Amicus Curiae Brief — Daniels v. Superior Court of New Jersey, Appellate Division

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IN THE

Supreme Court of the United States

OCTOBER TERM, 1989

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IN THE MATTER OF

JAMES B. DANIELS, an Attorney-at-Law of the

State of New Jersey,

Petitioner,

—_—V.—

SUPERIOR COURT OF THE STATE OF NEW JERSEY,

Respondent.

MOTION FOR LEAVE TO FILE AND BRIEF OF

CENTER FOR CONSTITUTIONAL RIGHTS AS

AMICUS CURIAE 1N SUPPORT OF PETITION FOR

CERTIORARI TO THE SUPREME COURT OF THE

STATE OF NEW JERSEY

*MORTON STAVIS

MAHLON F. PERKINS, JR.

Center for Constitutional Rights

666 Broadway, 7th Floor

New York, New York 10012

(212) 614-6425

Counsel for Amicus Curiae

*Counsel of Record

MOTION FOR LEAVE TO FILE BRIEF

AMICUS CURIAE

The Center for Constitutional Rights

respectfully moves this Court for leave to

file the attached brief amicus curiae in

support of the petition for certiorari.

We have obtained the consent of the peti-

tiorer, and a letter of consent from his

counsel has been forwarded to the Clerk of

the Court under separate cover. We were

unable to obtain the consent of the New

Jersey Attorney General, representing the

respondent Superior Court of the State of

New Jersey.

The petition presents questions of

great importance for defining the consti-

tutional limitations on the summary con-

tempt power. They arise in this case out

of the summary contempt conviction of a

New Jersey public defender for non-verbal

facial expressions which the judge con-

Sidered disrespectful. This conviction of

2

a lawyer for conduct which did not come

close to obstructing the administration of

justice flies in the face of ruling prece-

dents of this court, particularly In re

McConnell, 370 U.S. 230 (1962), which

capped a long history of efforts to check

the unbridled exercise of the contempt

power. Unfortunately, the petitioner's

plight is not an isolated one. Herein

lies the interest of the Center.

Founded twenty-four years ago as an

outgrowth of the civil rights movement in

the South, the Center provides legal sup-

port to individuals and groups whose con-

stitutional rights have been infringed or

denied. In our work we rely not only on

our own staff attorneys but on a network

of cooperating lawyers and law professors

throughout the United States. We often

defend persons who have been prosecuted

for exercising their constitutional

3

rights. The causes we espouse are not

always popular. Out of our own experi-

ence we know how important it is that a

lawyer be free to defend his clients with

vigor, even vehemence, without having to

fear that he may be held in contempt if an

excess of zeal leads him to overstep the

bounds of courtroom propriety.

Because our own attorneys and coop-

erating attorneys have from time to time

been held in contempt, we are sensitive to

the dangers that an untrammeled contempt

power presents for our own work and that

of other public interest organizations

which seek to defend and enlarge constitu-

tional rights. Over the years we have

successfully defended lawyers in a number

of contempt cases, among them In the Mat-

ter of Pilsbury, 866 F.2d 22 (2nd Cir.

1989); United States v. Turner, 812 F.2d

1552 (11th Cir. 1987); In re Dellinger,

4

461 F.2d 389 (7th Cir. 1972); att (e)

Hinds, 90 N.J. 604 (1982). We are cur-

rently representing a professor of law at

the University of North Carolina in his

appeal of a criminal contempt conviction

in a North Carolina state court. -In the

Matter of Barry Nakell, North Carolina

Court of Appeals, No. 89 GO 848. We are

also consulted from time to time in other

lawyer contempt cases. We have, for ex-

ample, been requested to file an amicus

brief in this Court in support of the

petition in Lawrence Hochheiser v. United

States of America, Docket No. 89-1991, and

will be doing so in a few days.

This special experience has led us to

conclude that the teachings of McConnell

are being widely forgotten or ignored,

with devastating consequences for the

constitutional rights of lawyers and their

clients. We respectfully suggest that out

5

of this experience we can contribute an

extra dimension to this case that would

help the Court to decide, as we believe it

should, that the petition should be grant-

ed.

Respectfully submitted,

*MORTON STAVIS

MAHLON F. PERKINS, JR.

