# Amicus Curiae Brief — Sullivan v. Louisiana

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URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385013_0410%3A04

## Record

- **Collection:** Supreme Court brief
- **Document type:** Amicus Curiae Brief
- **Published:** January 1, 1993
- **Citation:** 508 U.S. 275

## Text

Supreme Court, U.S. |
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i No. 92-5129
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IN THE

SUPREME COURT OF THE UNITED STATES

October Term, 1992

JOHN L. SULLIVAN,
Petitioner

vs.

STATE OF LOUISIANA,
Respondent

On Petition for a Writ of Certiorari
to the Supreme Court of the State of Louisiana

REPLY BRIEF IN SUPPORT OF
PETITION FOR A WRIT OF CERTIORARI

William J. Keppel
Counsel of Record

Michael J. Wahoske

Christopher J. Riley

Tamara J. Byram

Karen A. Fairbairn

DORSEY & WHITNEY
2200 First Bank Place East
Minneapolis, Minnesota 55402
Telephone: (612) 340-2600

John Wilson Reed

GLASS & REED
338 Lafayette Street
New Orleans, Louisiana 70130
Telephone: (504) 581-7635

Attorneys for Petitioner

TABLE OF AUTHORITIES

CASES <aat SUPREME COURT RULE
ari _Fulminante, 111 S. Ct. 1246 (1991)...........00cceseeeeeeeeees 4 PE EE ST CURE Sodas ccbceddedenddvnnsdndeessssedsccosdcneces
Cage v. Louisiana, 111 S. Ct. 328 (1990) ..... 6... cece cece cece e eee eens 2
Carella v. California, 491 U.S. 263 (1989). ...........60cc cece cece cece eee es 5 STATE STATUTES
Chapman v. California, 386 U.S. 18 (1967) ...... 6.6... cece ccc e eee e eee es 3 La. Code Crim. Proc. Ann. art. 905.9 (West 1976) ............ cece ccuueees
Estelle v. McGuire, 112 S. Ct. 475 (1991) 2... 6... ccc ccc ccc cece ee eens 2,3
Jackson v. Virginia, 443 U.S. 307 (1979)... 0.6... cece cece eee eee eee eens 3
Lanigan v. Maloney, 853 F.2d 40 (1st Cir. 1988) .......... 2... cece cece eens 4
Louisiana v. McDaniel, 410 So. 2d 938 (La. 1991) ......... eee cece cece eee 6
Louisiana vy. Mack, 403 So. 2d 8 (La. 1981) «1... 6... c cece cece ee eee eee es 6
Louisiana v. Sullivan, 596 So. 2d 177 (La. 1992) .... 2.2... 6c eee eee eee eee 2,6
Louisiana v. Vessell, 450 So. 2d 438 (La 1984) ........ 0.6 ccc cece cece ees 6
Massachusetts v. Garcia, 399 N.E.2d 460 (Mass. 1980) ................0000. 4
Monk v. Zelez, 901 F.2d 885 (10th Cir. 1990) .......... ccc eee cece eee ees 4
North Carolina v. Montgomery, 417 S.E.2d 742 (1992) ...........50500000s 5
SG SPEND occ c cc cccecesceesocesccoccecscececosees 4
Satterwhite v. Texas, 486 U.S. 249 (1988). ..... 0... cece cece cece eens 6
United States v. Pinkney, 551 F.2d 1241 (D.C. Cir. 1976) ...............+4.. 4
In Re Winship, 397 U.S. 358 (1970)... 2... ccc cece eee eee eee eee e ees 4
ee ee eee, BEG Oe GE, BO CUE c vcccccccccccccccccccccececcecesscoes 2,3

ii

IN THE
SUPREME COURT OF THE UNITED STATES

No. 92-5129

October Term, 1992

JOHN L. SULLIVAN,
Petitioner

vs.

