# Amicus Brief — Smith v. Phillips

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Amicus Brief
- **Published:** January 1, 1982
- **Citation:** 455 U.S. 209

## Text

%> 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

-18-

---

Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385007_1934%3A09. Public record. Not legal advice.