Petitioners Reply Brief — Smith v. Phillips

Office - Supreme — U.S.

No. 80-1082 sedicilieadin

“Str 14 18h

ALEXANDER L. STEVAS.

IN THE CLERK

Supreme Court of the United States

October Term, 1981

HAROLD J. SMITH, Superintendent,

Attica Correctional Facility,

Petitioner,

agawmst

WILLIAM R. PHILLIPS,

Respondent.

On Writ of Certiorari to the United States

Court of Appeals for the Second Circuit

——— eee

REPLY BRIEF FOR PETITIONER

=———————oEoEoEooooIlI—l>>~—_________L___—=_=|=|>>=>=>=—a]ayjan»eE=s=jyasa=ay_—eee

Rosert M. MorcentHavu

District Attorney

New York County

Attorney for Petitioner

One Hogan Place

New York, New York 10013

(212) 553-9000

Rosest M, Prruzr

Marx Dwyer

Davw H. Sterner

Assistant District Attorneys

Of Counsel

TABLE OF CONTENTS

Respondent’s unwarranted and irrelevant specula-

tions cannot be substituted for the factual findings

by the state court which are fully eiaeneihis: oy the

WORUINE iinccscssuseee oa

Neither respondent nor the amicus casts any doubt on

the adequacy of the post-trial hearing to deter-

mine whether the juror was impartial

This Court has long held that the Constitution re-

quires only the exclusion of jurors who are found

to be actually biased and respondent offers neither

logic nor policy to overrule well-settled precedent

Neither respondent nor the amicus has shown that the

respondent was prejudiced by the prosecutor’s

failure to disclose the juror’s application during

CBRE... ceccscccesssaciicessinsusevansnneunsworeieedbeniatmnee tei ania mann

PAGE

II

TABLE OF AUTHORITIES

PAGE

Cases:

Chandler v. Florida, —— U.S. —— 101 S.Ct. 802

(1981) Sica ee aan 14

Dennis v. United States, 339 U.S. 162 (1950) _.... . 12n

Frank v. Mangum, 237 U.S. 309 (1915) 6

Frazier v. United States, 335 U.S. 497 (1948) ....... 12n, 13

Moody Equipment & Supply Co. v. Union National

Bank, Ark, ——, —— S.W. 2 8

People v. Brown, 48 N.Y.2d 388, 399 N.E.2d 51, 423

N.Y.S.2d 461 (1979) . <icvehecktieel eee eae lin

People v. Cocco, 305 N.Y. 989, 113 N. EK. 2d 422 2 (1953) lin

People v. Crimmins, 26 N.Y.2d 319, 258 N.E.2d 708,

310 N.Y.S.2d 300 (1970) ............ 11n

People v. Cwikla, 46 N.Y.2d 4384, 386 N. E. 2d 1070, 414

N.Y.8.2d 102 (1979) . ce lin

People v. Maynard, 80 Mise. 2d 279, 363 N. Y. S. 2d 384

(Sup.Ct.N.Y.Co., 1974) ............ lin

People v. Mullin, 41 N.Y.2d 475, 362 N. E. 2d 571, 393

N.Y.S.2d 938 (1977) ............ 11n

People v. Rivera, 75 A.D.2d 544, 426 N. Y. S. 2d 785 (1st

Dep’t 1980) .......... : lin

Peters v. Kiff, 407 U.S. 493 (1972) . nee .

Remmer v. United States, 350 U.S. 377 (1956) 6,8

Ristaino v. Ross, 424 U.S. 589 (1976) 0... 9

Rose v. Mitchell, 448 U.S. 545 (1979) 13

Sullivan v. Fogg, 613 F.2d 465 (2d Cir. 1980) 7,8

PAGE

Taylor v. Louisiana, 419 U.S. 522 (1975) ........... 13

Tennessee Valley Authority v. Hill, 487 U.S. 153

| ee pe Boe aR . 16

United States v. Agurs, 427 U.S. 97 (1976) | 17, 18,19, 19n

United States v. Wood, 299 U.S. 123 (1936) etivveg we

Wainwright v. Sykes, 433 U.S. 72 (1977) 0000... 3n

Statutes:

N.Y. Crim. Proce. Law §270.15 (MecKinney’s 1971) 10

N.Y. Crim. Proe. Law §710.70(3) (McKinney’s 1971) — 3n

Other Authorities:

Model Penal Code §2.02 (1962) 00. 6

No. 80-1082

IN THE

Supreme Court of the United States

October Term, 1981

$<

Haroip J. Smiru, Superintendent,

Attica Correctional Facility,

Petitioner,

against

WituaM R. Putiures,

Respondent.