STATE OF LOUISIANA,
Respondent

On Petition for a Writ of Certiorari
to the Supreme Court of the State of Louisiana

REPLY BRIEF IN SUPPORT OF
PETITION FOR A WRIT OF CERTIORARI

This case squarely presents the issue of whether a constitutionally deficient
reasonable doubt instruction is subject to harmless error analysis. The State of
Louisiana does not deny that decisions of the state courts and lower federal courts
conflict on this issue. Nor does the state respond to petitioner's argument that
harmless error review of the erroneous reasonable doubt instruction deprives
petitioner of his Sixth Amendment right to a trial by jury. Rather than directly

confronting the issue, the state attempts to focus on a footnote discussion

1

concerning the proper phrasing of the standard for determining erroneous jury

instructions. This discussion has no bearing on the question presented here,

whether an admittedly erroneous reasonable doubt instruction may be harmless.1/

There can be no doubt that the instruction on reasonable doubt in this case

was erroneous. When petitioner argued below that his trial was tainted by a

constitutionally erroneous reasonable doubt instruction prohibited by Cage, the state

conceded the point in its brief on direct appeal. The Louisiana Supreme Court,

reviewing the instruction after the issuance of McGuire, unqualifiedly held that the

instruction was constitutionally improper. See Louisiana v. Sullivan, 596 So. 2d
177, 185 (La. 1992). The state did not petition or cross-petition this Court for review,

nor even petition the Louisiana Supreme Court for rehearing, on the basis that an

allegedly erroneous standard was used in analyzing petitioner's reasonable doubt

instruction, or that there was any other argument that the instruction was not

constitutionally improper. More to the point, the instruction in this case is

essentially the same as that found erroneous by a unanimous Court in Cage. There

is, therefore, no question whether giving the instruction was error.

1/

Louisiana reads entirely too much into footnote 4 of Estelle v. McGuire, 112
S. Ct. 475 (1991). In that fou note, this Court explains that the “different
phrasings” in its recent cases evaluating jury instructions “might be read as
endorsing a different standard,” and merely disapproves of the specific

used to describe the standard in Cage v. Louisiana, 111 S. Ct. 328
(1990) (per curiam), and Yates v. Evatt, 111 S. Ct. 1884 (1991). McGuire, 112 S.
Ct. at 482 n.4. Nothing in the footnote or in the rest of the Court's opinion in
McGuire, however, questions in any way this Court's unanimous holding
that the reasonable doubt instruction used in Cage-and also here-was
unconstitutional.

2

The state's McGuire argument is merely a red herring, attempting to distract
the Court from the sole question squarely presented in this case: given a
constitutionally deficient reasonable doubt instruction, may the error ever be
deemed harmless? In that respect, this case is similar in procedural posture to the
situation this Court faced in Yates; there, the state supreme court had conceded that
the instructions were unconstitutional and the respondent did not challenge *hat
conclusion. Yates, 111 S. Ct. at 1890. Accordingly, this Court considered only
whether the erroneous instructions there at issue could be subject to harmless error
analysis under Chapman. The reasonable doubt instruction here, already held
erroneous by this Court in Cage and by the Louisiana Supreme Court below, calls for
a similarly focused inquiry.

Once the focus is centered on the pending issue, Louisiana's only argument
goes to the merits of the question presented: it does not question the importance of
having it answered. The state argues that an unconstitutional reasonable doubt
instruction, like most errors occurring during criminal trials, is subject to harmless
error analysis as set forth in Chapman v. California, 386 U.S. 18 (1967). It bases this
contention on this Court's decisions that various other erroneous jury instructions
are “trial” errors subject to harmless error analysis. This conclusion, however,
ignores this Court's language in Jackson v. Virginia, 443 U.S. 307 (1979), and other
cases that a jury instruction on the reasonable doubt standard is "an essential of the
due process guarantee," the deprivation of which "can never be harmless error." Id.
at 316, 320 n.14. Louisiana also fails to consider the unique nature of the reasonable

doubt instruction, which differs from most other jury instructions because it affects
the framework of the trial itself by providing the jury the standard with which to
evaluate the evidence. As such it is a structural element, not subject to harmless
error analysis under Arizona vy. Fulminante, 111 S. Ct. 1246, 1265 (1991). The
instruction also provides an essential safeguard so that the trial can “reliably serve
its function as a vehicle for determination of guilt or innocence,” id. (quoting Rose
y. Clark, 478 U.S. 570, 577-78 (1986)), and thereby “command the respect and
confidence of the community." In Re Winship, 397 U.S. 358, 364 (1975). As this
Court pointed out in Rose, any error affecting the fundamental fairness of a trial is
not subject to harmless error analysis. Rose, 478 U.S. at 577.2/