Center for Constitutional

Rights

666 Broadway, 7th Floor

New York NY 10012

(212) 614-6425

ATTORNEYS FOR AMICUS CURIAE

*Counsel of Record

TABLE OF CONTENTS

TABLE OF AUTHORITIES . «ss

Beperwees GE Aiea . tw tw ttl tl tl lt

REASONS FOR GRANTING THE WRIT AND

SUMMARY OF ARGUMENT ........ .

THE COURT SHOULD SEIZE THE OPPOR-

TUNITY PRESENTED BY THIS PETITION

TO REAFFIRM THE CONSTITUTIONAL

LIMITATIONS ON THE POWER OF COURTS

TO PUNISH SUMMAnILY FOR CONTEMPT

ATTORNEYS WHOSE CONDUCT HAS NOT AC-

TUALLY OBSTRUCTED THE ADMINISTRATION

OF JUSTICBR .. +.» © © © © © @ @ »

1. The Circumstances of the

Petitioner's Conviction

2. The Parallels to Other

Attorney Contempts.

3. Origins of the Constitutional

Limitations on the Contempt

POWOE . 2 2 © © © © © ew ew et

4. Actual Obstruction as the

Sine Qua Non for Constitutional

Exercise of the Contempt

wewmer «2+ 0 es ee eo 6

5. Constitutional Limitations in

Lawyer Contempts ....

CONCLUSION . . «© «© «© «© «© «© «© «© «

10

13

17

21

25

ii

TABLE OF AUTHORITIES

Cases

Bloom v. Illinois,

391 U.S. 194 (1968) .....

Bridges v. California,

314 U.S. 252 (1941) .....

Brown v. United States,

356 U.S. 148 (1958) .....

Cammer v. United States,

350 U.S. 399 (1956) . . « « -«

Ex parte Hudgings,

249 U.S. 378 (1919) ....

Holt v. Virginia,

362 U.S. AZ (2965) . « « «

In re Little,

404 U.S. $33 (1972) . « « « «

In re McConnell,

370 U.8B. 230 (1962) . « « 2 «

In re Michael,

326 U.S. 224 (1945) .....

In re Oliver,

35S U.S. 257 (3948) « « © 2 «

Nye v. United States,

3 O68. SE tees 8 ke ws

Offutt v. United States,

346 ©.8. 33 (20606) . 2 ss «

is,

20

18

17

22

22

21

18

19

18

20

iii -

State v. Vasky,

203 N.J. Super. 91 (App. Div. 1985) 6

Statutes

Act of March 2, 1831, 4 Stat. 487 .. 14

aS U.S.C. § 402(4) . -. 26 « « « « AZ, 18

ot} aut) iti

Stansbury, Report of the Trial of

James H. Peck on an Impeachment

for High Misdemeanors in Office

oo) ares mae

BRIEF AMICUS CURIAE OF

CENTER FOR CONSTITUTIONAL RIGHTS

This brief amicus curiae is submitted

in support of the petition for certiorari

seeking review of the decision of the

Supreme Court of New Jersey in Jn the

Matter of James B,. Daniels, 118 N.J. 51,

570 A.2d 416 (1990).

Interest of Amicus

The Center for Constitutional Rights,

founded twenty-four years ago as an out-

growth of the civil rights movement in the

South, provides legal support to indi-

viduals and groups whose constitutional

rights have been infringed or denied. In

our work we rely not only on our own staff

attorneys but on a network of cooperating

lawyers and law professors throughout the

United States. We often defend persons

who have been prosecuted for exercising

their constitutional rights. The causes

we espouse are not always popular. Out of

2

our own experience we know how important

it is that a lawyer be free to defend his

clients with vigor, even vehemence, with-

out having to tear that he may be held in

contempt if an excess of zeal leads him to

overstep the bounds of courtroom pro-

priety. We believe that this is a right

protected by the United States Constitu-

tion, and that a judge may not summarily

hold a lawyer in contempt for behavior,

however unseemly, that does not obstruct

the administration of justice. We file

this brief because this case, as well as

another case in which we are filing an

amicus brief in support of a petition for

certiorari, Lawrence Hochheiser v. United

States of America, Docket No. 89-1991,

clearly presents this constitutional is-

sue.

3

REASONS FOR GRANTING THE WRIT

AND SUMMARY OF ARGUMENT

The petitioner, James B. Daniels, a New

Jersey public defender, was summarily

convicted of criminal contempt of court

for non-verbal facial expressions which

the trial judge considered disrespectful.

