Petition for Writ of Certiorari — Willis v. DeBruyn

Supreme Court, U.S.

FILE Dp

931258 van 2 7 1994

NO. BAICE-OETHE CLERK

IN THE SUPREME COURT OF THE UNITED STATES

October Term, 1993

DAVID A. WILLIS,

Petitioner,

Vv.

JAMES E. AIKEN, Commissioner,

Indiana Department of Corrections,

PORTER SUPERIOR COURT and

LINLEY E. PEARSON, Attorney

General of Indiana,

Respondents.

PETITION FOR WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE SEVENTH CIRCUIT

PETITION FOR WRIT OF CERTIORARI

James M. Shellow

Counsel of Record

SHELLOW, SHELLOW & GLYNN, S.C.

222 East Mason Street

Milwaukee, Wisconsin 53202

(414) 271-8535

Dean A. Strang

Anne Willis Reed

Attorneys for Petitioner

ii

QUESTIONS PRESENTED FOR REVIEW

Does a precedential «cision of

the Indiana Court of Appeals .;hnolding a

state court jury instruction that "you are

to determine the law for yourself," and

that the other instructions are only "the

best source of the law," conflict with

this Court's decisions requiring state

jury instructions to implement federal

constitutional guarantees of due process?

Can the same precedential deci-

sion escape federal habeas corpus review

because Indiana's "fundamental error"

doctrine may be independent of federal

law, even though the decision makes no

"plain statement" of reliance on state

law rather than federal?

is it a "new rule" to prohibit

state ccurts from telling juries they are

not bound by the Constitution??+

lif certiorari is granted, Willis

will ask to argue a fourth issue: whether Indi-

iii

PARTIES

The names of all parties appear

in the caption of the case. There is no

parent or subsidiary company to be

included under Supreme Court Rule 29.1.

ana fundamental error doctrine really is

independent of federal law.

iv

TABLE OF CONTENTS

QUESTIONS PRESENTED FOR REVIEW....... Il

\ eet errr rr re ee ee ee IIl

TABLE OF CONTENTS .........222eecceces IV

TABLE OF AUTHORITIES ...........-2200- VI

OPINIONS BY OTHER COURTS ............. 2

DURLSDICTION ccccccccvcsvcccvevecccccs 3

CONSTITUTIONAL PROVISIONS INVOLVED ...3

STATEMENT OF THE CASE ........-222eeee- 4

PRESENTATION AND RESOLUTION OF THESE

TSSURS BRL .ccccccccccccccccccsccses 7

FEDERAL JURISDICTION BELOW ........... 13

SUMMARY OF ARGUMENT ...........-22e00- 14

I. THE INDIANA COURT OF

APPEALS HAS DECIDED THAT

CRIMINAL JURIES MAY BE TOLD

THEY ARE NOT BOUND BY THE

FEDERAL CONSTITUTION. ........... 17

A. STATE COURTS MAY NOT

ALLOW JURIES TO IGNORE

DEFENDANTS' CONSTITUTIONAL

PROTECTIONS . scccccccccesecs 18

B. THE JUSTIFICATIONS

OFFERED BY THE STATE FOR

THE INSTRUCTION ARE

Pe, ee 27

|

Vv

II. THE UNITED STATES COURT OF

APPEALS FOR THE SEVENTH CIRCUIT

HAS INTERPRETED COLEMAN V.

THOMPSON IN SUCH A WAY AS TO

RENDER USELESS THE PRESUMPTION

OF HARRIS V. REED. .............. 33

A. COLEMAN CANNOT BE

EXTENDED TO CASES WHERE

THE STATE COURT DISCUSSED

BH LOOM es ce ccescesesecesse 39

B. INDIANA'S FUNDAMENTAL

ERROR LAW, AND THUS THE

STATE COURT OPINION EVEN

AS THE SEVENTH CIRCUIT

READ IT, IS THOROUGHLY

BOUND UP IN FEDERAL

CONSTITUTIONAL LAW......... 44

III. UNDER THE SEVENTH

CIRCUIT'S APPLICATION OF TEAGUE

V. LANE, ALL RULES ARE NEW. ..... 45

ee wr he Pe a ee ee ee 49

vi

TABLE OF AUTHORITIES

CASES

Ake v. Oklahoma, 470 U.S. 68 (1985)

ee ey ne er er | ee 41, 43

Beavers v. State, 236 Ind. 549, 141

ee See Se)” bode st oe eee eaeae 15, 28

Burch v. Louisiana, 441 U.S. 130

PED uaa Wiha ne ae a a oe oO ee 26, 48

Bushell's Case, 124 Eng. Rep. 1006

Sar aa ae: a) 6 aks bb ON a be ean eta ne wee 18

Carter v. Kentucky, 450 U.S. 288

CRE Ga dw ee eeeck nk a kas eee eee 27, 48

1 nv. Thom a. Z34 8. ©. 2000

$s... | ee ery 33-34, 37-40, 44-45

Fuquay v. State, 583 N.E.2d 154

(Ind. CE. ABD. LPL) cocecveccccccceves 15

il Vv. land, 372 U.S. 767

REE ie hc ra ar ra: a Pe a eg 24-25

Giles v. State, 229 Md. 370, 183

re Be Feb) ee ye nee eee 22-23

Gilmore v. Taylor, 113 S. Ct. 2112

I sg ia a alk ak ei al od ae ae ee 46-47

Griffin v. California, 380 U.S. 609

CROs cae doe wan ee nie ae oe 8 ee 26, 48

Harris v. Reed, 489 U.S. 255

(2909) cacuseasecconveees 11-12, 16, 33-45

Michigan v. Long, 463 U.S. 1032

CIEE Ucar a Gare 2 eG es ae we oe eee 11, 35

Se o's aa<. op b's Bid alee wae 26, 48

Slansky v. State, 192 Md. 94, 63

ee i ere 22-23

Sparf v. United States, 156 U.S. 51

TED 5 veda 0 00's 40s s CEN Nee 19 |

State v. Burpee, 65 Vt. 1, 25 A. 964 |

SOUR, Ss sbch ceueedes convene 29, 49

State v. Willis, 552 N.E.2d 512

(Ind. App. 1990) 2, 8-9, 14-17, 28, 42, 45

State v. Willis, No. 85-PSCr-49

(Porter Super. Ct. Nov. 29, 1988) ..... 2

Stevenson v. State, 289 Md. 167, 423

ee et er eee ee 25

Sullivan v. Louisiana, 113 S. Ct.

