Amicus Brief — Smith v. Phillips

%> IN THE

Supreme Court of the United States

OCTOBER TERM, 1981

>

HAROLD J. SMITH, Superintendent,

Attica Correctional Facility,

Petitioner,

—against—

WILLIAM R, PHILLIPS,

Respondent.

ON WRIT OF CERTIORARI TO THE UNITED STATES

COURT OF APPEALS FOR THE SECOND CIRCUIT

MOTION FOR LEAVE TO FILE AND BRIEF OF

THE AMERICAN CIVIL LIBERTIES UNION AND

THE NEW YORK CIVIL LIBERTIES UNION

AMICI CURIAE

~ =

—-- =

CHARLES §S. SIMS,

Counsel of Record

BRUCE J. ENNIS, JR.

AMERICAN CIVIL LIBERTIES UNION

132 West 43rd Street

New York, New York 10036

(212) 944-9800

RICHARD M,. ZUCKERMAN

345 Park Avenue

New York, New York 10154

(212) 644-8007

Attorneys for Amici Curiae

August 1, 1981

MOTION FOR LEAVE TO FILE

The American Civil Liberties Union and the

New York Civil Liberties Union hereby respect-

fully move for leave to file the attached brief

amici curiae. The attorney for respondent has

consented; the attorney for petitioner has

refused consent.

The American Civil Liberties Union is

a nationwide non-partisan organization of over

250,000 members, dedicated solely to defending

the principles embodied in the Bill of Rights.

The New York Civil Liberties Union is its state-

wide affiliate operating in New York.

Central to the principles in the Bill

of Rights is the Sixth Amendment right to a

trial “in all criminal prosecutions . . . by an

impartial jury.”

The need for protection against over-

reaching government action -- the central purpose

of the Bill of Rights -- is greatest when the

government brings criminal charges against a

defendant. As this Court has noted,

"Those who emigrated to this Country

from England brought with them this

great privilege[, the right to trial

by an impartial jury,] ‘as their birth

right and inheritance, as a part of

that admirable common law which had

fenced around and interposed barriers

on every side against the approaches

of arbitrary power.'"*

The ACLU has participated in numerous

cases in this Court which have concerned the Sixth

Amendment right to trial by jury, including Burch v.

Louisiana, 441 U.S. 130 (1979), Apodaca v. Oregon,

406 U.S. 404 (1972), and Witherspoon v. Illinois,

391 U.S. 510 (1968).

Although we share the concern of the

courts below and respondent over the implied bias

* Thompson v. Utah, 170 U.S. 343, 349-350 (1898),

quoting 3 J. Story, Commentaries on the Consti-

tution of the United States (Boston: 1833),

§ 1773.

wile

-of the juror at issue here, and the apparent

prosecutorial misconduct which the prosecutor

here seeks for the first time to defend (Br. at

27), Our approach is somewhat different. We

focus on the particular reasons why the juror

here would have found it immeasurably more

difficult to admit bias after trial than during

trial, and on the marked constriction of the

trial judge's alternatives the prosecutor

effected by waiting until after trial to disclose

the juror's application for a job with his

office. Finally, we rely on United States v.

Agurs, 427 U.S. 97 (1976), to demonstrate that a

different standard must govern prosecutorial

failure to disclose likely juror bias known but

concealed during a trial than governs post-

trial discovery of such bias to give effect to

the prosecutor's obliqation to serve the ends of

justice.

-ili-

Because this case raises important

questions concerning the right to due process

and fair jury trial, we respectfully urge the

the Court to accept and file the enclosed brief

amici curiae.

Dated: August 1, 1981

Respectfully submitted,

Lou

CHARLES S. SIMS agg

Counsel of Record

American Civil Liberties Union

132 West 43rd Street

New York, New York 10036

(212) 644-8007

Attorney for Amici Curiae

-iv-

TABLE OF CONTENTS

Motion for Leave to File .....eeeeees

Table of AuthoritieS .....ccecccccces

Interest of Amici Curiae .......se00-

Summary Of Argument ....eeeeeeccccees

Argument

THE WRIT OF HABEAS CORPUS WAS

PROPERLY GRANTED BECAUSE, IN

THE CIRCUMSTANCES OF THIS CASE,

THE PROSECUTOR'S DECISION NOT

TO DISCLOSE DURING TRIAL THAT

A JUROR WAS APPLYING FOR A JOB

IN HIS OFFICE DENIED DEFENDANT

DUE PROCESS AND UNNECESSARILY

ABRIDGED THE ABILITY OF THE

TRIAL COURT TO MAKE AN ACCURATE

AND RELIABLE ASSESSMENT OF

WHETHER THE JUROR WAS SO PRE-

JUDICED AS TO DENY DEFENDANT

A FAIR TRIAL e@eeeeeoeeee#eweeeneneeeeeeeneeee

Conclusion eeeeeoeeeeeeeeeeeeeeeeeeeeee

-Yy=

2

18

TABLE OF AUTHORITIES

Cases:

