Petition for Writ of Certiorari — Shayne Parker, Petitioner v. United States

NO.

IN THE SUPREME COURT OF THE UNITED STATES

Shayne Parker Petitioner

vs.

United State of America - Respondent

PETITION FOR WRIT OF CERTIORARI

John A. Amabile

Amabile & Burkly, P.C.

Massachusetts BBO# 016940

Attorney for Petitioner

380 Pleasant Street

Brockton, MA 02301

Telephone: 508-559-6966

Fax: 508-559-7954

E-mail: jamabile@abpclaw.com

QUESTION PRESENTED

Whether the Massachusetts District Court abused its discretion and

violated the African-American Defendant’s jury trial right under the Sixth

Amendment in declining to root out potentially racially biased jurors by

conducting careful individual voir dire on the issue of racial prejudice.

TAB TENT

QUESTION PRESENTED 0.0.00... ccccccccecceccceseeseecseescesseeassecseeesseacsenecsecaesaseesaeees 2

TABLE OF AUTHORITIES oo... ccccceecseseceeesceecseneseeseessseesseessesseeeeeeseee 4

OPINION BELOW ivis. css sosancvnoncuwvenas cov vusioe uesaseawes sts teessscceseeeteewaeestensaenstits 5

JURISDICTION ...... cee cccccc eee cseeeeeeeceeeee eee s nese eesee eee eeeeea eee ne eeeeeee nae enaeeennees 5

CONSTITUTIONAL PROVISION INVOLVED .........:ccccessseeeceeeeeee nee eeenna ees 6

STATEMENT OF THE CASE. wsscesssws.sseessoucswasaswasssnaradeessesesseeesserserevesanscees 6

REASONS FOR GRANTING THE WRIT ..........cccceseseeeceeeeeeeeseaeeeeeeeeeseeene ces 8

CONCLUSION oo. cceeccesee ce eeeeeeeecee eee eeeeeaeeeeeeeeeeeesuaseseeseneeeessaeeegiaeeeeees 12

APPENDIX ... 0... ceccccceecccseceennaeeeeeeeeesseeeeeeessaeeseeeeeeeeeaeeceseaeeeeeeeseeenan ees 14

Opinion of the United States Circuit Court of Appeals for the 1st Circuit United

States v. Shayne Parker, No. 16-1770

TABLE OF AUTHORITIES

Cases:

Aldridge v. United States, 238 U.S. 308, 310 (1931)........cccecesceeeceeeeeeeeeeeeeeeeteners 11

Morgan v. Illinois, 504 U.S. 719, 726-31 (1992)........cccssesessscesseseeeeeeeeereeeeseesenenes 11

Pena-Rodriguez v. Colorado, 580 U.S. , 187 S. Ct. 855, 868 (2017)......9, 10, 11, 12

Pointer v. United States, 151 U.S. 896, 408 (1894)........ccccecseccecsecsccesserceesacsssccses 12

Ristaino v. Ross, 424 U.S. 589, 596-97 (1976)........ccceeeceeeeeeceeeteneeeeeeeneeeeneneeanes 11

Rosales-Lopez v. United States, 451 U.S. 182, 189 (1981).........seceeseeeseeeeeseeeereeees 11

United States v. Shayne Parker, No. 16-1770......ssccccssecssccseenenceueeeeeccssseenes 3, 5,6

Wainwright vu: Witt, 469 U.S. 412, 423 (1985). ..ccs.ccscseesreceesevencvcvesconsevsvesereneseeees 11

Statutes and Rules:

18 U.S.C § 922(a)(3).ccccccccecececeeesveceesessvecevsvecavsvscauscsusesavscsuvecevstsesecevscscsesseees 6

18 U.S.C § 922(g)(L).cccccecececcececesvecsesescvevevevecevsecavscstsevevavstesevscsticsaavesscaveees 6

2B U.S.C. § 1254(L)..ccecceesesceccsvscscsecsesvscecscececscscecsesaveceesessvecsescsavecsvsescssseesaen 5

Constitutional Provisions

United States Constitution, Amendment Sikx...........cccccceeseneeeeeeenes 1, 6, 7, 8, 9, 11

5

NO.

