Lydon v. Justices of Boston Mun. Court, 82-1376

• Citation: 698 F.2d 1
• Decision Date: 30 December 1982
• Docket Number: No. 82-1376,82-1376
• Parties: Michael LYDON, Plaintiff, Appellee, v. JUSTICES OF the BOSTON MUNICIPAL COURT, Defendants, Appellants.
• Court: U.S. Court of Appeals — First Circuit

Page 1

698 F.2d 1

Michael LYDON, Plaintiff, Appellee, v. JUSTICES OF the BOSTON MUNICIPAL COURT, Defendants, Appellants.

No. 82-1376.

United States Court of Appeals, First Circuit.

Argued Sept. 13, 1982.

Decided Dec. 30, 1982.

Barbara A.H. Smith, Asst. Atty. Gen., Boston, Mass., Chief, Criminal Appellate Division, with whom Francis X. Bellotti, Atty. Gen. and Stephen R. Delinsky, Asst. Atty. Gen., Boston, Mass., Chief, Criminal Bureau, were on brief, for defendants, appellants.

David Rossman, Director, Boston University Defender Program, Boston, Mass., for plaintiff, appellee.

Daniel E. Callahan, Richard J. Hayes, William J. Leahy, Martin R. Rosenthal, and Brownlow M. Speer, Boston, Mass., on brief for The Massachusetts Defenders Committee as amicus curiae.

Kevin M. Burke, Dist. Atty., E.D., Salem, Mass., John J. Conte, Dist. Atty., Middle Dist., Worcester, Mass., William C. O'Malley, Dist. Atty., Plymouth Dist., Brockton, Mass., Ronald A. Pina, Dist. Atty., Bristol Dist., New Bedford, Mass., Newman Flanagan, Dist. Atty., Suffolk Dist., Michael J. Traft, Asst. Dist. Atty., Boston, Mass., Philip A. Rollins, Dist. Atty., Cape & Island District, Barnstable, Mass., Anthony J. Ruberto, Jr., Dist. Atty., Berkshire Dist., Pittsfield, Mass., Matthew J. Ryan, Jr., Dist. Atty., Hampden Dist., Springfield, Mass., and Thomas G. Simons, Dist. Atty., Northwestern Dist., Greenfield, Mass., on brief for Newman Flanagan, et al., amici curiae.

Before DAVIS ^*, CAMPBELL and BREYER, Circuit Judges.

BREYER, Circuit Judge.

The habeas corpus petitioner in this case was convicted of a state crime by a Massachusetts judge under the Massachusetts "two-tier" criminal trial procedure. As is his right under that procedure, the petitioner then chose to have a completely new trial by jury. He argued, however, to the new trial court, to the Massachusetts Supreme Judicial Court, and then to the federal district court, that he must be released, rather than undergo a new trial, because his bench trial conviction rested on insufficient evidence and any new trial would therefore place him in double jeopardy, in violation of the Fifth Amendment to the United States Constitution.

The federal district court reviewed the trial record and found that the evidence at the bench trial was constitutionally insufficient for conviction. The court further found that the state had not obtained defendant's informed consent to run a risk of double jeopardy harm, though it was not (nor in the future would it be) difficult for the state to seek such informed consent from criminal defendants. It held that a second trial was therefore barred by the Double Jeopardy Clause. Lydon v. Justices of Boston Municipal Court, 536 F.Supp. 647 (D.Mass.1982). We agree with the district court and affirm its decision.

I

The Massachusetts two-tier system, like others in nearly half the states, allows a defendant to choose either the standard route of a jury trial with appellate review, or the two-tier route. See Comment, Double Jeopardy Problems Presented by Two-Tier Systems, 69 Geo.L.J. 1525, 1527 (1981). If he chooses the latter alternative, he first receives a bench trial. If he is convicted, he then has an absolute right to choose a second trial to take place de novo, either before a jury, or (if the defendant waives the jury) before another judge. Mass.Gen.Laws ch. 218, Secs. 26, 26A, 27A. The original system did not permit the initial choice--all defendants went through both tiers of the system. See Ludwig v. Massachusetts, 427 U.S. 618, 96 S.Ct. 2781, 49 L.Ed.2d 732 (1976). The present system is the product of the Court Reorganization Act, Chapter 478 of the Act of 1978, see Note, Double Jeopardy and the De Novo System, 16 New England L.Rev. 303, 308-09 (1981), following recommendations made by the Governor's Select Committee on Judicial Needs (the "Cox Committee") in 1976.

