Costarelli v. Massachusetts – Oral Argument – March 17, 1975

Media for Costarelli v. Massachusetts

Audio Transcription for Opinion Announcement – April 28, 1975 in Costarelli v. Massachusetts

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Warren E. Burger:

We’ll hear arguments next in 73-6739, Costarelli against Massachusetts.

Mr. Hagopian, I think you may proceed now.

Robert W. Hagopian:

Mr. Chief Justice and may it please the Court.

This case involves an appeal from a Municipal Court in Boston.

In Massachusetts, we have what’s commonly known as a two-tier trial de novo system.

There is a set of lower courts that is comprised with the district courts and the Municipal Court of Boston and there is a second tier in the de novo procedure which is basically the superior courts.

The Superior Court and the district courts, or the lower courts have concurrent jurisdiction over the most crimes.

One limitation is that the first tier or the lower courts can only have jurisdictions over crimes which are punishable up to five years in the state prison.

There are a few exceptions that go up to 10 years, burglary and breaking in and entering at nighttime.

The district courts have jurisdiction.

In the district courts in Massachusetts as so construed by the Massachusetts Supreme Judicial Court, you cannot obtain a trial by jury in the first instance.

You have the option there of pleading not guilty and going to trial or you have the option of pleading guilty.

If you’re convicted after you plead not guilty, you have supposedly an unqualified and unfettered right for a trial de novo in the second tier of the Massachusetts procedure.

If you plead guilty, you cannot get a trial de novo in the second tier.

You may appeal the sentence itself, that is if you’re imprisoned, the length of confinement but there is no trial in the second tier on the merits of the controversy.

There is no procedure in the Massachusetts two-tier procedure for any appellate review of a decision in the lower court or lower tier.

There are a number of collateral remedies that are available that is if you go to trial in the District Court and you’re convicted and imprisoned, you may bring a writ of habeas corpus.

There is another writ called the writ of error which is unlike the writ of error that used to come to this Court many years ago and it’s what’s normally known.

That writ of error is not available for any collateral relief.

It’s an independent and distinct proceeding.

The third possibility is to petition to the Supreme Judicial Court for extraordinary relief under their supervisory powers.

Now, in this particular case, the appellant, Steven Costarelli requested a jury trial in the first instance.

He was charged with a crime of which he could’ve received two years in prison and a fine.

A trial judge denied that motion, notwithstanding the fact that Mr. Costarelli had asserted his specific constitutional rights and the right to a speedy trial which he interprets that meaning as speedy trial by jury or speedy trial that comports with constitutional standards and also his rights under the double jeopardy provisions.

From the denial of that motion, he brought — filed an appeal in this case and this case, the Court has set down the issue of jurisdiction.

I submit to you, Your Honors that this Court has jurisdiction over an appeal from the Boston Municipal Court because that court is the highest state court within the meaning of those words in Section 1257.

That is, there is no further appellate review.

Massachusetts’ argument to this case or to this point in jurisdiction is very simply that the appellant has the right to trial de novo and of course, that’s what the basic issue about what this case is all about.

In terms of jurisdiction, trial de novo is not an appeal on the record of the lower court proceedings.

It grants a person a new trial.

Robert W. Hagopian:

There is no means of reversing errors that went on down in the lower court.

William J. Brennan, Jr.:

Mr. Hagopian, what if your client had been initially tried in the District Court on the same charge he wasn’t acquitted and then he was tried again in the District Court and found guilty and you wanted to raise the claim of double jeopardy.

Could you raise that in the Superior Court on an appeal from that second verdict?

Robert W. Hagopian:

Yes.

Certainly the issue —

William J. Brennan, Jr.:

Well, then why can’t you raise your jury trial claim here?

Robert W. Hagopian:

Well, that of course is a very complicated question.

But the answer to that is that I think that it is this, that after he has gone up to the Superior Court and he raises — he can raise the issue of double jeopardy in the form of a motion on that bar.

I don’t believe he can collaterally attack what went down in the District Court of the denial of a jury trial is a pure reversible error.

It may be mooted by the fact that if the judge denies this motion to bar in the Superior Court and he’s granted a jury trial and he’s convicted there, then he’s had a jury trial and the issue may be moot.

That is if you consider the fact that a denial of a jury trial is purely a reversible error for getting the double jeopardy claim with the speedy trial claim if it is purely a reversible error, it’s been cured by the fact that he has a jury trial.

William J. Brennan, Jr.:

But then you could have I suppose under those circumstances after making your point in the Superior Court claiming the right to jury trial, they rule against you, at least brought it here from the Superior Court on the ruling on that motion rather than just from the District Court.

Robert W. Hagopian:

Yes, that’s quite correct.

I have that issue now before the Massachusetts Supreme Judicial Court and that case is currently being litigated there but I don’t think that that cuts away from this Court’s jurisdiction.

A man who’s tried down in the District Court, the Municipal Court of Boston, he does not have to suffer a second trial before he can get appellate review in this Court.

That is the foundation of which this Court’s jurisdiction is predicated under Section 1257.

William J. Brennan, Jr.:

But if your answer to my question is right, he wouldn’t have had to suffer a second trial.

He could’ve gotten a ruling on his motion in the Superior Court and before he ever went to trial in the Superior Court could’ve brought it here.

Robert W. Hagopian:

No, that’s not correct.

I don’t believe that’s correct because then it would not be a judgment from which an appeal could be taken.

It was simply a denial of a motion.

He would have had to gone through the trial in the Superior Court.

He can’t appeal from the denial of a motion in Superior Court.

He can only appeal under Section 1257 from a denial of a judgment.

That is from the final judgment of Superior Court.

That would be piecemeal adjudication of the trial or the proceedings in the Superior Court and I don’t believe the jurisdiction would lie under that procedure.

William J. Brennan, Jr.:

Well, what you’re saying then is that, although he can appeal from the final judgment of District Court, had he taken the state proceedings a step further, gone into the Superior Court and made his motion, he couldn’t appeal from there.

Robert W. Hagopian:

That — unless he’s completed the trial in the Superior Court, then he would have to go to the Massachusetts Supreme Judicial Court because the Superior Court is not the highest state court within the meaning of those words.

He would have to go all the way up through the ladder through the Appeals Court in Massachusetts and the Massachusetts Supreme Judicial Court and let me just state for the record and perhaps that’s not too clear, it should be clear on the record, Mr. Costarelli has lodged an appeal for trial de novo in the Superior Court.

