Amicus Curiae Brief — Rogers v. Tennessee

, Supreme Court, U.S.

‘$) FILED

AUG 7 2000

No. 99-6218

In The

Supreme Court of the United States

¢

WILBERT K. ROGERS,

Petitioner,

VS.

STATE OF TENNESSEE,

Respondent.

¢

On Writ Of Certiorari

To The Supreme Court Of Tennessee

6

BRIEF OF AMICUS CURIAE, TENNESSEE

ASSOCIATION OF CRIMINAL DEFENSE

ATTORNEYS, IN SUPPORT OF THE PETITIONER

¢

Pauta R. Voss,

Counsel of Record for Amicus Curiae

TENNESSEE ASSOCIATION OF

CRIMINAL DerenseE LAWYERS

1209 Euclid Avenue

Knoxville, TN 37921

Telephone: (865) 594-6120

COCKLE LAW BRIEF PRINTING CO., (800) 225-6964

OR CALL COLLECT (402) 342-2831

\ 0

‘

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QUESTION PRESENTED FOR REVIEW

Whether the retroactive application of a judicial abol-

ishment of the substantive rule of criminal law known as

the “year-and-a-day rule” to an assault committed five

years prior to that abolishment violates the Fourteenth

Amendment of the United States Constitution?

ii

TABLE OF CONTENTS

Page

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Interest of Amicus Curiae ............. 00000 e eens 1

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Summary of the Argument ................55500065 3

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1. The Fourteenth Amendment's guarantee of due pro-

cess of law was violated by the retroactive applica-

tion of the Tennessee Supreme Court's abolition of

common law “year-and-a-day rule.”.............. 6

2. This case requires an extension of the principles

regarding the retroactive application of judicial

decision-making set forth in Bouie v. Columbia to

other circumstances in which the ex post facto

laws would bar the same action by a legislative

SE GESRGEGRDASESESC ee oes rereesecscacceceeces 11

iii

TABLE OF AUTHORITIES

Page

CASES:

Bouie v. City of Columbia, 378 U.S. 347 (1964)

eben badadbeetennedeanseceseseecessses 4, 6, 7, 11, 13, 14

Brinkerhoff-Faris Trust & Sav. Co. v. Hill, 281 US.

I 6400 66004000060600000 <600n0senceesscees 11

Calder v. Bull, 3 Dall. 386 (1798) ............ 5, 8, 10, 12

Carmell v. Texas, __ U.S. ___, 120 S.Ct. 1620 (2000) .... 10

Davis v. Davis, 657 S.W.2d 753 (Tenn. 1983)........... 8

Dupuis v. Hand, 814 S.W.2d 340 (Tenn. 1991) ......... 8

Ford Motor Co. v. Lonon, 398 S.W.2d 240 (1966)....... 8

Frank v. Magnum, 237 U.S. 309 (1915) ............45. 11

Hanover v. Ruch, 809 S.W.2d 893 (Tenn. 1991)......... 8

Kilbourne v. Hanzelick, 648 S.W.2d 932 (Tenn. 1983) ..... 8

Louisville, Evansville & St. Louis R.R. Co. v. Clarke,

Se Ce EP Ec cecencoccccsscccccecceccecenses 6

Marks v. United States, 430 U.S. 188 (1977)........... 12

Miller v. Florida, 482 U.S. 423 (1987).............045. 12

Miller v. State, 584 S.W.2d 758 (Tenn. 1979)........... 5

Percer v. State, 103 S.W. 780 (Tenn. 1907) ............. 7

State v. Rogers, 1997 WL 642309 (Tenn. Crim. App) ..... 2

State v. Rogers, 992 S.W.2d 393 (Tenn. 1999) ..... passim

State v. Ruane, 912 S.W.2d 766 (Tenn. Crim. App.

