Amicus Curiae Brief — Gene Deveraux, Petitioner v. Montana

No. 22-418

In the Supreme Court of the United States

__________

GENE DEVERAUX, PETITIONER

v.

STATE OF MONTANA

__________

ON PETITION FOR A WRIT OF CERTIORARI

TO THE MONTANA SUPREME COURT

__________

BRIEF OF AMICUS CURIAE MONTANA

ASSOCIATION OF CRIMINAL DEFENSE

LAWYERS, IN SUPPORT OF PETITIONER

__________

MICHAEL J. SHERWOOD

1920 Alvina Drive

Missoula, Montana 59802

mike@mjsherwoodlaw.com

(406) 240-2749

Attorney for Amicus Curiae

i

TABLE OF CONTENTS

Page

TABLE OF AUTHORITIES .....................................iii

INTRODUCTION ............................................1

I.

INTERESTS OF MTACDL,

MTACDL’S MEMBERS AND THE

ACCUSED CITIZENS MTACDL’S

MEMBERS REPRESENT................................2

A.

MTACDL................................................2

B.

MTACDL members................................2

C.

MTACDL members’ clients

who elect to proceed to jury

trial in a Montana District

Court.......................................................3

II.

SUMMARY OF ARGUMENT..........................4

III.

ARGUMENT.....................................................4

A. The Deveraux decision leaves defense

counsel in the untenable position of

attempting to comply with an ethical

duty to diligently represent her or his

client and still comply with an ethical

duty of candor toward a tribunal ....................4

B. The Deveraux decision may create a

ii

conflict of interest between trial

counsel and her or his client............................9

C. If the Court does not grant Deveraux’s

Petition for Writ of Certiorari, it may be

years, if ever, before this issue will be

raised again.....................................................11

IV.

CONCLUSION ...............................................12

iii

TABLE OF AUTHORITIES

Page(s)

CONSTITUTIONAL PROVISIONS

U.S. Const. Amend. VI ...............................................3

U.S. Const. Amend. XIV .............................................3

Mont. Const. art. II, §17..............................................3

Mont. Const. art. II, §24..............................................3

CASES

Batson v. Kentucky,

476 U.S. 79, 98 (1986).......................................6

Duncan v. State of Louisiana,

391 U.S. 145 (1968)...........................................3

Gentile v. State Bar of Nevada,

501 U.S. 1030(1991)..........................................3

Gideon v. Wainright,

372 U.S. 335 (1963)..........................................3

Hayes v. State of Missouri,

120 U.S. 68 (1887).............................................6

In re Murchison,

349 U.S. 133 (1955)...........................................6

Lewis v. United States,

146 U.S. 370 (1892) ..............................5, 6, 8, 9

iv

Montana v. Deveraux,

512 P.3d 1198 (Mont. 2022)..........................7, 8

Montana v. Good,

43 P.3d 948 (Mont. 2002)..................................5

Pointer v. United States,

151 U.S. 396 (1894)...........................................5

Ross v. Oklahoma,

487 U.S. 81 (1988)............................................11

Stilson v. United States,

250 U.S. 583 (1919)...........................................5

Strickland v. Washington,

466. U.S. 668 (1984)....................................3, 10

Swain v. State of Alabama,

380 U.S. 202 (1965)......................................6, 7

United States v. Akbar,

74 M.J. 364 (C.A.A.F. 2015).............................5

White v. Estelle,

459 U.S. 1118 (1983).........................................3

STATUTES

MONTANA CODE ANNOTATED

§46-16-116 MCA…………………………...............4

v

RULES

MONTANA RULES OF PROFESSIONAL

CONDUCT

M.R.Pro.C. 1.1 .............................................................3

M.R.Pro.C. 1.2 .............................................................3

M.R.Pro.C. 1.4..........................................................3, 8

M.R.Pro.C. 1.6..............................................................3

M.R.Pro.C. 3.3..........................................................3, 8

SECONDARY AUTHORITIES

Gobert, J., In Search of the

Impartial Jury, Journal of

Criminal Law and Criminology,

Volume 79, Issue 2, (Summer 1988) ..........................7

Covington, M., Jury Selection:

Innovative Approaches to Both

Civil and Criminal Litigation,

16 St. Mary's L.J. 575 (1984) .....................................5

Jury Principle 11(c) 3., ABA

PRINCIPLES FOR JURIES &

JURY TRIALS...........................................................10

1

INTRODUCTION

Pursuant to Sup. Ct. R. 37.1, the Montana

Association of Criminal Defense Lawyers (herein

“MTACDL”) respectfully files this Amicus Curiae

Brief to bring to the attention of the Court relevant

matter not already brought to its attention by the

parties which may be of considerable help to the Court

in deciding whether to grant a Writ of Certiorari.1,2

Specifically, the Montana Supreme Court’s

underlying decision, which allows a trial court to

unduly interfere with a defendant’s exercise of

peremptory strikes, might serve to place defense

counsel in an untenable ethical position or create a

conflict of interest with the defendant, or both. The

resulting effect on jury trials in Montana will make

any possible future review by this Court of the issue

presented by Petitioner Deveraux extremely unlikely.

