Amicus Curiae Brief — Campbell v. Louisiana

Supreme Court, US.

FILED

NOV 19 1997

Oo)

No. 96-1584

Ee mK

IN THE

Supreme Court of the Anited States

OCTOBER TERM, 1997

TERRY CAMPBELL,

Petitioner,

Vv.

STATE OF LOUISIANA,

Respondent.

On Writ of Certiorari to

the Louisiana Supreme Court

BRIEF OF AMICUS CURIAE NATIONAL

ASSOCIATION OF CRIMINAL DEFENSE LAWYERS

IN SUPPORT OF PETITIONER

JOSHUA L. DRATEL RiCHARD A. GREENBERG

(Counsel of Record) NEWMAN & SCHWARTZ

JOSHUA L. DRATEL. P.C. 950 Third Avenue

14 Wall Street, 28th Floor New York, New York

New York, New York 10005

(212) 732-0707 Counsel for Amicus

National Association of

Criminal Defense Lawyers

Of Counsel

LISA KEMLER

ZWERLING & KEMLER, P.C.

PRESS OF BYRON S. ADAMS # WASHINGTON, D.C. # 1-800-347-8208

pret

THE COURT BELOW ERRED IN

HOLDING THAT PETITIONER

LACKED STANDING TO

ii

Petitioner Has Standing to Challenge

. the Exclusion of Black Grand Jury

Forepersoms ....--0:seererereree

Conclasion ....ccccccccccercccceesseees

TABLE OF AUTHORITIES

CASES

Castaneda v. Partida, 430 U.S. 482 (1977) ........ g

Duncan v. Louisiana, 391 U.S. 145 (1968) ........ 10, 11

Duren v. Missouri, 439 U.S. 357 (1979) .......... 9

Guice v. Fortenberry, 722 F.2d 496 (5* Cir. 1981)... 14

Hobby v. United States, 468 U.S. 339 (1984) ...... 15, 16, 17

Peters v. Kiff, 407 U.S. 493 (1972) ............... 6, 7, 10,

11,17

Powers v. Ohio, 499 U.S. 400 (1991) ............ 8, 14, 15,

17, 18

Rose v. Mitchell, 443 U.S. 545 (1979) ............ 8, 9, 12,

13, 14, 16,

17

Strauder v. West Virginia, 100 U.S. 303 (1880) .... 7

Taylor v. Louisiana, 419 U.S. 522 (1975) ......... 3, 9, 11,

12

iv

United States v. Biaggi, 680 F. Supp. 641

(S.D.N.Y. 1988), aff'd, 909 F.2d 662

(24 Cir.), cert. denied, 499 U.S. 904 (1990) .... 10

United States v. Cronn, 717 F.2d 164

CF” Gib. DEB). oc cvccnccccccccscescscsess 15

United States v. Gerena, 677 F. Supp. 1266

(D. Conn. 1986), aff'd sub nom.

United States v. Maldonado-Rivera,

922 F.2d 934 (2d Cir. 1990),

cert. denied, 501 U.S. 1233 (1991) ........--- 10

United States v. Osorio, 801 F. Supp. 966

(D. Comm. 1992) .......cccececcccccccenes 10

Vasquez v. Hillery, 474 U.S. 254 (1986) ......---. 8,9

STATUTES

Louisiana Code of Criminal Procedure, Article 413 . 16

United States Constitution, Amendment V ........ 11

United States Constitution, Amendment VI ....... 3, 6, 10,

11

United States Constitution, Amendment XIV ...... 6

Rule 37.6, United States Supreme Court Rules ..... 2

Petitioner,

Respondent.

ON WRIT OF CERTIORARI TO

THE LOUISIANA SUPREME COURT

BRIEF OF AMICUS CURIAE

NATIONAL ASSOCIATION OF

CRIMINAL DEFENSE LAWYERS

IN SUPPORT OF PETITIONER

the filing of this brief.’

INTEREST OF AMICUS CURIAE

The National Association of Criminal Defense

Lawyers (NACDL) is a non-profit corporation with a

representation in its House of Delegates.

The NACDL was founded in 1958 to promote

study and research in the field of criminal law; to

disseminate and advance knowledge of the law in the area

of criminal practice; and to encourage the integnity,

independence and expertise of defense lawyers in criminal

cases. NACDL seeks to defend individual liberties

by the Bill of Rights and has a keen interest in

ensuring that legal proceedings are handled in a proper and

fair manner.