On Writ of Certiorari to the United States

Court of Appeals for the Second Circuit

$e

REPLY BRIEF FOR PETITIONER

This brief is in reply to the brief for respondent as well

as the amicus curiae brief sought to be filed by the American

Civil Liberties Union.*

* On August 1, 1981, the American Civil Liberties Union moved

to file a brief as amicus curiae ; that motion had not been decided when

this reply brief was completed and ready to be filed. Nonetheless,

we have replied to the amicus brief because we were uncertain whether

the motion would be denied or granted.

bo

Respondent’s unwarranted and irrelevant specula-

tions cannot be substituted for the factual findings by

the state court which are fully supported by the record.

After finding no fault ‘‘in general’’ with petitioner’s

statement of the case, respondent says that it would ‘‘serve

no useful purpose to go through petitioner’s factual pres-

entation and point out each and every inaccuracy or mis-

statement.’’ Brief for Respondent: 2-3. Such a process

would serve no useful purpose only because our statement

of the case accurately reflects the relevant facts. In con-

trast, throughout his brief respondent dwells on irrelevan-

cies, and overlooks or ignores the record. Initially, re-

spondent in his counterstatement of the case attempts to

suggest there may be some doubt about his guilt. More

importantly for our purposes, respondent then attempts

throughout his brief to characterize the acts of the juror

in question, Smith, in a manner which is unsupported by

the record and which was rejectec by the state trial judge.

Before turning to those mischaracterizations, an examina-

tion of other parts of respondent’s brief proves interesting.

First, respondent opens his counterstatement of the

case with the apparent purpose of suggesting that the proof

of his guilt was not overwhelming. Thus, respondent first

notes two so-called omissions in petitioner’s statement of

the case. Relying on newspaper reports that the first trial

had ended with the jury deadlocked 10-2 for acquittal, re-

spondent criticizes the omission of that vote from peti-

tioner’s statement. Brief for Respondent: 2, 4a-5a. In addi-

tion, respondent finds fault with our failure to set forth

facts allegedly calling into question the investigating detec-

tive’s decision to focus on respondent in a three-year-old

3

murder investigation. 74. at 2-3. As to the reported jury

vote, of course, a ‘‘report’’ in a newspaper article is hardly

a substitute for facts of record. In any event, the proof

at the second trial was substantially different and greater

than that at the first trial. Most significantly, both the first

vote, and the respondent’s opinion about the investigating

officer, are completely irrelevant to the issue before the

Court.

No more relevant or persuasive is respondent’s sugges-

tion that the jury deliberations were of an inordinate length.

Brief for Respondent: 6, 29. A mere eleven hour delibera-

tion (apparently including both lunch and dinner), after a

nine-week trial, is a brief rather than a lengthy period.* In

* Equally incorrect is respondent's suggestion that some of the

proof was improper because it was immunized testimony. Brief for

Respondent: 29n. The district court did not pass on respondent's

immunity claim, see Appendix B to Petition for Certiorari: 14a-15a,

but that claim is clearly without merit. The evidence in question con-

sisted of a tape recording made by respondent to aid the Knapp Com-

mission investigation into police corruption. That recording showed

unequivocally that Phillips had lied when he had later testified at trial

that he had terminated his corrupt relationship with the victim Smith

well before the murder. True, the evidence in question was impor-

tant, but despite respondent’s suggestion (Brief for Respondent:

29n), the state has never agreed that such evidence had been im-

munized. Even a reading of the affidavit filed in support of the habeas

corpus petition which is appended to respondent's brief (6a-9a) dem-

onstrates that no immunity was ever granted. First, it is undisputed

that the Knapp Commission had no power to grant immunity. To be

sure, it is alleged that at some unspecified point in time, inquiry was

made of the United States Attorney who allegedly said that immunity

would be given (apparently at some future time) for information by

Phillips which assisted in the federal prosecution of police officers.

Still, nowhere in this affidavit is it alleged that any immunity was ever

in fact conferred or is it anywhere alleged that the tape in question

assisted in the prosecution of any other police officers. Notably, trial

counsel never advanced the immunity claim at or before trial and a

subsequent post- judgment motion, made nearly three and one half

years after conviction, was denied, because the failure to make a timely

motion resulted in forfeiture of the claim under state law. See N.Y.