1In compliance with Sup. Ct. R. 37.2(a) MTACDL gave notice of

its intention to file an amicus brief at least 10 days prior to the

deadline to file this brief. MTACDL has filed this brief after

obtaining the written consent of all parties. Pursuant to Rule

37.6. Counsel affirmatively states that: (1) Counsel for a party

did not author this brief (in whole or in part) and (2) no party

made a monetary contribution intended to fund the preparation

or submission of this brief. Nor has any person, other than the

Amicus Curiae, its members or counsel made such a monetary

contribution.

2In compliance with Sup. Ct. R. 5 and Rule 34.1(f), Michael J.

Sherwood, the undersigned attorney appearing on behalf of

MTACDL, applied for admission and was admitted to practice

before the United States Supreme Court on September 3, 2004.

2

I.

INTERESTS OF MTACDL, MTACDL’S

MEMBERS AND THE ACCUSED CITIZENS

MTACDL’S MEMBERS REPRESENT.

A. MTACDL

MTACDL is a non-profit association organized

in 1997 under the laws of the State of Montana.

MTACDL is comprised of approximately one hundred

fifty-three members, including nearly all criminal

defense lawyers in private practice, a substantial

number of attorneys employed by the Montana Office

of State Public Defender, Federal Defenders and some

non-lawyer Tribal Advocates. MTACDL is an affiliate

of the National Association of Criminal Defense

Lawyers

(herein

“NACDL”),

a

nationwide

organization of more than ten thousand criminal

defense attorneys.

Recognizing that a strong criminal defense bar

is an integral part of our criminal justice system,

MTACDL’S activities include filing Amicus Curiae

Briefs before appellate courts representing the

interests of MTACDL, its members and the interests

of its members’ clients.

B. MTACDL members

In compliance with the Preamble to the

Montana Rules of Professional Conduct (herein "M.R.

Pro. C.") and Tribal Court Rules, MTACDL members

have a professional and ethical obligation to always

pursue the truth and to diligently represent their

clients.

In pertinent part, the Rules require

3

MTACDL’s members not only to act diligently, but

also to deal candidly with any tribunal, to abide by a

client’s decisions concerning the objectives of

representation, to consult with the client as to the

means by which they are to be pursued and to refrain

from revealing attorney-client communications

without the client’s informed consent. M.R.Pro.C. 3.3,

1.1, 1.2, 1.4, and 1.6, respectively.

C.

MTACDL members’ clients who elect to

proceed to jury trial in a Montana

District Court

A citizen charged with a felony in a Montana

District Court is entitled to a jury trial. U.S. Const.

amend. VI and XIV, Duncan v. State of Louisiana, 391

U.S. 145, 161-62 (1968). When an accused elects to

proceed to trial, that person is entitled to the Federal

Due Process protection that she or he be tried by a fair

and impartial jury. Gentile v. State Bar of Nevada,

501 U.S. 1030, 1075 (1991). The State of Montana

affords the accused those same protections. Mont.

Const. art. II, §§17 and 24.

Because representation by counsel plays a

crucial role in the adversarial system embodied in the

Sixth Amendment the accused also enjoys the right to

be effectively represented by a lawyer. Strickland v.

Washington, 466. U.S. 668, 669 (1984); Gideon v.

Wainright, 372 U.S. 335, 344-45 (1963).

In

conjunction with this right, an accused citizen has the

right to assist his counsel at trial. White v. Estelle,

459 U.S. 1118, 1121 (1983).

4

In addition to the foregoing Constitutional

protections, the State of Montana also affords a

defendant in a felony trial the statutory right to

exercise six peremptory challenges to prospective

members of the jury (eight if charged with a capital

offense). §46-16-116, MCA.

II.

SUMMARY OF ARGUMENT

MTACDL respectfully asks this Court to grant

Deveraux’s Petition for Writ of Certiorari for three

reasons:

First, the Deveraux decision leaves defense

counsel in the untenable position of attempting

to comply with an ethical duty to diligently

represent her or his client and still comply with

an ethical duty of candor toward a tribunal;

Second, application of the Deveraux holding

may create a conflict of interest between trial

counsel and her or his client; and

Third, if this Court does not grant Deveraux’s

Petition for Writ of Certiorari, it may be years,

if ever, before this issue will be raised again.

III.

ARGUMENT

A.