Among the NACDL's stated objectives is the

' As required by Rule 37.6 of this Court, amicus

curiae submits the following: no party or party’s

counsel authored this brief in whole or in part; no

person or entity other than amicus curiae, its members,

or its counsel, have made a monetary contribution to the

preparation or submission of this brief.

claim that he possesses standing

to challenge the

systematic exclusion of blacks from the position of grand

jury foreperson in the state of Louisiana even though he i

not a member of the excluded class. ie _

STATEMENT

Amicus adopts petitioner's statement of the case.

SUMMARY OF ARGUMENT

In Taylor v. 41

0979) is Cnn ling at “hon of een

gm Jy eas eves cml eed of

from a fair right to trial by an impartial jury drawn

while “thie fede ne CommnaaltyLT noted thet

SemnGe Judgment may appear a foregone conclusion

_ pattern of some of the Court’s cases over the past

years . . .mo case had squarely held” that such exclusion

constituted a constitutional violation

4

Here, the result is also a “foregone conclusion”

based on what is now more than 50 years of this Court’s

cases, and is open only because the issue has not been

squarely addressed by this Court. Indeed, all of the cases

on the subject of jury venire exclusion support petitioner’s

claim: that an Equal Protection or “fair cross section”

challenge to the systematic exclusion of blacks from the

position of grand jury foreperson in the State of Louisiana

may be instituted by a white defendant.

group. In addition, this Court has extended the principles

of Equal Protection to the composition of the grand jury as

well.

Similarly, this Court has already held that the race

of the defendant is immaterial in the context of a Sixth

Amendment “fair cross section” claim with respect to the

composition of a petit jury. Again, the “fair cross section”

protections have been extended to the grand jury, too.

Thus, all that remains is the application of these

to the position of foreman of the grand jury in

the State of Louisiana, a proposition which this Court has,

in the context of a Tenmessee state court case, already

assumed without deciding. Permitting any defendant,

regardless of his or her race, to institute Equal Protection

fact, the case upon which the Louisiana upreme :

3 S

relied was not even a case involving standing: aie

— involve an Equal Protection or “fair cross section”

Accordingly, amicus respectfully submits that the

decision of the Louisiana Supreme Court

reversed, and Petitioner’s conviction vacated. ccsncten

6

ARGUMENT

I. THE COURT BELOW ERRED IN HOLDING

THAT PETITIONER LACKED STANDING TO

CHALLENGE THE EXCLUSION OF A

PARTICULAR CLASS FROM THE POSITION

OF GRAND JURY FOREPERSON BECAUSE

HE WAS NOT A MEMBER OF THE

EXCLUDED CLASS

As noted above, that the question presented for

review in this case has not been answered directly by this

Court, in light of all of this Court’s decisions addressing

closely related issues, is simply because the precise

question has not been previously considered by this Court.

As detailed below, each of this Court’s opinions in

cases involving closely analogous questions supports the

adoption of petitioner’s position: that under either the

Equal Protection Clause of the Fourteenth Amendment, or

the “fair cross-section” guarantee embodied in the Sixth

Amendment, a defendant possesses standing to challenge

the racial composition of grand jury forepersons regardless

whether the group excluded is of the same race as the

defendant.

In general, the notion that a constitutional claim of

exclusion of a particular class from jury service must be

raised by a defendant who is a member of that excluded

class has been flatly rejected by this Court. In Peters v.

o Os ee ee ee -~

7

Kiff, 407 U.S. 493 (1972), six Justices of this Court found

that a white defendant could raise a claim due to the

exclusion of blacks from both the petit jury and grand jury.

407 U.S. at 498-99, 505-07. ae

Justices Marshall, in an opinion joined by Justices

Douglas and Stewart, stated that “when a grand or petit

jury has been selected on an impermissible basis, the

existence of a constitutional violation does not depend on

the circumstances of the person making the claim.” 407

US. at 498.

The opinion pointed out that any objection to

defendant’s standing “takes too narrow a view of the kinds

of harm that flow from discrimination iu jury selection.”