Apodaca v. Oregon, 406 U.S. 404 (1972) wee

Brady v. Maryland, 373 U.S. 83 (1963) ...-ee5-

Burch v. Louisiana, 441 U.S. 130 (1979) ...e-6-

Irvin v. Dowd, 366 U.S. 717 (1961) cccccccvcce

Phillips v. Smith, 632 F.2d 1019

(2d Cir. 1980), cert. granted,

U.S. e 101 S. Ct. 1345 (1981) woe.

Remmer v. United States,

U.S. ) e@eeeeoeeeeeeeeeeeeeeesaeeee

Remmer v. United States,

350 U.S. 377 (1956) eeeeeeeeeeeeeeeeeeeneeeee

Thompson v. Utah, 170 U.S. 343 (1898) ....-6.-

United States v. Agurs:

427 U.S. 97 (19 ) e@eeeeeeeeeeeeeeeeeeeeneee

United States v. Brasco,

516 F.2d 816 (2d Cir.),

cert. denied, 423 U.S. 860 (1975)

United States v. Gross,

614 F.2d 365 (3d Cir.),

cert. denied, 447 U.S. 925 (1980)

12

12

United Stat

es v. Johns,

615 F.2d

cert. de

672 (5th Cir.),

nied, oF P

OTs. ¢

Witherspoon

United Stat

Ce 95 (1980) eeeeeneeneeeeeneneeneeeeee

v. Illinois,

51 eoeeeseeoeaeeeeeeeeeeeneeeee

es Constitution

Fifth Amendment eeeeoeoeeeeeeeeeeeeeeeeeeeeeeee

Sixth Amendment eeeeoeeoeeeeeeeeeeeeeneeeeeeeeneee

Pourteenth AmenGent cccccccccccccsccccsccoses

United Stat

es Statutes:

28 U.8.C. §

New York St

2254(d) (2) 6(7) ecccccccccccccccce

atutes:

N.Y. Crim.

(McKinne

N.Y. Crim.

(McKinne

Other Autho

Proc. Law § 270.15

y's 1971) e@eeeeseeeeeneeeseeneenseeneeneeneeeee

Proc. Law § 360.20

y's 1971) e*eeeeenee8neeneeeeneeneeeeeeee

rities:

3 J. Story,

Constitu

(Boston:

Commentaries on the

tion of the United States

1833), S 1773 e*eeneeee4eeseteesee#enee#ee@ee#eeseeees

-vii-

Page

17

15

15

INTEREST OF AMICI CURIAE

The interest of amici curiae appears in

the foregoing motion.

SUMMARY OF ARGUMENT

The District Attorney's decision not to

disclose until after trial that a juror had

applied for a job in his office prevented the state

court from conducting a hearing, during trial, to

determine whether the juror was impartial, and

also prevented the state court from replacing the

juror with an alternate.

Where, as here, a hearing during trial

would have been possible, and the nature of the

alleged juror misconduct is such that a post-

trial hearing is far less likely to result in an

accurate determination of whether the juror was

prejudiced, a post-trial hearing falls short of

the requirements of due process, and is inadequate

ojo

to protect the right to tria] by an impartial

jury. The post-trial hearing conducted by the

state court was inadequate, and did not elimi-

nate the likelihood that the juror's pending job

application affected his judgment as a juror.

ARGUMENT

THE WRIT OF HABEAS CORPUS WAS PROPERLY

GRANTED BECAUSE, IN THE CIRCUMSTANCES

OF THIS CASE, THE PROSECUTOR'S DECISION

NOT TO DISCLOSE DURING TRIAL THAT A

JUROR WAS APPLYING FOR A JOB IN HIS

OFFICE DENIED DEFENDANT DUE PROCESS AND

UNNECESSARILY ABRIDGED THE ABILITY OF

THE TRIAL COURT TO MAKE AN ACCURATE AND

RELIABLE ASSESSMENT OF WHETHER THE JUROR

WAS SO PREJUDICED AS TO DENY DEFENDANT

A FAIR TRIAL

By deciding not to advise the state trial

judge until after trial that a juror had a job

application pending in the prosecutor's office,

the District Attorney prevented the state court

from conducting a hearing during trial to deter-

mine whether the juror was impartial, and also

prevented the court from excusing the juror and

replacing him with one of three available alter-

nates. The District Attorney instead relegated

the state court to conducting a post-trial hearing

which, as we shall show, was unlikely, under the

circumstances of this case, to adduce credible or

reliable evidence on the juror's impartiality.