Crim. Proc. Law §710.70(3) ; see also Wainwright v. Sykes, 433 U.S.

72 (1977) (barring federal habeas corpus review of claims which had

been forfeited in state court).

4

sum, respondent’s counterstatement of the case tends to em-

phasize irrelevancies.

Turning to respondent’s most significant lack of preci-

sion and accuracy, throughout his brief, in an effort to

challenge the state judge’s finding of Smith’s impartiality,

respondent consistently overlooks or unintentionally mis-

represents the record when representing the facts concern-

ing Smith. For example, respondent states that juror

Smith was ‘‘busily engaged during most of respondent’s

trial,’’ seeking employment with the prosecuting agency.

Brief for Respondent: 21. In fact, during the nine-week

trial, Smith’s interest in the position consisted simply

of two or three discussions at lunch with an old friend,

court officer Fontaine, and the submission of a resume.

Notably, all of the other meetings referred to by respondent

were, even according to the federal district court, under-

taken with neither the knowledge nor the consent of juror

Smith. See Appendix B to Petition for Certiorari: 25a. In

further disregard of reality, respondent says that after sub-

mission of the resume, Smith ‘‘was meeting regularly with

Fontaine and [grand] Jury Warden Piazza in an effort to

expedite and facilitate its consideration.’’ Brief for Re-

spondent: 21 (emphasis added). Actually, however, Smith

had lunch with Fontaine on only two occasions after the

application had been submitted. Moreover, except for one

fortuitous meeting at a restaurant during lunch, at which

Smith was merely introduced to Piazza, Smith never met

with Piazza.

In addition to misstating the record about Smith’s ef-

forts to obtain a job with the District Attorney’s Office,

respondent, by continued use of adverb, adjective, and in-

5

nuendo, also attempts to paint juror Smith as a person

seeking to advance his own career at the expense of re-

spondent. Yet, respondent ignores completely that Smith,

neither in his initial application nor in his telephone call

to Ms. Sudolnik after the verdict, revealed his status as a

juror. Surely, if respondent is correct that by telephoning

the day after the verdict, Smith was striking while the

‘iron was hot’’ (Brief for Respondent: 22), then it is re-

markable that he did not bother to heat the coals by telling

Ms. Sudolnik that he had been a juror at Phillips’ trial.

Although the trial prosecutor’s motives are less sig-

nificant than those of the juror, respondent is similarly

inaccurate in describing the purpose of the trial prosecu-

tor’s actions. Thus, respondent argues throughout his

brief that the trial prosecutor refused to disclose the ju-

ror’s application because he sought an wufair advantage

by having the juror believe that he had a chance for a

job if he voted for conviction. Brief for Respondent: 6,

7, 26-27, 32. Notably, the state judge found the exact op-

posite: ‘‘there is no evidence which to any degree points

to a conclusion that ... [the prosecutor] had a sinister or

dishonest motive with respect to Mr. Smith’s letter of appli-

cation, or sought to gain thereby an unfair advantage .. .’’

Appendix E to Petition for Certiorari: 39a-40a. Of course,

as the state court found, the trial prosecutor made a serious

error in judgment based on the mistaken belief that there

was no reason to disclose the application. 7d. at 52a. Still,

the trial prosecutor intended only that the application not

be disclosed (Hearing: 949-54) ; as found by the state judge,

in deciding not to disclose, the prosecutor did not have as

an ultimate objective that Smith would remain a juror. Ap-

pendix E supra: 39a-40a. That a person could so narrowly

6

focus, and overlook other possibilities or consequences, is

well recognized by legal principles which often distinguish

between various degrees of deliberate, knowing, reckless

and negligent conduct. See, e.g., Model Penal Code 62.02

(1962).

In sum, we agree with Justice Holmes, as quoted by re-

spondent, that ‘‘[t]his is not a matter for polite presump-

tions; we must look facts in the face.’’ Frank v. Mangum,

237 U.S. 309, 345 (1915). Looking the facts ‘‘in the face,”’

the state trial judge found a naive but honest juror who

based his verdict on the evidence and only the evidence. In

contrast, respondent’s insistent refusal to ‘‘look the facts

in the face’’ leads him to conclude, with a typical colorful

but irrelevant metaphor, that the juror’s testimony was

similar to ‘‘the strenuous insistence of the fabled fox dis-

covered inside the chicken coop that he meant no harm to

its oceupants.’’ Brief for Respondent: 27. The only fable

in this case is respondent’s unfounded speculation about

the juror’s acts as well as the juror’s and prosecutor’s

motives.