That was done under compulsion and I don’t believe that he should’ve been forced to elect his remedies at that stage of the proceedings.

William J. Brennan, Jr.:

Is that pending now?

Robert W. Hagopian:

Yes, it is and the Chief Justice of Superior Court has stated those proceedings pending the disposition of this case.

William J. Brennan, Jr.:

Does that go up on the record and made in the District Court?

Robert W. Hagopian:

Well, the only record that technically goes up, a complaint is filed in the District Court, if he’s found guilty, that record and the disposition that goes on the District Court goes up to the Superior Court.

Other than that, there is no record in the District Court and you cannot collaterally attack anything that went on in the District Court.

It’s a trial de novo, that’s what’s meant by trial de novo in the definition, that is —

William J. Brennan, Jr.:

What goes up to the Supreme Judicial Court on your motion for extraordinary relief?

Robert W. Hagopian:

If you bring a motion for extraordinary belief — relief in the Supreme Judicial Court from proceedings in the District Court, nothing goes up.

The record does not go up.

You must file a complaint just like you would initiate in civil proceedings.

William J. Brennan, Jr.:

The complaint is just like a complaint in a trial court?

Robert W. Hagopian:

No.

That is if you are an aggrieved defendant in a District Court proceeding and you want it to go to the Supreme Judicial Court under their supervisory powers, you would have to swear out a complaint just like you would in a federal district court.

William J. Brennan, Jr.:

Just like a writ of prohibition or mandamus.

You allege what you claim going down the road.

Robert W. Hagopian:

That’s right.

The record does not go up and of course, that’s a crucial issue to the —

Thurgood Marshall:

Suppose when you get to the court of general jurisdiction on the appeal of trial de novo but I don’t use it with any meaning at all, and you say this Court doesn’t have jurisdiction to try me, that the Court passes on its own jurisdiction?

Robert W. Hagopian:

I’m sorry, your Honor, I didn’t understand that question.

Thurgood Marshall:

The Court doesn’t have jurisdiction to try me?

Robert W. Hagopian:

The Superior Court?

Thurgood Marshall:

Yes.

Robert W. Hagopian:

The Superior Court in Massachusetts —

Thurgood Marshall:

Suppose the motion is made that the Superior Court does not have the right to try me because the Court is without jurisdiction.

Robert W. Hagopian:

Well, I don’t think that the fact that he did not have a jury trial in the District Court affects the jurisdiction of the Superior Court.

Thurgood Marshall:

I didn’t say one word about jury trial.

I said the motion is made that the court’s without jurisdiction.

Robert W. Hagopian:

Well, I suppose you could make it Your Honor but I don’t know why it should be denied because it’s the only thing that —

Thurgood Marshall:

Suppose it is denied, could you appeal it?

Robert W. Hagopian:

Not without going through a trial, Your Honor, no.

Robert W. Hagopian:

Not in the Massachusetts —

Thurgood Marshall:

You mean, in Massachusetts, you make a point that this Court is without jurisdiction because the judge is six-years-old, and thereby on the jury is dead that that can’t be appealed?

Robert W. Hagopian:

I don’t believe there are any procedures in the Massachusetts system that allow piecemeal adjudication of the issue of jurisdiction.

Thurgood Marshall:

Jurisdiction is not piecemeal.

Robert W. Hagopian:

I understand that from a federal viewpoint, Your Honor to a certain extent but I don’t believe Massachusetts, if there is remedy for getting into an Appellate Court other than going through a trial in the Superior Court.

Thurgood Marshall:

At this time, I’ll take your word for it —

Robert W. Hagopian:

I believe that’s correct, Your Honor.

Potter Stewart:

Of course you would be in the Superior Court only because you as the defendant had invoked its jurisdiction.

Robert W. Hagopian:

Well–

Potter Stewart:

It would be kind of an odd thing to go in there and invoke its jurisdiction and file a motion to say it doesn’t have jurisdiction.

Thurgood Marshall:

Did you invoke its jurisdiction there?

Robert W. Hagopian:

Well, Yes, Your Honor.

I —

Thurgood Marshall:

I thought you said they made you file —

Robert W. Hagopian:

Pardon, Your Honor?

Thurgood Marshall:

I thought you said they made you file this motion in the Superior Court.

Robert W. Hagopian:

No, Your Honor, I don’t believe I said that.

When Costarelli was convicted in the District Court, we appealed.

I appealed for him and he has a pending trial de novo in the Superior Court.

The proceedings in the Superior Court have been stayed by order of the Chief Justice of the Superior Court pending the resolution of this case in this Court and I don’t believe that that because Mr. Costarelli has elected to go forward with that, he still has the right to come to this Court alleging that that is the highest state court, the District Court in Massachusetts.

The fact that he elected a trial de novo cannot constitute a waiver of his federal rights under Section 1257.

Potter Stewart:

Let me ask you a question, is there any way in the Massachusetts system whereby Mr. Costarelli could have bypassed the District Court?

Robert W. Hagopian:

No there is not Your Honor.

He may not even waive a trial like in Colten versus Kentucky.

There is some language in this Court and I believe it’s a procedure in Colten where you could circumnavigate a trial.

You must stand trial and I believe my brother concedes this.

There’s no means of waiving a trial in the District Court of Massachusetts.

You must stand trial and if you remain silent, the Court convicts you, you stand guilty and the burden is upon you in the Superior Court.

If you default, if you do not show up in the Superior Court, judgment will be entered in the Superior Court under the Massachusetts statute the sentence that was imposed in the District Court will be imposed upon you, notwithstanding the fact that you have never waived your right to a trial by jury.

Byron R. White:

But if you just go across that file and take your appeal, the proceeding is annulled.

Robert W. Hagopian:

Well, that’s not true, Mr. Justice White.

Byron R. White:

Well, now —

Robert W. Hagopian:

There are collateral consequences that are very serious.

Byron R. White:

De novo — it’s a de novo matter.

Robert W. Hagopian:

It’s a de novo matter but there are collateral consequences that are attached.

Very serious ones.

In Costarelli’s case, the statute provides that whoever uses a power without authority, if he’s convicted in the District Court, his license will be revoked, notwithstanding the fact that he’s appealed.

Byron R. White:

When you go to the Superior Court, what happens to the judgment —

Robert W. Hagopian:

Well, technically in terms of fiction, it’s vacated.

Byron R. White:

Well then it’s no longer important.

Robert W. Hagopian:

That’s not strictly true because of the fact that you —

Byron R. White:

You told me it was vacated.