EPPO TTTTTTTT TTT TTT TTT TTT TTT Terre 9

iv

TABLE OF AUTHORITIES

Page

CONSTITUTIONAL PROVISIONS:

U.S. Const. Amend. XIV § 1............. 2, 3, 6, 11, 14

Wee, GE, GE, SE Oe cccvcccvctsentncdiccccaccadus 8

STATUTES:

Tenn. Code Ann. § 17-4-114 (1994) .................. 12

Tenn. Code Ann. § 39-11-104 (1997)................. 14

OTHER AUTHORITIES:

John Gibeaut, “Taking Aim,” ABA Journal, Vol. 82,

Pe Ws 6t0nbsGavesdncdtauasndsacasionhencieuas 13

BRIEF OF AMICUS CURIAE,

TENNESSEE ASSOCIATION OF

CRIMINAL DEFENSE LAWYERS

¢

STATEMENT OF THE INTERESTS OF

AMICUS CURIAE

The Tennessee Association of Criminal Defense Law-

yers (TACDL) files this amicus curiae brief pursuant to

Supreme Court Rule 37.3(a), in support of the Petitioner,

Wilbert Rogers. Consent was granted by W. Mark Ward,

counsel for the Petitioner, and Michael E. Moore, Solicitor

General for the State of Tennessee. The required letters of

consent are filed with this brief.

The Tennessee Association of Criminal Defense Law-

yers was incorporated in 1973 as a nonprofit organization

and currently has seven hundred and twenty members.

Its purpose is to provide education, training and support

to lawyers who represent citizens of the State of Tennes-

see accused of crimes. The Association advocates a fair

and effective criminal justice system in the courts, the

legislature and wherever justice demands. One of the

stated purposes of the organization is to protect and

insure, by rule of law, those individual rights guaranteed

by the constitutions of the United States and the State of

Tennessee.

The question presented by this appeal is one which

affects all citizens of the State of Tennessee, not just the

named petitioner. The Tennessee Supreme Court's action

in this case constitutes a marked departure from any

prior, established practice. Its retroactive application

denied the citizens of this State fair notice of the state of

the law, thus jeopardizing their rights to the fundamental

fairness and due process guaranteed by the Fourteenth

Amendment. The Tennessee Association of Criminal

Defense Lawyers is concerned that this decision could

significantly alter the ability of the criminally accused of

this state to rely on the substantive laws in effect at the

time of the commission of a crime, and concerned that a

failure to expand the holding of Bouie to actions of this

nature will result in further erosion of those important

constitutional rights. For this reason, TACDL respectfully

files this brief, in support of Mr. Rogers’ arguments.

°

STATEMENT OF THE CASE

On May 7, 1994, the petitioner, Wilbert K. Rogers,

assaulted the victim, stabbing him with a butcher knife.

He was indicted on August 9, 1994, and charged with

attempted first degree murder. The victim lingered in a

coma for approximately sixteen months until his death in

August of 1995. On September 12, 1995, a new indictment

was returned by the Grand Jury of Shelby County, Ten-

nessee, charging him with first degree murder.

Following a jury trial, Mr. Rogers was convicted of

the lesser included offense of second degree murder and

received a sentence of thirty-three years. On appeal to the

Tennessee Court of Criminal Appeals, the petitioner

argued the conviction could not stand because of the

common law year-and-a-day rule, which provided that a

citizen could not be charged with murder if death

occurred more than a year and a day after the initial

assault. State v. Rogers, 1997 WL 642309 (Tenn. Crim. App.

a>

-—- —

1997). The intermediate appellate court denied relief,

holding that the year-and-a-day rule had been abolished

by the Tennessee State Legisiature in 1989, when it

recodified the criminal code. The Court of Criminal

Appeals reasoned that the year-and-a-day rule was a

common law defense, and the failure of the Legislature to

list it as an affirmative defense in the new code resulted

in its abolition.

On appeal to the Tennessee Supreme Court, the wer-

dict and sentence were upheld, but on different grounds.

State v. Rogers, 992 S.W.2d 393 (Tenn. 1999). The Tennessee

Supreme Court ruled that the year-and-a-day rule was

not a common law defense, and was not abolished by the

Legislature in 1989. The state conceded that it was a

substantive element of the crime of murder. The Supreme

Court found no justification for continuing to require the

application of the year-and-a-day rule in the face of

advances in modern medicine, however, and judicially

abolished the rule.

The subject of this appeal, however, and the concern

of amicus curiae, is not the abolition of the year-and-

a-day rule by the Tennessee Supreme Court, but its retro-

active application of the abolition to a crime which

occurred almost five years to the day before the Supreme

Court’s pronouncement of its removal from the laws of

the State of Tennessee.