IN THE SUPREME COURT OF THE UNITED STATES

December 2017

Shayne Parker - Petitioner

vs.

United State of America - Respondent

On Petition for a Writ of Certiorari to the

United States Court of Appeals for the First Circuit

PETITION FOR WRIT OF CERTIORARI

The Petitioner, Shayne Parker, respectfully prays that a writ of certiorari

issue to review the judgment of the United States Court of Appeals for the First

Circuit in Case No. 16-1770, entered on September 19, 2017.

OPINION BELOW

On September 19, 2017, a panel of the Court of Appeals for the First Circuit

entered its opinion affirming the judgment of the United States District Court for

the District of Massachusetts. The opinion of the Court of Appeals is reported as

United States v. Shayne Parker, No. 16-1770, and is attached hereto in Appendix A.

JURISDICTION

The Court of Appeals entered its judgment on September 19, 2017.

Jurisdiction of this Court is invoked under 28 U.S.C. § 1254(1).

CONSTITUTIONAL AND STATUTORY PROVISIONS INVOLVED

UNITED STATES CONSTITUTION, AMENDMENT SIX

In all criminal prosecutions, the accused shall enjoy the right to a speedy and

public trial, by an impartial jury of the State and district wherein the crime shall

have been committed, which district shall have been previously ascertained by law,

and to be informed of the nature and cause of the accusation; to be confronted with

the witnesses against him; to have compulsory process for obtaining witnesses in his

favor, and to have the Assistance of Counsel for his defence.

STATEMENT OF THE CASE

Shayne Parker, an African-American man from Boston was indicted on

August 11, 2015 for violation of 18 U.S.C § 922(g)(1), possession of ammunition by a

person previously convicted of a crime punishable by more than 12 months, and 18

U.S.C § 922(a)(3), interstate transportation of a firearm. He was tried in District

Court by a jury commencing in March of 2016, was found guilty on both counts, and

in June 2016, was sentenced to 60 months, and judgment entered. He appealed to

the United States Court of Appeals for the First Circuit, and on September 19, 2017,

the judgment was affirmed. United States v. Shayne Parker, No. 16-1770.

The specific allegations in the indictment are that on or about March 22, 2014,

Parker possessed 50 rounds of 380-caliber ammunition in Massachusetts and

purchased and transported into Massachusetts from New Hampshire an SCCY,

Model CXP 9mm firearm. The government proceeded primarily on a theory that the

defendant aided and abetted an individual named Ronald Scott in procuring straw

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purchasers in New Hampshire to procure the firearm and ammunition and then

transporting them to Massachusetts. The government utilized the testimony of the

participant straw purchasers who were white drug abusers, to prove the case.

Before jury selection commenced, the defendant requested in writing that the

Court conduct individual voir dire of prospective jurors on the issue of racial

prejudice to insure, to the greatest extent possible, that an unbiased jury, not

infected by racial prejudice, as required by the Sixth Amendment, would be seated to

hear the case. Counsel pointed out the cross-racial component between the

cooperating Caucasian straw purchasers and the African-American defendant, the

inherent stereotyping with the nature of the offense, the statistical evidence of bias

against African Americans in the criminal justice process, and the systemic racism

and racial polarization evidenced by the then ongoing presidential election

campaign. The defense contended that individual or sequestered questioning on this

issue was necessary because jurors could not be expected to raise their hands and

identify themselves as racially prejudiced in front of the other jurors requiring that

they be excused for cause, and because gauging the reaction and way a juror

responds to the questioning is critical in rooting out juror bias and in the exercise of

peremptory challenges.

The Court refused to adopt the reality that jurors are more likely to be candid

regarding racial prejudice if questioned individually, questioned whether the issue

should be addressed at all, ruled that his instructions would adequately address the

problem of racial prejudice, and opined that this was not a highly publicized case, not

a murder case, not a death penalty case and did not warrant the “...time-consuming

and resource-consuming step of individual voir dire”. Counsel pointed out the

serious loss of liberty the defendant faced and the fact that conducting the requested

voir dire would only add “... a couple of extra hours to ...ensure that we don’t have a

racially biased jury...”.

