# Opposition — Rhodes v. Krause

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Opposition
- **Published:** January 1, 1978
- **Citation:** 435 U.S. 924

## Text

3n the Supreme Court
‘Pnited States

Ocroser Term, 1977

No. 77-1017.
JAMES A. RHODES,

Petitioner,

WS.
ARTHUR KRAUSE, «i al.,
Respondents.

No. 77-1018

SYLVESTER DEL CORSO, et ai.,
Petitioners,

o
ARTHUR KRAUSE, et al.,
; 3 Respondents.
Brief for Respondents in Opposition to
~ . Petitions for Certiorari eA

Sanrorp Jay Rosen

155 Montgomery Street, Suite 1502
San Francisco, CA 94104

Nicvoras B, Waranorr
5 Necson G. Kart
| Davip ENGDAHL
' Micuae BE. Gevtner ~
Amitai SCHWARTZ
Bruce J. Ennis
Rosert P. Ape —
Ciype Buus.
Attorneys for Respondents

Yi ,
: - :
* ~ a’ . P. 4 4 “
“ie Se :
* . ~~ Ae ~ severely prejudiced the plain-
tiffs.

The Court of Appeals for the Sixth Cir-
cuit reversed and remanded for a new trial
because of the trial judge's improper han-
dling of a jury intrusion. In a separate
concurring opinion, Judge Edwards stated he
would reverse in addition because some of
the trial judge's actions themselves consti-
tuted a prejudicial jury intrusion. Peti-
tioners' Joint Appendix at A 33 to A 35. 2/

2/ Hereinafter cited as "PJA at A."

a.

Plaintiffs' First Amendment and Eighth
Amendment claims were ordered dismissed by
the Court of Appeals. The Court of Appeals
also held that neither the plaintiffs nor
the defendants were entitled to a directed
verdict on the due process and pendent
state claims. PJA at A 19. The Court of
Appeals also explicitly stated that plain-
tiffs’ other contentions concerning jury
charge and trial errors would not be dealt
with in detail but only as necessary to
avoid error at another trial. PJA at A 3,
A 17 and A 19.

After a majority of the Court of
Appeals denied defendants’ petitions for
rehearing and suggestions of rehearing en
banc, defendants petitioned this Court For
writs of certiorari. Defendant Rhodes (No. 77-
1017) asserts that excessive force does not
constitute a denial of due process under 42
U.S.C. § 1983 and also that he is entitled
to judgment on the record. Defendants Del
Corso, et al. (No. 77-1018), assert that
the Court of Appeals imposed too harsh a
standard on the trial court for dealing with
jury intrusions and that the Sixth Circuit's
decision is in conflict with a Second Cir-
cuit decision dealing with jury intrusions.
Defendant Rhodes joins in this contention.
Defendant Del Corso also asserts that he is
entitled to judgment on the record.

Plaintiffs submit that none of the is-
sues presented by the defendants is suitable
for review by this Court. At present, the
case presents essentially factual questions,
with no recurring unresolved issues of law.
And, on the merits, the defendants are wrong
as to each issue they press. Moreover, even
if the defendants were to prevail on their

4.

issues, they still might not be entitled to
an order affirming the district court's
judgments in their favor.

Furthermore, the case and the issues ;
are not in a proper posture for this Court s
treatment. For example, review of the
defendants' issues at this time would bring
before the Court the numerous other issues
presented by plaintiffs in the Court of
Appeals, and would require this Court to
review the extensive record in this case to
resolve all these issues. Notably, if
certiorari were granted on defendants’ peti-
tions, plaintiffs would be entitled to sup-
port the Court of Appeals judgment remanding
for a new trial by urging any ar nt sup-
porting that judgment that is raised in the
record and was preserved in the wt
Swarb v. Lennox, 405 U.S. 191, 202 (1972)
(White, J. concurring) and 204 n.1 (Douglas,

J. dissenting); Dandridge v. Williams, 397
U.S. 471, 478-36 n.6 OF Mills v. Elec-
tric Autolite Comany . 396 U.S. 375, 381 n.4

: te tates v. Raines, 362 U.S. 1/7,
27 n.7 (1960); Langnes v. Green, 282 U.S.
531, 535-39 (1931); United States v. Ameri-
can Railway Express Company, 265 U.S. 425,
435-36 CISL). See Stern, en to Cross-Appeal
or Cross-Petition -- Cerrainty or Confusion?"
87 Harv.L.Rev. 763 (1973-1974).

In support of the Court of Appeals
judgment, plaintiffs would argue before this
Court that the Court of Appeals erred in
ruling against them on several issues. If .
they are correct on these points, plaintiffs
would still be entitled to a _ =.

These issues include, inter alia, plain-
tiffs' contentions that: (1) There was no
substantial evidence to sustain the jury

5.

verdicts for the claims based upon wrongful
killings and woundings; (2) the trial court
should have granted a directed verdict on
plaintiffs' First Amendment claims and
placed that verdict before the jury in con-
nection with plaintiffs' other claims; (3)
the trial court committed reversible error.
by refusing plaintiffs' motion to dismiss
with prejudice their state law claims, -
thereby causing the trial court to deliver
a prejudicially prolix and incomprehensible
jury charge.