SUMMARY OF THE ARGUMENT

The Fourteenth Amendment’s guarantee of due pro-

cess of law was violated by the retroactive application of

the Tennessee Supreme Court's abolition of the common

law “year-and-a-day rule” in this case. This Court ruled,

in Bouie v. City of Columbia, 378 U.S. 347 (1964), that courts

should not be permitted to do by judicial action, what

legislatures are forbidden to do by ex post facto consider-

ations. Although Bouie dealt with the judicial interpreta-

tion of a statute, the same considerations should apply

when a court judicially abolishes a common law doctrine

favorable to a defendant and applies it retroactively to

convict him of a much greater crime than that for which

he could otherwise be punished.

In Mr. Rogers’ case, the Tennessee Supreme Court

did not properly apply Bouie in making the decision on

retroactive application. They cited the law of other states

as their primary support for a finding that their action

was not “unforeseeable” to the citizens of Tennessee, a

practice specifically criticized in Bouie. Id. at 359. They

gave little effect to the fact that the doctrine was well

established in Tennessee, and had not been overturned,

either by judicial or legislative action. Instead, they

pointed to a failure of the appellate courts to cite fre-

quently to the cases which recognized the doctrine, and

language in a lower court decision, issued more than a

year after the initial attack on this victim, which indicated

a 1989 criminal code revision may have abolished it as a

common law defense. Rogers, 992 S.W.2d at 402.

The abolition of the year-and-a-day rule was

unforeseeable and constituted a substantial departure

from the prior status of the common law in effect at the

time of the commission of the crime in this case. Despite

the Supreme Court’s statement that the retroactivity of

their action “does not allow the State to obtain a convic-

tion upon less proof, nor does its abolition impose crimi-

nal sanctions for conduct that was heretofore innocent,”

Rogers at 402, there is no analysis of those contentions,

and nothing in the record to support such a finding. In

fact, the action of the Court in Mr. Rogers’ case would

have violated all of the prohibitions against ex post facto

laws if done by a legislative body. Calder v. Bull, 3 Dall.

386 (1798), Rogers at 402, citing State v. Pearson, 858

S.W.2d 879, 881 (Tenn. 1993); Miller v. State, 584 S.W.2d

758, 761 (Tenn. 1979) (adopting the categories identified

in Calder and stating that “every law which, in relation to

the offense or its consequences, alters the situation of a

person to his disadvantage” constitutes an ex post facto

law).

Of great concern to amicus curiae is the fact that the

Supreme Court justified its action by reliance on cases

involving civil common law, which tenets do not take into

consideration the rights of the criminally accused, or the

requirements of due process of law in a criminal setting.

The opinion also appears to require the citizens of Ten-

nessee to become learned in the law of all the states of

this nation in order to “foresee” whether or not the

criminal laws of this state might be changed, without

prior notice from its own courts or state legislature.

Finally, the implications of permitting the highest Court

of the State to single out individual citizens for retroac-

tive treatment, another action not legislatively permitted

under the ex post facto laws, should be given great con-

sideration by this Court, and the conviction for murder

should be reversed.

ARGUMENT

The Tennessee Supreme Court reversed a hundred

years of common law precedent in this case, and gave it

retroactive application so as to deprive Wilbert Rogers of

his right to rely on a principle of law which existed at the

time his crime was committed. It did so by judicially

abolishing the well established common law requirement

that a death occur within a year and a day of the initial

assault to constitute a murder. The action of the Supreme

Court was not based on any valid precedent, thus its

application to Mr. Rogers violated the Fourteenth

Amendment’s due process requirements of fair warning

and fundamental fairness and constituted an unforesee-

able change in the law which should not have been

applied retroactively. Bouie v. City of Columbia, 378 U.S.

347 (1964). This case also requires an extension of the

principles regarding the retroactive application of judicial

decision-making set forth in Bouie to other circumstances

in which the ex post facto laws would bar the same action

by a legislative body.

1. The Fourteenth Amendment's guarantee of due pro-

cess of law was violated by the retroactive applica-

tion of the Tennessee Supreme Court's abolition of

common law “year-and-a-day rule.”