The Court conducted a perfunctory voir dire, initially opting to ask a single

question to the entire jury pool, which predictably elicited no response. The

defendant objected that a single question about racial prejudice was inadequate and

that no one would come forward in front of the whole group. Although the Court

agreed to ask two additional questions to the entire pool, which also predictably

elicited no response, the request for individual or sequestered voir dire was denied.

The defendant was convicted, sentenced to sixty months, and appealed the

judgment to the United States Circuit Court for the First Circuit, on the grounds,

inter alia, that his Sixth Amendment rights were violated. On September 19, 2017,

the First Circuit rejected the defendant’s Sixth Amendment claim and affirmed the

judgment. United States v. Shayne Parker, No. 16-1770, appended hereto.

REASONS FOR GRANTING THE WRIT

I. BECAUSE OF THE LOWER COURTS’ RULINGS DENYING

REQUESTED AND REQUIRED INDIVIDUAL VOIR DIRE ON RACIAL

PREJUDICE WE HAVE NO ASSURANCE THAT THE VERDICT WAS

UNBIASED AND NOT THE PRODUCT OF RACIAL ANIMUS.

A. THE SIXTH AMENDMENT REQUIRED THAT THE DISTRICT

COURT ENSURE THAT RACIALY BIASED JURORS BE EXCLUDED

BY CONDUCTING CAREFUL VOIR DIRE.

In the last term, this Court strongly mandated and reaffirmed its holdings

under the Sixth Amendment that lower courts strive to eliminate racial bias in the jury

process, ruling that it is necessary to “...ensure that our legal system remains capable

of coming ever closer to the promise of equal treatment under the law that is so central

to a functioning democracy.” Pena-Rodriguez v. Colorado, 580 U.S. , 1875. Ct.

855, 868 (2017).

The context was a post-trial claim for a Constitutional exception to the “no

impeachment” rule where members of a deliberating jury came forward with

statements made during deliberations by a seated juror which indicated that racial

animus was a significant motivating factor in his or her finding of guilt. Pena-

Rodriguez v. Colorado, 580 U.S. , 187 S. Ct. 855, 868 (2017).

In a 5-3 ruling confirming this exception under the Sixth Amendment, the

Court held that there is a sound basis to treat racial bias with special precaution. “A

constitutional rule that racial bias in the justice system must be addressed—

including, in some instances, after the verdict has been entered—is necessary to

prevent a systemic loss of confidence in jury verdicts, a confidence that is a central

premise of the Sixth Amendment trial right.” Pena-Rodriguez v. Colorado, 580 U.S.

137 S. Ct. 855, 868 (2017).

The decision reviewed the history of racial animus in the jury trial process and

the evolution of the Court’s rulings on the issue. Racial bias is a “...familiar and

recurring evil” that “... implicates unique historical, constitutional and institutional

concerns...”. Pena-Rodriguez v. Colorado, 580 U.S. , 187 S. Ct. 855, 871 (2017).

Blatant racial prejudice exists, is antithetical to the functioning of the jury

system, and must be confronted. The Nation, and the Courts, must continue to make

strides to overcome it, and must move forward by achieving the thoughtful, rational

dialogue at the foundation of both the jury system and the free society that sustains

our Constitution. “It is the mark of a maturing legal system that it seeks to

understand and to implement the lessons of history.” Pena-Rodriguez v. Colorado,

580 U.S. , 1878. Ct. 855, 871 (2017).

B. CAREFUL VOIR DIRE ON RACIAL PREJUDICE IS INDIVIDUAL OR

SEQUESTERED VOIR DIRE.

It is obvious that identifying and disqualifying racially biased jurors through

careful voir dire is far preferable to seating a juror and facing the prospect of

impeaching the verdict after trial, a point seemingly agreed to by both the majority and

dissenters in Pena-Rodriguez. It is also obvious and plain common sense that

expecting a prospective juror to endure the stigma of admitting to being a racist or

racially prejudiced publicly and in front of other prospective jurors, as occurred here, is

an exercise in futility.