ne SAOEee.” «sconce node uke 27, 46, 48

T i cky, 436 U.S. 478

SS Peer Fee ee 26, 48

Teague v. Lane, 489 U.S. 288

Sn. . ceo uk acke aaah tae aes 13, 45, 46

United States v. Anderson, 716 F.2d

7 Bo Ee ~ OS Serer er a 20

United States v. Battiste, No.

14,545, 24 F. Cas. 1042 (C.C.D.

i: Dene 2 6seas cee eka hae es 6b Ge 20, 49

United States v. Dellinger, 472 F.2d

340 (7th Cir. 1972), cert. denied,

ee OB. OUG. CEOVE . wc bic han oes st eex 20

United States v. Dougherty, 473 F.2d

Saee Seles CAL. SUE) (ued seheeceweeuas 21

United States v. Drefke, 707 F.2d

978 (8th Cir.), cert. denied, 464

Oe ee ee | ee ee ot vawae seeenwas 21

United States v. Krzyske, 836 F.2d

1013 (6th Cir.), cert. denied, 488

se Me a Raa te ieee ere 21

United States v. Moylan, 417 F.2d

1002 (4th Cir. 1969), cert. denied,

IF Wc ee Ce * aves semietaweneaes 21

v. W , 705

Fim Gee Wes Cae BOEET Secéccesenes 21

United States v. Wiley, 503 F.2d 106

Se OS er ols Wu s oew-r eee ees 21

Wilkins v. Maryland, 402 F. Supp. 76

(D. Md. 1975), aff'd, 538 F.2d 327

(4th Cir. 1976), cert. denied, 429

Ca See ee: 6 ow oe thee be wee ue 25, 31

Willis v. Aiken, 8 F.3d 556 (7th

Cir. 1993) ...2,.9-13, 27-28, 33-38, 45-47

Willis v. Aiken, No. H91-147 (N.D.

i Fee. ot ee ee Ze Be ae

Willis v. State, 512 N.E.2d 871

CS. Es SOO Ce. 6b 60s KG ee oe enn nee een 2

In re Winship, 397 U.S. 358 (1970) 26, 48

W v. Warden, 372 F.2d 742 (4th

Cir.), cert. denied, 389 U.S. 863

(LOOT) 5ise ee ones CERN ose Kaespet areas 25

CONSTITUTIONS AND STATUTES

wos Gees Sa ee oes ee es bw eee ee 3

ix

U.8. Comet. QMONG. ZIV .ccccccvevess 3, 4

‘Ind. Const. art. I, 8@C. 19 ..ccece. 3, &

26 U.8.C. § TSSE(L) wccctcccvecsessccss 3

ke Se ee Sere re ee eee ee 14

26 U.8.Cc 8 2BSR oF eee vee cows bes ecesn 13

Be WeWcles -B SOSD bcvesscccvvrecsesseeves 13

a | err ee ae eee 14

ZB U.B.C. BF BOOS cevcceceerecvocecveces 13

OTHER SOURCES

Howe, Juries As Judges of Criminal

Law, 52 Harv. L. Rev. 582 (1939) .... 18

Note, Jury Nullification And Jury

Control Procedures, 65 N.Y.U. L.

i er Ce hs ea eke ne Oa ke. & 0 20

Note, The Jury's Role Under the

Indiana Constitution, 52 Ind. L.J.

Tae MEDC noe ncesadeeewareeseees 22, 30

Scheflin and Van Dyke, Jury

Nullification: The Contours of a

Controversy, 43:4 Law & Contemp.

Ps Be SOE Seevcceebecedeenrvseceese 20

Scheflin, Jury Nullification: The

Right To Say No, 45 So. Cal. L. Rev.

DE SATE Scacecatedwaerscoerticive 18-19

No. 94-

IN THE SUPREME COURT OF THE UNITED STATES

October Term, 1993

DAVID A. WILLIS,

Petitioner,

Vv.

JAMES E. AIKEN, Commissioner,

Indiana Department of Corrections,

PORTER SUPERIOR COURT and

LINLEY E. PEARSON, Attorney

General of Indiana,

Respondents.

PETITION FOR WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE SEVENTH CIRCUIT

PETITION FOR WRIT OF CERTIORARI

David Willis asks that a writ

of certiorari issue to review the opinion

and judgment of the United States Court

of Appeals for the Seventh Circuit in his

case.

2

OPINIONS BY OTHER COURTS

he Decision of which review

is sought: Willis v. Aiken, 8 F.3d 556

(7th Cir. 1993) (App. A)

Y Direct appeal from convic-

tion: Willis v. State, 512 N.E.2d 871

(Ind. App. 1987), transfer denied (App.

B)

3. State postconviction pro-

ceedings: State v. Willis, No. 85-PSCr-

49, slip. op. (Porter Super. Ct. Nov. 29,

1988) (App. C)

4. Appeal of state postcon-

viction decision: State v. Willis, 552

N.E.2d 512 (Ind. App. 1990), transfer

denied (1991) ("Willis II") (App. D)

S. Federal habeas corpus:

Willis v. Aiken, No. H91-147, slip op.