The District Attorney's actions pre-

vented the state court from determining, in a

Constitutionally-adequate manner, whether the

juror was impartial, and denied respondent due

process in his criminal trial. U.S. Const.,

Amendments VI, XIV.

Although acknowledging that his office

engaged in “wrongful conduct" (Pet. Br. at 48),

the District Attorney contends that the state

court's post-trial hearing into the juror's

impartiality (at which the court concluded that

the juror was not prejudiced) remedied any vio-

lation of respondent's rights:

=3-

"If we assume that the prosecutor had

himself discovered the letter [the job

application] only after the verdict, a

post-trial hearing would have been the

proper means of determining whether the

juror had been actually biased. [cita-

tions omitted]. If a post-trial hear-

ing would have been adequate to protect

Phillips’ sixth amendment right to an

impartial jury in that circumstance,

there is no reason why such a hearing

was any less adequate simply because

the prosecutors knew about the letter

at an earlier point in time." (Pet.

Br. at 27).

This argument -- which is the keystone of peti-

tioner's brief -- was unequivocally rejected by

this Court in United States v. Agurs, 427 U.S. 97,

111 (1976), which compared the standard applicable

to post-trial motions based on the prosecutor's

failure to disclose evidence, with the standard

applicable to post-trial motions based on newly-

discovered evidence:

"The fact that such evidence was

available to the prosecutor and not

submitted to the defense places it in

a different category than if it had

simply been discovered from a neutral

source after trial. .. . If the stan-

dard applied to the usual motion for a

a

new trial based on newly-discovered

evidence were the same when the evi-

dence was in the State's possession as

when it was found in a neutral source,

there would be no special significance

to the prosecutor's obligation to serve

the cause of justice."

In affirming the grant of habeas corpus

in this case, the Second Circuit noted that Agurs

established a three-tiered standard to evaluate

the prosecutor's failure to disclose evidence:

(a) if the undisclosed evidence shows that the

prosecutor's case included prejudiced testimony,

a conviction must be set aside “if there is any

reasonable likelihood that the false testimony

could have affected the judgment of the jury,"

Phillips v. Smith, 632 F.2d 1019, 1023 (2d Cir.

1980), citing United States v. Agurs, supra, 427

U.S. at 103-104; (b) if the undisclosed evidence

was requested by the defense, and if there is "a

substantial basis for claiming materiality, ...

the failure to [disclose] is seldom, if ever,

excusable," Phillips v. Smith, supra, citing Brady

=So

v. Maryland, 373 U.S. 83 (1963); and (c) if the

undisclosed evidence was not requested, a verdict

must be set aside if the evidence "creates a

reasonable doubt which did not otherwise exist,"

Phillips v. Smith, supra, citing United States v.

Agurs, supra, 427 U.S. at 112.

; Where, as here, the information with-

held by the prosecutor was not evidence which

could have been introduced at the trial, but

information which raised a substantial question

about the impartiality of a juror, the prose-

cutor's failure to disclose should be evaluated by

the same standard as the prosecutor's use of

perjured testimony. Like perjured testimony,

juror prejudice known to the prosecutor involves

not only “prosecutorial misconduct, but more

importantly . . . a corruption of the truth-seek-

ing function of the trial process." United States

v. Agurs, supra, 427 U.S. at 104. Like the higher

standard which applies to failure to disclose

-6-

evidence but not to newly discovered evidence,

a higher standard must govern failure to dis-

close likely juror prejudice to signify the

importance of “the prosecutor's obligation to

serve the cause of justice." Id. at 111.

The question therefore is whether there

is “any reasonable likelihood that" the juror's

pending job application with the District Attor-

ney's office “could have affected the judgment of

the jury." United States v. Agurs, supra, 427

U.S. at 103 (emphasis added).

This question is difficult to answer in

any case, for while there may be many witnesses

and varied evidence on the source of the alleged

juror bias, there is only one witness who can give

direct evidence on its impact: the juror himself.

