549 F.2d 215 (1st Cir. 1977), 76-1524, Jackson v. Justices of Superior Court of Mass.

Docket Nº:76-1524.
Citation:549 F.2d 215
Party Name:Kenneth JACKSON et al., Petitioners, Appellees, v. JUSTICES OF the SUPERIOR COURT OF MASSACHUSETTS, Respondents, Appellants.
Case Date:January 14, 1977
Court:United States Courts of Appeals, Court of Appeals for the First Circuit

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549 F.2d 215 (1st Cir. 1977)

Kenneth JACKSON et al., Petitioners, Appellees,



Respondents, Appellants.

No. 76-1524.

United States Court of Appeals, First Circuit

January 14, 1977

Certiorari Denied April 18, 1977.

See 97 S.Ct. 1666, 1667.

Barbara A. H. Smith, Asst. Atty. Gen., Chief, Criminal Appellate Section, Boston, Mass., with whom Francis X. Bellotti, Atty. Gen., Donald P. Zerendow, Asst. Atty. Gen., Acting Chief, Crim. Bureau and Michael C.

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Donahue, Asst. Atty. Gen., Boston, Mass., were on brief, for appellants.

Russell K. Dunning, Boston, Mass., for appellees.

Before COFFIN, Chief Judge, and ALDRICH and CAMPBELL, Circuit Judges.

ALDRICH, Senior Circuit Judge.

In this case we are faced with the question whether the decision of the Supreme Court in Breed v. Jones, 1975, 421 U.S. 519, 95 S.Ct. 1779, 44 L.Ed.2d 346, is to be given retroactive application. Breed dealt with the impact of the double jeopardy clause of the Fifth Amendment on the procedure by which it is determined that a juvenile should be tried in adult court rather than treated as a juvenile. There are basically two ways that this determination can be made. One is to commence with a purely investigatory hearing in the juvenile court directed solely to the question of transfer. The other is by a trial on the merits in the juvenile court, following which the court may sentence the defendant as a juvenile, or dismiss the proceedings and bind him over to the general sessions, in Massachusetts, the superior court, for a full criminal trial, leading to a different type of sentence. In Breed, a unanimous Court held that to subject the defendant to an adjudicatory proceeding, other than one limited to the question of transfer, and then, instead of sentencing, transfer him to an adult trial, amounts to double jeopardy.

The Breed Court made no comment with respect to retroactivity. When the Massachusetts Supreme Judicial Court was faced with this question it ruled that Breed should not be applied retroactively, and that persons such as the petitioners herein may be put to trial in the superior court. Stokes v. Commonwealth, Mass.Adv.Sh. (1975) 3030, --- Mass. ---, 336 N.E.2d 735; Commonwealth v. A Juvenile (No. 2), Mass.Adv.Sh. (1976) 1854, --- Mass. ---, 351 N.E.2d 521. The present habeas corpus proceeding was filed in the district court in the form of a class action on behalf of all persons in Massachusetts who had been bound over following juvenile court proceedings prior to the decision in Breed, but who have not yet been tried in the superior court. The district court, at an early state, stayed all state proceedings against the members of the class, pending its final determination of the claims. Respondent Justices, hereinafter the Commonwealth, appeal from the stay order. Because of the question's importance, we requested both sides to brief and argue the merits, and they have complied. 1

Inasmuch as none of the petitioners has yet been tried in the superior court, they first argue that even prospective application of Breed would bar their trials. They assert that the Supreme Court has ruled that even nonretroactive decisions are to be applied to cases where the "violation" occurs after the date of the decision in question, see, e. g., Desist v. United States, 1969, 394 U.S. 244, 253, 89 S.Ct. 1030, 22 L.Ed.2d 248; Stovall v. Denno, 1967, 388 U.S. 293, 296, 87 S.Ct. 1967, 18 L.Ed.2d 1199, and that in the instant case the "violation" is not the juvenile proceeding but the superior court trial. We think this argument misconstrues the Court's decisions. The Court's focus has been on "the moment at which the discarded standards were first relied upon," Jenkins v. Delaware, 1969, 395 U.S. 213, 218, 89 S.Ct. 1677, 1680, 23 L.Ed.2d 253, the reason being that a nonretroactive decision ought to be applied only to cases where the law enforcement agencies had the opportunity to conform their conduct to

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the new standards, id. In the present case that point would be the time of the juvenile proceedings, for once an adjudicatory hearing was held and a decision to transfer made, the Commonwealth could not prosecute the petitioners in conformity with Breed. The case is on all fours with Jenkins, ante, where the Court held that statements obtained from defendants without Miranda warnings, see Miranda v. Arizona, 1966, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694, could be used in retrials occurring after the date of the Miranda decision.

Petitioners seek to distinguish Jenkins on the ground that the "violation" in Jenkins was the interrogation without Miranda warnings, while in the instant case the "violation" would be the superior court trial. However, an interrogation without Miranda warnings is not, in itself, a violation of the Fifth Amendment; it is the use of such statements in his criminal trial that compels the defendant "to be a witness against himself". Although in Jenkins, as here, it is the post-decision conduct the retrial in Jenkins, or the superior court trial here which constitutes the "violation," the point of reliance is the pre-trial conduct the interrogation in Jenkins, or the juvenile proceedings here. Thus, a mere prospective application of Breed would not bar petitioners' superior court trials.

Ordinarily, the choice between retroactivity and prospectivity of a new rule turns on consideration of three factors: "(a) the purpose to be served by the new standards, (b) the extent of the reliance by law enforcement authorities on the old standards, and (c) the effect on the administration of justice of a retroactive application of the new standards." Stovall v. Denno, ante, 388 U.S. at 297, 87 S.Ct. at 1970. Petitioners, however, relying on Robinson v. Neil, 1973, 409 U.S. 505, 93 S.Ct. 876, 35 L.Ed.2d 29, contend that double jeopardy claims are sui generis, and that decisions invalidating state procedures under the double jeopardy clause must, without more, be given retroactive application. It is true that the Court in Robinson stated that the usual retroactivity analysis was not appropriate in deciding that retroactive effect was to be given to the decision in Waller v. Florida, 1970, 397 U.S. 387, 90 S.Ct. 1184, 25 L.Ed.2d 435, barring the trial on state charges of persons already tried and convicted on municipal charges for the same acts, 409 U.S. at 507, 93 S.Ct. 876, but it is equally true that the Robinson Court eschewed "an ironclad . . . classification of cases" for retroactivity analysis, id. at 509, 93 S.Ct. at 878. We see nothing in Robinson to indicate disapproval of the Court's earlier statement that "the retroactivity or nonretroactivity of a rule is not automatically determined by the provision of the Constitution on which the dictate is based." Johnson v. New Jersey, 1966, 384 U.S. 719, 728, 86 S.Ct. 1772, 1778, 16 L.Ed.2d 882. In the case at bar we face a more complex, and at the same time a less severe, situation than that in Robinson, where the issue was whether persons already tried, convicted, and punished could be again put to trial and punished for the same conduct. Breed does not preclude separate juvenile and adult proceedings; rather, it closely limits the issues which may be considered in the first proceeding. We consider the question whether the Commonwealth's failure to anticipate those limits should produce a windfall to the petitioners, such that even if guilty they will not even be punished...

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