Kenneth Jackson v. Justices of the Superior Court of Massachusetts

Petitioners, al., et JACKSON Kenneth

Appellees, COURT OF the SUPERIOR

JUSTICES MASSACHUSETTS, Respondents, OF

Appellants. 76-1524.

No. Appeals, States

United Circuit.

First 14, 1977.

Jan. 18, 1977. April Denied

Certiorari 1666, 1667. Smith, Gen., Atty. A. H.

Barbara Asst. Section, Boston, Chief, Appellate Criminal Bellotti, Mass., Atty. with whom Francis X. Zerendow, Gen., Atty. Gen., Donald P. Asst. Chief, Bureau and C. Acting Crim. Michael Boston, Mass., Donahue, Gen., Atty. (1975) Asst. 3030, — Mass. —, 735; 336 N.E.2d brief, appellants. were for Commonwealth v. A (No. 2), Juvenile Mass. — (1976) 1854, —, Adv.Sh. Mass. Boston, Dunning, Mass., K. for Russell present corpus N.E.2d 521. pro habeas appellees. ceeding was filed in the district court in the COFFIN, Judge, and ALD- Before Chief of a class form action on behalf of all CAMPBELL, Judges. RICH and Circuit persons Massachusetts who had been juvenile over following bound pro court ALDRICH, Judge. Circuit Senior ceedings prior to the Breed, decision in but with the ques- In this case we are faced not yet have tried in the superior Supreme the decision of the tion whether court, court. The district state, at an early Jones, 1975, Court in Breed stayed all state against the given is to be class, members of the pending its final de application. Breed dealt with termination of the claims. Respondent Jus impact of double jeopardy the the clause of tices, hereinafter the Commonwealth, ap procedure by Amendment on the Fifth stay peal from the order. Because of the juvenile which it is determined that a importance, question’s requested we both should be tried adult court rather than to argue sides brief and merits, and juvenile. treated basically There are they complied.1 have ways that this two determination can be purely made. One to commence with a Inasmuch as none petitioners investigatory hearing in the been tried superior court, in the solely question directed to the of transfer. argue they first that even prospective appli The other is a trial on the merits in the cation of Breed would bar their trials. juvenile court, following which the court They assert that the Supreme Court has may juvenile, sentence defendant as a that even ruled nonretroactive are decisions the proceedings dismiss and bind him applied to be to cases where the “violation” general sessions, over to the in Massachu- occurs after the date of the decision in setts, superior court, for full criminal see, g., question, e. Desist States, v. United trial, leading to a different sen- type of 244, 253, 89 S.Ct. tence. a unanimous Court held 248; v. Denno, 1967, L.Ed.2d Stovall subject adjudi- that to an 293, 296, 1967,18 87 S.Ct. L.Ed.2d catory proceeding, other than one limited to and instant case the “violation” transfer, question then, and instead juvenile proceeding is not the supe but the sentencing, transfer him to an adult tri- rior court trial. We argument think this al, jeopardy. amounts to double misconstrues the Court’s decisions. The Court’s focus has Breed Court made been on “the no comment moment at with respect retroactivity. which the When the discarded standards were Massa first Supreme upon,” Delaware, 1969, chusetts Judicial relied Jenkins v. faced 213, 218, question 1677,1680, 23 with this ruled that Breed U.S. L.Ed.2d applied retroactively, should not reason being that a nonretroactive persons the petitioners ought such as