Such evidence is inherently unreliable. As this

Court stated in Irvin v. Dowd, 366 U.S. 717, 728

(1961),

"No doubt each juror was sincere when

aja

he said that he would be fair and impar-

tial to petitioner, but the psycholo-

gical impact requiring such a declara-

tion before one's fellows is often its

father."

This question is all the more difficult

to answer in this case because by withholding the

information about the juror's job application

until after trial, the prosecutor took it upon

himself to deprive the court of the most effective

means Of assessing whether the juror was impartial

-- a hearing during the trial -- and thereby also,

we will now show, deprived the court of the least

disruptive remedy for ensuring a fair trial when a

juror is prejudiced -- replacing the juror with an

alternate.

A post-trial hearing might ordinarily

be adequate to

“determine the circumstances, the

impact thereof upon the juror, and

whether or not it was prejudicial.”

Remmer v. United States, 347 U.S.

227, 230 (1954).

But under the facts of this case, the post-trial

hearing was wholly inadequate to assess whether

the juror was impartial, for several reasons.

First, just as juror Smith may have had

a motive, during trial, to vote for conviction to

further his law enforcement career, after trial he

clearly had a motive to say that he had not done

so. For it must have been evident to juror Smith

that if he admitted bias -- if he admitted that he

had disregarded his oath as a juror to further his

law enforcement career -- it would have had a

devastating effect on that career. What law

enforcement agency would hire an investigator |

whose credibility could always be impeached by

his admission that he had disregarded his solemn

juror's oath, and voted to convict to further his

own career?

Had the hearing into juror Smith's

impartiality been held during trial, the juror

would have been under no such pressure to proclaim

his impartiality. He could then have testified,

=Jo

if it were so, that his pending application for

a job with the prosecutor would influence his

ability to serve as a juror, without fear that

that forthright statement would imperil his future

career.

The facts underlying juror Smith's

alleged bias thus distinguish this case from

Remmer v. United States, supra, which held a

post-trial hearing adequate to determine whether a

juror, who had been interviewed by the FBI during

trial about an alleged attempted bribe, was

affected in his deliberations. In Remmer, the

juror had no motive, either during or after trial,

to justify his conduct, for there was no claim

that the juror had engaged in misconduct. The

juror's testimony at a post-trial hearing was thus

as reliable as the juror's testimony at a hearing

during trial. Had the juror acknowledged that he

had been influenced by the FBI interview or the

alleged attempted bribe, his testimony would have

o16=

cast aspersions on the FBI and the source of the

attempted bribe, but not on himself.

Indeed, the cases relied upon by the

District Attorney on "the appropriateness of post-

verdict inquiry" (Pet. Br. at 26) did not involve

claims of juror misconduct, but instead claims

that a third party had improperly influenced the

juror. See, e.g., United States v. Johns, 615 F.2d

672, 676 (5th Cir.), cert. denied, ¥.8. °

101 S. Ct. 95 (1980) (alternate juror learned about

witness' death); United States v. Gross, 614 F.2d

365, 368 (3d Cir.), cert. denied, 447 U.S. 925

(1980) (marshall expressed romantic interest in

female jurors); United States v. Brasco, 516 F.2d

816, 819 (2d Cir.), cert. denied, 423 U.S. 860

(1975) (jurors noticed newspaper article).

In those cases, where the juror was not

himself suspected of misconduct, there was no

reason to believe his testimony at a hearing

after trial would be any less reliable than his

=$t=

testimony at a hearing during trial.

In contrast, juror Smith had a clear

motive after trial to justify his conduct,

and would have had no such motive during trial.

Second, a post trial hearing is inferior

to a hearing during trial because the only option

then available to the judge is to set aside the

guilty verdict, rather than merely to replace the

juror with an alternate, with no substantial

inconvenience to witnesses or burden on judicial

resources.

Furthermore, the District Attorney has

implicitly acknowledged that the prosecutor made

a serious error of judgment largely to avoid the

minimal delay that raising this issue during

trial would have occasioned:

"To be sure, as the state judge found, by

failing to disclose the letter during trial,

the trial prosecutor had made a ‘serious

error in judgment.' (App. E at 52a).

Nonetheless, the decision not to disclose

was made in the sixth week of a murder

trial in the middle of cross-examining

-12-

defendant, with the summation only a week

away and with knowledge of a problem with

another juror -- Bethel. (Pet. Br. at 31

n. 11.3; emphasis added).