Robert W. Hagopian:

Well, it is but if you default in the Superior Court, it is then imposed.

Byron R. White:

This is within your power to annul that judgment by going, by invoking the Superior Court proceedings.

Robert W. Hagopian:

That’s correct but there’s a great deal of difference when —

Byron R. White:

You may not have to plead guilty to get the default to get there.

You just have them to get —

Robert W. Hagopian:

You mean in the District Courts in Massachusetts?

Byron R. White:

Yes.

Robert W. Hagopian:

Well, you must have —

Byron R. White:

You default.

Robert W. Hagopian:

You can’t default.

Judgment will not be entered by default in criminal proceedings in the Massachusetts Court.

Byron R. White:

Well, awhile ago you told me (Inaudible)?

Robert W. Hagopian:

No, I am sorry Your Honor.

I think I didn’t say that.

What I meant was that in the Superior Court upon trial de novo, if you default there, the judgment of the District Court where you have been found guilty will now be imposed upon you.

Byron R. White:

I understand you viewed it on the District Court, what if he just doesn’t show up.

They are not going to Court until today?

Robert W. Hagopian:

You can’t default.

Byron R. White:

They say, well, you can’t default.

They’ll bring you to court if you just sit there —

Robert W. Hagopian:

That’s correct.

Byron R. White:

— so you do have to expose yourself to the state’s evidence?

Robert W. Hagopian:

That’s correct.

Byron R. White:

And then it may not be much of a trial but —

Robert W. Hagopian:

Well, there are serious consequences because if you remain silent, and the Government puts their witnesses on and then —

Byron R. White:

You’re going to be found guilty?

Robert W. Hagopian:

Well, it’s more than that.

If those witnesses die in between the District Court and Superior Court, their unimpeached testimony will be introduced against you in the Superior Court so there’s a certain amount of risk to take in that procedure.

Potter Stewart:

Well, it’s true of a preliminary hearing too though isn’t it?

Robert W. Hagopian:

Yes, as a matter of fact, that’s true.

It is a true preliminary hearing but there’s a great deal of difference between a preliminary hearing and a trial and that point was brought up in Callan versus Wilson.

And Justice Harlan, the first Justice Harlan of this Court said, there’s a great deal of difference between a preliminary hearing and a trial in the de novo system and that the trial in our Massachusetts system like it was under the DC procedure here is a full trial in the full sense that there is.

In a preliminary hearing, if you default in a Superior Court, there isn’t going to be any judgment that’s entered against you and that’s the difference.

Potter Stewart:

There’s another side of the coin and that is if you stand mute and hear the state’s evidence, you know what the state’s case is.

Robert W. Hagopian:

And the difficulty with that is that the Massachusetts system attaches collateral consequences to that judgment.

It’s not totally vacated.

Your driver’s license may be yanked.

If you’re on probation, you will automatically be sent to jail and those collateral consequences are very severe and this Court has affirmed those collateral consequences in the case last term.

Potter Stewart:

I thought you just admitted to Mr. Justice White that you could nullify that entire effect?

Robert W. Hagopian:

You can’t nullify the collateral consequences you see because of the fact in the Massachusetts procedure, the statutes that empower the registrar say to yank your motor vehicle license.

They’re entirely separate.

That’s not part of the judgment of the District Court.

They independently give powers to attach to these collateral consequences.

They are no vacated by the District Court judgment and they are imposed and I raised that issue in a three-judge court last year in the federal district court and they refused to declare that that procedure was being — putting a price on what’s supposed to be his unfettered right of appeal.

And this Court affirmed that decision so I would assume that that procedure is done.

Byron R. White:

When does the judgment of District Court become annulled?

Suppose you have this?

Robert W. Hagopian:

That’s the end.

Robert W. Hagopian:

There is no further —

Byron R. White:

Then what happens?

Robert W. Hagopian:

The Government has no more trials.

That’s the end of all the matters.

Byron R. White:

How does nothing happen — nobody divulges anything?

Robert W. Hagopian:

That’s correct.

Warren E. Burger:

Wait a minute, is this being found innocent in the District Court?

Robert W. Hagopian:

Yes, the District Court.

Warren E. Burger:

I think Mr. Justice White asked you suppose you’re found innocent in the Superior Court.

Robert W. Hagopian:

Well, then yes, then you are declared innocent and then the registrar has to give you your license back but you see, it’s that intervening time between the District Court and the Superior Court that is the nub of the matter.

Byron R. White:

Do you say the judgment basis in fact —

Robert W. Hagopian:

Well, let me say this.

The collateral consequences are not part of the judgment.

There are separate statutes that are involved.

The judgment is technically vacated but if you default in the Superior Court, the Superior Court judge has the power to pass sentence on you when you’re not even there in default.

He passes the sentence of the District Court.

William H. Rehnquist:

It’s very much like an appeal in that sense.

Robert W. Hagopian:

It is, it exactly is.

It is an appeal and it’s an appeal like Colten v. Kentucky is an appeal.

And that of course goes to the nub of the matter and let me just say this on the issue of Colten.

In Colten, the record isn’t transmitted up the Superior Court.

It’s a real true de novo system here.

In the Massachusetts system, the judge and jury, everybody knows where these cases came from.

They know that the man has been convicted.

In addition to that of course, the critical issue in Colten was that Colten was entitled to a trial by jury in the first instance.

Let me just say briefly on the merits of this case, I think that the large issue, the broad issue in this case is not whether the rule of Callan versus Wilson is incorporated and the state should be bound.

I think that the real broad issue in this case is whether the states have a right to deny a person a specific procedural constitutional right, whether it’s the right to counsel or whether it’s the right to an impartial judge or it’s the right to a trial by jury.

I don’t believe it’s any answer for the state to say, we will give you a trial de novo.

I think a man is entitled to those rights in the first instance, right to counsel, right to trial by jury, right to an impartial judge and it’s no answer on the part of Massachusetts or the other states to simply say we will give these to you after we’ve subjected you and you’re forced with a stigma of a conviction of guilty.

Now, I don’t — I think trial de novo’s have a legitimate place and purposes of administration of criminal justice in the state system and I’m not asking this Court to abolish trial de novo.

Robert W. Hagopian:

All I’m asking them to do was to say that Massachusetts must do what Rhode Island has to do, that when a defendant comes before the District Court, if he doesn’t want to proceed at that stage of the proceedings, he should have a right to circumnavigate that trial and go right to the Superior Court or the state has to give him a trial by jury in the first instance.

That’s the only thing that I’m asking for.