(N.D. Ind. Dec. 4, 1991) (App. E)

6. Federal habeas corpus

judgment, December 6, 1991 (App. F)

3

JURISDICTION

The Court of Appeals for the

Seventh Circuit rendered its judgment in

this matter on October 29, 1993. There

were no orders on rehearing or extending

the time to petition for certiorari.

This Court's jurisdiction is conferred by

28 U.S.C. section 1254(1).

CONSTITUTIONAL PROVISIONS INVOLVED

In all criminal cases

whatever, the jury shall have

the right to determine the law

and the facts.

IND. CONST. art. I, § 19.

This constitution,

and the laws of the United

States which shall be made in

pursuance thereof; and all

treaties made, or which shall

be made, under the authority of

the United States, shall be the

supreme law of the land; and

the judges in every state shall

be bound thereby, any thing in

the constitution or laws of any

state to the contrary notwith-

standing.

U.S. CONST. art. VI.

No State shall make

or enforce any law which shall

4

abridge the privileges or immu- |

nities of citizens of the ;

United States; nor shall any

State deprive any person of

life, liberty, or property,

without due process of law[.]

U.S. CONST. amend. XIV, § 1.

STATEMENT ~~? THE CASE

This is an appeal from the

denial of a petition for a writ of habeas

corpus.

David Willis is 62 years old,

and was for many years a trial lawyer in

Valparaiso, Indiana with a solo practice.

He is a former board member and secretary

of the Indiana Bar Association. In 1984,

Willis received a check for about $15,000

in settlement of a client's claim and

used the funds to retire a personal obli-

gation. A short time later, before the

issuance of any criminal charges, he

repaid the client with interest. Still,

Indiana charged Willis with felony theft.

Willis's 1986 trial in Porter

Superior Court began with this instruc-

tion:

Since this is a

criminal case the Constitution

of the State of Indiana makes

you the judges of both the law

and the facts. Though this

means that you are to determine

the law for yourself, it does

not mean that you have the

right to make, repeal, disre-

gard, or ignore the law as it

exists. The instructions of

the court are the best source

as to the law applicable to

this case.

Trial Record ("T.R.") at 46,

49. The instruction was, and still is,

an Indiana pattern. Indiana Pattern Jury

Instructions (Criminal) § 1.03. Willis

did not object to it.

The trial was full of invita-

tions for the jury to determine the law

for itself. Most egregiously, in closing

argument, the prosecutor argued that

Willis should carry "the burden":

6

The evidence shows

this was not the only position

of trust that he violated.

Cross-examination. Discipli-

mary complaint. Roberta

Clausen. She got a life insur-

ance check, bounced. What's

he doing with this money? It's

just not fair to put the burden

on us as to his actions.

TR. GC G52.

The trial judge then followed

with final instructions, invoking the

protections guaranteed by the federal

Constitution but then repeating the in-

struction to "determine the law for your-

self," using the court's instructions

only as "the best" source of that law.

some BE 3S

The six-person jury convicted,

and the trial court later sentenced Wil-

lis to a two-year term of imprisonment.

T.R. at 95, 675. He was confined in the

Indiana prison system for one year and

spent a second year on parole. He

|

brought this petition while he was incar-

cerated.

PRESENTATION AND RESOLUTION OF THESE

ISSUES BELOW

Willis did not object to the

pattern instruction at trial, nor did he

call it error on direct appeal. He did

challenge the instruction, and other

aspects of his trial as well, in a peti-

tion for postconviction relief filed in

the Indiana courts. A state trial court

granted that petition, but not on this

ground. App. C.? Thus Indiana appealed,

and Willis cross-appealed challenging

this instruction.

2The postconviction trial court held,

oddly, that the challenge to the instruction was

barred by "res adjudicata" - one spelling of the

name for Indiana's doctrine that issues decided

on appeal cannot be heard in a postconviction

proceeding. App. C-7. Since the challenge had

not been made on direct appeal, this ruling made

no sense, but it did not affect later proceed-

ings.

The Indiana Court of Appeals

reversed the trial court, rejecting all

of Willis's claims. On this issue, the

court phrased the question as "[w]hether

an instruction that the jury could deter-

mine the law denied Willis basic consti-

tutional rights and due process." Willis

II, 552 N.E.2d at 513, App. D-9. The

court noted that Willis "failed to object

to this instruction at trial," and that

he had challenged the instruction as fun-

damental error. Id. at 515, App. D-10.

Then the court went on to dis-

cuss article I, section 19 of the Indiana

constitution, note its purpose, and quote

at length from Indiana opinions approving

the state's scheme of jury as judge of

the law. Finally, the Indiana court

rejected explicitly, with discussion,

(although citing only Indiana cases) Wil-

lis's claim that the jury instruction

a ee ne ea em

giving effect to article I, section 19

"deprives criminal defendants of basic

constitutional protections." Willis II,

552 N.E.2d at 515-16, App. D-14. In the

end it held that "[nJo fundamental error

exists." 552 N.E.2d at 516, App. D-15.

No form of the word "waiver" was used in

this section of the opinion.

Willis then filed a petition

for habeas corpus in the district court

for the Northern District of Indiana.

The district court held that the state

court decision rested on state law

grounds, reading the Indiana court's sub-

stantive discussion to have relied upon

the Indiana constitution and Indiana case

law. Willis v. Aiken, No. H91-147 slip

op. at 15, App. E-18-19.

The Court of Appeals for the

Seventh Circuit upheld the denial of

habeas, but rejected the district court's

10

reasoning. The state court had clearly

addressed the federal issue: "It would

indeed be unusual for the appellant to

argue, or for the state court to assume,

that one part of the state constitution

might be rendered 'unconstitutional' by

another section of the same document.