Neither respondent nor the amicus casts any doubt

on the adequacy of the post-trial hearing to determine

whether the juror was impartial.

Following a post-trial hearing, juror Smith was found

to have been actually impartial.

Respondent and the amicus argue that the post-trial

(Remmer) hearing is not the constitutional equivalent of

a hearing during trial. In the alternative, both respondent

and the amicus argue that even though in some situations

the post-trial hearing may be the equivalent of a mid-trial

7

hearing, this is never the case in situations involving alleged

misconduct by a juror himself, i.e. ‘‘internal’’ misconduct,

as opposed to alleged misconduct with the participation of

any other person, i.e. ‘‘external’’ misconduct.

Turning first to the alleged external-internal distinction,

the amicus opines that at a post-trial hearing about whether

the juror himself had engaged in misconduct, a juror plan-

ning a career in law enforcement would never admit that he

himself had disregarded his oath as a juror to further his

eareer. Brief for Amicus: 9-10. The amicus concludes

that because the juror would not admit his wrongdoing,

the post-trial hearing is ineffective. Likewise, however,

during trial a juror is hardly likely to admit that he had

deliberately put himself in position to violate his oath. Of

course, during and after trial, a juror need not make any

such admission, but could merely acknowledge the possi-

bility that he could be, or had been, affected subconsciously

by the application.

More significantly, regardless of whether the source of

an influence is internal or external, inquiry into a person’s

state of mind is not unique to alleged misconduct of a juror.

There are many situations in criminal prosecutions, and

civil trials (as well as other special proceedings), where

inquiry is made into a person’s state of mind without resort

to a conclusive presumption arising from an isolated act.

Indeed, as demonstrated by Sullivan v. Fogg, 618 F.2d 465

(2d Cir. 1980), courts have used post-trial inquiries to deter-

mine whether a juror was improperly affected by strictly

internal factors. Thus, in Sullivan, cited in our main brief

but conspicuously ignored by the amicus in its discussion

of other cases dealing with thismatter (Brief for Amicus:

8

11), the court held such a post-trial inquiry was the proper

procedure to determine whether a juror was affected im-

properly by an influence completely internal to him—name-

ly, voices that he claimed to have heard (613 F.2d at 467).

Moreover, both respondent and the amicus ignore that

there are many circumstances, other than ‘‘self-serving’’

denials, which shed light on a juror’s state of mind. A

determination of bias, or a lack of bias, may be based upon

any number of factors, including the person’s background,

what he did and said, as well as what he did not do or say,

during the period in question. Notably, in Moody Equip-

ment & Supply Co. v. Union National Bank, Ark. .

—— 8.W.2d —— (July 13, 1981), reprinted in Appendix L

to the Brief for Respondent, testimony by another witness

cast serious doubt on the testimony of a defense witness

and a juror about what transpired between him and that

juror. Similarly, in the Remmer case itself, this Court re-

lied strongly on the fact that during the drive home after

the trial had ended, the juror in question had said to two of

his fellow jurors that he had ‘‘been under terrific pres-

sure...’’ 350 U.S. at 381. As in the Remmer and Moody

eases, here information relevant to the assessment of

Smith’s alleged bias came from his actions and from the

testimony of those with whom he dealt during and after

trial.

Further, and most importantly, and completely over-

looked by the amicus and respondent, is that the trial judge

observed Smith as he testified during direct and cross-ex-

amination. Indeed, in Moody Equipment & Supply Com-

pany v. Union National Bank, supra, a ease respondent

thought so important that he reprinted it in full, the Arkan-

9

sas Supreme Court explicitly relied on the general rule that

appellate courts refrain from reversing a trial judge’s de-

termination following an inquiry into possible juror bias

because the trial judge had ‘‘heard the testimony first-:

hand’’ and ‘‘the situation presents to him a question that

cannot equally well be presented to us by the printed

record.’’ Appendix L: 12a; accord Ristaino v. Ross, 424

U.S. 589, 594-95 (1976).

Here the trial judge observed juror Smith as he testi-

fied. After conducting a hearing consuming 1,000 pages of

testimony, the trial judge made careful, extensive and fully

supported findings of Smith’s impartiality. Significantly,

in the entire record, there is nothing which at all suggests

that the application affected Smith consciously or sub-

consciously.