I’m not asking to take the whole to trial de novo system down.

That request would have some serious consequences.

If the state wants to give somebody a trial de novo as an equivalent to an appellate remedy, I think that’s fine.

I see nothing wrong with that as the procedure in Colten but I do object to the fact that the state of Massachusetts can deny somebody his specific Sixth Amendment constitutional rights and I think that that’s what the heart of this case is all about.

I’d like to reserve the rest of my time, Your Honor.

Warren E. Burger:

You don’t suggest I take it that — this is a subjective question.

If he’s tried in this first tribunal with a jury, found guilty, “takes an appeal” but gets a trial de novo, any problems about that in terms of double jeopardy?

Robert W. Hagopian:

No, Your Honor.

That’s the procedure in Rhode Island now and well, it’s a procedure in Kentucky in the Colten case.

You have a right to a trial by jury.

I have no objections to this.

The double jeopardy issue is that I don’t think that a person should have to suffer two trials to get what he’s entitled to at least once and this Court just recently and I guess it was Wilson versus United States a few weeks ago held that the real underlying prohibitions of the double jeopardy clause is that the multiple trials.

The trial process itself is impaired but that may result as a manifest necessity.

Obviously, all trials can’t be perfect.

Warren E. Burger:

But if the state did give the jury trial in the first instance, all they’d need to do is have a review on the record if they provided any review at all, is that possible?

Robert W. Hagopian:

That’s correct.

I’m not arguing that they have to provide review at all.

Warren E. Burger:

Mr. Mills.

David A. Mills:

Mr. Chief Justice and may it please the Court.

I believe that Mr. Justice Rehnquist has asked a single critical question with respect to the issue of jurisdiction.

However by way of introductory overview, I would like to suggest to this Court that Massachusetts has presented a brief with five parts and hopefully we will argue today in five parts.

Those parts are first in accordance with Rule 16, the question of jurisdiction and by way of introduction, we suggest that this Court does not have jurisdiction because this appeal fails of the prerequisite statutory jurisdictional prerequisites in Section 1257.

Our second point will be that the Massachusetts jury procedure as it currently exists is a system which is basic and fundamental and is justifiable as adequate under the Fourteenth Amendment standards that have been enunciated by this Court.

Our third position as presented in the brief will be that the Massachusetts jury system as it presently is in practice is a procedure and system which provides for the function and purpose of jury trial in America as has been enunciated in standards and decisions by this Court.

Our fourth position will be that the right to a speedy trial is not properly an issue before this Court and our final position will be that double jeopardy and the claim of a violation of double jeopardy in this case is controlled by this Court’s decision on Colten versus Kentucky.

First with respect to the issue of jurisdiction, Massachusetts suggests that the prerequisites of Section 1257 have not been satisfied.

We suggest that for purposes of an appeal to this Court, pursuant to 1257, there are three prerequisites.

The judgment of the state court must be final.

David A. Mills:

The judgment of the state court must be of the highest court in which a decision could be had and for purposes of appeal under subsection 2 of Section 1257, the constitutionality of a state statute must have been drawn in question with a determination in favor of its validity and Massachusetts suggests that each of these statutory prerequisites are missing in this case.

With respect to finality, this Court has stated that no self-enforcing formula can be defined as to determine when a state judgment can be final.

And as early as 1869, in the case of Thomson versus Dean, this Court implicitly rejected a mechanical application of a formula of finality speaking rather in terms of the degree of finality essential to appeal.

On page 5 of our brief, we have extracted from the decisions of this Court, principles that we suggest should go into a determination of the degree of finality and our primary principles upon which we suggest this issue should be determined are suggestions from the cases of Richfield Oil Corporation, Market Street Railway Company and Banks versus California which are all cited at page 5 and the criteria that we suggest are controlling are these, that the judgment — the state judgment in order to be final must be an effective determination of the litigation and subject to no further review or correction in any other state tribunal, that is the first criteria and the second; that available appellate review within the State Court system be pursued if available.

The Massachusetts Supreme Judicial Court has spoken to the nature of the de novo review, most recently in Mann versus Commonwealth which is also cited in our brief.

That trial court has said that upon the de novo review, the District Court proceeding is wiped out entirely and transferred to the Superior Court are all questions with respect to the case, guilt, sentencing power and all related matters.

Thurgood Marshall:

I didn’t get the beginning.

That’s when you filed it or after it’s completed?

David A. Mills:

When the appeal is claimed Your Honor.

Thurgood Marshall:

When it’s claimed?

David A. Mills:

Yes.

Potter Stewart:

Is that a peculiar area of Massachusetts so to speak of claiming an appeal?

Does that mean the same time as you file a notice of appeal?

David A. Mills:

As far as I know, Your Honor.

When the appeal is claimed, it transfers the whole case for redetermination completely divorced from the earlier proceedings.

Potter Stewart:

What are the collateral consequences your friend was discussing?

David A. Mills:

Well, the collateral consequences Your Honor I suggest, this point has also been raised in the amicus brief of the Massachusetts Defenders Committee.

They suggest as does the appellant that this Court should enter an order or take some action suggesting that the Massachusetts defendant at the District Court level should be able to waive a trial and proceed directly to a jury because of the collateral ancillary inconveniences of a District Court adjudication of guilt.

However, each of these positions, the position of the amicus and the position of the appellant, I suggest are based upon an independent due process question with respect to driver’s licenses.

That is not the question that is before this Court.

I believe it’s an important question but not a question that goes to whether or not this particular judgment is final.

We suggest that the redetermination of the question of guilt or innocence which is available in the Superior Court explicitly contraindicates that the earlier Boston Municipal Court decision determined this matter and in that regard we suggest that the Boston Municipal Court judgment is not final.

Additionally, we suggest that the decision made by the Boston —

Byron R. White:

May I suppose — does that suggest that particularly in this case where whatever you call it, a proceeding is now pending in the Superior Court?

David A. Mills:

We do not know that of record Your Honor, however, what we do know of record is that at the time that this particular appellant who was a defendant in the Boston Municipal Court on the day that he was found guilty in the Boston Municipal Court, the record indicates that he claimed an appeal.

As of record, we do not know what happened to that appeal or where it is.

Byron R. White:

Does your argument on finality rest at all in this case on the fact that he did claim an appeal?

David A. Mills:

No, Your Honor, the option is available to this —

Byron R. White:

Whether he did or not?

David A. Mills:

Whether he did or not.

Byron R. White:

You could still say the District Court judgment is not final for purposes of 1257?