Any holding that a provision of the

state constitution does not deny due

process must necessarily include a deter-

mination that the state constitutional

provision is not violative of the Federal

Constitution." 8 F.3d at 562; App. A-9-

10.

Further, the Seventh Circuit

made it clear that it was unhappy with

the Indiana instruction: "We certainly

do not want to be misunderstood as con-

doning the problematic instruction at

issue in this case." 8 F.3d at 568, App.

A-22. Nevertheless, the court rejected

11

Willis's claims on procedural grounds.

The state court, said the Seventh Circuit

had rested its decision not on a holding

that the instruction was correct, but

rather on a holding that the instruction

was not fundamental error. That latter

holding, said the Seventh Circuit, was an

independent and adequate state ground. 8

F.3d at 567, App. A-20.

In reaching this holding, the

court declined to apply the presumption

of Harris v. Reed, 489 U.S. 255 (1989),

that "if 'it fairly appears that the

state. court rested its decision primarily

on federal law,' [federal courts] may

reach the federal question on review

unless the state court's opinion contains

a '"plain statement" that [its] decision

rests upon adequate and independent state

grounds.'" Harris, 489 U.S. at 261,

quoting Michigan v. Long, 463 U.S. 1032,

12

1042 (1983). Noting the absence of

applicable guidance from this Court, the

court decided that the Harris presump-

tion's predicate was not satisfied. Even

though the state court had addressed the

federal constitutional issue, the court

held, it had done so "only to determine

whether it ought to disregard its waiver

rule on the ground that the federal con-

stitutional issue constitutes 'fundament -

al error.'" 8 F.3d at 562, App. A-8-9.

Indiana's fundamental error doctrine, in

turn, is itself independent of federal

law, the court decided. 8 F.3d at 566-

67, App. 18-20. Therefore, the state

court opinion upholding the instruction,

although addressing federal issues, did

not fairly appear to rest on federal law.

8 F.3d at 567, App. 20,

As an alternative holding, the

Seventh Circuit also held that the rule

13

Willis seeks would be "new" under Teague

v. Lane, 489 U.S. 288 (1989), and that

habeas relief was barred for that reason

as well.

FEDERAL JURISDICTION BELOW

The district court had juris-

diction over this petition for writ of

habeas corpus under 28 U.S.C. §§ 2241,

2254 and 1331. After the district

court's adverse judgment, which was

entered December 4, 1991, Willis timely

filed a notice of appeal and sought a

certificate of probable cause from the

district court, but that court refused to

issue the certificate by decision dated

January 6, 1992. Acting on Willis's sub-

sequent motion in the Court of Appeals,

on January 17, 1992 that Court granted a

certificate of probable cause. The Court

of Appeals thus had jurisdiction over

this appeal from denial of a writ of

14

habeas corpus pursuant to 28 U.S.C.

§§ 1291 and 2253.

SUMMARY OF ARGUMENT

Indiana courts instruct every

criminal jury that it is "the judge of

the law." No caveat excepts that law

which the jury may not "judge," but must

faithfully apply: the protections guar-

anteed to defendants by the federal Con-

stitution. Commonly the instruction is

the pattern given here, that the jury may

"determine the law for [it]self," using

the trial court's instructions as only

"the best source" of the law.

This case now presents two

incompatible truths. The state court

opinion in Willis II is Indiana precedent

for the substantive, and clearly mista-

ken, proposition that the instruction is

15

proper;? but the federal courts believe

they cannot condemn the instruction be-

cause Indiana did not decide federal law.

The incompatibility of those

two truths underlies each of the three

reasons why certiorari should be granted

in this case. First, Indiana has decided

that juries may be told they can ignore

3Puquay v. State, 583 N.E.2d 154, 156

(Ind. Ct. App. 1991). In Fuquay, the defendant

had requested a jury-as-judge instruction some-

what broader than this pattern, stressing that

the trial court's instructions were "not neces-

sarily binding" and that the jury had "the right

to independently determine the law to be differ-

ent from the instruction from the Court." 583

N.E.2d at 156. Rejecting the appeal, the court

of appeals cited Willis II as upholding a prop-

erly limited instruction: "In State v. Willis,

[citation], this court upheld an instruction

stating: [instruction quoted]. The decision in

Willis relied heavily upon the opinion of Justice

Arterburn in Beavers [v. State, 236 Ind. 549, 141

N.E.2d 118 (1957)]. Thus, it seems clear that in

exercising their constitutional right to deter-

mine the law, juries, under their oaths, are

bound to determine it correctly, and that an in-

struction which would lend credence to the view

that the jury was free to 'do its own thing' and

determine the law in accordance with its own per-

sonal opinion as to the law, is erroneous and

should not be given." Id. at 156-57.

16

the Constitution. That state court deci-

sion conflicts with every decision of

this Court which requires firm and accu-

rate jury instructions on constitutional

protections. Second, the Seventh Circuit

has found the Indiana decision unreview-

able although it contains no plain state-

ment of an intent to rely on state waiver

law. That decision is in conflict with

Harris v. Reed, 489 U.S. 255 (1989), and

allows a state decision on the merits to

stand unreviewed. And third, the Seventh

Circuit has found it to be a "new rule"

to require juries to follow the Constitu-

tion. In doing so, Willis submits, the

¢ourt has made "old" rules a null set,

and thus effectively eliminated habeas

corpus itself.

The result: Indiana lawyers,

following Willis II, will keep failing to

object to this instruction. For those

0058 atthe hei bina hepa,

Abt ali Sal ani Mite Ao 2

17

who finally do, Indiana courts, following

Willis II, will continue to uphold it.

And in the months and years before the

federal courts finally hear a case where

the issue was preserved at trial, every

Indiana criminal defendant will be tried

by a jury which is told that it need not

follow the law.