Plaintiffs would also assert before
this Court the numerous other serious issues
they raised in the Court of Appeals, which
that court delined to reach. If plaintiffs
are correct in their arguments on these ad-
ditional issues, they still would be enti-
tled to a new trial. These issues include,
inter alia, numerous incorrect and prejudi-
€ial rulings on evidence that are strikingly
inconsistent with the new Federal Rules of
Evidence. Assuming arguendo that the defen-
dants were to prevail on the issues they
are attempting to bring before this Court,
and the Court agreed with the Court of
Appeals on each of the other issues that
court decided against the plaintiffs, this
Court would then either address plaintiffs’
unresolved questions or it would remand to
the Court of Appeals with directions that it
decide those issues. Powell v. McCormack,
395 U.S. 486, 500 n.16 ; Uta e .
v. Continental Baking Co., 386 U.S. 685, 704
(1967). If they were to prevail on any of
these issues, the plaintiffs would still be
entitled to a remand for a new trial.

Moreover, if defendants were to prevail
in this Court only on the jury intrusion is-
sue, it is most probable that the case would
still have to be remanded to the district

6.
court for evidentiary proceedings on that
issue. See Del Corso Pet. No. 77-1018 at
p. 14. A new trial might still be ordered
and further appellate proceedings certainly
would occur. Thus, in effect, the defen-
dants seek interlocutory review of the case.

This Court has rarely granted a writ
of certiorari to review a reversal by a
court of appeals for abuse of discretion,
where the court of appeals also remanded for
new trial. This is true partly because of
the necessity to preserve this Court's
resources when a lower court may dispose of
a case or issue. See Brotherhood of Loco-

motive Firemen and Enginemen v. Bangor &
Aroostook Railroad Co., 389 U.S 329 (1967

(case unripe because of remand order on
major issue); Hamilton-Brown Shoe Co. v.
Wolf Brothers

(1916) (certiorari originally denied be-

_cause of remand).

Research by plaintiffs" counsel reveals
that virtually all of the cases in which this
Court has granted a writ of certiorari after
a court of appeals has reversed for abuse of
discretion and remanded for new trial, have
involved the peculiar problems of the role
of the jury as factfinder under the Seventh
Amendment, often in the Federal Employers'
Liability Act context. This Court has ex-
plained its extraordinary review of such
cases:

Special and important reasons for
the grant of certiorari in these
cases are certainly present when
lower federal and state courts per-
sistently deprive litigants of their

iP

right to a jury determination.

Rogers v. Missouri Pacific Railroad Co.,
355 U.S. 500, 510 (1957). The case at bar
does not present the problems which arise
in such litigation. The Court of Appeals
action in the instant case evinces no dis-
respect for the jury. Indeed, remand for
a new trial is necessary in this case to
assure fair jury determinations.

The Court of Appeals remand for new
trial as a result of the District Court's
improper handling of the jury intrusion
raises no important issue for this Court's
determination. Settled law was followed.
Moreover, there is no conflict with the
Second Circuit decision cited by defendants,
which is inapposite on its facts.

Defendants Rhodes' and Del Corso's
requests for review of the denial of dir-
ected verdicts to them presents a factual
matter with no importance except to the
parties involved. Two lower courts have
reviewed the record and each of them has
concluded that there is sufficient evidence
to go to the jury. The legal issues in-
volved have been clearly resolved by numer-
ous decisions of this Court, which were
properly followed by the lower courts.
Notably, the standard governing executive
immunity from Section 1983 liability has
already been fashioned.

Defendant Rhodes' question of whether
excessive force gives rise to a Section 1983
claim, presents a frivolous issue. There is
no inconsistency with the decisions of this
Court; this Court has concluded, and all
circuit courts which have passed upon the

8.

issue have held, that excessive force gives
rise to a claim under Section 1983.

Plaintiffs submit that the case should
be remanded immediately for retrial on the
relatively narrow issues now framed by the
Court of Appeals, centering around the ques-
tion "whether excessive force was employed"
under the conditions that pertained on May
4, 1970. PJA at A 20.

FF

THERE IS NO CONFLICT AMONG THE
CIRCUITS AND THE COURT OF APPEALS
CORRECTLY APPLIED SETTLED PRECEDENT
IN ORDERING A NEW TRIAL AFTER THE
TRIAL COURT GROSSLY MISHANDLED A
JURY INTRUSION. 7

Defendants argue that the decision of
the Court of Appeals to reverse for abuse
of discretion and remand for new trial is
inconsistent with this Court's decisions and
in conflict with a decision by the Court of
Appeals for the Second Circuit. This simply
is not so.

On August 20, 1975, after more than
thirteen weeks of trial, the trial judge
called counsel to his chambers and announced
that:

[A]t least one of the jurors has
been approached on several occasions
and threatened and actually physical-
ly assaulted in connection with the
threats; threats have been made on
his family, if he doesn't bring in

9.
a verdict in a certain way.

TR. 11,887. 3/ Counsel for plaintiffs asked
for interrogation of the juror by the trial
court. Tr. 11,893, PJA at A 23; TR 11,898-
11,899, PJA at A 24. The trial judge brushed
the request aside, indicating that the juror
in question could be replaced by an alter-
nate. Tr. 11,896; TR 11,902, PJA at A 23.
His major concern was protection for the
rest of the jury, which could be provided
only by sequestration for the balance of the
trial and deliberations. TR. 11,888-11,889,
PJA at A 21-A 22; TR. 11,899, PJA at A 24;
TR. 11,902-11,903, PJA at A 26; TR. 11,907,
PJA at A 27.