407 U.S. at 498. Citing Strauder v. West Virginia, 100

U.S. 303, 308 (1880), this Court explained that “the

exclusion of Negroes from the jury service injures not only

defendants, but also other members of the excluded

class(,]” since it “denies the class of potential jurors the

‘privilege of participating equally . . . in the administration

of justice,’. . . and it stigmatizes the whole class{.J”

Justice White, joined by Justices Brennan and

Powell, also expressly allowed the white petitioner in

Peters to “challenge his conviction on the grounds that

Negroes were arbitrarily excluded from the grand jury that

indicted him.” 407 U.S. at 507.

8

A. Petitioner Has Standing to Make

An Equal Protection Challenge

In Castaneda v. Partida, 430 U.S. 482, 492-93

(1977), this Court held that a criminal defendant may

attack a conviction on the ground of an Equal Protection

violation against an identifiable group in the composition

of the grand jury.

Subsequently, in Powers v. Ohio, 499 U.S. 400

(1991), this Court held explicitly that standing to bring an

Equal Protection challenge to the exclusion of a class of

jurors did not require identity between the race of the

defendant and that of the excluded class.

In ruling that a white defendant possessed standing

to object to peremptory challenges exercised against

blacks, this Court described its holding as stating that “race

is irrelevant to a defendant’s standing to object to the

discriminatory use of peremptory challenges.” 499 U.S. at

416.

This Court upheld the defendant’s standing to make

an Equal Protection claim in Powers “because racial

discrimination in the selection of jurors ‘casts doubt on the

integrity of the judicial process,’ Rose v. Mitchell, 443 U.S.

545 [ ] (1979), and places the fairness of a criminal

proceeding in doubt.” 499 U.S. at 411.

Likewise, in Vasquez v. Hillery, 474 U.S. 254

9

(1986), this Court reaffirmed that the principles of Equal

Protection apply in the grand jury with the same force as

ee “ at tal. See also Rose v. Mitchell, supra, 443 U.S.

at 556.

Accordingly, it is the clear mandate of this Court

that a defendant need not be of the same race as the

excluded class to possess standing to institute an Equal

Protection challenge to the exclusion of that class from

grand jury service.

B. Petitioner Has Standing to Make

A “Fair Cross Section” Challenge

The same is true with respect to a claim made

pursuant to the constitution’s “fair cross section”

guarantee. In Taylor v. Louisiana, supra, and again in

Duren v. Missouri, 439 U.S. 357 (1979), this Court held

that “[a] criminal defendant has standing to challenge

exclusion resulting in a violation of the fair-cross-section

requirement, whether or not he is a member of the

excluded class.” 439 U.S. at 359 n 1, citing Taylor, 419

U.S. at 526.

> Pe. Taylor, the Court pointed out that “there is no

e claims such as [the defendant) presents may be

made only by those defendants who are members of the

group excluded from jury service.” 419 U.S. at 526. Thus,

in both Taylor and Duren, a male defendant had standing

to challenge the exclusion of women from a petit jury.

10

Also, as is the case with the Equal Protection

clause, the “fair cross section” guarantee applies in the

grand jury as well. See United States v. Osorio, 801 F.

Supp. 966, 972-74 (D. Conn. 1992); United States v.

Biaggi, 680 F. Supp. 641, 653-55 (S.D.N-Y. 1988), aff'd,

909 F.2d 662 (2d Cir.), cert. denied, 499 U.S. 904 (1990);

United States v. Gerena, 677 F. Supp. 1266, 1272 (D.

Conn. 1986), aff'd sub nom. United States v. Maldonado-

Rivera, 922 F.2d 934, 970 (2d Cir. 1990), cert. denied, 501

U.S. 1233 (1991).

In Biaggi, supra, the District Court noted that

“(a]lthough the sixth amendment’s fair-cross-section test

applies, strictly speaking, only to petit juries, the Supreme

Court has banned, under the due process clause of the fifth

amendment, exclusion of any ‘large and identifiable

segment of the community’ from either grand or petit

juries. 680 F. Supp. at 653, citing Peters v. Kiff, supra,

419 US. at 526.

Indeed, in Peters v. Kiff, supra, while this Court did

not resolve the “fair cross section” issue because m that

case the petitioner’s trial had occurred before the Sixth

Amendment’s petit jury clause was made binding on the

states [via Duncan v. Louisiana, 391 U.S. 145 (1968)}, this

Court did note that

if the Sixth Amendment

were applicable here, and

petitioner were challenging

1]

a post-Duncan petit jury, he

would clearly have standing

to challenge the systematic

exclusion of any

identifiable group from jury

service.