I. THE INDIANA COURT OF APPEALS HAS

DECIDED THAT CRIMINAL JURIES MAY BE TOLD

THEY ARE NOT BOUND BY THE FEDERAL CONSTI-

TUTION.

"(D])etermine the law for your-

self," with the trial court's instruc-

tions as a guide. This instruction freed

the jury to conduct a referendum on the

Bill of Rights. The instruction made

Willis's trial fundamentally unfair, and

not just in theory. When the prosecutor

explicitly invited Willis's jury to place

the burden of proof on the defendant,

saying, "It's just not fair to put the

burden on us as to his actions," T.R. at

18

651, she was speaking to a jury which had

been told, and would be told again, that

it could shift the burden of proof if it

wanted to.

A. State Courts May Not Allow

ri nore Defendants'

Constitutional Protections.

The history of jury-as-judge

provisions helps explain how such an

instruction could be given in a modern

court, and why it must not be given

again. The idea that a jury's power to

determine the law for itself to status of

a right dates back at least to 1670.% In

the eighteenth and early nineteenth cen-

turies the right was incorporated in the

constitutions of numerous states, and

some assumed that federal juries had the

same right.>

*4Bushell's Case, 124 Eng. Rep. 1006

(C.P. 1670).

SHowe, Juries As Judges of Criminal

Law, 52 Harv. L. Rev. 582 (1939); Scheflin, Jury

19

In federal courts, the issue

was resolved early. In 1895, this Court

held that in federal criminal trials,

juries were bound to follow the instruc-

tions of the trial judge. Sparf v.

United States, 156 U.S. 51, 102 (1895).

The Court adopted the view of Mr. Justice

Story, who in 1835 instructed a Massachu-

setts federal jury that, though it had

the power to nullify the court's inter-

pretation of the law, it had no right to

do so. "On the contrary," he concluded,

I hold it the most

sacred constitutional right of

every party accused of a crime,

that the jury should respond as

to the facts, and the court as

to the law... Every person

accused as a criminal has a

right to be tried according to

the law of the land... and

not by the law as a jury may ’

understand it, or choose, from

Nullification: The Right To Say No, 45 So. Cal.

L. Rev. 168, 177 (1972).

Se eee ae

20

wantonness, or ignorance, or

accidental mistake, to inter-

pret it. ’

United States v. Battiste, No. 14,545, 24

F. Cas. 1042, 1043 (C.C.D. Mass. 1835)

(Story, J.)

Thereafter, it was defendants

who most commonly asked for "jury nulli-

fication," urging federal judges to

instruct their juries that the jurors had

the right to determine the law for them-

selves and to nullify the charge given by

the court.® Invariably these efforts

failed. See, e.g., United States v. And-

erson, 716 F.2d 446, 449-50 (7th Cir.

1983) (abortion protests); United States

v. Dellinger, 472 F.2d 340, 408 (7th Cir.

1972), cert. denied, 410 U.S. 970 (1973)

(anti-war protests); Uni Vv

6scheflin & Van Dyke, Jury Nullifica-

tion: The Contours of a Controversy, 43:4 Law &

Contemp. Prob. 51, 52-56 (1980); Note, Jury Nul-

lification And Jury Control Procedures, 65

N.Y.U.L. Rev. 825 (1990).

21

Krzyske, 836 F.2d 1013, 1021 (6th Cir.),

cert. denied, 488 U.S. 832 (1988) (tax

: protests); United States v. Drefke, 707

i

F.2d 978, 982 (8th Cir.), r nied,

464 U.S. 942 (1983) (tax protests) ;

United States v. Washington, 705

F.2d 489, 494 (D.C. Cir. 1983) (false

passports); United States v. Wiley, 503

F.2d 106 (8th Cir. 1974) (tax protests) ;

United States v. Dougherty, 473

¥.26 1423, 1330-37 (B.C... Car, 2972)

(anti-war protests); Unit Vv.

Moylan, 417 F.2d 1002, 1009 (4th

Cir. 1969), cert. denied, 397 U.S. 910

(1970) (anti-war protests).

In state courts, though, the

issue was not resolved. The constitu-

tions of Maryland, Indiana, Georgia and

Oregon retain provisions empowering

juries in criminal cases to determine the

; law. Indiana, however, differs from the

22

rest; alone among American jurisdictions,

Indiana instructs its juries that they

have this right.

Strangely, until the state

court opinion in this case, no Indiana

defendant had argued that the jury-as-

judge instruction deprived him of federal

rights.’ This Court, however, made one

brief pronouncement on the question in

1963, after it had been raised in two

Maryland cases.

In both Maryland cases, Slansky

v. State, 192 Md. 94, 63 A.2d 599 (1949)

and Giles v. State, 229 Md. 370, 183 A.2d

359, 364-65 (1962), the defendants argued

that the Maryland jury-as-judge provision

deprived them of the due process and, in

Giles's case, equal protection rights

7TNote, The Jury's Role Under the

Indiana Constitution, 52 Ind. L. J. 793, 795 n.10

(1977).

23

guaranteed by the Fourteenth Amendment.

In both cases, the Maryland Court of

Appeals held that the Fourteenth Amend-

ment did not protect the defendant from

this state action. The Giles court said:

[In Slansky], in

holding that the constitutional

rights of the defendant had not

been abridged, we pointed out

that the due process clause of

the Fourteenth Amendment does

not require the states to con-

form their criminal procedure

to that of the federal courts,

but left the states free to

work out their own systems of

criminal procedure as they had

done for many years both before

and after the adoption of the

amendment. .. . So far as we

are advised, the Supreme Court

of the United States has not

rendered any decision since

Slansky which would now require

a different result from that

there reached by this Court.