No counsel objected to the in-chambers
proceeding. All accepted the facts to be
true as reported by the United States Mar-
shal, who had interviewed the juror, and
United States Attorney: that the juror had
been approached on several occasions, threat-
ened and physically assaulted, and threatened
with harm to his family if he did not bring
in a specified verdict (TR. 11,887); that
there were three approaches to the juror,
including one in which the juror was grabbed
and pushed back against a wall and warnéd
that he better not find the verdict the wrong
way (TR. 11,891); that the threats included
a threat to the life of the juror and a
threat to blow up his house (TR. 11,898);
that one approach occurred in the area of
the Courthouse itself, and there was a wit-
ness to the actual (TR. 11,903-11,904); and
that the Marshal's office had placed the
juror under guard and the FBI was commenc-
ing an investigation (TR. 11,887).

3/ "TR. " citations refer to the Trial
Transcript.

10.

The trial judge decided to sequester
the jury as soon as they had an opportunity
to go home and pack. Over plaintiffs
counsel's vigorous objections (TR. 11,909-
11,910, PJA at A 28-A 29; TR 11,912, PJA at
A 29-A 30; TR 11,922, PJA at A 33), the
trial judge resolved to inform the rest of
the jury about the threats in order to ex-
plain the reason for the "eleventh-hour
sequestration (TR. 11,907, PJA at A 27; TR.
11,916, PJA at A 30). He also decided to
replace the threatened juror with an alter-
nate when the jury retired for deliberation.
TR. 11,916-11,919, PJA at A 30-A 31. After
the charge to the jury had been read, the
judge changed his mind and allowed the juror
to deliberate on the case. TR. 12,519-
12,520.

The trial judge never spoke with the
threatened juror (TR. 11,897, PJA at A 23),
nor did he poll the rest of the jury panel
to learn whether they had heard of the
threats or had been threatened themselves.
Instead, the tria! oe ordered all par-
ties and observers to leave the courtroom.
Then, with only the jurors, counsel and the
court reporter present, the judge left the
bench and stood before the jury box (where
he could speak more softly so as not to be
heard outside the courtroom) and delivered
a chilling speech to the jury, which was
itself a substantial and unduly frightening
intrusion upon the entire jury. TR. 11,931-
11,947.

The full text of this speech is re-
printed in the concurring opinion of Judge
Edwards below. PJA at A 33-A 35. Init,
the trial judge recited as an established
fact that the life of one of the jurors had
been threatened in an attempt to influence

ll.

the verdict. As to the rest of the jurors,
therefore, it was immaterial whether any
such threat had actually occurred; they were
told by the judge that the threats had in
fact occurred. The judge stated that he
personally was "much troubled and disturbed"
by knowledge of the threats. He declared
that on past occasions he had ignored such
threats, and as a result he had "blood on
[his] hands."' (He had previously told all °
counsel that there was at least one person
dead as a result of his failure to take such
a threat seriously in the past. TR. 11,898,
PJA at A 24.) He explained that the pro-
blems could not be solved merely by dis-
charging the single juror known to have

been threatened because others among the
jurors might have been threatened, too.

He explained he was going to give the
threatened juror around-the-clock protec-
tion, but that he could not give the rest

of the jurors that kind of protection, in
spite of the gravity of the peril. There-
fore, although he had never before sequest-
ered a jury, he was sequestering this jury.

After this terrifying speech, one of
the alternate jurors inquired of the judge
about protection for that juror's family, and
the judge replied that all he could do was
provide a telephone number which a threatened
family member might call. TR. 11,942-11,943.
At the same time, the judge told the jurors
that the alternates were like life insurance,
essential in the event one of the other jur-

ors met his or her demise. TR. 11,944-11,945.

Both the second intrusion, actually
initiated by the trial judge and affecting
the entire jury, and the first intrusion,
the threats to the single juror, were

12.

referred to in the majority opinion of the
Court of Appeals. PJA at A 4. The obvious
prejudicial impact of the second intrusion
was relied upon by Judge Edwards in his con-
curring opinion as an independent ground of
decision. PJA at A 33-A 35.

The facts of the first intrusion were
established to the satisfaction of the tri-
al judge and all counsel at the proceeding
in chambers, which defendants themselves,
at page 13 of the Del Corso Petition (No.
77-1018) characterize as a "hearing." Fur-
ther, defendants submitted in their Peti-
tions for Rehearing and Suggestions for
Rehearing en banc in the Sixth Circuit that
"the facts surrounding the threat [were]
fully disclosed to the trial court and coun-
sel for all parties....'"' Defendants-Appel-
lees’ Petition for Rehearing in Sixth Cir-
cuit at 17. The facts of the second intru-
sion, that of the trial judge, are matters
of transcribed record in this case.

Thus, this case is different from
Remmer v. United States, 347 U.S. 227
(1954) (hereinafter “Remmer I"). Defendants
incorrectly rely upon Remmer I and Remmer
v. United States, 350 U.S. 377 (1956 ere-
inafter “Remmer II"). In Remmer I, this
Court did remand to the district court for
further proceedings as to the facts of the
alleged jury intrusion, but that was only
because the facts of the intrusion were not
in the record. 347 U.S. at 229. In Remmer
Il, after the trial judge had ascertained
the facts and had made his own judgment that
the intrusion was harmless, this Court re-
viewed the factual record, reversed the
trial court's judgment of harmlessness, and
ordered a new trial. 350 U.S. at 380-82.

13.

Remmer II is akin, therefore, to the instant
case.