The application of harmless error analysis to an unconstitutional reasonable

doubt instruction also violates petitioner's Sixth Amendment right to a jury trial, a

2/ Louisiana does not address petitioner's argument that the Louisiana Supreme
Court did not actually apply the Chapman test. As Justice Dennis observed in
assent, see 596 So. 2d at 193 (Dennis, J., dissenting), the court applied what
amounts to a Jackson vy. Virginia sufficiency of the evidence test, a test which
is much more deferential to the state. See 443 U.S. at 319. If the court had
applied the proper test, it could not have found the error harmless. Louisiana
does not directly dispute petitioner's statement of the exculpatory facts in this
case, which it had an obligation to do under Supreme Court Rule 15.1 if it
perceived any misstatements. The state's case was based on the testimony of a
fully immunized accomplice and an impeached eyewitness who could not
make an identification after the crime and who admitted she did not see the
shooting. The only physical evidence was circumstantial and did not tie the
petitioner to the scene of the crime. It is especially in these types of cases,
where identity and credibility issues predominate, that an erroneous
reasonable doubt instruction cannot be harmless. See Monk v. Zelez, 901 F.2d
885 (10th Cir. 1990) (per curiam); Lanigan v. Maloney, 853 F.2d 40 (ist Cir.
1988); Massachusetts v. Garcia, 399 N.E.2d 460 (Mass. 1980); United States v.
Pinkney, 551 F.2d 1241 (D.C. Cir. 1976). An examination of the record leaves
room for reasonable doubt; the erroneous instruction was not harmless here.

4

point the state does not even contest in its response. The constitutional right to a
trial by jury reflects a fundamental decision about the state's exercise of power. For
an appellate court to assess harmless error, it would have to make post hoc
determinations of credibility «fact. This would usurp the factfinding function
allocated solely to the jury. -%% |. stice Scalia points out in his concurring opinion in
Carella v. California, 491 U.S. . 5, 267 (1989), "the question is not whether guilt may
be spelt out of a record, but whether guilt has been found by a jury according to the
procedure and standards appropriate for criminal trials." Id. at 269 (Scalia, J.,
concurring) (quoting Bollenbach v. United States, 326 U.S. 607, 614 (1946)).

The state also does not dispute that this Court's intervention is necessary to
resolve a conflict in the other state courts and lower federal courts. As explained in
petitioner's brief, several states and circuits have addressed this issue and the
jurisdictions are split as to whether harmless error applies. Indeed, since petitioner
prepared his petition for certiorari, North Carolina has joined the ranks of those

states applying harmless error analysis to an erroneous reasonable doubt

instruction. North Carolina v. Montgomery, 417 S.E.2d 742, 751 (N.C. 1992). Both
defendants and prosecutors have previously petitioned the Court for review on this

recurring issue concerning the scope of an accused's constitutional rights, which is
ripe for review and definitive answer now.

Louisiana's final argument against granting review, the “floodgates”
contention, is also unavailing. As this Court is aware, petitioner cannot be required
to pay the price for the state's failure to provide a fair trial that comports with the

Constitution's demands. Furthermore, since this is a case in which petitioner may
still be sentenced to death, all possible doubts should be resolved in his favor.
Satterwhite v. Texas, 486 U.S. 249, 258 (1988). If there are indeed, as Louisiana
suggests, several states that have been utilizing unconstitutional jury instructions
on reasonable doubt, this Court, in the interests of judicial economy and uniformity,
should take this opportunity to resolve this important issue now, rather than
allowing it to linger without definitive answer.

In any event, the state's concerns are overstated. The number of defendants
who would be affected by a decision by this Court is limited by Louisiana's
contemporaneous objection rule3/ and retroactivity principles4/ Moreover, as
Justice Dennis points out in his dissenting opinion below, the use of this instruction
has not been pervasive in Louisiana since similar instructions were held
unconstitutional in the past.2/ 596 So. 2d at 193 (Dennis, J., dissenting) ("only a few
[judges] mistakenly or obstinately” have used this instruction (emphasis in
original)). In raising its "fairness" concerns, Louisiana certainly could not have
intended to imply that, by repeatedly using this unconstitutional instruction, its trial
courts have insulated themselves from this Court's review.