applied herein decision to be only to cases put to trial in the superior court. where the law agencies enforcement had Commonwealth, opportunity Stokes Mass.Adv.Sh. conform their conduct to Commonwealth, nevertheless, accept 1. The contends would if contention we felt Harris, Younger that under retroactivity for, reaching were called but our we L.Ed.2d should not, suspect, will the merits we incur the Com- stay reaching vacate the without the merits. objections monwealth’s serious under cir- outright In view the Massachusetts court’s objected. cumstances. Petitioners never have retroactivity, rejection precluding any realis- course, may, merits, We decide the since opportunity for tic to assert their only Hagopian of law is involved. prosecutions, Breed claim their criminal see Cir., 1972, Knowlton, 2 470 F.2d 201. 45, 46, id. we doubt that we priate in deciding case standards, present id. In retroactive effect new given was to be time of the decision in be the Waller v. point Florida, hear adjudicatory once an proceedings, 435, barring the trial a decision to L.Ed.2d on state was held charges persons already prose could not tried and con made, the Commonwealth municipal on charges victed with for the same conformity in the cute acts, at U.S. but is Jen all fours with case is on Breed. true that the equally Robinson Court es that state the held kins, ante, where “an ironclad . . . chewed classifica without defendants from obtained ments for retroactivity tion of cases” analysis, id. Arizona, warnings, see Miranda Miranda 509, at 878. We see nothing at in 1602, 16 L.Ed.2d disapproval to indicate Robinson occurring after used in retrials could be earlier statement Court’s that “the retroac Miranda decision. the date of the tivity nonretroactivity or of a rule is not Jenkins on distinguish seek Petitioners automatically by the provision determined in Jenkins the “violation” ground the on which the Constitution the dictate of is interrogation without Miranda the was v. New Jersey, 1966, Johnson based.” “vio- in the instant case the while warnings, 719,728, 1772, 1778, 16 L.Ed.2d superior the court trial. be would lation” In the case at bar we face a more However, interrogation without Miranda the severe, and at same time a complex, less not, itself, the a violation of is warnings than that in Robinson, situation where the Amendment; it is the use of such Fifth whether persons already tried, issue compels trial that his criminal statements convicted, punished again and could be put against him- a witness “to be punished to trial and for the same conduct. Jenkins, here, it is Although in self”. preclude not separate juvenile does Breed retrial conduct—the post-decision the proceedings; rather, adult it closely and here— Jenkins, superior court trial the or the issues which limits be considered in “violation,” point the the constitutes which proceeding. ques the first We consider the in- conduct—the pre-trial is the of reliance whether the tion Commonwealth’s failure Jenkins, juvenile pro- terrogation anticipate those limits produce should Thus, prospective a mere here. ceedings petitioners, to the such windfall that even if petition- Breed would not bar of application once, they punished will not even be guilty court trials. superior ers’ susceptible matter not quick to be a to a based on constitutional label answer retro- Ordinarily, the choice between involved. of a new rule prospectivity activity and “(a) of three factors: consideration