The Tennessee Supreme Court noted in its opinion

that the year-and-a-day rule was an ancient concept dat-

ing back to at least the thirteenth century. It was recog-

nized by the United States Supreme Court as early as

1894, Louisville, Evansville & St. Louis R.R. Co. v. Clarke,

152 U.S. 230 (1894), and cited in Tennessee case law as an

established principle of common law in 1907. Percer v.

State, 103 S.W. 780 (Tenn. 1907). The Court found the rule

was not an affirmative defense to a charge of murder, but

“even more powerful than a defense because it entirely

precludes a murder prosecution.” State v. Rogers, 992

S.W.2d 393, 400 (Tenn. 1999). The Court also agreed with

petitioner that this important element had not been abol-

ished by a sweeping revision of the criminal codes by the

Tennessee Legislature in 1989. Id. at 400.

The Court found, instead, that this common law prin-

cipal had outlived its usefulness and “advances in medi-

cal science, improved trial procedure, and sentencing

reform have eroded the reasons originally supporting the

common law year-and-a-day rule.” Id. at 401. Based pri-

marily on case law from other states which had previ-

ously abandoned the rule, the Court declared its intention

to abolish it in Tennessee, as well. The Court then found

there would be no due process violation in applying the

abolition of the law retroactively to Mr. Rogers’ case

because their action was not unforeseeable. Their deci-

sion with regard to foreseeability was based on: 1) the

abolition of the rule by other states, 2) language from a

lower court opinion issued after the initial attack in this

case, 3) the failure of the 1989 code revision to incorpo-

rate the doctrine into the new statutory scheme, and 4) an

unsupported opinion that retroactive application would

not violate certain of the ex post facto rules which apply

to legislative actions. Id. at 402.

The Court’s opinion is internally inconsistent, incon-

sistent with the laws of Tennessee and inconsistent with

the law established by this Court in Bouie. Despite the

Court’s statement to the contrary, reliance on the factors

set forth above to support a retroactive application of the

abolition of a common law doctrine are not supported by

the legal precedent of this state. The Court noted it has

“not hesitated to abolish obsolete common-law doc-

trines,” and recognized “a special duty to do so where it

is the Court, rather than the Legislature, which has recog-

nized and nurtured the common law rule,” citing to

Dupuis v. Hand, 814 S.W.2d 340, 345 (Tenn. 1991) (abolish-

ing the tort of alienation of affection). Dupuis, in turn

cites to Hanover v. Ruch, 809 S.W.2d 893 (Tenn. 1991)

(abolishing the tort of criminal conversation); Kilbourne v.

Hanzelick, 648 S.W.2d 932, 934 (Tenn. 1983) (abolishing

discriminatory rule denying liability of wife for support

of husband); Davis v. Davis, 657 S.W.2d 753, 758 (Tenn.

1983) (abolishing interspousal tort immunity doctrine);

and Ford Motor Co. v. Lonon, 217 Tenn. 400, 398 S.W.2d 240

(1966) (abolishing privity requirement in strict tort).

Rogers at 400.

The cases cited above are all civil cases, however, in

which tenets of the civil common law were abolished. It

has long been recognized that civil matters are not subject

to the strictures of the ex post facto laws. Calder v. Bull, 3

Dall. 386 (1798). The cases cited by the Court did not rely

on ex post facto principles, or the concept of due process,

but rather on the provision against “retrospective laws”

found in Art. I, Sec. 20 of the Tennessee Constitution. The

standard for retroactive application in such cases is

clearly different from those which apply to criminal cases

and should not be cited as support for these actions.

Hanover, supra at 896. In fact, the Tennessee Supreme

Court does not appear to have ever acted to abolish a

tenet of common law doctrine in the criminal context,

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thus it cannot be said that this action was foreseeable to

the citizens of Tennessee.