Although his conduct did not obstruct, or

imminently threaten to obstruct, the ad-

ministration of justice, the New Jersey

Supreme Court affirmed his’ conviction

under the New Jersey contempt statute

because it had the mere "capacity" to

obstruct the administration of justice.

This vague standard does not comport with

the constitutional requirements for exer-

cise of the summary contempt power as laid

down by this Court in In_re McConnell, 370

U.S. 230 (1962) and In re Little, 404 U.S.

553 (1972). Such a standard, which per-

mits disrespect without more to be grounds

o

for contempt, puts a damper on fearless

advocacy by attorneys and diminishes the

Sixth Amendment rights of their clients.

We point out that the facts and cir-

cumstances of this case parallel those of

other lawyer contempt cases in which the

Center has been involved in representing

or counseling attorneys held summarily in

contempt. McConnell] and Little are the

culmination of a long historical struggle

to limit the arbitrary power of judges to

convict summarily without the ordinary due

process safeguards. We fear that their

teachings are now too often forgotten, and

suggest that this petition and the peti-

tion in Hochheiser present an exceptional

opportunity to reestablish needed limita-

tions on the contempt power.

5

ARGUMENT

THE COURT SHOULD SEIZE THE OPPORTUNITY

PRESENTED BY THIS PETITION TO REAFFIRM THE

CONSTITUTIONAL LIMITATIONS ON THE POWER OF

COURTS TO PUNISH SUMMARILY FOR CONTEMPT

ATTORNEYS WHOSE CONDUCT HAS NOT ACTUALLY

OBSTRUCTED THE ADMINISTRATION OF JUSTICE

1. The Circumstances of the Petitioner's

Contempt Conviction

The petitioner, James B. Daniels, an

attorney in the Office of the Public De-

fender who had been assigned to represent

the defendant in a prosecution for first-

degree robbery, was held in contempt dur-

ing pretrial proceedings for facial gri-

maces in reaction to a ruling of the judge

which he found incomprehensible. This

happened on the second day of pretrial.

During the first day he had fought unsuc-

cessfully to mitigate the adverse impact

of a stipulation which permitted the State

to introduce evidence of a polygraph test

that the defendant had failed and pro-

hibited the defendant from introducing or

6

alluding to a prior polygraph that he had

passed “with flying colors," and even

prevented the defendant from putting on an

expert to refute the State's expert.

Faced with the dire consequences for his

client, Caniels persisted in his efforts

to have the stipulation voided or modi-

fied. His persistence plainly annoyed the

judge, who came to court the next day

armed with a definition of contempt from

the opinion in a New Jersey case, State v.

Vasky, 203 N.J. Super. 91 (App. Div.1985).

On the second day, after the jury was

selected but before it was sworn, Daniels

moved for a mistrial on the ground that

the prosecution had misused its peremptory

challenges. In rendering his decision,

the judge noted the requirement that the

motion be made prior to swearing the jury;

although not satisfied that this require-

ment had been met, he began to rule on the

4

assumption the motion was timely. It was

at this moment that the behavior occurred

which the judge, interrupting himself,

described as “you laughed, you rolled your

head, you threw yourself back in your

seat." He pronounced Daniels in contempt

of court and said that he would release

the jury. Daniels, permitted to speak

before the judge passed sentence, res-

ponded in substance that he had shown no

disrespect but reacted as a human being to

his disappointment that every single deci-

sion had gone against him.' The judge

' ge supplemental order, the trial

judge elaborated upon his contemporaneous

descriptions in the record of Daniels'

behavior and found other instances of

disrespect in his “inflections of voice

and sarcastic manner of delivery." Affi-

davits submitted later by Daniels, the

judge's clerk and the prosecutor agreed

that the gestures for which Daniels was

found in contempt were inaudible, and that

his defense of his position, while vigor-

ous, was conducted without exhibiting

sarcasm or disrespect in manner or tone of

voice.

8

forthwith sentenced him to serve two days

in the County Jail, with immediate commit-

ment, and to pay a $500 fine.

No jurors or prospective jurors were

present during any of these proceedings.