turns Restating the tests to fit Stovall by the new stan to be served purpose case, questions (a) our present are: What reliance law dards, (b) extent of the the effect on would be defendants of not stan on the old authorities (b) enforcement retroactively? Breed Were the applying the administra dards, (c) the effect on and legislature judiciary Massachusetts rea- of a retroactive justice of tion anticipating in not Breed rul- sonable Denno, Stovall new standards.” (c) ing? What would be “the effect on the at 1970. ante, justice of a retroactive administration however, Petitioners, relying on Robinson readily application”? last Neil, 1973, argument We learned oral answered. that double contend of fourteen counties in in four Massa- L.Ed.2d juveniles and that decisions generis, eighty sui some had been are chusetts claims procedures under and not tried. invalidating state transferred ordered more, must, Doubtless, many without there must be more else- jeopardy clause Doubtless, too, many true there must It is application. where. given retroactive serving adult presently that the sentences persons in Robinson stated the Court will seek release under appro was not retroactivity analysis uáual having in its Perhaps wake. because more interpretation perceptive juvenile court. We consideration of the impact of Gault transferred have, persons such that all even before Breed, observe also led to must the conclu regular criminal procedures sion that were transferred such as Mas regarded as suf- they employed were because sachusetts could not sessions withstand to be considered ficiently scrutiny, offenders but we serious constitutional must attach weight rehabilitation to the number unlikely candidates which, courts prior juvenile system. It would be failed to through the take step. Juvenile, to overestimate the seriousness cited in A impossible cases 364 Mass. retroactivity to the Breed rule. affording 306 N.E.2d 829. The fact may have Breed been to some extent fore joint questions turn to the We require does not shadowed its retrospective newness, non, rule, vel of the Breed application. States, ante, Desist v. United of the Massachusetts be reasonableness 248, 394 U.S. at 89 S.Ct. 1030. juvenile procedure one its was lief brings us to the This foremost considera- being it clear that un continuing jeopardy, Stovall, tion under whether the purpose of it makes new law cannot be a decision less the new rule would be substantially frus- only prospective Michigan effect. given by denying trated retroactive application. 1973, 47, 50-51, 93 Payne, S.Ct. States, ante, 249, Desist v. United at 736; 1966, Milton v. 36 L.Ed.2d Wain In 1030. Breed the Court S.Ct. identified 2, wright, 381-82 n. procedure two in the evils of transfer after J., (Stewart, 33 L.Ed.2d dis S.Ct. adjudicatory hearing, the elimination of Huson, 1971, senting); Oil Co. v. Chevron may which purpose considered the of the 30 L.Ed.2d (1) decision: the defendant is twice 296; States, ante, Desist United subjected to the “heavy pressures and bur- 247-48, While, at at S.Ct. 1030. conced psychological, physical, and finan- case, which, was not a for ex edly, Breed dens— cial” incident trial, 421 U.S. at overruling ample, by prior Supreme Court (2) at 1786 and the defendant manifestly marked “a decisions clear break juvenile proceeding is faced with the States, past,” with the Desist v. United of either standing dilemma mute and risk- ante, we at 89 S.Ct. at do not an adverse disposition defending clearly it so a mere appli that was believe possibly merits and “prejudicing his principles that we cation established chances in adult court if transfer is or- apply retroactively it without further could by giving prosecution dered” an oppor- analysis. Prior to decisions on the tunity to review his advance, defense in id. impact jeopardy of the double clause on at 1791. juvenile ap transfers from to adult courts been limited to state court pear to have We consider first whether the purpose of rulings upholding proceedings eliminating the stress a second trial will double attack. The land against by be fostered Supreme bringing ju Court decision noted, mark Breed. As we previously there are scope- possible within the of con classes of two venile beneficiaries of ret- stitutionally procedures, mandated application; criminal roactive those who have al- Gault, 1967, re ready superior been tried in court after old, transfer, less who, than a decade and those petitioners liked settling herein, can be seen as a decision and Breed have been ordered transferred but many questions left yet one unresolved have not been tried.2 As to al- those Although only the latter are before us already this case that a who has been suit, Breed is held in the instant if tried, particularly pre-Breed, necessarily if tried retroactive, presumably equally it will be position yet stands in the same as one not tried. by already serving those tried and sen- claimed past well be a difference There between moment, anticipate for a use the tence. To we right reliance and make use hereafter of advisedly. word “claim” We do not decide in tried, accompli avoiding a fait personal we face ready strain of a second —the already trial have burdens of proceeding and was not stresses considered sufficient to application of Retroactive prosecution. incurred. his preclude been Similarly, while this, thus would not undo cannot prevents Breed Breed the Commonwealth from the decision. purpose of the first serve subjecting juveniles hereafter to the stress- Walker, Linkletter es of two adjudicatory proceedings, we be- 1731, 14 L.Ed.2d 601. 