Giles sought review from that

holding in this Court. Not surprisingly

in that day, the Court held that Giles's

claim that Maryland trial procedure vio-

lated the due process clause of the Four-

24

teenth Amendment did not present a sub-

stantial federal question and dismissed

the appeal. Giles v. Maryland, 372 U.S.

767 (1963) .8

8since Giles, Maryland has recognized

that jurors are not free to judge the law which

implicates constitutional protections and has de-

veloped pattern jury instructions which advise

juries in criminal trials that they are bound by

those of the court's instructions which embody

constitutional guarantees:

Implicit in the decisions

of this Court limiting the jury's ju-

dicial role to the "law of the crime"

is a recognition that all other legal

issues are for the judge alone to de-

cide. Because of this division of the

law-judging function between judge

and jury, it is incumbent upon the

trial judge to carefully delineate

for the jury the following dichotomy:

(i) that the jury, under Article 23,

is the final arbiter of disputes as

to the substantive "law of the

crime," as well as the "legal effect

of the evidence," and that any com-

ments by the judge concerning these

matters are advisory only; and

(ii) that, by virtue of this same

constitutional provision, all other

aspects of law (e.g., the burden of

proof, the requirement of unanimity,

the validity of a statute) are beyond

the jury's pale, and that the judge's

comments on these matters are binding

upon that body.

AN. Dk AT Op EET Ie eae

ee Ae ee eee

"

In reliance upon the Supreme

Court's holding in Giles that the Mary-

land constitutional provision did not

create a Fourteenth Amendment issue,

lower federal courts on two occasions

have rejected challenges to Maryland con-

victions. Wyley v. Warden, 372 F.2d 742

(4th Cir.), cert. denied, 389 U.S. 863

(1967); Wilkins v. Maryland, 402 F. Supp.

76 (D. Md. 1975), aff'd, 538 F.2d 327

(4th Cir. 1976), cert. denied, 429 U.S.

1044 (1977).

In granting this petition, this

Court would announce that the Giles deci-

sion would be different today. While a

jury instruction which authorized a jury

to judge the law may have created no per-

Stevenson v. State, 289 Md. 167, 423 A.2d 558,

565 (1980); see also Maryland Pattern Jury

Instruction -Criminal 2:00A and 2:00B.

26

ceived Fourteenth Amendment issue in

1963, this Court has since made it clear

that due process requires state jury

instructions on constitutional protec-

tions, and that instructions which under-

state or dilute those protections violate

due process. Griffin v. California, 380

U.S. 609 (1965) (state jury must not be

instructed that it may consider the

defendant's failure to testify as indica-

tion of guilt); In re Winship, 397 U.S.

358 (1970) (state jury must be instructed

that state bears burden of proving all

elements beyond reasonable doubt); Taylor

v. Kentucky, 436 U.S. 478 (1978) (state

jury must be instructed on presumption of

innocence); Burch v. Louisiana, 441 U.S.

130 (1979) (six-person state jury must be

instructed that its verdict must be

unanimous); Sandstrom v. Montana, 442

U.S. 510 (1979) (state jury may not be

Me he el ee ae eeheert

trina 5

27

instructed that defendant must rebut pre-

sumption on any element); Carter v. Ken-

tucky, 450 U.S. 288 (1981) (state jury

must be instructed that defendant has

privilege not to testify); Sullivan v.

Louisiana, 113 S. Ct. 2078 (1993)

(instruction relieving the state of the

burden of proof beyond a reasonable doubt

can never be harmless error). The

Indiana pattern instruction tells juries

that they may ignore every single

instruction which this Court requires,

and for that reason it cannot stand.

have been offered for the pattern

instruction over the course of this liti-

gation do not narrow or save it, as the

Seventh Circuit implicitly recognized.

("We certainly do not want to be miscon-

28

strued as condoning th[is] problematic

instruction," 8 F.3d at 568, App. A-22.)

First, in its opinion on this appeal, the

Indiana court of appeals explained that

the jury's power is in fact limited and,

as thus limited, constitutional; and that

in any event, a jury which convicts on

insufficient evidence can be overruled by

judges. 552 N.E.2d at 515, App. D-9-11,

quoting at length from Beavers v. State,

236 Ind. 549, 141 N.E.2d 118, 122 (1957).

Neither half of this justifica-

tion blunts the harm of the instruction.

First, though judges may indeed acquit

defendants convicted by juries on insu®f-

ficient evidence, the jury-as-judge

instruction invites other constitutional

error which no court can correct. No

reviewing court can determine whether a

jury decided to place upon a defendant

the burden of proving his innocence, or

ee

ee

St AW OR Re adm eee ene Le

29

decided to drop the element of intent

from a theft crime. See State v. Burpee,

65 Vt. 1, 25 A. 964, 973 (1892).

Second, judicial pronouncements

that Indiana juries' powers are really

limited miss the point. Appellate courts

in Indiana know that a jury's right to

judge the law is limited; the point is

that the jury does not know it. When the

jury is not told of the limitations on

its powers, then those limitations do not

exist as a practical matter.

A different justification con-

vinced the federal district court which

heard this habeas petition: the instruc-

tion's language. The court held that the

instruction here was limited enough,

relying on the instruction's caveat not

to "make, repeal, disregard or ignore the

law as it exists." Willis v. Aiken, No.

30

H91-147 slip op. at 15 (N.D. Ind. Dec. 4,

1991), App. E-23.

Far from narrowing the instruc-

tion, this language is worse than noth-

ing. Accord Note, supra, 52 Ind. L.J. at

793, 797-98. To "make .. . the law as

it exists" is meaningless; law that

already exists cannot be made anew. The

warning not to "repeal, disregard or

ignore the law as it exists" flatly con-

tradicted the phrase which preceded it:

"You are to determine the law for your-

self." Neither phrase has any meaning if

the other is true. The next sentence

further muddles the admonition by telling

the jurors only that the judge is "the

best source as to the law."