3/ Louisiana courts will not review a jury instruction error on direct appeal
unless a contemporaneous objection was made at trial or unless the case is a
death penalty case. La. Code Crim. Proc. Ann. art. 905.9 (West 1976).

4/ Petitioner's case is still on direct review. See Petition for Certiorari at 4 n.3, 12
n.9.

8/ See, e.g., Louisiana v. Vessell, 450 So. 2d 938 (La. 1984); Louisiana v. McDaniel,
410 So. 2d 938 (La. 1982); Louisiana v. Mack, 403 So. 2d 8 (La. 1981).

6

This case cleanly presents the issue of whether a constitutionally deficient
reasonable doubt instruction is subject to harmless error analysis. The right to be
~ found guilty only if the jury so finds beyond a reasonable doubt is a fundamental
constitutional safeguard in the structure of a criminal trial and, as such, its
deprivation should not be subjected to harmless error analysis under this Court's
opinions. Petitioner urges the Court to grant the Writ of Certiorari.

Dated: October 1, 1992 Respectfully submitted,

nian . Keys! (by ma)

William J. Keppel
Counsel of Record

Michael J. Wahoske

Christopher J. Riley

Tamara J. Byram

Karen A. Fairbairn

DORSEY & WHITNEY
220 South Sixth Street
Minneapolis, Minnesota 55402
Telephone: (612) 340-2600

John Wilson Reed

GLASS & REED
338 Lafayette Street
New Orleans, Louisiana 70130
Telephone: (504) 581-7635

Attorneys for Petitioner

AFFIDAVIT OF SERVICE BY U.S, MAIL
(SUP. CT. RULE 29.5(c))

STATE OF MINNESOTA

}
) $s
COUNTY OF HENNEPIN }
Mark P. Lindberg, being first duly sworn on oath, deposes and states as
follows:

1. That on the [s+_ day of October, 1992, he did send by United States
mail, pursuant to Supreme Court Rule 29.3, an envelope properly sealed and with
first class postage prepaid to:

Jack Peebles, Esq.

Assistant District Attorney

619 S White ST

New Orleans LA 70119

(504) 822-2414

Attorney for Respondent State of Louisiana

one copy of Petitioner John L. Sullivan's Reply Brief in Support of Petition For A
Writ Of Certiorari.

2. All parties required to be served have been served.

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Subscribed and sworn to before me
this _«? day of October, 1992.

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MINNEAPOLIS

DoRSEY & WHITNEY

A PaeTwaesnir incivoino Peorassions: Comporations

1330 CONNECTICUT AVENUE, N. W.
SUITE 200

MINNESOTA OFFICE

a WASHINGTON, D. C. 20036 ROCHESTER
ve apn tera MONTANA OFFICES
LONDON TELECOPIER (202) 857-0569 BILLINGS

GREAT FALLS
—— gy Ft MISSOULA
IOWA OF FICE
BRUSSELS DES MOINES
October 1, 1992
‘ “ciVecv

Clerk of the Court SUPT” me COU AV U.S.

Supreme Court of the United States POLIG 2 Drea TENT

One First Street, N.E.

Washington, D.C. 20543 of OCT 01 1992 cr

«re
Re: State of Louisiana vs. John L. Sullivan ig 10,14)12) 1:2 gt \5:6
No. 92-5129, October Term, 1992 cantata ideas

Dear Clerk:

Enclosed is one copy of the Petitioner's Reply Brief in Support of
Petition for A Writ of Certiorari in the above matter.

One copy of this document have been served upon Jack Peebles,
counsel for respondent. Also enclosed is a certificate of service pursuant to
Supreme Court Rule 29.5(c).

Thank you very much for your assistance with this matter.

Sincerely,
Mark P. Lindberg
MPL:ps

Enclosures
cc: Jack Peebles, Esq.

Clerk of U.S. Supreme Court
October 1, 1992

Page 2

Jack Peebles, Esq.

Assistant District Attorney
619 S White ST

New Orleans LA 70119

John W. Reed, Esq.
Glass & Reed

338 Lafayette ST

New Orleans LA 70130

Karen A. Fairbairn, Esq.
Holiday Companies

P. O. Box 1224

4567 W 80th ST
Minneapolis MN 55440

DorsEY & WHITNEY

---

Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385013_0410%3A04. Public record. Not legal advice.