As just demonstrated, there are ample sources of infor-

mation, apart from a juror’s word, which enable a court to

determine whether a juror has been influenced improperly

by an external or even an internal source. Those sources of

information are equally available during or after trial. Re-

spondent and amicus argue unpersuasively, however, that

post-trial hearings are in other ways not as effective as

mid-trial hearings. As made clear at pages 27-28 of our

main brief, defense cross-examination at a post-trial hear-

ing may well be more effective than that at a mid-trial

hearing, for after trial counsel does not have to tread lightly

to avoid antagonizing the juror. Amicus attempts to coun-

ter this argument by contending that defense counsel faces

the same possibility of antagonizing jurors during voir dire

questioning that he does during a mid-trial hearing. Brief

for Amicus: 14. While not completing the argument, ami-

10

cus is apparently suggesting that since the voir dire is

effective, it follows that the mid-trial hearing is equally

effective. If true, this merely shows that voir dire examina-

tion, like mid-trial examination, is less effective than exami-

nation at a post-trial hearing. In any event, there are differ-

ences between voir dire and a mid-trial hearing, and those

differences merely reinforce petitioner’s argument that the

post-trial hearing is at least as effective as the mid-trial

hearing.

During voir dire, under New York law (Crim. Proc. Law

§270.15), counsel asks questions designed to elicit informa-

tion that may have a bearing on a juror’s predisposition

toward the accused. Sometime during the examination,

counsel generally explains that his aggressive questions are

designed to ensure that each juror wili be fair and impar-

tial. After selection, each juror selected has passed this

stringent test and a juror might well be favorably disposed

to an attorney who found that juror to be fair and impar-

tial. Given counsel’s explanation, and that similar prob-

ing questions often are asked of several jurors, it is most

unlikely that any particular juror will feel great antagonism

toward counsel, which he would then transfer to counsel’s

client.

On the other hand, if a trial is interrupted for a hearing

on juror bias, the juror knows that he has been singled out

by an advocate who believes that he is unfit to serve and

desires his exclusion. The harsher the questioning, the

more antagonism the juror is likely to feel. Moreover, be-

cause the questioning occurs much closer in time to the jury

deliberations than does the voir dire, the juror’s antag-

onism is still fresh when deliberations begin. Thus, a mid-

11

trial hearing is not as effective as voir dire, and certainly

not as effective as a post-trial hearing, which permits full

cross-examination of the juror.

Finally, amicus states that a post-trial hearing is in-

ferior ‘‘because the only option then available to the

judge is to set aside the guilty verdict.’’ Brief for Amicus:

12. However, the amicus seems to acknowledge that such

a hearing is adequate to deal with situations of alleged

juror misconduct about which the prosecution had no knowl-

edge during trial. Brief for Amicus: 15. Surely then, such

a hearing is likewise adequate when the prosecution had

prior knowledge of such misconduct, for when the prose-

eutor learns about alleged misconduct has no bearing on

whether a judge can determine a juror’s state of mind.

Moreover, to the extent that the amicus is implying that

New York State trial and appellate judges would not set

aside a conviction based upon prejudicial prosecutorial or

juror misconduct, it seems grossly misinformed.*

* See, e.g., People v. Cwikla, 46 N.Y.2d 434, 441, 386 N.E.2d

1070, 1073, 414 N.Y.S. 2d 102, 106 (1979) ; People v. Maynard, 80

Misc. 2d 279, 291, 363 N.Y.S.2d 384, 398 (Sup. Ct. N.Y.Co., 1974)

(convictions set aside for prosecutor's failure to disclose evidence) ;

People v. Mullin, 41 N.Y.2d 475, 480, 362 N.E.2d 571, 574, 393

N.Y.S. 2d 938, 942 (1977) ; People v. Rivera, 75 A.D. 2d 544, 546,

426 N.Y.S. 2d 785, 786-87 (1st Dep't 1980) (convictions reversed

for improper prosecutorial summation) ; People v. Brown, 48 N.Y.2d

388, 395, 399 N.E.2d 51, 54, 423 N.Y.S.2d 461, 464 (1979) ; People

v. Crimmins, 26 N.Y .2d 319, 323-24, 258 N.E.2d 708, 710, 310 N.Y.S.

2d 300, 302 (1970) ; People v. Cocco, 305 N.Y. 282, 287, 113 N.E.2d

422, 423 (1953) (convictions reversed for juror misconduct or an

improper outside influence on a juror).