637, 85 S.Ct. lieve that “the ends public justice” unwarrantedly frustrated barring pe- tried, ordeal of a not to those As superior trials, titioners’ now that it is prevented. ques- trial can be second prosecute late to single trial, too them in a inter- whether the Commonwealth’s tion is solely pressures to avoid the and burdens of petitioners’ interest outweighs est a second trial. from this burden. The Breed being free this interest is suffi- holds decision The second purpose of avoiding Breed — weighty preclude the states ciently unfairness of making procedure imposes which adopting “tip his hand” before trial —can call for stress, but it is a different pre-Breed relief from proceedings, most, compelling interest is so that it whether the in cases where only hand-tipping occurred. petitioners, the release of the now requires Whether or not the defendant preju- prosecute is too late to them in a diced, so, extent, if to what depends on here, proceeding.3 The rule single precisely what took place in course, long It is not absolute. court, and whether the prosecution thereby jeopardy clause does the double law used, gained, later a tactical advantage a retrial after a mistrial has been not bar in the adult trial. If this benefit without the defendant’s consent if declared redressed, state can be obviated, on an necessity is a manifest for the “there [mis- basis, individual there is no need for retro- public justice trial], or the ends activity at all. v. be defeated.” United States otherwise The Court has uniformly held that where Wheat.) 579, 580, Perez, (9 6 L.Ed. 22 U.S. prior convicted those decisions adopting J.). (Story, Even where a mistrial was 165 designed prevent rules the possibility of error, prosecutorial result of some re- the may unfairness make a particularized show- always Although is not barred. a mis- trial prejudice, this is sufficient. Thus in by problem prose- which the trial caused ante, v. New Jersey, Johnson the decisions began pre- the trial cutor knew of before Illinois, 1964, 478, in Escobedo v. 378 U.S. a retrial in Downum v. United vented 1758, 977, S.Ct. L.Ed.2d and Miranda v. 1963, 734, 1033, States, 372 U.S. 83 S.Ct. Arizona, ante, nonretroactive, were held 100, de- where a mistrial was declared L.Ed.2d fendants still having the opportunity to to a defect in the indictment which was due show that their confessions were jury until after the was em- involun- not discovered tary. Denno, v. ante, Stovall the Court held that a retrial was where the paneled Somerville, 1973, requirement Illinois v. of counsel permissible, pretrial confron- 1066, for 458, 93 tations L.Ed.2d identification established* in Drawing Wade, 1967, v. up improperly 218, indictment is not United States 388 U.S. 1926, which could be condoned in ad- conduct L.Ed.2d and Gilbert vance, occurred, California, 1967, but once it had and could 87 S.Ct. undone, the defendant’s in not be interest 18 L.Ed.2d was held nonretroac- acquired juvenile proceedings application, from benefits applying tive the new rule in contrary to Breed. announced, the case in which it is but has anomaly necessary the indicated that is a evil 3. The fact that defendant Jones secured habeas principles of “adherence to sound of decision- corpus in Breed does not answer relief Denno, ante, making.” Stovall v. 388 U.S. at question. recognized The the anom- Court at 1972. 87 S.Ct. aly denying general which results retroac- from overkill; extent, whether Court went on to consider if tive, any, of the state’s particular in that advantage at issue undue confrontation determined on an error-prone individual, suggestive and as case by was so case case basis. process. of due denial to amount remains There how States, 1969, McCarthy v. United decision accomplished. should be Manifestly, not in 22 L.Ed.2d class action. too, Manifestly, it is relieve guilty holding plea whose that a defendant first be sought that should state F.R.Crim.P. 11 accepted in violation of was Jackson Denno, 1964, court. Cf. held non- replead, be allowed to was must 368, 393, 12 L.Ed.2d 1178. States, Halliday v. United retroactive had, pre- While Massachusetts court L.Ed.2d actions, denied vious application retroactive noting the voluntariness Breed, this more limited relief has never particular plea defendant’s still of a It been denied. is not for us to assume that Pearce, to attack. North Carolina open be. On this basis the present will action 1969, 395 even premature petition- as to the named 656, requiring judge his rea- state ers. imposing a more sentence on for severe sons that we any We add have not made final appellate after of his convic- reversal retrial what, analysis of if anything, a transferred Michigan tion, was held nonretroactive in can, or must show to establish that ante, noted Payne, where the Court fundamentally his adult trial was unfair could still show that his sen- advantage due to the which the state in- was infected vindictiveness and tence his curred at hearing. It is suffi- that, observed cient for moment that this must be his of prophylac- is an inherent attribute “It path, distinguished asserting gener- rules, as those tic constitutional such es- retroactivity. al Pearce, in Miranda and tablished stay will be days, vacated in ten will occasion their which time district court is directed to benefits windfall some defendants complaint. dismiss the have suffered dep- no constitutional 53, 412 at 93 rivation.” U.S. S.Ct. at