The facts demonstrate that the behavior

for which Daniels stands contemned grew

our of and cannot be considered apart from

his stubborn efforts on behalf of his

client. They indicate that his reactions

to the judge's rulings, however improper

and however offensive to the trial judge,

were not calculated to disrupt the trial

or otherwise to obstruct or imminently

threaten to obstruct the administration of

justice, and did not in fact do so. They

2 on appeal, the Appellate Division

of the New Jersey Superior Court vacated

the custodial portion of the sentence,

noting that "the circumstances suggest

that the harm visited upon the judicial

system was not too severe." Pet. App. at

179a-18Ca.

S'S ot rT,

9

Clearly sprang from distress at his fail-

ure to sustain his client's position on

issues crucial to his defense against

serious criminal charges.°

In upholding the Appellate Division's

affirmance of Daniels' conviction, the New

Jersey Supreme Court did not find that

Daniels had actually obstructed the order-

ly administration of justice. It was

sufficient, as the court viewed it, that

his conduct have "the capacity" to do so.

Pet. App. at 28a. Adopting language from

the dissent in the Appellate Division, it

defined the standard as follows:

In short, any conduct is_ con-

temptible which bespeaks of scorn or

disdain for a court or its author-

ity.

, As the New Jersey Supreme Court

expressed it: “We can well understand the

mounting frustrations that this attorney

had faced in confronting scientific evi-

dence that he believed to be unreliable."

Pet. App. 54a.

10

Id. at 49a. This standard is constitu-

tionally defective.

2. The Parallels to Other Attorney

Contempts

The Daniels contempt conviction pre-

sents features that are found in a number

of other attorney contempt cases in which

the Center has been involved.

Jeopardy of Client. The attorney is

faced with an adverse ruling which inm-

perils the cause of his client and which

he believes to be erroneous as a matter of

law or based on a misunderstanding of the

facts. This leads him to exceed the

bounds of decorum in his efforts to over-

come the ruling, arousing the judge's ire.

Gross Blunder by the Court. Sometimes

the court takes a position that appears

so incomprehensible to the attorney that

he involuntarily lets his amazement show

in a manner that offends the judge. This

11

happened to Daniels when the judge ad-

dressed his motion for a mistrial, timely

made before the jury was sworn, with the

remark that he was not satisfied this

requirement had been met.

Court's Perception of "Body Language."

An overly sensitive judge reads into an

attorney's demeanor, facial expression or

tone of voice an intent to insult or mock

the court, even where the content of the

attorney's language has been uniformly

respectful. The court dismisses any apol-

ogy. Others present in the courtroom may

have observed nothing offensive, but their

testimony comes too late to affect a sun-

mary contempt finding.

Court's Bias Against Party. A feature

present in a number of cases, although not

apparent in Daniels' case, is the judge's

antagonism to the attorney's client be-

cause of the nature of the offense with

12

which he is charged or the rights he is

seeking to enforce. This antagonism may

then be transferred to the attorney, a

transfer that may readily occur when a

rambunctious defendant engages in court-

room antics.

Disruption Caused by Court. The court

proceedings are unnecessarily interrupted

by a judge who takes umbrage at what he

perceives to be disrespect by the attor-

ney and orders his ejection from the

courtroom or pronounces summery contempt.

The attorney does not intend or foresee

such an interference with the orderly

administration of justice and should not

be held accountable therefor. There was

no need, indeed no excuse, in the case of

Daniels for the judge to pack him straight

off to jail and dismiss the jury.

We recognize that there have been in-

stances when @ lawyer has deliberately and

13

repeatedly provoked the court in order to

gain the attention of the press or create

grounds for a mistrial. Such behavior is

plainly punishable as an obstruction to

the administration of justice. Not so,

conduct which erupts in the tense atmo-

sphere of a trial where the attorney is

simply doing his utmost to protect the

interests of an endangered client.

3. Origins of the Constitutional Limita-

tions on the Contempt Power

The contempt power of a federal court

is limited by statute, in the case of

conduct taking place before it, to “"mis-

behavior of any person in its presence or

so near thereto as to obstruct the ad-

ministration of justice." 18 U.S.C.

§ 401(1). This restriction is rooted in

constitutional considerations that arose

in the impeachment trial of James H. Peck,

a federal district judge who had ia-

14

prisoned a lawyer for publishing a criti-

cism of one of his opinions in a case on

appeal. Judge Peck was acquitted by a

single vote after a trial that continued

over a period of almost two months.” The

day after his acquittal Congress took

steps to provide for a drastic delimita-

tion of the federal contempt power. With-

in a few days James Buchanan, the prin-

cipal manager of the case against Peck

(and afterwards elected President),

brought in a bill that became the Act of

March 2, 1831, 4 Stat. 487. This Act,

"declaratory of the law concerning con-

tempts of court," confined the summary

contempt power, inter alia, to misbehavior

"in the presence of said courts, or so

near thereto as to obstruct the ad-

* The trial is reported in full in

Stansbury, Report of the Trial of James H.