Similarly, the defendants incorrectly
argue that there is a conflict between the
Sixth Circuit's decision in the instant
case and a decision of the United States
Court of Appeals for the Second Circuit,
United States v. Gersh, 328 F.2d 460 (2d
Cir.), cert. denied 377 U.S. 992 (1964).

Del Corso, et al., Petition (No. 77-1018) at
15-18. Defendants assert that in the instant
case the plaintiffs knowingly waived their
right to a recorded interrogation of the
juror in the presence of all counsel. The
defendants then contend that, under Gersh

and two other circuit court decisions, if
plaintiffs in fact waived their right to

such a hearing, they are entitled neither

to an evidentiary hearing nor to a new trial.

Gersh and the two other precedents
cited by the defendants, however, are inap-
posite to the instant case. As the Sixth
Circuit held after careful review of the
record in this case, there was no knowing
waiver by plaintiffs of their right to re-
corded interrogation of the threatened juror
to determine whether he was unaffected by
the threats. PJA at A 10-A1l. Plaintiffs
repeatedly asked for such an interrogation
and then reasonably relied upon the trial
judge's declaration that he was going to
excuse the threatened juror. PJA at A 3-A 4.

As soon as they were informed of the
possibility that the juror had been preju-
diced, plaintiffs took all steps required
of them to request protective measures
short of a mistrial or a new trial. These
included requests for recorded interrogation

Se ee Se

14.

of the threatened juror by the judge, pol-
ling of all jurors in the event the judge
informed them of the threats, and excusal of
the threatened juror, as well as objection
to the trial court's informing the jury of
the reasons why they were being sequestered.
PJA at A 4-A 5, A 24, A 28-A 30; TR. 11,893;

TR. 11,898-11,899; TR. 11,909; TR. 11,910-11,913.

In contrast to the instant case, in
Gersh, the defendants were first informed
of the possibility that a juror was preju-
diced immediately after the jury delivered
its verdicts and was excused. The defen-
dants' attorney took no action at that time.
Five and one-half weeks later, at sentencing,
he did not move for further proceedings by
way of recorded interrogation of the juror
in question and polling of the other jurors,
which the Second Circuit concluded “would
still have been entirely practicable." -328
F.2d at 464. He moved only for a new trial
on the ground that a voir dire should have
been conducted of the juror in question be-
fore the case went to the jury. Waiver
certainly could be inferred from those cir-
cumstances. But, as the record demonstrates
and the Court of Appeals held, in the in-
stant case, plaintiffs did not waive their
procedural rights; they asserted them at
the earliest possible opportunity. And,
it is not now "practicable" to conduct the
necessary recorded interrogation of the
jurors.

In addition, the known facts of the
presumed jury intrusion in the Gersh case
are not nearly so compelling as those in the
instant case. Threats and an assault, dir-
ectly linked to the outcome of the case,
occurred in the instant case. The alleged

15.

intrusion in Gersh involved uncompleted anon-

ymous telephone calls to the forelady. On
these sparse facts, so very different from

— in the instant case, the Second Circuit
e :

Something more than the mere fact of
an unknown and uncompleted contact
with a juror is needed to call for
vacating a judgment of conviction to
permit a hearing which the appellants
have not sought.

328 F.2d at 464.

United States v. Dozier, 522 F.2d 224
(2d Cir.), cert. denied 423 U.S. 1021 (1975)
is also inapposite to the instant case. It
involved no issue of jury intrusion, only an
issue of juror competence because of religious
Scruples to pass judgment. Even on that
issue, the proven and uncontested facts demon-
Strated the competence of the juror in ques-
tion. Further proceedings would have been
redundant.

United States v. Florea, 541 F.2d 568
(6th Cir. 1976), cert. denied 430 U.S. 945
(1977), is also inapposite. This case invol-
ved two possible jury intrusions.

The first alleged intrusion involved the
agreed-upon presence of one of sixteen pro-
secution witnesses at the replaying to the
jury of a taperecording that was in evidence.
"After a review of all the evidence, [the
Court of Appeals] conclude[d on the merits]
that appellants were not deprived of a fair
trial." 541 F.2d at 572. Even though it
affirmed the convictions before it in that
case, the court of appeals announced a per

‘ eee

Ae ORNS 1 aera eum eee oP IPE A owes

16.

se rule prohibiting any such contact in fu-
ture cases.

The second intrusion in the Florea
case involved an attempt to bribe a juror.
Without informing the parties or their
attorneys:

The judge summoned a court repor-
ter to transcribe the juror's state-
ment as well as the judge's decision
to (1) excuse Juror Number One and
replace him with an alternate juror;
(2) immediately sequester the jury;
(3) not disclose tothe parties the
reason for the discharge; and (4)
direct the FBI to undertake a full
investigation.

541 F.2d at 572. Reviewing this record,
which disclosed all the salwvent facts of
prejudice, the court of appeals was able to
make a decision on the merits of the ques-
tion of actual prejudice and "conclude[d]
that under the circumstances of this case,
appellants were not prejudiced because they
were absent when the district judge excused
Juror Number One, substituted an alternate,
and sequestered the jury." 541 F.2d at
573.

In the instant case, no evidence was

available to rebut the clear presumption of
prejudice arising from the first jury intru-
sion, nor did the trial judge act to mini-
mize the prejudicial impact. Reliable evi-
dence cannot now be developed to rebut the
presumption of prejudice, well over two
years after the events.