1970. COFFIN, Judge, dissenting. Chief

The of matters may Although balance these I am in sympathy with the compel answer, single by but we believe not result reached the court in this deeply reasonably permits case, troubling it one. The seriousness I have with difficulty its impact granting Jones, on the of holding 519, of the state that Breed v. 421 U.S. signifi is most retroactivity obvious. The 44 (1975), 95 S.Ct. L.Ed.2d 346 does aspect denying it, petition of prohibit cant so far not Massachusetts from commenc- concerned, if the prosecutions ers are would be state criminal peti- adult against some benefit from disclosures I agree suggestion obtained tioners. Since with the at initial hearing. Since this is in footnote of the court’s opinion that made v, remediable, general retroactivity would be Younger suit,1 Harris does not bar this I Berryhill, Although Supreme (1975); cf. Gibson Court has never ad 1. point, interpreta (1973). dressed most recent 36 L.Ed.2d 488 Younger’s equitable of general tions doctrine of re or not there is to be Whether “futili suggest Younger exception doctrine, ty” to not bar straint me that it does feder to an ex pending pro appropriate ception in criminal al intervention state seems in the case of double ceedings highest jeopardy when the of the state court claimants who are to denied be conclusively rejected opportunity system the federal claim and in the state to court dem they right there is no to reason whatsoever believe that when onstrate have a not to be re court tried. Cf. United States ex rel. v. Court the state will reconsider its earlier Webb that Councilman, Pleas, Schlesinger rulings. (3d of Common 516 F.2d Cir. 738, 756, 1975). 95 S.Ct. 43 L.Ed.2d 591 U.S. I persuaded am not stay and allow reluctantly uphold court’s at- distinguish tempt to Robinson to be held. on the further that ground application consequences recognize the undesirable I Breed, as was not the case with the retroac- retroactive, I holding Breed but think Robinson, tive Waller in will Rehnquist’s opinion for a unani- Justice Mr. impossible make it for the Commonwealth Neil, in Robinson v. mous impose any petition- sanctions on (1973) L.Ed.2d 29 virtu- ers. The Breed Court left no doubt that compels the conclusion Breed ally system under California’s there was no bar Robinson, the issue was the In retroactive. juvenile to further proceedings against suc- Florida, retroactivity of Waller U.S. cessful jeopardy double claimants. (1972) 32 L.Ed.2d 115 at 95 S.Ct. 1779. Massachu- jeopardy that the double clause which held pre-Breed system setts’ did differ from Cal- prosecuting a state from an indi- prohibits ifornia’s,3 but the signif- differences are not previously an offense which had for vidual icant. I see no impediment constitutional subject municipal prosecution. of a to further proceedings against 1962, Robinson had been tried and con- petitioners those of the juve- are still municipal court for three counts of victed niles,4 and I believe the Massachusetts stat- he was battery, fined $50 assault can be utes construed to authorize such Thereafter, he was tried each count. proceedings. But even if were the case charges and was convicted and upon state that none of the could hereafter jail. up years for to 25 sentenced punished, I am not sure it would follow Waller retroactive and ordered held distinguishable. that Robinson is The Rob- conviction be vacated if the the state recognized inson Court its ruling seri- municipal offenses were found to state and ously prejudiced the state’s interest in im- apply the same. Court refused posing appropriate punishments upon criteria, prong three Linkletter-Desist wrongdoers; it observed that ruling its reasoning they applicability had no gave Robinson a “relatively painless form practice prevent a trial from rules ($150 immunity” fines) from state all, merely pre- rather taking place at than prosecutions for what must have been seri- scribing procedural rules. Id. 409 ous offenses. See 409 876.2 imagine 876. I cannot that Robinson would juve- The Robinson Court concluded that the state 4. I see no double bar to further relying upon unjustified in the belief that proceedings against petitioners. nile Insofar as were, municipality state and the like the they might object proceedings, they to such are government, the federal see Bartkus state and which, position jeopardy pur- in a Illinois, poses, is identical to that of a criminal defend- purposes (1959), separate sovereigns for having judgment ant who has succeeded in clause, jeopardy and it intimated no the double Here, petitioners conviction set aside. are ob- weight which should be accorded view on jecting disposition juvenile pro- of to the determining retroactivity. justifiable reliance ceedings. objections merit, If the have their question. too need not face that Whatever I cases can remanded for further might be said about Massachusetts’ re- else Jones; in the court. See Breed v. su- concept “continuing jeopardy”, of liance on the Pearce, pra; North Carolina v. majority has never attracted of the which (1969). 23 L.Ed.2d 656 Court, certainly it was no more reasonable than juveniles’ complaints formally That the were sovereignty” reliance on the “dual of Florida’s guilt without dismissed determination of municipal governments. its state and presents problems. no constitutional The dis- clearly missals arose neither from what could practice, pre- earlier 3. Unlike the California favorable have been a determination on the juvenile court Breed Massachusetts would or- merits, Jenkins, compare United States v. express making a transfer without find- der (1975), 43 L.Ed.2d 250 would, guilt. of The Massachusetts judicial any prosecutorial nor from over- transfer, dismiss the as a concomitant Somerville, reaching, Illinois see v. juvenile complaint and cause an adult com- (1973). 35 L.Ed.2d 425 plaint issued. to be differently if the munici- decided