Peck on an Impeachment for High Mis-

demeanors in Office (1933).

ican ema

15

ministration of justice," -- language

almost identical with that now found in

18 U.S.C. § 401(1). See, Nye v. United

States, 313 U.S. 33, 44-46 (1941).

The arguments by Buchanan and other

managers of the case against Peck demon-

strate that their passionate opposition to

the broad contempt powers urged by those

charged with Peck's defense sprang from

their conviction that such powers con-

travened the principles for which the

Revolution was fought and threatened lib-

erties guaranteed by the Constitution.

Constitutional concerns were at the heart

of the impeachment proceedings and the

legislation that ensued.

The arguments of the managers against

untrammeled powers of summary contempt

reflect concerns that persevere to this

day: the lack of ordinary due process

with the concentration of all powers in

16

the judge; the absence of any clear stan-

dard; dependence on the temperament of the

judge. As expressed by Buchanan: "the

dearest rights of a citizen may be taken

away without trial by jury, and by the

sole authority of an angry, offended, and

therefore partial judge." Stanbury, op.

cit., at 445-46. The managers recognized

the "plea of necessity," the right of a

court to preserve its own functioning;

but, as stated by M'Duffie, this plea must

be "pleaded in good faith, and clearly

made out. It must be a case of actual

=

> -

necessity, obvious to the common sense of

every impartial person. The administra-

tion of justice must be actually obstruct-

ed." Id., at 87. The managers were un-

animous that this was a constitutional

minimun.

17

4. Actual Obstruction as the Sine Qua Non

for Constitutional Exercise of the

Contempt Power

Seventy years ago, in Ex parte Hudg-

ings, 249 U.S. 378 (1919), this Court, in

overturning the contempt conviction of a

witness for perjury, enunciated the prin-

ciples that set constitutional boundaries

to the contempt power. It held that the

existence of this power expressed no pur-

pose to exempt judicial authority from

constitutional limitations, since "its

great and only purpose" is to secure judi-

cial authority from obstruction to the

performance of its duties:

An obstruction to the performance of

judicial duty resulting from an act

done in the presence of the court

is, then, the characteristic upon

which the power to punish for con-

tempt must rest.

249 U.S. at 383.

In a number of later cases this Court

has plainly read the statutory requirement

18

of actual obstruction as a constitutional

limitation deriving from the Peck trial.

Nye _v. United States, supra; In re Mi-

chael, 326 U.S. 224, 227 (1945); Cammer v.

United States, 350 U.S. 399, 406 (1956).

In Bridges v. California, 314 U.S. 252

(1941), this Court struck down, as viola-

tive of the First Amendment, the power of

a judge to punish publications as con-

tempts on a finding of "a mere tendency"

to interfere with the orderly administra-

tion of justice in a pending case. Re-

viewing the "celebrated case of Judge

Peck," the Court concluded:

But we do find in the enactment [of

the Act of 1831] viewed in its his-

torical context, a respect for the

prohibitions of the First Amend-

ment, not as mere guides to the

formulation of policy, but as com-

mands the breach of which cannot be

tolerated.

314 U.S. at 267.

Bridges demonstrates that the limi-

19

tation of the contempt power to actual

obstruction serves to protect, among oth-

er rights, the First Amendment right of

free expression which, under the Four-

teenth Amendment, binds the states. In In

re Oliver, 333 U.S. 257, 275 (1948), this

Court reversed a Michigan contempt con-

viction for failure to meet due process

safeguards, stating that the narrow ex-

ception to such due process requirements

includes only charges of misconduct, in

open court in the presence of the judge,

which disturbs the court's business and

where "immediate punishment is essential

to prevent 'demoralization of the court's

authority . .. before the public.'"

In a multitude of cases this Court has

shown its continuing sensitivity to tne

potential for abuse which resides in the

summary power of contempt. The vulner-

ability of the judge is a frequent theme.