The Deveraux decision leaves defense

counsel in the untenable position of

attempting to comply with an ethical

duty to diligently represent her or his

client and still comply with an ethical

5

duty of candor toward a tribunal

In United States v. Akbar, the United States

Court of Appeals for the Armed Forces cites multiple

cases and authoritative treatises and articles

supporting the premise that a case can often be won

or lost in voir dire, noting that “[e]xperienced trial

lawyers agree that the jury selection process is the

single most important aspect of the trial proceedings.”

United States v. Akbar, 74 M.J. 364, 423 at n. 12

(C.A.A.F. 2015)(dissent, quoting Margaret Covington,

Jury Selection: Innovative Approaches to Both Civil

and Criminal Litigation, 16 St. Mary's L.J. 575, 575–

76 (1984)).

Although there is nothing in the Constitution

of the United States which requires the Congress (or

the States) to grant peremptory challenges, Stilson v.

United States, 250 U.S. 583, 586 (1919), nonetheless

this Court has recognized that the challenge is “one of

the most important of the rights secured to the

accused,” Pointer v. United States, 151 U.S. 396, 408

(1894). The right to peremptorily strike a juror is, “as

Blackstone says, an arbitrary and capricious right,

and it must be exercised with full freedom, or it fails

of its full purpose.” Lewis v. United States, 146 U.S.

370, 378 (1892). Montana treats the denial of a

peremptory challenge, when used to cure a trial

court’s erroneous denial of a for-cause challenge, as

structural error requiring reversal. Montana v. Good,

43 P.3d 948, 960 (Mont. 2002).

The function of the challenge is not only to

eliminate extremes of partiality on both sides, but to

6

assure the parties that the jurors before whom they

try the case will decide on the basis of the evidence

placed before them, and not otherwise. In this way

the peremptory satisfies the rule that 'to perform its

high function in the best way 'justice must satisfy the

appearance of justice." Swain v. State of Alabama, 380

U.S. 202, 219 (1965)(overruled on other grounds by

Batson v. Kentucky, 476 U.S. 79, 98 (1986), quoting

In re Murchison, 349 U.S. 133, 136 (1955)). Indeed

the very availability of peremptory challenges allows

counsel to ascertain the possibility of bias through

probing questions and facilitates the judicious

exercise of challenges for cause by removing the fear

of incurring a juror's hostility through examination

and challenge for cause. The essential nature of the

peremptory challenge is that it is one exercised

without a reason stated, without inquiry and without

being subject to the court's control. Lewis, 146 U.S.

at 378.

While challenges for cause permit rejection of

jurors on a narrowly specified, provable and legally

cognizable basis of partiality, the peremptory permits

rejection for a real or imagined partiality that is less

easily designated or demonstrable. Hayes v. State of

Missouri, 120 U.S. 68, 70 (1887).

Counsel and a criminally accused might have

myriad reasons to peremptorily strike a prospective

juror. As noted in Swain, those include sudden

impressions and unaccountable prejudices counsel or

the defendant are apt to conceive upon the bare looks

and gestures of an individual, an individual’s

7

occupation, habits and associations, or even the

feeling that counsel’s bare questioning of a

prospective juror’s indifference might provoke a

resentment. Swain, 380 U.S. at 220-223. Other

reasons include the individual’s socioeconomic status

and family, social, political and personal associations.

Gobert, J., In Search of the Impartial Jury , Journal

of Criminal Law and Criminology, Volume 79, Issue

2, ( Summer 1988) at pp. 321-23.

Contrary to the mandate that a peremptory

challenge should be one exercised without a reason

stated, without inquiry and without being subject to

the court's control, in Montana v. Deveraux, 512 P.3d

1198 (Mont. 2022), the Court required justification

and then found it wanting:

Deveraux justifies not exercising a

peremptory to remove R.G. by

explaining he “was compelled to use

peremptory challenges on other less

desirable individuals.” He provides

reasoning for only four of the six

individuals he removed, and, therefore,

there is no demonstration that Deveraux

could not have elected to remove R.G., as

was defense counsel's predicament in

Anderson.

Deveraux, 512 P.3d at 1206-07 (Mont. 2022). See,

App. 16a.

In violation of the axiom that a peremptory

strike “must be exercised with full freedom or it fails

8

its purpose,” the Court opined that Deveraux had not

satisfied his obligation to explain why his peremptory

strikes were better utilized upon other prospective

jurors. Id. By requiring justification, the Court

stripped the fundamentally “arbitrary and capricious”

nature of Deveraux’s peremptory strikes, thereby

causing them to fail in purpose. Lewis, 146 U.S. at

378.