Gersh, Dozier and Florea are different

17.

from the instant case in yet another strik-
ing respect. In treating the alleged jury
intrusions, not one of the other trial judges
himself intruded upon the jury. In the in-
stant case, the trial judge delivered his
chilling speech which, as Judge Edwards ob-
—— itself “simply went too far." PJA

at ;

On the uncontested facts in this case,
the Sixth Circuit's decision was so clearly
correct under controlling legal standards
that review by this Court is not called for.
For example, it is well settled that:

Private communications, possibly pre-
judicial, between jurors and third
persons...are absolutely forbidden,
and invalidate the verdict, at least
unless their harmlessness is made to
appear.

Mattox v. United States, 146 U.S. 140, 150

(1592). As the Sixth Circuit held (PJA at

A 6), this rule that an improper jury intru-

sion is presumptively prejudicial is applied

in civil as well as criminal cases, as

indeed the Seventh Amendment mandates. E.¢.

Kennedy v. Great Atlantic & Pacific Tea 2
‘ t .. : te tates

v. Harry Barfield Co., 359 F.2d 120, 124 (5th

Cir. 1966); Paramount Film Distributing Corp.

v. Applebaum, 217 F.2d I0l (Sth Cir.), cert.
Sented 349 U.S. 961 (1954); Stiles v. Lawrie,

ZIT F.2d 188 (6th Cir. 1954); Southern Paci-
fic Co. v. Klinge, 65 F.2d 85 (10th Cir.),
cert. denied 290 U.S. 657 (1933). To over-
come this presumption, the party seeking to
avoid a new trial must demonstrate persua-
sively that the intrusion could not be harn-
ful. See Remmer I, supra, 347 U.S. at 229;

Oe ON a es Bw et ee -

oe oe

> Me bee

18.

United States v. Williams, 545 F.2d 47, 5l
(th cir. 1976); United States v. Doe, 513

F.2d 709, 711 (lst 7. ; te
States v. Gersh, 328 F.2d 460, 464 (2d Cir.),

cert. denied 377 U.S. 992 (1964).

When a court of appeals determines there
is a possible prejudicial impact from a jury
intrusion, remand for new trial is appropri-
ate. Remmer II, supra; Marshall v. United

States, 300 U.S. 1959). See United
— , 489 F.2d 116 (Oth Cir. 1974);
Vv , 486 F.2d 968 (6th
Cir. 1973).

No affirmative evidence has been pre-
sented, nor could it be, in the instant case,
that the two jury intrusions were harmless.

As the Court of Appeals held (PJA at A 12), re-
mand now for the taking of evidence on that
question would be pointless.

The first jury intrusion must now be
taken to be prejudicial as a matter of law.
Too much time has passed for the defendants
to rebut the presumption of prejudice. The
trial judge, having held a hearing and found
that there had been a jury intrusion, never
questioned the threatened juror or the other
jurors as to whether they were prejudiced in
fact, although asked to do so. PJA at A 3-
A 4. See United States v. Pompanio, 517 F.2d
460 (4th Cir.), cert. denied 423 U.S. 1015
(1975) (failure to poll jury, new trial or-
dered). He also went back on his initial
decision to excuse the threatened juror. PJA
at A 4-A 5.

The Court of Appeals stated that it had
considered ordering a remand for the trial
court to take evidence on the question of
whether the jury intrusion was harmless.

a

19,

Recognizing that more than two years had
passed since the incidents in question had

occurred, the Court of Appeals correctly
held:

Even if questioning the jurors
were permitted on the issue of whe-
ther the verdict was affected by the.
incidents, considering the problem
of fading memories and natural reluc-
tance of a juror to admit that he had
been improperly influenced, we believe
it would be impossible now for either
the district judge or this court to
conclude that the threat and assault
disclosed by this record were harmless.
Cf. Stiles v. Lawrie, supra, 211 F.2d
at 190.

PJA at A 12.

Recent decisions by courts of appeals
in three other circuits have also held that
the passage of time and dimming memories re-
quires new trials rather than remands for
evidentiary hearings on the question of pre-
judice in jury intrusion cases. United
States v. Rhodes, 556 F.2d 599 (lst Cir.
1977); United States v. Betner, 489 F.2d 116
(5th Cir. 1974); Mares v. United States, 383
F.2d 805 (10th Cir. 1967), cert. denied 394
U.S. 963 (1969).

A new trial is especially required in
the instant case because of the second jury
intrusion, the trial judge's terrifying
speech. As Judge Edwards would have held,
that jury intrusion was prejudicial as a
matter of law. PJA at A 33-A 35. Every
reported case of such improper intrusion by
a judge in the jury process has resulted in

OR ee AEE) He OURS ate

20.

an order remanding for new trial. See
Kennedy v. Great Atlantic & Pacific Tea
Co 551 F.2d 59 F. 3 (th Cir. 1977); United
States v. Gay, 522 F.2d 429, 435 (6th Cir.

1975); Marson v. United States, 203 F.2d
904 (6th Cir. 1953).

,

21.

II.

THIS COURT SHOULD NOT REVIEW THE EVI-
DENCE WHEN REASONABLE MINDS COULD
EASILY DIFFER AS TO THE LIABILITY OF
DEFENDANTS RHODES AND DEL CORSO.

Defendants assert that defendant
Rhodes is entitled to judgment on the reéc-
ord, and that defendant Del Corso also may
not be held liable because on the record
he can properly avail himself of "quali-
fied immunity." The question before this
Court is whether the decisions of two
courts denying directed verdicts to defen-
dants Rhodes and Del Corso (TR. 10,162-
10,163; TR. 1,172-10,173; PTA at A 19)
should be reviewed and overturned. In es-
sence these defendants submit to this
Court issues of fact, i.e., whether there
is sufficient evidence of their liability
to require a jury determination.

