jury would not know about the judgment, he would presumably also certainly not know about that sentence imposed?

Mr. John J. Irwin, Jr.: That is right.

Justice Potter Stewart: But at the new trial, there would be a complete and uninhabited freedom for the Court to impose any sentence within the statutory limits, regardless of the sentence that had been imposed at the District Court?

Mr. John J. Irwin, Jr.: Exactly, if Your Honor please.

Justice William J. Brennan: (Inaudible) to imposed heavier sentence than it was initially?

Mr. John J. Irwin, Jr.: Yes, it is.

It is not uncommon and yet it is not uncommon that they impose the same sentence or maybe even lighter sentences.

I would say that it varies almost on a 50/50 basis.

Justice Potter Stewart: Through the trial of de novo in that sense?

Mr. John J. Irwin, Jr.: Yes, it is if Your Honor please.

For just the final few moments left to me in this argument, I would like to address the question of double jeopardy.

It seems to me that Colten and Kentucky is dispositive at that contention here by the appellant.

I suggest that for several reasons and one is that my recollection of the Colten and Kentucky case directing itself to the question of double jeopardy contrasted Pearson North Carolina case -- quite distinguished the Pearson North Carolina case and pointed to the question of vindictiveness and I think to a certain extent that has just been touched upon here.

It does not appear that, for example, in terms of, I suppose exiting your right to appeal on trial de novo that you are in any jeopardy of vindictiveness because what you are doing is you are going from a different Court system to a Superior Court where the people who will adjudicate your claim are in no way connected with the first Court.

Secondly, I think the Court’s position that if in fact in Colten and Kentucky, you have a true de novo type of system where there is in effect a wiping clean of the slate than obviously all of those things that are inherent in double jeopardy such as the hazards of trial, the necessity of utilizing your tools, I suppose at that given hearing, all of those types of things are non-existent in that so called de novo procedure, and therefore, are not vulnerable to a claim of double jeopardy as I see it and I would respectfully suggest to the Court that it would be totally consistent with the finding in Colten and Kentucky to find that Massachusetts de novo system exactly does wipe the slate clean, and therefore, presents no double jeopardy problem to this particular Court.

Justice William J. Brennan: There is ever a need jury trials in this Court --

Mr. John J. Irwin, Jr.: I am sorry.

Justice William J. Brennan: Are there jury trials of any kind in your District Court?

Mr. John J. Irwin, Jr.: There are not.

There are situations where we have the six-man jury trials in District Courts, but they are on appeal from that District Court as I try to outline and I think they are probably more properly considered by this Court to be at Superior Court level.

If your Honor please, my time is up and I would thank the Court for its attention.

Chief Justice Warren E. Burger: Very well.

Mr. Hagopian.

Rebuttal of Robert W. Hagopian

Mr. Robert W. Hagopian: May I clear up one or two points Your Honor.

The first point is about this appeal in certiorari jurisdiction.

The Statute in Massachusetts Chapter 218, Section 26 confers jurisdiction on the District Courts.

The District Courts have been construed by Massachusetts in Jones versus Robins to mean Courts without jury and that statute is squarely presented among other statutes so I think the case is properly up here on appeal.

Number two, Your Honor there are a lot of consequences about this business in the first tier trials that my brother has not mentioned and the most important one is that once the sentence is imposed in the first tier, if the defendant defaults in the second tier, supposing he does not show up when he is suppose to, that sentence of the District Court is imposed and the man winds up going to jail and it is not pursuant to a judgment of his peers by the District Court sentence, that statutory in Massachusetts and it goes on all the time.

Chief Justice Warren E. Burger: (Inaudible) It is common defaults or many defaults, is it not? You are saying if he defaults, he is in trouble.

Mr. Robert W. Hagopian: Sure he is but you cannot convict the man in absentia and that is what it is.

It is a judgment by default.

Chief Justice Warren E. Burger: On the contrary, convictions can be held in absentia if the defendant voluntary absents himself?

Mr. Robert W. Hagopian: I believe that issue Your Honor was raised and Tacon versus Arizona right.

I do not think I can -- If he absents himself from trial, but if the state never gets him into Court to begin with, I do not believe that he can be tried in absentia.

I do not think that issue has been squarely presented by this Court, but what happens here is that --

Chief Justice Warren E. Burger: (Inaudible) I think it was default, his failure to show at the second tier trial?

Mr. Robert W. Hagopian: That is correct.

That is correct, Your Honor.

What happens is the first tier judgment is then imposed.