Most importantly, the jury was

never told that it was bound absolutely

by what the trial judge said on some

issues -- and that is where the Four-

ee

OO te MOR RT ee SN ate Ee

2 RS BN a AE Ar

ets a Pe Se ad

31

teenth Amendment was lost. The jury was

not told that procedural constitutional

protections must be honored and then the

jury was urged not to honor those protec-

tions when the prosecutor told them that

it just was "not fair" to make the state

carry the burden of proof. T.R. at 651.

Even courts that have upheld jury-as-

judge instructions would not have done so

in the face of such an argument: "Had

the prosecution argued unconstitutional

legal propositions to the jury, in order

to subvert the valid instructions of the

trial judge, this court might take a dif-

ferent view of this petition." Wilkins,

402 F. Supp. at 82.9

IShould this petition be granted,

Willis will also argue the instruction invited

the jurors to alter the elements of the charged

offense, depriving him of his constitutional

rights to notice and a meaningful appeal. Again,

in his trial, that deprivation is more than theo-

retical. The state used a voir dire example,

evidence of disciplinary complaints, and expert

testimony on lawyers' duties in a way that could

32

Indiana's pattern jury-as-judge

instruction invites juries to ignore

other instructions, those which implement

constitutional protections and set out

the elements of crimes, as surely as if

it inserted the words "if you decide you

want that to be the law" after every jury

instruction required by the Constitution.

Convictions tainted by that instruction

cannot stand; neither can the Indiana

court of appeals decision in this case,

which is precedent that such convictions

are fine.

invite the jury to substitute, for the intent

element of this crime, a higher standard of con-

duct for lawyers. That made the jury-as-judge

instruction especially dangerous to him.

33

II. THE UNITED STATES COURT OF APPEALS

FOR THE SEVENTH CIRCUIT HAS INTERPRETED

COLEMAN V. THOMPSON IN SUCH A WAY AS TO

RENDER USELESS THE PRESUMPTION OF HARRIS

V. REED.

The Seventh Circuit's opinion

made it clear, perhaps as explicitly as

lower courts respectfully can, why this

issue is appropriate for certiorari.

This case, it said, represented "a spe-

cific but recurring litigation problem

that has not yet been the focus of

Supreme Court guidance: When the state

court addresses a federal constitutional

issue but only to determine whether it

ought to disregard its waiver rule on the

ground that the federal constitutional

issue constitutes 'fundamental error.'"

8 F.3d at 562, App. A-8-9. The court

continued: "Today, we continue our

attempt to follow a path that the Supreme

Court has cut only partially and where

future directions are only dimly illu-

34

mined by current precedent." 8 F.3d at

563, App. A-10-11.

With that uncertain introduc-

tion, the Seventh Circuit decided this

case. The procedural issue was the

application of the "Harris presumption,"

under which federal courts address fed-

eral habeas claims where the decision of

the last state court to hear them "fairly

appeared to rest primarily on those

claims, or to be interwoven with those

claims, and did not clearly and expressly

rely on an independent and adequate state

ground." Coleman v. Thompson, 111 S.Ct.

2546, 2557 (1989) (interpreting Harris).

If Harris applied, Willis won.

The state court had certainly reached the

merits of Willis's constitutional argu-

ment, that was clear, 8 F.3d at 562, App.

A-9-10; and there was no statement any-

where in the Indiana opinion that it did

35

not intend to base its decision on the

merits.1°

10tndeed, the structure of the state

court opinion here is practically indistinguish-

able from that reviewed in Harris, mentioning but

never relying on the defendant's failure to pre-

serve the error. The Harris court said:

Applying the 'plain statement'

; requirement in this case, we conclude that

i the Illinois Appellate Court did not

‘clearly and expressly' rely on waiver as a

ground for rejecting any aspect of peti-

tioner's ineffective-assistance-of-counsel

Claim. [citing Michigan v. Long, 463 U.S.

1032, 1041 (1983)] To be sure, the state

court perhaps laid the foundation for such -

a holding by stating that most of peti-

tioner's allegations 'could have been

raised [on] direct appeal.' App. 12.

Nonetheless, as the Court of Appeals recog-

nized, this statement falls short of an ex-

plicit reliance on a state law ground.

oe Naat Re Re

489 U.S. at 266. In the accompanying footnote,

the Court continued:

While it perhaps could be ar-

gued that this statement would have suf-

ficed had the state court never reached the

federal claim, the state court clearly went

on to reject the federal claim on the mer-

its. As a result, the reference to state

law in the state court's opinion is insuf-

ficient to demonstrate clearly whether the

court intended to invoke waiver as an al-

ternative ground. It is precisely with re-

gard to such an ambiguous reference to

state law in the context of clear reliance

te ae

36

But the Seventh Circuit held

that the Harris presumption did not

apply, because its predicate was not sat-

isfied; the state court decision did not

fairly appear to rest on or be interwoven

with federal law. 8 F.3d at 565-67, App.

A-16-18, 20. The Indiana court had

reached the merits, yes, but only in the

"procedural context" of Willis's funda-

mental error argument. 8 F.3d at 562,

App. A-10. Since "fundamental error" is

an independent Indiana doctrine, the

court concluded, Willis II's holding up-

holding the instruction was immune from

federal review.

The Seventh Circuit reached

this result by applying, as best it

on federal law that Long permits federal

review of the federal issue.

ig. @@ a. i3.

37

could, one case: Coleman v. Thompson,

111 S.Ct. 2546, 2557 (1989). In Coleman,

this Court held that a Virginia decision

which was gilent on the merits?! did not

fairly appear to rest on federal grounds,

even though the state court might implic-

itly have had to decide that the chal-

lenged trial errors were not so great as

to justify forgiving the procedural

default. The standards by which Virginia

decided to forgive such defaults, this

Court said, were independent of federal

law. 111S. Ct. at 2560.