The Deveraux holding poses a real risk that

defense trial counsel will find themselves in an

untenable position. If in the future trial courts are

allowed to inquire into defense counsel’s reason for

peremptorily striking a juror, defense counsel could

be torn between the ethical obligation to be candid

with a tribunal, M.R.Pro.C. 3.3, and counsel’s ethical

obligation to not disclose confidential client

communications, M.R.Pro.C. 1.4. If the peremptory

strike

was

exercised

after

confidential

communications with the accused which the accused

does not wish disclosed, must Defense Counsel then

choose between honoring her or his ethical duty of

confidentiality to his client and counsel’s duty to

effectively represent the client by responding to the

Court’s inquiry?

Defense counsel would need to decide whether

to refuse to answer the question and thereby waive

any argument that the Court committed structural

error by improperly seating a biased juror or to

preserve that argument by violating his client’s

confidence. The same would be true when defense

counsel has peremptorily struck a prospective juror

9

based upon confidential communications

another client not associated with the trial.

with

Application of Deveraux will also serve to allow

trial courts to improperly interfere with the

considered course of action taken by competent trial

counsel. What if trial counsel responds to the Court’s

inquiry as to the reason for striking a given

prospective juror, by saying, that counsel struck the

prospective juror based upon the individual’s bare

looks and gestures, the individual’s occupation, or

simply upon counsel’s feeling that Counsel’s mere

questioning of the prospective juror’s indifference

might provoke a resentment?

The Deveraux decision suggests that a trial

Court would then be allowed to impose its own

determination as to whether the stated reason for

peremptorily striking each juror outweighed the

value of peremptorily striking a different juror

unsuccessfully challenged for cause.

Such a

qualitative assessment of a defendant’s peremptory

challenge would fly in the face of this Court’s holdings

that “[t]he essential nature of the peremptory

challenge is that it is one exercised without a reason

stated, without inquiry and without being subject to

the court's control.” Lewis, 146 U.S. at 378.

B.

The Deveraux decision may create a

conflict of interest between trial counsel

and her or his client.

Additionally, failure to reverse the Deveraux

decision might create an inherent conflict of interest

10

for defense counsel. A convicted defendant's claim

that counsel's assistance was so defective as to

require reversal of a conviction requires that the

defendant show, first, that counsel's performance was

deficient and, second, that the deficient performance

prejudiced the defense so as to deprive the defendant

of a fair trial. Strickland, 466 U.S. at 669.

In pertinent part, Jury Principle 11(c) 3., ABA

PRINCIPLES FOR JURIES & JURY TRIALS

provides:

In ruling on a challenge for cause, the

court should evaluate the juror's

demeanor and substantive responses to

questions. If the court determines that

there is a reasonable doubt that the

juror can be fair and impartial, then the

court should excuse him or her from the

trial.

If, as was the case in Deveraux, a trial Court

should fail to comply with the foregoing standard then

what course of action should a Defense Attorney take

if, in defense counsel’s considered opinion (as was

clearly the trial counsel’s opinion in Deveraux)

peremptory strikes would be better exercised on other

jurors?

Does defense counsel follow his ethically

mandated duty to diligently represent his client by

striking those jurors? If so, the continued application

of the Deveraux holding exposes counsel to a potential

ineffective assistance of counsel claim for leaving a

person whom counsel had asserted could not be fair

and impartial on the jury. If Deveraux remains the

11

law in Montana, counsel will have done so knowing

that the client would not be entitled to any appellate

relief.

C.

If the Court does not grant Mr.

Deveraux's Petition for Writ of

Certiorari, it may be years, if ever,

before this issue will be raised again.

If the Deveraux decision is not reversed, given

any reasonable defense attorney’s wish to avoid

having counsel’s representation labelled “ineffective”

as well as to preserve the client's appeal regarding the

biased juror it is likely that defense counsel will

remedy the trial Court’s error by peremptorily

striking a clearly biased juror whom counsel had

unsuccessfully challenged.

Thus going forward, Deveraux's Sixth

Amendment error of allowing a biased juror to be

empaneled will in the future simply create the same

factual scenario present before this Court in Ross v.

Oklahoma, 487 U.S. 81 (1988). The result will be that

Deveraux will self-insure against future review by

this Court: competent counsel's likely course of action

will only serve to evade further review of the Sixth

Amendment error, an error that allowed a biased

juror to sit in judgment of Gene Deveraux.

12

IV.

CONCLUSION

For the foregoing reasons, MTACDL files this

brief in support of Deveraux's Petition for Writ of

Certiorari. MTACDL respectfully asks the Court to

grant the Petition.

Respectfully submitted,

/s/ Michael J. Sherwood

MICHAEL J. SHERWOOD

1920 Alvina Drive

Missoula, Montana 59802

mike@mjsherwoodlaw.com

(406) 240-2749