As the Court has stated many times:
"We do not grant a certiorari to review
evidence and discuss specific facts."
United States v. Johnston, 268 U.S. 220,
Accord, General Talking Pic-
Co. 308

tures Corp. v. Western Electric ,
U.S. 175, 178 (1938); Houston 011 Co. of

Texas v. Goodrich, 245 U.S. ‘

This is generally so even if it appears the
decision below is erroneous. See, e.2.,
"Work of the Federal Courts," address of
Chief Justice Vinson before American Bar

Association, Sept. 7, 1949, 69 S.Ct. v,vi;

Mr. Justice Harlan, Manning the Dikes,

13 Record of N.Y.C.B.A. sit 551 (1958).
This Court's practice of avoiding

review of facts is buttressed by the so-

ee ee eee ee

BEF) me wee mance Se nat ale © aha Cee aoe

22.

called "two-court" rule. "A seasoned

and wise rule of this Court makes concur-
rent findings of two courts below final
here in the absence of very exceptional
showing of error."' Comstock v. Group of
Institutional Investors, 335 U.S. TLL

214 (1948). See also Keyes v. School Dis-
trict No. 1, 413 U.S. ; n.

and at 264 (Rehnquist, J. dissenting) ;
Neil v. Biggers, 409 U.S. 188, 193 n.3
(1972) and at 203-204 (Brennan, Douglas,
Stewart, J. J., concurring in part and dis-
senting in part.). This rule rests not only
upon deference to the trier of fact, but
upon consideration of judicial economy. It
applies to fact findings made in response

to motions for directed verdicts. See
Cole v. Ralph, 252 U.S. 286, 302 (1919).

In the instant case, the trial judge
denied directed verdicts to defendants
Rhodes and Del Corso. TR. 11,162-11,163;
TR. 11,172-11,173. In passing upon the
defendants' motions for directed verdicts,
the district court found regarding
Rhodes’ that:

I have studied the record of this
case, and I have studied the law
and I have tried to figure out what
the Supreme Court means in its de-
cisions, and I have come to the con-
clusion that the evidence in this
case does present a question of fact
which must be submitted to the jury
with respect to the liability of the
Defendant Governor Rhodes.

TR. 10,162-10,163. Regarding Del Corso
the District Court found that:

Se

a3.

I have been spending several hours
each dav for the past several weeks
reviewing the law and reviewing the
facts. . . . And I think there are
questions that the jury has to answer
as I read the record in this case.

TR. 10,172-10,173.

On appeal, the Court of Appeals re-
viewed the record and concurred with the
District Court, holding that: "Neither the
‘plaintiffs nor the defendants were en-
titled to a directed verdict on the due
process and pendent state claims. Jury
issues were presented...."" PJA at A 19. Fur-
thermore, the defendants, in their request
for rehearing and suggestion for rehearing en
banc, explicitly asserted that defendant
Rhodes was entitled to judgment on the record,
>but a majority of the Court of Appeals denied
rehearing, concluding that the issues raised
.therein were fully considered upon submission
and decision of the case. PJA at A 36.

In denying directed verdicts, the Dis-
trict Court and the Court of Appeals each
properly applied the standard for official
immunity established in Scheuer v. Rhodes,
416 U.S. 232 (1974), as did the District
Court in its instructions to the jury.

TR. 12,480-12,482. Just as this Court said
in Imbler v. Pachtman, 424 U.S. 409, 419
n.13 (1976):

The fate of an official with quali-
fied immunity depends upon the cir-
cumstances and motivations of his ac-
tions, as established by the evidence
at trial. (Citations omitted.)

—s.*

ee ee ee Et a ieee nee em ate

Po nd ee

_— ae OP ew ee ee ee ee

24.

With the case in this posture, defen-
dants Rhodes and Del Corso can only be
asking this Court to review the facts of
the case and determine whether the Court
of Appeals' decision regarding the weight
of the evidence on the due process and
pendent state claims was in error. Since
the law on this subject is well established,
this factual matter is of no importance ex-
cept to the parties.

Defendants Rhodes and Del Corso are
liable under Section 1983 because they
made various decisions and took various ac-
tions which were intentional, wanton, reck-
less or negligent. These decisions and
actions were taken with full knowledge of
the violation of constitutional rights
which would be caused thereby. These de-
cisions and actions were directly and
immediately within and affected the chain
of causation leading to the actual denials
of constitutional rights. Cf. e.g., Rizzo
v. Goode, 423 U.S. 362, 373-376 76);
Allee v. Medrano, 416 U.S. 802 (1974);
Hague v. C.I.0., 307 U.S. 496 (1939).

For example reviewing the record in
light of this Court's decisions in Gilli-
gan v. Morgan, 413 U.S. 1 (1973) and

cheuer v. odes, 416 U.S. 232, 249 (1974),
the Court of Appeals correctly held that
the record presented a justiciable contro-
versy regarding the Ohio National Guard's
"training, weaponry and orders...." to be
decided by the jury. PJA at A17-A 18.
Defendant Del Corso, as Ohio's Adjutant
General, and defendant Rhodes; as Ohio's
Governor and the commander-in-chief of
the Ohio National Guard, promulgated and/

+

or were responsible for the Guard's
“training, weaponry and orders."

Considerable other evidence in the
record causally links these two defendants
to the tragic events of May 4, 1970.