12

This Court has long held that the Constitution re-

quires only the exclusion of jurors who are found to be

actually biased and respondent offers neither logic nor

policy to overrule well-settled precedent.

Respondent, without support from the amicus, returns

to the district court decision to argue that even though the

juror was not actually biased, his application gave rise to

a conclusive presumption of ‘‘implied’’ bias. To support

that argument, respondent asks this Court to bring within

the Sixth Amendment the common law rule that servants

could not sit on cases in which their employer was a party.

Brief for Respondent: 14-15. Of course, the juror here

was not in the employ of a party, so the common law rule

offers no support to respondent unless it is expanded to

include prospective servants. More importantly, respond-

ent forgets that this Court has clearly and unequivocally

rejected the common law rule and declared that, in jury

selection, the Constitution is ‘‘not chained to any ancient

and artificial formula.’’ United States v. Wood, 299 U.S.

123, 146 (1936).*

*In attempting to prove his point that the common law rule is

needed as constitutional doctrine, respondent conjures a situation in

which all twelve jurors apply for a job with the prosecutor’s office.

Brief for Respondent: 13. Of course, twelve such applications

during trial would be something more than a coincidence and inquiry

could well show actual misconduct. However, if upon inquiry all

twelve could be shown to be actually impartial, due process would be

satisfied. See Frasier v. United States, 335 U.S. 497, 510 (1948) (no

denial of due process even though all twelve jurors were government

employees) ; Dennis v. United States, 339 U.S. 162, 165 (1950)

(even in a politically sensitive case there was no denial of due process

even though seven of twelve jurors were government employees).

Finally, the hypothesized “packed” jury presents concerns simply not

present in the instant case. See Frazier v. United States, supra at

514-520 ( Jackson, J., dissenting).

13

Even when a prospective juror is employed by the

prosecuting agency, there is no automatic exclusion. See

id. at 149-50; Frazier v. United States, 335 U.S. at 512. As

this Court stated in the Wood case:

We think that the imputation of bias simply by virtue

of governmental employment, without regard to any

actual partiality growing out of the nature and cir-

cumstances of particular cases, rests on an assumption

without any rational foundation. 299 U.S. at 149.

Trying to avoid this well settled principle that the Con-

stitution requires challenges to individual jurors only on

a showing of actual bias, respondent, again unsupported

by amicus, turns desperately to the ‘‘appearance of jus-

tice’’ standard. Brief for Respondent: 14, 27-29. The

constitutional cases cited by respondent to support his ‘‘ap-

pearance of justice’? argument involve only judges, or

racially discriminatory practices. These are, of course, the

only exceptions to the actual prejudice requirement, and

have already been discussed at pages 32-33 and 46-48 of our

main brief. As noted in our main brief, possible racial or,

for that matter, other invidious discriminations are treated

with special concern, becanse the injection of such prejudice

into criminal proceedings has implications for society far

beyond the courtroom. See Rose v. Mitchell, 443 U.S. 545,

555-56 (1979); Taylor v. Louisiana, 419 U.S. 522, 532-33

(1975) ; see also Peters v. Kiff, 407 U.S. 493 (1972). And as

pointed out on page 47 of our main brief, there are good

reasons why the bias of judges has always been treated spe-

cially. Notably, respondent utterly fails to challenge these

reasons and show why an ‘‘appearance of justice’’ standard,

rather than the traditional actual bias standard, should gov-

14

ern. Respondent does attempt to support his ‘‘appearance

of justice’’ argument by observing that ‘‘it is impossible to

know what effect Smith had on other jurors prior to or

during deliberations.’’ Brief for Respondent: 28. The ar-

gument is curious, for if Smith was actually impartial, his

‘‘effect’’ on other jurors was only the proper influence which

all impartial jurors have upon one another. The ‘‘appear-

ance of justice’? is hardly undereut by such an influence,

Further, an ‘‘appearance of justice’’ standard is not

appropriate for general application to individual jurors

because it is so amorphous as to be no standard at all. As

such, it seems particularly ill-suited to federal habeas

corpus review, or even direct review, of state convictions.

In sum, in eases involving the right to an impartial jury

other than those involving systemic defects, as the Court

has recently reaffirmed, a showing of actual prejudice is

U.S. —-, 101 S.

required, See Chandler vy. Florida,

Ct. 802, 813-14 (1981).