The stigma associated with racial prejudice was explicitly acknowledged by the

majority. Pena-Rodriguez v. Colorado, 580 U.S. , 187 S. Ct. 855, 868-869 (2017).

As in this case, the trial judge in Pena-Rodriguez inquired of the entire panel regarding

bias and encouraged jurors to come forward with any concerns about their impartiality.

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Pena-Rodriguez v. Colorado, 580 U.S. , 1878S. Ct. 855, 861 (2017). This proved

ineffective as no one came forward. After the verdict, it was disclosed that a seated

juror harbored egregious racial bias and stereotypes which were not revealed until

deliberations. Pena-Rodriguez v. Colorado, 580 U.S. , 187S. Ct. 855, 870 (2017).

Although a trial judge has a level of discretion to determine the proper scope of

voir dire, Rosales-Lopez v. United States, 451 U.S. 182, 189 (1981), the exercise of this

discretion is limited by the constitutional dictates of due process and the Sixth

Amendment right to be tried by an unbiased jury. Morgan v. Illinois, 504 U.S. 719,

726-31 (1992). A defendant has a Constitutional right to have prospective jurors

questioned on racial bias if the circumstances of the case suggest a significant

likelihood of prejudice by the jurors. Ristaino v. Ross, 424 U.S. 589, 596-97 (1976).

Many factors existed to support such a likelihood in this case, which were presented

to the trialjudge. Ristaino v. Ross, 424 U.S. 589, 596-97 (1976).

The exercise of the trial court’s discretion, and the restriction upon inquiries at

the request of counsel, are “subject to the essential demands of fairness.” Aldridge v.

United States, 238 U.S. 308, 310 (1931). Critical to a fair trial is the Defendant's right

to effective assistance of counsel as guaranteed by the Sixth Amendments, and since

the Defendant bears the burden of establishing juror partiality, See Wainwright v.

Witt, 469 U.S. 412, 423 (1985), it is imperative that the Court permit meaningful

examination at voir dire to elicit potential racial bias held by prospective jurors.

“Voir dire plays a critical function in assuring the criminal defendant that his

Sixth Amendment right to an impartial jury will be honored.” Rosales-Lopez v. United

11

States, 451 U.S. 182, 188 (1981). The term, voir dire, is a French phrase meaning “to

see, to speak”, which underscores the importance and necessity in selecting an

unbiased jury of both hearing a juror’s answers to questions and observing how they

formulate the answers. A hesitation or equivocation can be crucial to identifying a

biased juror and can cause the Court to ask follow-up questions that prove decisive.

The ability to make informed peremptory challenges during jury selection

ensures the right to an impartial jury. The right to challenge a potential juror is “one

of the most important of the rights secured to the accused” and “[a]ny system for the

empaneling of a jury that prevents or embarrasses the full, unrestricted exercise by the

accused of that right, must be condemned.” Pointer v. United States, 151 U.S. 396, 408

(1894).

The trial Court’s stated rationale for refusing to conduct careful voir dire on

racial prejudice, that this was not a highly publicized case, not a murder case, not a

death penalty case and did not warrant the “...time-consuming and resourceconsuming step of individual voir dire” trivialized the importance of seating an

unbiased jury and was an abuse of discretion. The defendant faced substantial loss

of liberty, was sentenced to 60 months, and the requested individual voir dire would

have added only “... a couple of extra hours to....” the process. The relief granted in

Pena-Rodriguez involved a defendant sentenced to probation.

CONCLUSION

By reason of the foregoing, Shayne Parker respectfully requests that his

Petition for a Writ of Certiorari be granted.

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Respectfully submitted,

mabile

4 & Burkly, P.C.

Massachusetts BBO# 016940

Attorney for Petitioner

380 Pleasant Street

Brockton MA 02301

Telephone: 508-559-6966

Fax: 508-559-7954

E-mail: jamabile@abpclaw.com

Dated: December 14, 2017

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