407 U.S. at 500 (footnote omitted).’

The basis for the Court’s conclusion applies with

equal force to grand juries: “the exclusion of a discernible

class from jury service injures not only those defendants

who belong to the excluded class, but other defendants as

well, in that it destroys the possibility that the jury will

+ i a representative cross section of the community.”

Thus, under either the Sixth Amendment, or the

Due Process clause of the Fifth Amendment, the

requirement of a “fair cross section” applies to grand juries.

Otherwise, all of protections afforded in the context of the

composition of a trial jury would be rendered meaningless,

since, as this Court stated in Taylor v. Louisiana, supra,

* In Peters v. Kiff, supra, this Court also noted

that the “fair cross section” evolved from Equal

Protection jurisprudence. 407 U.S. at 500n. 9. Asa

result, logic dictates that the “fair cross section”

guarantee, like the Equal Protection Clause from which

it denved, applies to both petit and grand juries.

12

(c]ommunity participation

in the administration of

criminal law [] is not only

consistent with our

democratic heritage but is

also mitical to public

confidence in the fairness of

the criminal justice system.

419 U.S. at 530.

ee

13

that discrimination with

regard to the selection of

only the foreman requires

that a subsequent conviction

be set aside, just as if the

discrimination proved had

tainted the selection of the

entire grand jury venire.

443 ‘ ‘ t . . . 3

Denying thet val “ enity participation” 3 U.S. at 551 n. 4 (citation omitted).

at the grand jury level, in the form of a “fair cross section,”

is as repugnant as it is in the context of a petit jury. However, the Court did reaffirm its previously

principles, namely that

Cc. Petitioner Has Standing to Challenge the

Exclusion of Black Grand Jury Forepersons

Since, as set forth above, this Court’s prior cases

clearly hold that Petitioner, regardless of his race in

relation to the race of the excluded class, has standing to

institute either an Equal Protection or “fair cross section”

challenge to the grand jury, it remains only to apply that

jurisprudence to the exclusion of blacks from the role of

[b} iasilentionen

the basis of race in the

selection of members of a

grand jury thus strikes at the

fundamental values of our

judicial system and our

society as a whole, the

Court has recognized that a

criminal defendant’s 1m nt

foreperson of a Louisiana state grand jury.

Faced with a challenge by black defendants to the

exclusion of blacks from the position of foreperson of

Tennessee state grand juries, this Court, in Rose v.

Mitchell, supra, noted that it would

* The Court did not have to decide the issue

because it found that petitioners in Rose v. Mitchell

failed to present a prima facie case of discrimination in

violation of the Equal Protection Clause with respect to

the selection of grand jury forepersons. 443 U.S. at 574.

14

to equal protection of the

laws has been denied when

he is indicted by a grand

_ury from which members

of a racial group

purposefully have been

excluded.

443 U.S. at 556

That protection against exclusion includes the

selection of the grand jury foreperson. Indeed, in Guice v.

Fortenberry, 722 F.24 496 (5™ Cir. 1981), the Fifth Circuit

reasoned that “[i]f convictions must be set aside because of

taint of the grand jury, we see no reason to differentiate the

result because discrimination affecting only the foreman.”

722 F.2d at 499. Consequently, the Fifth Circuit granted

the habeas corpus petitions of two defendants because of

the discriminatory selection of grand jury forepersons in

the very same state of Louisiana, Respondent herein.‘

* The result in Guice, and the fact that racial

discrumination in the selection of grand jury forepersons

persists in Louisiana to this day, provides a perfect

illustration of why defendants, regardless of their race,

have standing to challenge the exclusion of identifiable

classes from jury service, since obviously, in the

seventeen years since Guice, the excluded class itself has

not pursued any challenge to the discriminatory practice.

See, e.g., Powers v. Ohio, 499 U.S. at 414-15 (“{ty}he

15

Nor does any decision by this Court hold or even

suggest otherwise.* In fact, the Louisiana Supreme Court’s

reliance on this Court’s decision in Hobby v. United States,

468 U.S. 339 (1984), is completely misplaced, since

Hobby, in which this Court held that discrimination in the

selection of federal grand jury forepersons did not deny the

defendant Due Process, is entirely distinguishable in three

sispositi ‘

(1) Hobby was not a standing case; instead, as

this Court pomted out, “(t]he question

presented . . . is the narrow one of the

appropriate remedy for such a violation{]”

of the proscription against racial

discrimination im the selection of federal

grand jury forepersons, 468 U.S. at 342;

reality is that juror dismissed because of race probably

will leave the courtroom possessing little incentive to set

mm motion the arduous process needed to vindicate his

own rights”) (citation omitted).