Finally, in support of an ‘‘appearance of justice’’ stand-

ard, respondent argues that ‘‘the recent carnage and blood-

shed in Miami and other cities should not be the touchstone

of a civilized response to injustice, real or imagined.”’

Brief: 30. The relationship between the trouble in our

cities and a new trial for this corrupt police officer, con-

victed of brutally murdering two people in New York City,

is murky to say the least. Moreover, the law of the street

is hardly an appropriate consideration in determining the

requirements of the United States Constitution. Of course,

real injustice calls for a civilized response, and if the juror

in question had been found to have been actually biased,

15

that response would have been a new trial. Because the

juror was not actually biased, however, there was nothing

uncivilized about the state courts’ refusal to set aside the

conviction. By suggesting that only an appearance of

justice standard is ‘‘eivilized’’ and that such a standard

requires a new trial for him, respondent desires a real

remedy for an imaginary injustice. Imaginary injustice,

however, should not be the concern of federal courts in

reviewing state convictions in habeas corpus proceedings.

Neither respondent nor the amicus has shown that

the respondent was prejudiced by the prosecutor’s

failure to disclose the juror’s application during trial.

Pointing to no prejudice whatsoever, respondent argues

that the failure to disclose the juror’s application during

trial requires affirmance. Brief for Respondent: 37. Of

course, as seen by the authorities cited on pages 32-33 of our

main brief, this Court has made it clear that a federal court

may not interfere in a stale prosecution by ordering a new

trial because of prosecutorial misconduct which did not

prejudice an accused.

In his argument about prosecutorial misconduct, counsel

for respondent muses about what would happen to him, in

terms of disciplinary or criminal proceedings, if a juror

had applied to him for a job and he had decided not to dis-

close the fact until after trial. Of course, whatever would

happen to defense counsel, the verdict would not be affected.

On the other hand, we do not argue that whatever the con-

duct of the prosecutor the verdict should remain inviolate.

But surely, a requirement of prejudice from prosecutorial

16

misconduct fully protects a defendant’s right to a fair trial.

If some other societal interest calls for further protection,

then a prosecutor’s conduct is subject to the same disci-

plinary and criminal review as that of a defense counsel.

Notable by its absence from the petition is any allegation

that respondent filed a grievance with the bar association,

or sought appointment of a special prosecutor to make in-

quiry into the trial prosecutor’s conduct.

Interestingly, respondent closes his brief (pp. 39-40) by

referring to that portion of the majority opinion in Tennes-

see Valley Authority v. Hill, 487 U.S. 153, 195 (1978) in

which Chief Justice Burger quotes a statement ascribed

to Sir Thomas More, that even the devil must be given the

benefit of the law. However, in the state courts William

Phillips was treated fairly and in accordance with the law.

Now he wants more than is due him; he seeks to have the

federal courts supervise the conduct of state prosecutors

and grant him a new trial, even though he was not preju-

diced by the conduct of the prosecutor. In seeking even

more than that required by the Constitution, respondent

wants to deprive the state of the process due it—freedom

from federal interference with a state conviction because of

prosecutorial misconduct that has not prejudiced the ac-

cused.

Significantly, in Tennessee Valley Authority v. Hill,

supra, in which the quoted statement of Sir Thomas More

appears, the Court refused to preempt congressional action,

preemption which would have violated the constitutional

system’s commitment to the separation of powers. Given

the absence of prejudice, here too the Court should refuse

17

to preempt state court actions, preemption § which

would violate the constitutional system’s commitment to

federalism.

The amicus seeks to provide the prejudice by arguing

that a post-trial hearing is not as effective as a hearing

during trial. We have responded to this argument at pages

6-11 of this reply brief and pages 26-27 of the main brief.

Nonetheless, two points raised by the amicus merit brief

response.

At pages 25-27 of our main brief, we demonstrated that

a post-trial hearing is the appropriate procedure to deter-

mine whether a juror engaged in misconduct during trial

which influenced his verdict, and that the adequacy of the

post-trial hearing is not affected by whether or not the

prosecutor knew of the misconduct during trial. At pages

4 and 5, the amicus correctly states that ‘‘[t]his argu-

ment, ...is the keystone of petitioner’s brief.’’ But amicus

then incorrectly states that the argument ‘‘was unequivo-

cally rejected by this Court in United States v. Agurs, 427

U.S. 97, 111 (1976).”’