David A. Mills:

Yes, Your Honor because he had available to him under Massachusetts law, a redetermination and I equate redetermination somehow with the fact that it has not been fully determined if it is subject to redetermination.

William H. Rehnquist:

Mr. Mills, what do you understand his federal constitutional issue is here?

David A. Mills:

His issue here Your Honor is whether or not he was deprived of a federally protected constitutional right when he was not provided with a jury in the first instance at the District Court.

John Paul Stevens:

How does he ever raise that up through the Massachusetts system?

He’s found guilty in the Municipal Court, he claims an appeal and how does he present to the Superior Court his claim that having to go through the Municipal Court is a burden on his jury trial right?

David A. Mills:

Your Honor, that question was explicitly noted by the Massachusetts Supreme Judicial Court in a September 1974 decision which has been submitted to this Court as an amendment to the appellant’s original jurisdictional statement.

John Paul Stevens:

Again, how does he bring this to the — before the Superior Court.

If he claims — if he’s tried there and found innocent, the case if over?

David A. Mills:

Correct.

John Paul Stevens:

If he’s tried there with a jury and found guilty, then what does he claim in the Superior?

How can he present that to the Superior Court?

David A. Mills:

Well, he wouldn’t be presenting it to the Superior Court, Your Honor.

He would be presenting it either to the Massachusetts Appeals Court or to the Massachusetts Supreme Judicial Court.

John Paul Stevens:

So when he’s convicted in the Massa — in the Superior Court, he then appeals and says, this conviction is invalid because why?

David A. Mills:

Well, I don’t think that he would say the conviction was invalid.

He would — yes, he would say the conviction was invalid.

Let me answer your question Your Honor, you said by what vehicle?

John Paul Stevens:

Yes.

David A. Mills:

The defendant in the Superior Court would file a motion to dismiss the complaint at the Superior Court level because the case was improperly there because he was not afforded a jury trial in the first instance.

Potter Stewart:

But he took the case there?

By definition didn’t he?

David A. Mills:

Yes, he did Your Honor.

He still has the jurisdiction to move that Court to dismiss the complaint for failure of constitutional prerequisites at the District Court level and were that motion to dismiss the complaint denied at the Superior Court level, he would take an exception and take his properly, if acquitted — excuse me, if found guilty, take his properly perfected exception to the Massachusetts Appeals Court as of right and under certain conditions to the Massachusetts —

John Paul Stevens:

What will he say if say, he’s found guilty after jury trial in Superior Court?

Now and what does he say to the Massachusetts Court of Appeals or to the Massachusetts Supreme Judicial Court?

What does he say?

David A. Mills:

He says that it was error for the Superior Court to not grant his motion to dismiss because he was entitled to a jury trial in the first instance and he did not receive it.

Therefore, there is error, therefore —

John Paul Stevens:

The state comes back as it is but now you’ve been given a jury trial, you’ve been found guilty, you’re just claiming an error for which there is no remedy.

David A. Mills:

I suggest that’s hypothetical Your Honor and contraindicated by the —

Byron R. White:

Was this ever a fact in what has happened under your procedure that someone’s been convicted without a jury in the District Court?

Taken by appeal to the Superior Court, made the motion that you suggest these privileged is there to make, had it denied and convicted and then gone to either the Court of Appeals or the Supreme Judicial Court?

David A. Mills:

It has not happened to my knowledge and I believe we would know.

John Paul Stevens:

Let’s assume that that procedure just weren’t open in the Massachusetts courts.

I suppose you would have to conclude that his federal issue had been finally decided in the state courts, by every Court that would decide it.

Let’s — I would suppose that if you’ were right, if that kind of motion is open in the Superior Court and can be taken up through the state courts, you’ve got something to your finality — I suppose.

David A. Mills:

I suggest Your Honor that if the Massachusetts —

John Paul Stevens:

But if that is right, I don’t think you may not have much to your finality, are you?

David A. Mills:

Well, if the Massachusetts Supreme Judicial Court has suggested in its opinion of Whitmarsh versus the Commonwealth that that is an available vehicle for a plaintiff similarly situated then I suggest —

John Paul Stevens:

That suggestion is —

Potter Stewart:

Where is that case?

What is that case?

Is that in your (Voice Overlap)?

David A. Mills:

September of 1974 Your Honor, Whitmarsh versus Commonwealth.

John Paul Stevens:

We have any way of sending this back to anybody to find out whether you or your adversary are right, have we?

For reconsideration in light of Whitmarsh.

This comes directly here from the District Court, doesn’t it?

David A. Mills:

Yes, this is not the Whitmarsh case.

John Paul Stevens:

I know, but have you have an intervening — as I understand it, Whitmarsh has been decided since this judgment?

David A. Mills:

Yes, that’s correct, Your Honor.

Potter Stewart:

This brief.

This brief — it’s on the brief of the appellant on page 5 and he shows why that’s inadequate for him?

David A. Mills:

And we claim that it is adequate Your Honor.

So it is brief.

William H. Rehnquist:

Well, You’re saying then that you would make the same argument in the Massachusetts Court of Appeals that he is making here now on the merits?

David A. Mills:

I’m saying that that is possible, Your Honor.

William H. Rehnquist:

Yes, that it would be open to it anyway.

John Paul Stevens:

That’s important.

You say that they would be open to it at least or it wouldn’t be open.

David A. Mills:

I say that it’s open to him and if futility were a principle of finality, then perhaps finality would be defeated because as a matter of fact in law, the Supreme Judicial Court has since the filing of the jurisdictional statement in this case considered this constitutional issue twice in two different courts.

John Paul Stevens:

Well yes, we’re the ones to decide finality.

David A. Mills:

Correct Your Honor and that’s why I say if utility were and which it is not.

Warren E. Burger:

What are the circumstances in which the Supreme Judicial Court of Massachusetts could take the case directly from the District Court to said in passing under some circumstances, is it a certiorari jurisdiction or a certiorari before judgment?

David A. Mills:

There is a procedural vehicle which is General Law Chapter 211 Section 3 under which this particular question has reached the highest Massachusetts Court twice.

Only in each instance although the Court did consider the issue, it’s said that it was doing so for a matter or convenience and that the particular vehicle had been improperly used and so I would suggest that there is no direct route from the Boston Municipal Court to the Supreme Judicial Court.

It requires that the Intermediate Courts, the Superior Court and the Massachusetts Appeals Court be utilized.

Potter Stewart:

What procedure was followed in Whitmarsh?