Prior to 1978, it would have been difficult to see how, from a constitutional perspective, this system could work to a defendant's disadvantage. For one thing, he is free to disregard the system by choosing an initial trial by jury. For another, if he chooses the two-tier alternative, he is entitled to a totally new trial on request. It is as if the state automatically accepts any complaint a defendant may have about his first trial; a new trial is always granted. See Ludwig v. Massachusetts, 427 U.S. at 631, 96 S.Ct. at 2788. At the same time, the system saves both the state and the defendant time and expense, because many defendants, presumably after seeing the evidence against them, do not seek the automatic new trial to which they have a right. Thus, the Massachusetts Supreme Judicial Court wrote that only about 9 percent of the criminal defendants in Boston chose a jury trial in the first instance, and "thousands of complaints were finally disposed of by convictions at bench trials because the affected defendants did not seek a jury trial." Lydon v. Commonwealth, 381 Mass. 356, --- n. 5, 409 N.E.2d 745, 748 n. 5 (1980).

In 1977 and 1978, however, the Supreme Court broadened the scope of defendant's double jeopardy protection in a way perhaps not foreseen by the Massachusetts system's reformers. In Burks v. United States, 437 U.S. 1, 98 S.Ct. 2141, 57 L.Ed.2d 1 (1978), the Court overturned a prior line of cases and held that once "a reviewing court has determined that in a prior trial the evidence was insufficient to sustain the verdict of the jury," the Double Jeopardy Clause forbids a retrial. 437 U.S. at 5, 98 S.Ct. at 2144 (record review made by a federal appellate court); accord, Hudson v. Louisiana, 450 U.S. 40, 101 S.Ct. 970, 67 L.Ed.2d 30 (1981) (record review made by a state trial court). Then in Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979), the Supreme Court held that a federal habeas court must look to see whether a state conviction rests upon enough evidence to convince a rational trier of fact to find guilt beyond a reasonable doubt. See In re Winship, 397 U.S. 358, 90 S.Ct. 1068, 25 L.Ed.2d 368 (1970) (a conviction failing to meet that standard violates the Fourteenth Amendment "due process" clause). Petitioner believes that, under Jackson, the federal habeas court here properly determined that the evidence at the first trial was constitutionally insufficient and, hence, under Burks, he cannot be retried--he is entitled to unconditional release from custody.

Before evaluating petitioner's arguments, we shall describe the procedural context in which this case arises. The petitioner, Lydon, was charged with possessing implements designed to break open a "depository" (here, an automobile) in order to steal money or property from it. He chose to participate in the two-tier system. He was convicted at the first tier. The trial judge rejected his claim that the prosecution had not presented evidence of one key element of the offense charged, namely, an intent to steal money or property from the car.

Lydon asked for a trial de novo by a jury. He then asked the jury-trial judge to dismiss the charges on double jeopardy grounds. The motion was denied. A single justice of the Massachusetts Supreme Judicial Court, however, stayed the second trial and heard Lydon's claim. The justice was willing to assume the evidence was inadequate, and, on that assumption, asked the full court in the exercise of its "superintendence powers," Mass.Gen.Laws ch. 211, Sec. 3, to answer two questions:

1. Is it a denial of a defendant's right not to be placed in double jeopardy to require him to go through a jury trial, ... when the evidence at the bench trial was insufficient to warrant a conviction?

2. Assuming that a jury trial in such an instance would be a denial of a defendant's right not to be placed in double jeopardy, may the issue of the sufficiency of the evidence at the bench trial be considered again at the trial court level ...?

Lydon v. Commonwealth, 381 Mass. 356, --- n. 3, 409 N.E.2d at 747 n. 3.

The Supreme Judicial Court answered the first of these questions in the negative. It reasoned, first, that the initial trial judge had held that the evidence against Lydon was sufficient; since the state system did not provide for any review of that holding, no double jeopardy claim could arise. Second, regardless of whether the evidence was sufficient, there was no constitutional injury. Lydon chose to enter a system where a new trial would be his for the asking; in return, he must accept the fact that his only remedy would be a new trial. The Double Jeopardy Clause protects against governmental oppression; here, there was no such oppression because Lydon had volunteered to participate in the two-tier system.

The Supreme Judicial Court went on to answer the second question affirmatively, but added that its answer was "largely academic." Since Lydon had no double jeopardy right, the second trial court would not pass upon the adequacy of the evidence at the first trial.

Lydon sought certiorari, which was denied, and then sought habeas corpus. The federal district court, in the habeas proceeding, reviewed the original trial transcript and found the evidence to be constitutionally insufficient. The district court concluded that retrial was barred by the Double Jeopardy Clause. It ordered Lydon released and prohibited his retrial.

The Commonwealth has appealed. It obtained a stay of the district court's order pending this appeal. The Commonwealth has stated it will not retry the petitioner until the appeal is decided. Lydon is currently released on "personal recognizance."

II

We must first decide whether the district court had authority to review the record of Lydon's bench trial to determine whether the evidence was sufficient for conviction. Otherwise, the district court, faced with an authoritative state court finding that the evidence was sufficient, would have seen no double jeopardy problem. We believe that the district court had this authority.

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