If a brief delay in trial led the prosecutor to

commit a “serious error of judgment” (Pet. Br.

at 31 n. 11), it is clear that a trial judge

must feel even greater pressures at a post-

trial hearing when the only remedy would be te

set aside the conviction and begin a new trial.

Accordingly, where it is possible, a hearing

during trial, when a prejudiced juror may be

replaced by an alternate and a new trial thus

avoided, is infinitely more effective than a

post-trial hearing.

Not only does the District Attorney fail

to address these serious infirmities of a post-

trial hearing, but he attempts to rationalize

that a post-trial hearing may be more effective

than a hearing during trial. First, the District

Attorney argues that at a hearing after trial,

"defense counsel, in cross-examining the juror,

-13-

would not have to tread lightly in fear that, if

his challenge were unsuccessful, he would then be

stuck with a juror who might well hold the cross-

examination against his client." (Pet. Br. at

27-28). But the task faced by defense counsel,

at a hearing during trial, is hardly novel. In

New York state courts, the voir dire of the jury

is conducted by the attorneys, not by the court.

N.Y. Crim. Proc. Law §§ 270.15, 360.20 (McKinney's

1971). A defense counsel who has exhausted his

peremptory challenges, and examines a juror to

determine if there is a basis to challenge for

cause, knows that if there is no such basis "a

juror who might well hold the cross-examination

against his client" will serve on the jury. The

District Attorney's post-hoc rationalization of

the defendant's interests is, of course, no sub-

stitute for the timely assessment of the defendant's

interests, by his own counsel, which the District

Attorney prevented.

-14-

The District Attorney's second ration-

alization to support a post-trial hearing is

that “at trial there would be pressure to have an

abbreviated hearing to get on with the trial.

Post-trial, there is no such concern." (Pet. Br.

at 28). But there is no reason to assume that

the court would not have given adequate time to a

hearing during a seven-week trial had the prose-

cutor not prevented it from so doing.

To be sure, a post-trial hearing may be

Constitutionally adequate where the testimony at

such a hearing would be as reliable as testimony

taken at a hearing during trial. A post-trial

hearing may also be adequate if it is not possible

to hold a hearing during trial. But where, as in

this case, a hearing during trial would have been

possible, and the nature of the alleged misconduct

is such that a post-trial hearing is less likely

to result in an accurate determination of whether

the juror was prejudiced, then a post-trial

@15=

hearing falls short of the requirements of due

process, and is inadequate to protect the right to

trial by an impartial jury.

The post-trial hearing in this case

could not, and did not, eliminate “any reasonable

likelihood" that the juror's pending job applica-

tion “could have affected [his] judgment."

United States v. Agurs, supra, 427 U.S. at 103.

Because the post-trial hearing was

inadequate, the state court's conclusion that

juror Smith was not biased -- based almost solely

on juror Smith's own testimony -- is not entitled

to deference. 28 U.S.C. § 2254(d)(2),(7). In

Remmer v. United States, 350 U.S. 377, 381 (1956),

involving another juror also named Smith, this

Court held that under the facts of that case,

"neither Mr. Smith nor anyone else

could say that he was not affected

in his freedom of action as a juror,"

and accordingly disregarded the lower court's

finding, made after a post-trial hearing, that

-16-

a communication with a juror had not affected his

judgment.

The District Attorney admirably concludes

his brief by stating "we seek no vindication for

the trial prosecutor." (Pet. Br. at 48). In

urging that the judgment below be affirmed, the

ACLU seeks no punishment for the trial prosecutor,

but merely

“avoidance of an unfair trial to the

accused. Society wins not only when

the guilty are convicted but when crim-

inal trials are fair; our system of

the administration of justice suffers

when any accused is treated unfairly."

Brady v. Maryland, supra, 373 U.S. at

87.

=§7=

CONCLUSION

Because the prosecutor's decision not

to disclose during trial that a juror had applied

for a job in his office denied respondent due

process, and prevented the state trial judge from

holding a Constitutionally-adequate hearing to

determine whether the juror was impartial, the

writ of habeas corpus was properly granted.

The judgment of the United States Court

of Appeals for the Second Circuit should be affirmed.

Dated: New York, New York

August 1, 1981

Respectfully submitted,

CHARLES S. SIMS,

Counsel of Record

BRUCE J. ENNIS, JR.

AMERICAN CIVIL LIBERTIES UNION

132 West 43rd Street

New York, New York 10036

(212) 944-9800

RICHARD M. ZUCKERMAN

345 Park Avenue

New York, New York 10154

(212) 644-8007

Attorneys for Amici Curiae

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