David A. Mills:

In Whitmarsh Your Honor, it was an interlocutory petition seeking the extraordinary relief powers in our highest Appellate Court under General Laws 211 Section 3 and the Court while noting that the vehicle for relief was improperly invoked, nonetheless, briefly gave its opinion as to the determination of the constitutional issue.

Potter Stewart:

Isn’t Whitmarsh the critical case here?

It has to be in your posture doesn’t it?

David A. Mills:

No, Your Honor, not with respect to an argument on this Court’s jurisdiction under Section 1257.

Potter Stewart:

Of course, it’s here before us, Whitmarsh has been —

David A. Mills:

No, Costarelli is before this Court.

Potter Stewart:

Well, Whitmarsh is too.

There is a petition for certiorari here that hasn’t been acted on.

David A. Mills:

Oh, correct.

Excuse me your Honor.

Whitmarsh is.

I would suggest however that the question of finality is not to be determined simply on that basis.

The question of finality we suggest under the decisions of this Court means that the appellate review be pursued in this particular case and it was not pursued in this particular case.

Potter Stewart:

Let me repeat my first question, are you not relying on what you call your Supreme Judicial Court?

Didn’t Whitmarsh do what was your posture here without its opinion in Whitmarsh, wouldn’t you be in a much weaker posture?

David A. Mills:

With respect to jurisdiction?

Potter Stewart:

With respect to Costarelli’s case in jurisdiction, yes.

David A. Mills:

I don’t believe so Your Honor.

The Boston Municipal Court we suggest for purposes of jurisdiction is not the highest court in Massachusetts in which a decision could be had on this question and I don’t think that I need go on at length.

I have suggested that the Superior Court could make a determination.

It is a higher Court that the Massachusetts Appeals Court was available to this appellant as a matter of right, that is a still higher court and that further and substituted hearings might have been available before the Supreme Judicial Court which is a still higher and our highest court in Massachusetts.

We recognize that the highest Court in which a decision could be had need not be the highest Appellate Court of the state.

David A. Mills:

Nonetheless, we suggest that this question could have reached the Supreme Judicial Court and because that is the highest Court in which a decision could be had, this particular judgment is not.

Mr. Justice Rehnquist raised the question as to whether or not the determination of the Boston Municipal Court could be reviewed in another Court upon the record made in the District Court.

I think that that is a critical question.

I think that the answer is critical to each side in this particular case.

In Largent versus Texas which is cited I’m sure, I know in each of the briefs, this Court seems to have established a rule that if the conviction in the lower court is not examinable in a higher court on the record made in the lower court then the question has been finally determined for purposes of Section 1257.

If that is the rule that has been established by this Court, we suggest that mechanically, the Boston Municipal Court judgment cannot be reviewed in another Massachusetts Court on the record made in the Massachusetts Court.

However, an application of that rule, we have suggested would not really do justice to the substance of the fact and to the point in this case to which there seems to be no contest whatsoever.

The matter of guilt or innocence and the matter of whether or not the District Court judge was correct in denying a motion for a new trial, each of those two determinations made by the lower court are subject to redetermination.

We suggest accordingly that there has been not a determination, a final determination sufficient for purposes of Section 1257.

William H. Rehnquist:

Wasn’t there too — in Largent too though, are you asking us to overrule Largent?

Warren E. Burger:

Yes.

David A. Mills:

No, I don’t fully underst — to the extent that I read Largent, it seems to be opposite to the position that I argue to you today.

Yes, Your Honor.

It seems to be.

I’m not convinced that it is.

However, I am suggesting that in this Court, the substance of the determinations made by that lower court have not been fully determined and under the explicit language of the statute, there has been no final determination.

William H. Rehnquist:

Well, it sounds to me as if what you’re contending for might leave open the possibility that if a defendant could get review on writ of prohibition or writ of mandamus.

The kind of thing where you file an original complaint, don’t bring the record up so long as he could review some aspect of the proceedings in a higher court even though it’s by an original action.

The lower court’s proceedings wouldn’t be final.

That would be a very significant departure from Largent.

David A. Mills:

If Largent says what I believe it says Your Honor, it would be a significant departure.

Warren E. Burger:

And your position, would at least acceptance of your position here, would at least require the Court to modify or explain some of the language in Largent at the very least.

David A. Mills:

Yes, Your Honor.

Warren E. Burger:

You would be able to agree with that would you?

David A. Mills:

Or to be made more explicit yes, Your Honor.

Warren E. Burger:

Because Largent said that if there’s no review on the record in any other state tribunal, then it’s final for purposes of coming here isn’t that basically what it said?

David A. Mills:

I believe it does, yes, Your Honor.

Warren E. Burger:

And in this case, there is no review on the record in any other Court of Massachusetts.

David A. Mills:

Correct, Your Honor.

Warren E. Burger:

On a District or Boston Municipal Court proceeding.

David A. Mills:

Of the record, you are correct, Your Honor.

Of the determinations —

Potter Stewart:

Why don’t you just answer that there is more than that — there is more than review of the record.

There is a way of having the judgment entirely automatically wiped out.

We settled that.

Why does that require anything — any problem with Largent?

David A. Mills:

Largent disturbs the Commonwealth Your Honor because it seems to explicitly establish a rule which cannot be complied with in this case and we suggest that a mechanical application —

Potter Stewart:

Then it can be more than complied with.

The state not only gives a review, it entirely gives a procedure whereby they don’t care whether it’s on the record it’s valid or not.

We’ll just get rid of it and start over.

David A. Mills:

If Largent requires a record, there is no record here Your Honor.

We suggest there need be no record in view of the redetermination.

Hugo L. Black:

I have a little trouble with this wiping the record clean.

David A. Mills:

Excuse me, —

Hugo L. Black:

I have a little trouble with your broad statement of wiping the record clean.

He files a notice of appeal to the Superior Court.

Right?

David A. Mills:

Yes, Your Honor.

Hugo L. Black:

Then the record is wiped clear.

Right?

David A. Mills:

Yes, Your Honor.

Hugo L. Black:

Can he go to Europe next week?

David A. Mills:

I didn’t hear you, Your Honor.

Hugo L. Black:

Can he go to Europe next week.

David A. Mills:

No.

Hugo L. Black:

So it isn’t clean is it?

David A. Mills:

Yes, the record is clean.

He is still held as a criminal defendant on separate process for a separate proceeding which has been elected at his option —

Hugo L. Black:

At his option?

Did he have any other one?

David A. Mills:

Three other options, yes Your Honor.