20

In Bloom v. Illinois, 391 U.S. 194, 202

(1968), which extended the constitutional

guarantees of jury trial to state prosecu-

tions for serious criminal contempts, this

Court commented:

Contemptuous conduct, though a pub-

lic wrong, often strikes at the most

vulnerable and human qualities of a

judge's temperament.

Again, in Offutt v. United States, 348

U.S. 11, 13 (1954), remanding a contempt

conviction for a second hearing by anoth-

er judge because the trial judge had be-

come personally embroiled with counsel for

the defendant, this Court said:

The power thus entrusted to the

judge [to punish without the for-

malities required by the Bill of

Rights] is wholly unrelated to his

personal sensibilities, be they

tender or rugged. But judges are

human, and may, in a human way,

quite unwittingly identify offense

to self with obstruction of law.

Cf. Brown v. United States, 356 U.S. 148,

153 (1958), where this Court warned trial

21

judges against "confusing offense to their

sensibilities with obstruction to the

administration of justice."

5. Constitutional Limitations in Lawyer

Contempts

The danger of confusing perceived of-

fense with actual obstruction looms large

when confrontations arise between judge

and lawyer over disagreement on the

judge's rulings. Here not only First

Amendment and due process considerations

come into play, but also the need to give

uninhibited effect to the Sixth Amendment

right of a criminal defendant to assis-

tance of counsel. In such situations this

Court has required a clear showing of

actual obstruction of justice. In re

McConnell, 370 U.S. 230 (1962). The law-

yer in this case, after being instructed

by the judge in the presence of the jury

to refrain from repeatedly asking ques-

22

tions on certain subjects which the court

had ruled were not admissible, persisted

in asserting his right to ask the ques-

tions and announced that he "propose[d] to

do so unless some bailiff stops us."

After a short recess requested by his co-

counsel, the lawyer did not continue to

ask the forbidden questions. In revers-

ing his conviction for contempt, this

Court said:

The arguments of a lawyer in pre-

senting his client's case strenuous-

ly and persistently cannot amount to

a contempt of court so long as the

lawyer does not in some way create

an obstruction which blocks’ the

judge in the performance of his

judicial duty. The petitioner cre-

ated no such obstacle here.

370 U.S. at 236. Cf. Holt v. Virginia,

381 U.S. 131 (1965) (reversing on Sixth

Amendment grounds the conviction of a

lawyer for using "vile, contemptuous or

insulting language" in violation of the

Virginia contempt state; In re Little, 404

23

U.S. 553, 555 (1972) (pro se criminal

defendant in state court "clearly enti-

tled to as much latitude in conducting his

defense" as enjoyed by counsel vigorously

espousing a client's cause).

The New Jersey contempt statute, as

interpreted by the Supreme Court of New

Jersey, makes punishable by summary con-

tempt conduct which merely has "the ca-

pacity" to obstruct the administration of

justice. The statute does not require a

clear showing of actual obstruction, nor

did the New Jersey court find that peti-

tioner had actually, or imminently threa-

tened, such an obstruction. Mr. Daniel's

case displays many of the features cata-

logued by Buchanan and his confreres as

leading to dangerous oppression when the

contempt power is untrammeled: a lawyer

unable to mask his involuntary feeling

that the judge's ruling was absurd, "in-

24

decorous gestures," the susceptibility of

the judge, the offended judge as sole

arbiter of the offeise imposing punish-

ment before "his resentment should have

time to cool," even to the judge's con-

struing the lawyer's denial of any disre-

spectful intent as "disingenuous." See,

Pet. App. at 97a. A judge may not con-

stitutionally be permitted to "carry the

standard in his own breast."

We respectfully suggest that this peti-

tion presents an exceptional opportunity

for the Court to reassert the constitu-

tional limitations on the exercise of the

summary contempt power and thereby provide

much needed guidance both to the federal

courts and the courts of the fifty states.

We suggest, also, that the Court likewise

agree to hear the petitioner in Lawrence

Hochheiser v. United States, Docket No.

89-1991, which presents similar issues of

25

lawyer contempt, and that it consider the

two petitions jointly.

CONCLUSION

For the reasons stated, we respect-

fully urge that the petition be granted.

Respectfully submitted,

*MORTON STAVIS

MAHLON F. PERKINS, JR.

Center for Constitutional

Rights

666 Broadway, 7th Floor

New York NY 10012

(212) 614-6425

ATTORNEYS FOR AMICUS CURIAE

*Counsel of Record