* The Fifth Circuit’s decision in United States v.

Cronn, 717 F.2d 164, 169 (5 Cir. 1983), that “equal

protection considerations are not involved in the claim of

a white male not to have females and racial minonities

excluded from the judicial process as it is applied to

him{,]” is, in light of Powers v. Ohio, supra (decided

subsequently), plainly wrong.

(2)

(

“

)

16

the petitioner in Hobby grounded his claim

on the Due Process Clause only, a fact

stressed by this Court, 468 U.S. at 347,

which thereby distinguished Hobby from

the Equal Protection claims raised in Rose

v. Mitchell, supra. Thus, neither the Equal

Protection nor “fair cross section”

guarantees were implicated in Hobby,

this Court’s conclusion in Hobby — that the

post of foreperson in the federal grand jury

“cannot be said to have a significant impact

upon the due process interests of criminal

defendants[,]” id. —- was premised on the

finding that the foreperson in the federal

grand jury possesses merely “ministerial

powers . . . [and] performs strictly clerical

tasks” (in contrast with the substantive role

of the Temmessee state grand jury

foreperson at issue in Rose v. Mitchell,

supra). 468 U.S. at 348. Here, the system

is much more like that in Rose v. Mitchell

than its federal counterpart. Under

Louisiana law, (in parishes other than

Orleans) the foreperson is chosen by the

court from the grand jury venire, and not

from the already empaneled grand jury, as

in federal system. See Louisiana Code of

Criminal Procedure, Article 413. Thus,

since the judge in Louisiana selects a

17

voting member of the grand jury (as the

Tennessee court did in Rose v. Mitchell),

Louisiana’s grand jury forepersons are

governed by the standards applied in Rose

v. Mitchell.®

As a result, Hobby does not in any way defeat

Petitioner’s claim, which is fully consistent with the

principles underlying this Court’s repeated efforts at

eradicating discrimination in jury selection, whether it be

in a petit or grand jury. As this Court stated in Powers v.

Ohio, supra, it has “not questioned the premise that racial

discrimination in the qualification of jurors offends the

dignity of persons and the integrity of the courts.” 499

US. at 402.

In light of that sumple but fundamental principle,

which applies at each stage of selection, and to each juror

* In light of the more substantive role played by

the grand jury forepersons in Louisiana (than that found

insufficient in Hobby), and the position of three Justices

in Peters v. Kiff, supra that grand jury selection was

protected by the Due Process Clause, Petitioner here also

has standing to raise a Due Process challenge to the

discriminatory selection of grand jury forepersons.

However, if the Court sustains Petitioner’s standing

under either the Equal Protection Clause or the “fair

cross section “ guarantee, it need not reach the Due

Process issue.

18

chosen, this Court explained in Powers that “[t]o bar

petitioner’s claim because his race differs from that of the

excluded jurors would be to condone the arbitrary

exclusion of citizens from the duty, honor, and privilege of

jury service.” 499 U.S. at 415.

The same would be true here if the Louisiana

Supreme Court’s decision that Petitioner lacked standing

to challenge the exclusion of blacks from the position of

grand jury foreperson were affirmed. As a result, amicus

respectfully submits that the decision of the Louisiana

Supreme Court must be reversed, and Petitioner’s

conviction vacated.

CONCLUSION

Accordingly, for the reasons set forth above, as

well as for those set forth in Petitioner’s Brief, it is

respectfully submitted that the decision of the Louisiana

ms ein tats

Sle ne eee

19

Supreme Court should be reversed, and petitioner’s

conviction vacated.

Dated: 19 November 1997

New York, New York

lan FY

OSHUA L. DRA

(Counsel of Record)

JOSHUA L. DRATEL, P.C.

14 Wall Street

28" Floor

New York, New York 10005

(212) 732-0707

RICHARD A. GREENBERG

NEWMAN & SCHWARTZ

950 Third Avenue

32™ Floor

New York, New York 10017

(212) 308-7900

Counsel for Amicus Curiae

National Association of

Criminal Defense Lawyers

Of Counsel

Lisa Kemler

Zwerling & Kemler, P.C.