Other reasons given by the Court to support retroac-

tive application also fall short of proving that a change in

the law was foreseeable to the average citizen of Tennes-

see. The Court speculated that the infrequency with

which the year-and-a-day rule had been cited by the

appellate courts supported a finding that it was obsolete

and little used in the state. Rogers at 396. In fact, it is more

indicative of the fact that cases in which the victim did

not die within a year-and-a-day were not charged as

murder cases, but rather as lesser charges, as the doctrine

requires. Nor should an intermediate appellate court

opinion issued in 1995 be considered adequate notice to

Mr. Rogers that the year-and-a-day rule was subject to

change. This opinion was issued more than a year after

the initial attack occurred. State v. Ruane, 912 S.W.2d 766,

774 (Tenn. Crim. App. 1995). Ruane merely noted that the

“defense” of the year-and-a-day rule may have been

abrogated by the 1989 revisions to the Tennessee criminal

code. The accuracy of this finding was subsequently dis-

avowed by the Supreme Court in Mr. Rogers’ own case,

where it was noted the doctrine was not a defense, and

could not have been abolished by the code revisions in

any case. Rogers at 400. It is unfair for the Court to say the

faulty rationale of the lower court, issued long after the

commission of the crime, put this petitioner on notice of a

pending change in a century old tenet of the common

law. Likewise, the Court’s allegation that the failure of

the 1989 code revision to mention the doctrine lacks

persuasion. The year-and-a-day rule was never codified,

10

and again according to the Rogers opinion, could not have

been abolished by the Legislature. Rogers at 400.

Although “emphasizing” that “abolition of the rule

does not allow the State to obtain a conviction upon less

proof, nor does its abolition impose criminal sanctions for

conduct that was heretofore innocent,” Rogers at 402, the

Court provided no analysis for those contentions, and

nothing in the record supports such findings. In actuality,

the Court removed the State’s burden of proving a previ-

ously required element of the offense, clearly a lesser

evidentiary standard for the State. Carmell v. Texas, __

U.S. __, 120 S.Ct. 1620, 1627 (2000). It also increased the

crime for which Mr. Rogers was accountable from

attempted murder to first degree murder. Thus, although

it may not have imposed a criminal sanction on previ-

ously “innocent” behavior, it certainly violated two other

standards established in Calder by creating “a law which

aggravates a crime or makes it greater than when it was

committed” or “a law that changes punishment or inflicts

a greater punishment than the law annexed to the crime

when it was committed.” These are clearly actions which

the Tennessee Legislature would not be permitted to

enact under either the state or federal ex post facto rules,

and there is absolutely no rationale for permitting an

identical encroachment on the due process rights of the

citizen accused in Tennessee under the auspices of retro-

active judicial action.

The Tennessee Supreme Court overruled a consistent

line of procedural decisions and a long established tenet

of common law, and gave it retroactive effect, depriving

Mr. Rogers of due process of law “in its primary sense of

-o-o« oe oo

11

an opportunity to be heard and to defend (his) substan-

tive right.” Brinkerhoff-Faris Trust & Sav. Co. v. Hill, 261

U.S. 673 (1930). This unforeseeable state court construc-

tion of a criminal statute, applied retroactively, deprived

the petitioner of fair warning that his contemplated con-

duct would constitute a greater crime than it would have

in the past. Bouie at 1703. If the actions of this state’s

highest court are permitted to stand in this case, further

arbitrary, retroactive applications of this nature can be

expected, and neither defendants, nor counsel, will be

able to predict in advance what actions might be pun-

ished, or what the punishment for one’s actions might be.

2. This case requires an extension of the principles

regarding the retroactive application of judicial

decision-making set forth in Bouie v. Columbia to

other circumstances in which the ex post facto laws

would bar the same action by a legislative body.

The Bouie decision applied the rationale of the ex

post facto laws, generally recognized as being applicable

only to actions of a legislature, Frank v. Magnum, 237 US.

309 (1915), to the retroactive application of a court’s

statutory interpretation. The same evils which arise when

a legislative body changes the laws after the commission

of a crime, exposing a defendant to greater punishment,

or to the criminalization of act‘ons which were not crimi-

nal at the time, were found offensive to the Due Process

provision of the Fourteenth Amendment when accom-

plished by judicial action. Bouie involved the judicial

interpretation of a narrowly written statute which

enlarged the activities subject to criminal penalty beyond

previous interpretations by the state courts. Marks v.

a

12

United States, 430 U.S. 188 (1977). The harm the Court

sought to protect in Bouie was the failure of the state to

provide fair warning to its citizens that the law would be

applied in such a fashion before applying it retroactively.