Defendant Del Corso is the Adjutant
General of the Ohio National Guard. 4/ ‘He
was present in Kent on May 2nd and 3rd,
1970. He prepared the Ohio Rules of En-
gagement, which deal with the use of load-
ed military weapons in civil disturbances.
He was in charge of training, equipping
and controlling the Guard. He joined in
the decision to ban all assemblies, peace-
ful or otherwise. TR. 7,959-7,960; TR.
8,820-8,821; TR. 8,825-8,826; TR. 7,136;
TR. 7, 968; TR. 8,089.

Defendant Rhodes is the commander-in-
chief of the Ohio National Guard. He was
present in Kent on May 3rd. He knew of
the Ohio Rules of Engagement and the
problem of overpowered weapons. He in-
flamed and incited the Guard to resort to
unnecessary force on the Kent State campus.
He took control of the campus in the face
of his admitted lack of authority to do so,
and then failed to exercise control over
the Guard on campus. He promulgated the

4/ Contrary to Defendants' contention at p. 19
of the Del Corso Petition (No. 77-1018) there
are other cases in which an Adjutant General's
liability has been submitted to a jury for de-
termination, and liability was found. O'Shee
v. Stafford, 122 La. 444, 47 So. 764 (1908).
Cf. Fluke v. Canton, 31 Okla. 718, 123 P. 1049
(1912) (dictum).

26.

ban on all assemblies, saying at a meeting
on May 3rd, "I don't want to see any two
students walking together." TR. 7,962; TR.
7,975-7,976; TR. 7,983-7,984; TR. 7,998-
8,000; TR. 7,390; TR. 7,430; TR. 8,458;

TR. 8,948-8,949; TR. 8,977-8,978;

TR. 9,006-9,007; TR. 9015; TR. 8,884; Crt.
Exh. #2; TR. 8,883.

A jury certainly could find that, in-
dividually and together, all these decis-
ions and actions proximately caused the
woundings and killings of students at Kent
State without due process of law, as well
as the violation of their First and Eighth
Amendment rights. Defendants Del Corso
and Rhodes cannot avail themselves of. qual-
ified immunity to take the issue of their
liability away from the jury. Their ac-
tions illustrate their abuse of discretion
and bad faith; they knew of the danger to
life and First Amendment rights, yet they
made no attempt to allay the danger.
Scheuer v. Rhodes, 416 U.S. 232 (1974);
Wood v. Strickland, 420 U.S. 308 (1975).

It was not clearly erroneous for the
two lower courts to have concluded that
reasonable minds could easily differ as to
defendants Rhodes's and Del Corso's lia-
bility based on the evidence. Therefore,
this Court should not review the concurrent
conclusions of two courts that directed
verdicts for defendants Rhodes and Del
Corso are not justified.

27.
Ill.

THE KILLING AND WOUNDING BY THE OHIO
NATIONAL GUARD OF UNARMED STUDENTS AT
A PEACEFUL POLITICAL ASSEMBLY GIVES
RISE TO A CAUSE OF ACTION UNDER

42 U.S.C. § 1983.

Defendant Rhodes argues that this
Court should decide that excessive force
does not constitute a denial of due process
remediable under 42 U.S.C. § 1983. Defen-
dant Rhodes seems to assert that the Court
of Appeals should have dismissed the entire
action, and by not doing so, the Court of
Appeals has decided important questions in
a manner inconsistent with the decisions
of this Court.

This is a frivolous issue, never be-
fore raised by defendants. No decisions of
this Court were contradicted by the decis-
ion of the Court of Appeals. It is impos-
sible to imagine a case wherein a cause of
action under Section 1983 would be more
appropriate than the one at bar. As defen-
dant Rhodes states at p. 15 of his Petit-
ion (No. 77-1017), "We of course do not
contend that the Due Process Clause is
implicated only when a state deprives a
person — life, liberty or property in the
course of punishing that person -- the
reach of chat Clause is much broader."
Indeed, it is easily broad enough to reach
the situation in this case. Defendant
Rhodes's Petition's statement of facts left
out of its denouement the fact that four
students were killed by the 13-second fusi-
llade and nine were wounded. These in-
juries give rise to the “excessive force"
component of plaintiffs' claims. The Court

ee ee

28.

of Appeals reduced the Section 1983 claim
to the denial of due process theory; plain-
tiffs continue to urge in support of
their Section 1983 claims the additional
theories that both their First and Eighth
Amendment rights were also violated. 3/

As defendants must know, their con-
tention that excessive force cannot be the
basis of a claim under Section 1983 is
frivolous. The tremendous weight of auth-
ority demonstrates that excessive force
can be the basis for an action under
Section 1983. The use of unreasonable or ex-
cessive force by a state official acting
under color of state law has been held to
provide the basis for a Section 1983 claim
in ten of the eleven circuits, every cir-
cuit that has passed upon the issue. Car-
ter v. Carlson, 447 F.2d 358, 361 (D.6G.
Cir. 1971), rev'd on other grounds, sub nom
District of Columbia v. Carter, 409 U’S.