Justice Thurgood Marshall: Well certainly --

Mr. Robert W. Hagopian: I suppose they can arrest them, Your Honor.

Justice Thurgood Marshall: What I mean if you put a rule that if a man does not show in the second tier, he goes free?

Mr. Robert W. Hagopian: Oh! I did not say that Your Honor.

Justice Thurgood Marshall: Well, I think you would have a little difficulty to get that, would you?

Mr. Robert W. Hagopian: Yes, I do your Honor, but you see what happens is that it shifted the burden here to defendant.

And in the second tier, everybody knows, the juries all know that these fellows have been convicted down in the first tier.

The trials are segregated.

These District Court Judges sit on, not so Superior Court Judges and it is quite obvious that they have been convicted.

Justice William H. Rehnquist: But in a single tier system if you failed to make untimely demand for jury trial, you waive it?

Mr. Robert W. Hagopian: Well, in criminal proceedings Your Honor, I do not believe there can be any constitute waiver for the specific fundamental procedural right in a criminal trial unless it is expressed.

In fact most Courts, most jurisdictions, so it must be written. I do not believe that that is true in the criminal proceedings.

In fact, in Boyd they hold it unless there is something on the record, forget about whether he even did waive it, if it is non-established on the record, the conviction has to be set aside as I understand that case.

Justice Byron R. White: (Inaudible) privilege to -- would it satisfy your argument if the defendant had the privilege of pleading guilty and then appealing?

Mr. Robert W. Hagopian: I do not like to see the fact that he has to plead guilty Your Honor.

I think that the conviction itself burdens.

Justice Byron R. White: I am asking, I know you do not like it, but how about if Congress has constitutional --?

Mr. Robert W. Hagopian: Well, that is a close issue because that is the case in --

Justice Byron R. White: What is your position on that?

Mr. Robert W. Hagopian: Well, I have to concede to that point Your Honor because you wrote the opinion in Colten that is what you said so.

I guess that is established law.[Laughter]

Justice Byron R. White: Well in Colten --

Mr. Robert W. Hagopian: He has not pleaded guilty.

Justice Byron R. White: You suggested in Colten that he can get a jury trial in the first tier Court?

Mr. Robert W. Hagopian: That is correct.

Justice Byron R. White: I thought he could just plead guilty?

Mr. Robert W. Hagopian: Yes, he can.

He can plead guilty and take an appeal and automatically wipes out the proceeding.

We cannot do that in Massachusetts, you plead guilty.

Justice Byron R. White: I understand that, but you are suggesting that will be elected in Colten under the Kentucky system that he can have a jury trial in the first tier?

Mr. Robert W. Hagopian: Yes.

That also was established in the case called Ramirez (ph) versus Robinson.

The main procedure you could plead guilty and do the same thing and the First Circuit sustained that procedure.

Justice Byron R. White: Well, this is not quite the same thing to say you can plead guilty and do not have a jury trial in an Upper Court and to say that you can have --

Mr. Robert W. Hagopian: That is right.

Yes.

Justice Byron R. White: Well alright, now which is it in the Colten case?

Mr. Robert W. Hagopian: Well, because you have a right to a jury trial in Colten, in the first tier then I think that if you plead guilty, it certainly different and if you did not have that opportunity before the jury trial.

Justice Byron R. White: Well, I am frank to say, I did not recall that about the Kentucky system I knew that you could plead guilty and automatically get a jury trial when you appeal.

Mr. Robert W. Hagopian: Yes, but you have that right for the jury trial in the --

Justice Byron R. White: You could elect?

Mr. Robert W. Hagopian: Oh! Yes in the 16-jurisdiction it is like that.

Lastly, just let me say what happened in Rhode Island.

Justice Byron R. White: Do you think it was true in Colten?

Mr. Robert W. Hagopian: Yes, I know it is true in Colten Your Honor.

I read that very carefully and in fact, I believe that you even mentioned that back to yourself in a footnote in Costarelli, excuse me or the per curiam court did and I think that is quite clear.

Let me just say in Rhode Island what happens is that if a fellow wants, unless he signs a waiver, a written waiver for jury trial in the first tier the papers are transmitted right up to the Superior Court and he is given his jury trial in the second tier immediately.

Thank you, Your Honors.

Justice Potter Stewart: You are going to file those data with the clerk?

Mr. Robert W. Hagopian: Yes, I have that later on.

I will supply the citations Your Honor.

Chief Justice Warren E. Burger: Thank you gentlemen.

The case is submitted.