Due process concerns also parallel other aspects of

the ex post facto provisions. One important reason for

these laws was to ensure legislative enactments would

“give fair warning of their effect and permit individuals

to rely on their meaning until explicitly changed.” Weaver

v. Graham, 450 U.S. 24, 28-29 (1981); Calder at 388; Miller v.

Florida, 482 U.S. 423, (1987). Another reason the Ex Post

Facto Clauses were included in the Constitution was to

assure that federal and state legislatures were restrained

from enacting arbitrary or vindictive legislation and pre-

venting legislative abuses. Calder at 389. The obvious

reason for applying these checks on the legislatures was

the political pressures faced by elected legislators who

need to maintain favor with voters and supporters and

might act against a disenfranchised, unpopular individ-

ual or group of individuals for political gain.

Unlike federal judges, the appellate judges of Tennes-

see, and many other states, are subject to popular elec-

tions for retention. In 1994, the Tennessee Legislature

established the “Tennessee Plan” for the selection and

retention of appellate judges. Tenn. Code Ann. § 17-4-114.

Although nominees for the bench are selected by a bipar-

tisan commission and appointed by the governor, incum-

bents must stand for reelection every eight years. In 1996,

Justice Penny White was removed from the Tennessee

Supreme Court through this process, in large part

because of the public perception, widely publicized

across the state, that she had ruled too advantageously

13

for an appellant charged with an especially heinous

crime. Nor is this politicalization of the judiciary limited

to the state of Tennessee. See, John Gibeaut, “Taking Aim,”

ABA Journal, Vol. 82, Nov. 1996.

Amicus curiae does not contend that any of the jus-

tices on the Tennessee Court acted for political gain, or

any other improper purpose in this, or any other case. Yet

the fact that they must stand for popular election cannot

be ignored, and the need to protect an individual’s rights

to a fair trial and due process of law, and guard against

the undue influence of public opinion, must be given

heightened consideration in view of these recent, public

changes. Because of the requirement that Tennessee’s

judges stand for reelection, the rationale for applying the

same standards required by the ex post facto cases to

their retroactive decision-making is stronger than it might

have been in the past. Differences which might have

arguably existed between the application of a ban against

retroactive law-making on the part of legislatures, and

retroactive interpretation on the part of the judiciary, are

no longer so distinct as to require separate standards of

application.

Likewise, the fact that the action taken by the

Supreme Court in this case is more closely related to

legislative action than to the normal interpretive func-

tions of the Court should be given considerable weight in

determining whether to hold the Court to the strict

requirements of Bouie. The Court itself noted “a special

duty to [abolish obsolete common-law doctrines} where it

is the Court, rather than the Legislature, which has recog-

nized and nurtured the common law rule.” Rogers at 400.

14

Yet the Tennessee Legislature has indicated that the com-

mon law should be used to interpret the current provi-

sions of the criminal code, making the state of the

common law of continuing importance and application.

Tenn. Code Ann. § 39-11-104. The nature of this action, in

and of itself, therefore, adds support to the argument of

amicus curiae that Bouie should be broadened to preserve

due process of law in similar circumstances.

The Tennessee Association of Criminal Defense Law-

yers respectfully requests that this Court extend the ratio-

nale of Bouie to protect the citizens of this, and every

state, from arbitrary, retroactive applications of judicial

decision-making which create a climate of uncertainty

and the possibility of unfair or vindictive law-making

from the bench. Because these safeguards were not

applied in Mr. Rogers’ case, his conviction must be set

aside.

CONCLUSION

The opinion the Supreme Court of Tennessee in Wil-

bert Rogers’ case should be reversed. The Court's action

was a significant departure from the longstanding com-

mon law and case precedents in this state. As it cannot be

characterized as an expected or anticipated development

in the law, retroactive application of the judicial abolish-

ment of the year-and-a-day rule to Petitioner violated the

Fourteenth Amendment of the United States Constitu-

tion. This case should be remanded to the Supreme Court

15

of Tennessee for a determination as to whether Peti-

tioner’s sentence may be modified to a lesser offense or

whether a new trial is required.

Respectfully submitted,

Pauta R. Voss,

Counsel of Record for Amicus Curiae

TENNESSEE ASSOCIATION OF

CRIMINAL Derense LAWYERS

1209 Euclid Avenue

Knoxville, TN 37921

Telephone: (865) 594-6120