have been been dismissed with UNITED had America, pal prosecution Appellee, of STATES attached, had for I jeopardy after prejudice v. relatively between doubt that a distinction completely painless painless immunity SCIBELLI, Defendant, Francesco signifi- constitutional immunity possess can Appellant.

cance. America, Appellee, UNITED of STATES accept suggestion I am unable to also v. pro- characterized as a Breed can be Defendant, primarily making TORINO, rule directed Appellant. Andrew phylactic by reducing the need trial “fairer” adult America, Appellee, UNITED STATES “tip his hand” at like Waller an- hearing. v. prevents the a rule which states nounces Defendant, SACCO, Appellant. Daniel unconstitutionally placing an individu- America, Appellee, Although avoiding jeopardy al in twice. STATES UNITED protected value “handtipping” is a v. clause, primary it is not the BRUNO, Defendant, Appellant. case that a one. If it were the second trial Adolfo in undue interference with the would result America, Appellee, UNITED STATES constitutionally protected only interest when occurred at the first handtipping no presumably Robinson

proceeding, STONE, Defendant, Appellant. Lawrence differently: decided the case have been America, Appellee, would have remanded for a determi- UNITED STATES municipal prosecution nation whether prejudiced subsequent state had Robinson’s

proceeding. Joseph ALBANO, Defendant, Appellant. America, Appellee, UNITED STATES

I judgment would affirm the of the Dis- trict Court.

Anthony MALONI, Defendant, Appellant. America, UNITED Appellee, STATES ALBANO, Defendant, Rocco Appellant. Nos. 76-1214 to 76-1221. Appeals, United States Court of Circuit. First Heard Oct. Jan.

Decided

Case Details

Case Name: Kenneth Jackson v. Justices of the Superior Court of Massachusetts

Court Name: Court of Appeals for the First Circuit

Date Published: Apr 18, 1977

Citation: 549 F.2d 215

Docket Number: 76-1524

Court Abbreviation: 1st Cir.