At the cited page in Agurs (427 U.S. at 111), the Court

rejected an argument that when a prosecutor fails to dis-

close evidence, a defendant to obtain a new trial should have

to satisfy the burden applicable in newly discovered evi-

dence cases, of showing that the withheld evidence would

have resulted in acquittal. While rejecting that argu-

ment, the Court did not hold that a hearing or inquiry

would necessarily be inadequate to establish the absence

of prejudice. Indeed, by requiring prejudice from the fail-

18

ure to disclose (427 U.S. at 108), the Court by definition

recognized the need for inquiry. Here, inquiry was called

for and held. At that inquiry, the state court did

not require the accused to shoulder any burden. Rather,

the state judge put the prosecution to the heaviest burden

and then concluded beyond a reasonable doubt that the

juror was impartial, and that respondent was not preju-

diced by the failure to disclose. This, of course, is in com-

plete accord with the teaching of Agurs. What is contrary

to Agurs is respondent’s idea that once prosecutorial mis-

conduct is shown, then no consideration should be given,

with appropriate allocation of the burden of proof, to

whether that misconduct prejudiced respondent.

Given the reasonable doubt standard used by the state

judge, it matters little into which of the three Agurs cat-

egories the prosecutor’s failure to disclose falls. None-

theless, also deserving of brief comment is the attempt of

amicus to force the prosecutor’s failure to disclose infor-

mation about the juror into the category encompassing

perjured testimony, in which convictions are set aside ‘‘if

there is any reasonable likelihood that the false testimony

could have affected the judgment of the jury’’ (427 U.S.

at 103-04).

The extent of amicus’ analysis is that when pros-

ecutors withhold information which would expose false

testimony, they act reprehensively. Here, according to

amicus, the prosecutor’s conduct is equally egregious; thus,

it argues that the conduct here must be in the same category

as that involved in the false testimony cases. Brief for

Amicus: 6. This conclusory analogy is, of course, no sub-

19

stitute for analyzing the nature of prosecutorial conduct to

determine into which category it falls.

Here, there is no voir dire answer or any other testi-

mony by the juror which the prosecutor knew to be false,

as in the false testimony cases. Rather, the prosecutor

merely discovered, but failed to disclose, information about

a juror’s conduct after trial had commenced, which could

have conceivably affected a determination of the juror’s

impartiality. To be sure, a juror’s impartiality is at the

core of the right to a fair trial. But so too is the require-

ment of proof beyond a reasonable doubt and the defend-

ant’s right to offer exeulpatory evidence. Yet the failure

to disclose unrequested evidence affecting guilt or inno-

cence, falls into the third Agurs category, which requires a

new trial if the undisclosed evidence ‘‘creates a reasonable

doubt which did not otherwise exist.’’ 427 U.S. at 112.*

Thus, in this juror context, the failure to disclose should

be treated no differently from the failure to disclose evi-

dence which could conceivably affect a jury’s determina-

tion of guilt or innocence. In any event, regardless of the

standard, the hearing showed that there was neither a

reasonable doubt about juror Smith’s impartiality nor a

reasonable likelihood that he was actually biased. The

Coustitution requires no more.

* The second Agurs category involves the failure to respond to a

request for specific information, but the duty to honor that request is

breached and a new trial required only when the suppressed evidence

“might have affected the trial” (427 U.S. at 104). This seems no

different from the test for determining whether to order a new trial

because perjured testimony is knowingly permitted by a prosecutor.

See, 427 U.S. at 103-04. Despite the absence of a request, the court

below put this case in this second category but like the amicus was

none too clear or persuasive in its reasons for doing so (see Appendix

A to Petition for Certiorari: 9a).

20

In sum, juror Smith was naive but impartial. Respond-

ent’s adjectives, adverbs, and innuendos are no substitute

for the state judge’s fully supported findings of the juror’s

actual impartiality; actual impartiality is all that is

required by the Constitution. Nor is it open to persuasive

argument that the post-trial hearing was constitutionally

inadequate to determine that impartiality; thus, the prose-

cutor’s failure to disclose the juror’s letter during trial

in no way prejudiced respondent's right to explore fully

that impartiality.

Conclusion

The judgment appealed from should be reversed.

Respectfully submitted,

Rosert M. Morcentuau

District Attorney

New York County

Attorney for Petitioner

Rosert M, Pir.er

Mark Dwyer

Davin H, Sterner

Assistant District Attorneys

Of Counsel

September 10, 1981