Hugo L. Black:

Going to jail being one of them.

David A. Mills:

The language — yes, Your Honor it is.

The language of wiping the record clean comes directly from Mann versus Commonwealth.

Hugo L. Black:

But you do admit that he is still held under charges.

David A. Mills:

He is still a criminal defendant, subject to process and subject to further involvement in criminal proceedings in Massachusetts.

Hugo L. Black:

Would you object to in other words, again be put in jeopardy?

David A. Mills:

Yes, I would Your Honor.

Hugo L. Black:

You object to that word?

David A. Mills:

Yes, in view of this —

Hugo L. Black:

But is he already in jeopardy?

David A. Mills:

He is, he remains in jeopardy.

Hugo L. Black:

From the first one?

David A. Mills:

No, he is — yes, he is again in jeopardy Your Honor.

Hugo L. Black:

Well, I thought you said it was wiped away, take it or leave it, one or the other.

David A. Mills:

I suggest that it is wiped away Your Honor.

The District Court proceeding —

Hugo L. Black:

So there is a second jeopardy.

There’s a second jeopardy?

David A. Mills:

Not if second is equivalent with double Your Honor.

Hugo L. Black:

Well, have you ever heard of an appeal where you had a trial by jury?

In any other phase of jurisprudence?

David A. Mills:

Perhaps this is inappropriately labeled under Massachusetts procedure as an appeal but I would suggest that the particular name or denomination —

Hugo L. Black:

Is it a trial de novo?

David A. Mills:

It is a trial, Your Honor.

Hugo L. Black:

It’s a trial.

That this man would then go through two trials?

David A. Mills:

Two adjudications Your Honor.

Hugo L. Black:

Two trials?

David A. Mills:

There are two trials.

David A. Mills:

Well, I would suggest Your Honor that the Massachusetts procedure by which a criminal defendant may undergo two trials complies, it may not be the best system.

We did not suggest in our brief that it was the best available system.

We do not argue today that it’s the best available system.

We suggested it is a system that complies with this Court’s decision in Duncan versus Louisiana which says that state criminal defendants be afforded the right to trial by jury.

We say that it adequately complies with this Fourteenth Amendment requirement and at the outset we suggest that the Court in Duncan versus Louisiana did not incorporate Callan versus Wilson and if this Court did incorporate Callan versus Wilson in that doctrine in the decision of Duncan versus Louisiana, that the Callan decision should be reviewed because it is based upon a suggestion of hypothetical reasons which are not the practical fact in this case.

Thurgood Marshall:

(Inaudible) this point with this question about having a trial by jury on appeal.

I know and I would suggest that if you go to the Supreme Court of Massachusetts, you don’t get a jury.

David A. Mills:

Correct.

Thurgood Marshall:

You just don’t get juries in appellate courts.

David A. Mills:

Correct, Your Honor.

Thurgood Marshall:

Except in Massachusetts and how many other states.

David A. Mills:

We could call it in de novo states Your Honor, we have suggested that there are eight in the brief.

Thurgood Marshall:

Eight.

How many states are there — once you asked for jury trial, it automatically goes to the court of general jurisdiction?

David A. Mills:

We do not know Your Honor.

Thurgood Marshall:

There are several.

David A. Mills:

The interaction of the —

Thurgood Marshall:

Was Rhode Island one?

David A. Mills:

Rhode Island no longer is one —

Oh!

Yes, Rhode Island now is one under the Holliday decision.

Thurgood Marshall:

Several others.

David A. Mills:

There are others but the —

Thurgood Marshall:

One right close to you.

David A. Mills:

Yes, it is close.

New Hampshire is equally as close Your Honor and has a different system.

We have examined in our brief the colonial constitutional history of the original states and we find that the de novo system existed in Massachusetts dating from 1647, in New Hampshire from 1679, from Vermont, Connecticut, Rhode Island and Maine from the early 1700s.

We suggest that this constitutional colonial analysis in the brief is appropriate in view of the criteria that were used by this Court in Duncan versus Louisiana, the Williams case, the Apodaca case and the other recent cases in which this Court has considered the jury trial right with respect to state procedures.

We have examined contemporary practices among the states as this Court did in Duncan versus Louisiana and the results are contained in the brief.

We have suggested that the Massachusetts jury procedure fulfills the function and purpose of jury, that is the interposition of the common sense judgment of the group of laymen between an accuser and his accused.

David A. Mills:

In this regard, we would respectfully direct the Court’s attention to the brief of the amicus file by the Massachusetts Defenders Committee which I think says better than the appellee has said in its brief that far from being oppressive, indeed the particular Massachusetts jury procedure system in question here may even contraindicate inconvenience let alone governmental oppression.

Finally, we have suggested that the speedy trial right is not an issue in this case as there is no measurable period of delay by which this Court can assess a delay in the terms of the criteria of Barker versus Wingo and we have suggested that the Massachusetts procedure is not violative of double jeopardy in view of this Court’s decision in Colten versus Kentucky.

Thank you.

Warren E. Burger:

Do you have anything further, Mr. Hagopian?

Robert W. Hagopian:

Mr. Chief Justice, the Massachusetts Defenders Committee filed a brief that I received last Friday and I would like to ask leave of Court to file a reply brief to that brief.

Either that or I would oppose its admissions at this late date.

Warren E. Burger:

I was wondering there was just — Mr. Mills just referred to an amicus brief and I don’t —

Robert W. Hagopian:

It probably hasn’t even got here Your Honor and I’m opposed to its —

Potter Stewart:

It hasn’t been circulated.

Byron R. White:

Was that in the amicus brief?

Robert W. Hagopian:

Yes, Your Honor.

Byron R. White:

Was there permission to campaign?

Robert W. Hagopian:

I assented to it at that time Your Honor but — yes I did but I didn’t assent to it being delivered here after oral arguments or the time of oral arguments.

I haven’t had sufficient time to reply to that brief and there are matters in there that need their discussion.

Warren E. Burger:

You may respond to it and your friend may comment on the response if you wish —

Robert W. Hagopian:

Could I have leave to file a written response to that?

Warren E. Burger:

Yes.

Robert W. Hagopian:

A couple of small points —

Warren E. Burger:

What do you want, five days, seven days,10 days?

Robert W. Hagopian:

Your Honor, this is an informer’s propers case and I have to send those down to Washington.

The printer is down here take some time.

Would I be asking for too much with 21 days?

Warren E. Burger:

You may submit a typewritten form if you like in response.