; Johnson v. Glick, 481 F.2d
1028 (2d Cir.), cert. denied 414 U.S. 1033
(1973); Basista v. Weir, 340 F.2d 74 (3d
Cir. 1965); Scott v. Vandiver, 476 F.2d
238 (4th Cir. 1973); Jenkins v. Averett,
424 F.2d 1228 (4th Cir. 1970); Hamilton v.
Chaffin, 506 F.2d 904 (5th Cir. 1975);
Roberts v. Williams, 456 F.2d 819 (5th
Cir.), cert. denied 404 U.S. 866 (1971);

_5/ Plaintiffs agree with defendant Rhodes, at
p. 16 of his Petition, that Ingraham v.
Wright, 430 U.S. 651 (1977) does not control
this case, but for a different reason. In-
graham is based upon facts too different
from the case at bar to control with regard
to the scope of Eighth Amendment protection.

29.

Stengel v. Belcher, 522 F.2d 438 (6th
Cir. 1975); Clark v. Ziedonis, 513 F.2d
79 (7th Cir. 1975); Russ v. Ratliff, 538
F.2d 799, 804 (8th Cir. 1976), cert. de-
nied 97 S.Ct. 740 (1977); MacDonald v._
Musick, 425 F.2d 373 (9th Cir.), cert.
denied 400 U.S. 852 (1970); Morgan v.
Labiak, 368 F.2d 338 (10th Cir. F566)
This Court has certainly indicated its
agreement. See, Screws v. United States,
325 U.S. 91 (1945).

Defendants have attempted to misread
a recent case in this Court as overruling
the consistent authority on this point.
The dictum quoted at pp. 15-16 in the
Rhodes Petition from Paul v. Davis, 424
U.S. 693 (1976) is inapplicable to the in-
stant case. Paul held, in pertinent part,
that reputation alone does not invoke the
protection of the Due Process Clause, and
thus a claim based on defamation is insuf-
ficient to sustain an action under 42

U.S.C. § 1983 and the Fourteenth Amendment.

In dictum, this Court discussed the limi-
tations on claims under Section 1983, that
the injuries contested must be constitu-
tional in scope. The examples the Court
used to illustrate injuries not cognizable
under Section 1983 were the accidental
shootings of innocent bystanders and neg-
ligently-caused automobile accidents in-
volving law enforcement officers. Plain-
tiffs' claims are not like these; they in-
volve constitutional wrongs based upon in-
tentional or reckless shootings of students
by National Guardsmen. Such shootings,
unlike the examples given in Paul, exhibit
the "misuse of power" or the “raw abuse

of power" that is the underlying concern
of Section 1983. See Monroe v. Pape, 365

ane a ee

30.
U.S. 167 (1961); Jenkins v. Averett, 424
F.2d 1228 (4th Cir. 1970). It is this mis-

use of power, apparent in the use of exces-
sive force, that gives rise to constitu-
tional injury and makes the damage claims
herein appropriate under Section 1983.

Finally, contrary to defendants'
assertions (Rhodes Petition No. 77-1017 at
17.), Jones v. Marshall, 528 F.2d 132 (2d
Cir. 1975), does not create a conflict with
the case at bar. Jones does not hold that
unreasonable force by a police officer does
not give rise to a Section 1983 action.

The court in Jones in fact clearly stated
that excessive force does give rise to a
Section 1983 claim. 528 F.2d at 139. In-
deed, the Second Circuit has recently re-
affirmed its view that excessive force
gives rise to a Section 1983 claim. See
Bellows v. Dainack, 555 F.2d 1105, 1106
n. oe. é

Thus, there is no important question
concerning Section 1983 and the use of ex-
cessive force which should be decided by
this Court.

CONCLUSION

The instant case has been remanded to
the District Court for retrial. The is-
sues raised by defendants for review by
this Court are not important questions of
law which have not been, but ought to be,
decided by this Court. In its present
posture, the case involves essentially fac-
tual questions, and the Court of Appeals
decision was based on trial errors that
constituted abuse of discretion. The

31.

decision of the Court of Appeals was not
inconsistent with any decision of this

Court. There is no conflict among the cir-

cuits on any issue of law raised by the
defendants' petitions. Therefore, all the
Petitions for Writs of Certiorari in this
case should be denied.

Respectfully submitted,

SANFORD JAY ROSEN

ROSEN, REMCHO & HENDERSON
155 Montgomery Street, #1502
San Francisco, CA 94104
Telephone: (415) 433-6830

NICHOLAS B. WARANOFF
JACOBS, SILLS & COBLENTZ
555 California Street

San Francisco, CA 94104
Telephone: (415) 391-4800

NELSON KARL

33 Public Square, Srite 210
Cleveland, OH 44113
Telephone: (216) 241-3646

DAVID ENGDAHL

ENGDAHL & RENZO,P.C.

Symes Building

820 Sixteenth Street, Suite 415
Denver, CO 80202

Telephone: (303) 571-0852

MICHAEL E. GELTNER
Georgetown Univ. Law Center
600 New Jersey Ave., N.W.
Washington, D.C. 20001
Telephone: (202) 624-8297

32.

AMITAI SCHWARTZ

N. Cal. Police Practices Project
814 Mission Street

San Francisco, CA 94103
Telephone: (415) 777-4880

BRUCE J. ENNIS

American Civil Liberties Union
22 East 40th Street

New York, NY 10016

Telephone: (212) 725-1222

ROBERT P. APP

ACLU of Ohio 7

203 East Broad Street, Suite 204
Columbus, OH 43215

Telephone: (614) 228-8952

CLYDE ELLIS

155 South Main Street
Gainesville, FL 32601
Telephone: (904) 376-3297

Attorneys for kespondents
ANDREA L. BIREN
ANN SAYVETZ
ROBERT S. BAKER

of Counsel

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385005_0355%3A3. Public record. Not legal advice.