Robert W. Hagopian:

Oh, fine.

Warren E. Burger:

I take it you’re not going to file an extensive brief.

Robert W. Hagopian:

That’s correct Your Honor.

Yes.

Could I have 14 days?

Warren E. Burger:

Very well.

Robert W. Hagopian:

One thing I would like to mention to Mr. Justice White, there is a procedure in Massachusetts called submitting to a finding of facts in the lower Court which is equivalent to what you mentioned.

Robert W. Hagopian:

You simply remained silent.

The Government doesn’t have to complete — put all the evidence and will follow the rules of evidence, that is hearsay and things like that go in.

That’s an informal procedure.

You still are judged guilty and there is no way of circumnavigating that and a sentence is passed upon you.

Byron R. White:

Is there a way that that you could raise in the Superior Court the question that — the federal questions you want us to —

Robert W. Hagopian:

I would suppose the double jeopardy issue certainly could be raised.

Byron R. White:

How about the jury trial?

Robert W. Hagopian:

Well, it depends upon whether it’s a reversible error.

The only other possibility is to simply allege that the District Court did not have jurisdiction but that’s a fiction.

It had jurisdiction over the crime.

Byron R. White:

Here you are in the Superior Court and you’re taking a case there for a trial de novo.

Robert W. Hagopian:

Yes.

Byron R. White:

Now is there some way to present to the Superior Court have rules on —

Robert W. Hagopian:

Other than a motion to dismiss on the grounds of double jeopardy, the answer is no.

There is no possible way of reviewing any error.

Let me give you a —

Byron R. White:

— out here in the jury trial in the Superior Court, can you present the question that you want us to adjudicate here?

Robert W. Hagopian:

Well, I suppose —

Byron R. White:

It will up those to the higher court of Massachusetts just like to present the case.

Robert W. Hagopian:

Sure, the only grounds you could allege in the highest court in Massachusetts is that the trial judge in the Superior Court made a mistake when he denied my motion to dismiss on the grounds of double jeopardy.

Byron R. White:

Would they entertain that in the courts around here?

Robert W. Hagopian:

Certainly.

But if the denial of a trial by jury in the first instance is a purely reversible error and it’s not double jeopardy, then the claim that he’s denied a trial by jury in the first instance is automatically mooted by the fact that he now has had a trial by jury and that’s what the difficulty is.

William H. Rehnquist:

But if it’s mooted in the Massachusetts Courts, why isn’t it mooted here and if it’s not mooted here, why is it mooted in the Massachusetts courts?

Robert W. Hagopian:

It’s not mooted here because of the fact that in Costarelli’s case, the Chief Justice of the Superior Court has stayed the trial de novo.

He stayed those proceedings.

William H. Rehnquist:

But you say if he hadn’t stayed them, then you have no case here.

Robert W. Hagopian:

Absolutely.

Byron R. White:

I know but if the answer to you isn’t here, Massachusetts courts would be just what you say they are.

Nevertheless, that’s the way it is, that may be a wrong answer.

Byron R. White:

It constitutionally may be wrong.

Robert W. Hagopian:

The issue of mootness yes.

Byron R. White:

That is if you could present the issue in the lower courts.

Robert W. Hagopian:

That’s correct.

Byron R. White:

We can have it suppose to rule on.

Robert W. Hagopian:

That’s correct.

Byron R. White:

Then why didn’t you?

Robert W. Hagopian:

Well, I have in Costarelli’s case.

That motion is pending in the Superior Court.

Byron R. White:

Why is the judgment final?

Why then have you reached — how come you have a stay in the judgment of the highest court —

Robert W. Hagopian:

Because of the fact that that is a collateral means of reviewing that judgment in the District Court of Massachusetts, it’s a collateral means, a man should not have to suffer a second trial to review the error that was made in the District Court and that is the nub of Section 1257.

That’s Largent versus Texas.

A man should not have to collaterally attack.

The only issue as to whether the jurisdiction in this Court is pending is —

Byron R. White:

There is no — there is no trial de novo procedure available in Largent, that was wholly federal habeas and they said federal habeas was not available to raise the constitutional question to solve this.

Robert W. Hagopian:

I believe in Largent, they said —

Byron R. White:

There is no other place it could go.

Robert W. Hagopian:

I believe that there were collateral remedies open in the Texas system in Largent in which he could’ve raised the issue collaterally.

Byron R. White:

That may be so but the court didn’t have.

You said there weren’t any.

Robert W. Hagopian:

Oh, I believe this Court mentioned it in this — in its opinion.

It said and I quote to you Your Honor.

It says that the fact that there were collateral remedies open does not affect this Court’s jurisdiction and that is the key —

Byron R. White:

Notice the fact that over a federal question where it switches to federal remedies just when he may —

Robert W. Hagopian:

It says it but this Court stated, it says the possibility that the appellant might obtain release by a subsequent and distinct proceedings and one not in the nature of the review of the pending charge, in the same or a different Court of a state does not affect the finality of an existing judgment or the fact that this judgment was obtain in the highest state court available to the appellant.

I read that language as simply saying that because a man may collaterally attack a judgment in the District Court or the lower court in Massachusetts is irrelevant to this Court’s jurisdiction under 1257.

William H. Rehnquist:

But in Largent, the state proceeding left the judgment final and in effect and here you have a very ready remedy.

Robert W. Hagopian:

Well, that remedy was taken under compulsion.

Supposing I hadn’t taken that remedy, I don’t think the fact what I did in the state court should affect this Court’s jurisdiction.

William H. Rehnquist:

Well, that’s like saying supposing you don’t appeal from the Superior Court of Massachusetts to the Supreme Court, you’ve got to.

Robert W. Hagopian:

I submit to you that that is an entirely different matter.

The fact that a man should not have to go through a second trial, a second trial, that does not review the record of the first court.

William H. Rehnquist:

Well, there’s a certain irony in your case and in your opponent’s case because the more you make the thing look like an appeal, the worse of you are in the jurisdictional basis but the better off you are in the constitutional merits.

The same is true in reverse of your opponent’s case.

The more he can make the second proceeding look like an appeal, the better he looks jurisdictionally but the worse it looks on the merit.

Robert W. Hagopian:

Yes, sir.

Warren E. Burger:

Thank you.

Mr. Hagopian, you appeared here at our request and by the appointment of the Court.

I want to thank you for your assistance to the Court and of course the assistance of your client.

Robert W. Hagopian:

Thank you.

Warren E. Burger:

Thank you gentlemen.

The case is submitted.