"After Coleman," said the Sev-

enth Circuit here, "we believe that the

formalism of [Harris] is no longer the

controlling factor. We also believe

11ltn Coleman, the state appellate

court granted a motion to dismiss the appeal be-

cause the notice of appeal was late. The motion

was not based on federal grounds and none were

mentioned in the state court's summary order.

38

that, because it remains our duty to

‘examine the scope of the relevant state

court judgment,' [citing Coleman at

2559], it is permissible for us to exam-

ine the caselaw of Indiana to determine

the function that the fundamental error

doctrine plays in its appellate process."

8 F.3d at 565-66, App. A-18-19.

In construing Coleman to alter

Harris, rather than simply to apply it,

the Seventh Circuit missed the crucial

distinction between the two cases. In

Harris, the state court opinion discussed

the merits; in Coleman, it did not. Thus

the Seventh Circuit also missed the dis-

tinction here: in Coleman, there was no

precedential state court decision uphold-

ing an unfair trial. In Willis, there

is.

This section will show why

Coleman cannot change Harris in cases

39

where the state court reached the issue.

If plain statements of reliance on state

grounds are not required in those cases,

then Harris is overruled, and under the

"fundamental error" analysis that will

take its place, most state errors of fed-

eral law will stand as precedent.

Discussed The Issue.

The Seventh Circuit's interpre-

tation of Coleman applies to nearly every

habeas case, since all or nearly all the

states have fundamental error doctrines.

In every case where the state court held

(or, as here and in Harris, obliquely

referred to a possible) waiver but then

discussed the merits of the issue, the

Seventh Circuit reads Coleman to say that

courts must examine states' fundamental

error doctrines as predicate to Harris's

plain statement rule. If the fundamental

40

error doctrine is itself independent, no

plain statement will be required.

That made sense in Coleman,

where this Court needed to determine the

intent of an order which was silent on

the merits. The order did not "fairly

appear" to have any connection to federal

law; but before declaring the Harris

predicate unsatisfied there, this Court

examined the state's fundamental error

doctrine as a check to see whether the

state court had implicitly, necessarily,

relied on federal law.

Extending Coleman to this case,

where the Harris predicate clearly is

satisfied on the face of the state deci-

sion, does harm to jurisprudence and to

justice. As to jurisprudence, under the

Seventh Circuit's analysis, no court will

ever get past the Harris predicate; plain

statement analysis no longer applies in

ee ee

41

any case. In its place is a test based

on fundamental error. If the state's

fundamental error doctrine is independ-

ent, the state opinion does not fairly

appear to rest on federal law and review

is barred even without a plain statement;

and if the fundamental error doctrine is

based on federal law, no plain statement

could bar review, since the waiver hold-

ing itself is not independent.12 The

Seventh Circuit has, unintentionally but

no less completely, overruled Harris, and

habeas review in that circuit now depends

on the happenstance of how a state's fun-

damental error doctrine evolved.

The harm to justice follows.

Under the Seventh Circuit's analysis, in

States whose fundamental error doctrines

are deemed independent, habeas review is

l2The latter statement is the holding

of Ake v. Oklahoma, 470 U.S. 68, 75 (1985).

42

barred, even where, as here, the state

court opinion stands as state precedent

for federal error.

Indeed, this case highlights

one reason we need state courts to

plainly tell us when they are relying on

state law, one that even Harris did not

underscore. Such statements help the

federal courts "rapidly to identify

whether federal issues are properly pre-

sented," yes - Harris, 489 U.S. at 265 -

but they do something more. Such state-

ments warn state courts, and state law-

yers, that the precedent they are reading

is limited. Had the court in Willis II

said, "This issue is waived, and is not

fundamental error under our idiosyncratic

state doctrine, and that is the basis for

our holding," Indiana courts presumably

would not be citing Willis II today for

its substantive holding. But there is no

ot te dl at

43

such statement, so courts and trial law-

yers see no reason to challenge this

instruction again.}3

Willis hopes this Court will

agree with the Seventh Circuit that the

impact of fundamental error on Harris is

a recurring problem in real need of a

solution from this Court. He further

13In Ake v. Oklahoma, the Court ana-

lyzed state fundamental error doctrine in a case

where the state court discussed the merits. But

that case demonstrates exactly the point of this

section. The point of Ake's examination of fun-

damental error doctrine was not to decide whether

the Harris predicate was satisfied. Instead, the

Court held, there was no need to recite the en-

tire Harris analysis (predicate, plain statement,

independence of any plainly stated ground) be-

cause its outcome was clear. Oklahoma's waiver

law was so clearly dependent on federal law that

the Harris analysis would mandate review. Had

Oklahoma's waiver law been different, the Harris

analysis would still have led the Court to re-

quire a plain statement to save this explicit

discussion upholding the trial court's failure to

appoint a psychiatrist, because the opinion could

be cited for the proposition that such a failure

was fine under the federal constitution. That

is, Ake allows courts to skip to the end of the

Harris analysis if the state's waiver doctrine is

based on federal law, but not to jettison Harris

if it is not.

44

urges that Harris, for the good reasons

stated in that case and those demon-

strated by this one, remain the law.

Should certiorari be granted,

Willis intends also to argue that even if

habeas review did depend, after Coleman,

on the nature of the state's fundamental

error doctrine rather than on plain

statements, Indiana's decision was

inseparable from its construction of fed-

eral law. Indiana's fundamental error

doctrine is thoroughly bound up in fed-

eral law, so thoroughly that had the

Indiana court found that the pattern

instruction did deny federal due process,

it would have been bound to grant Willis

relief. The full error of the Seventh

Circuit's contrary holding is demon-

45

strated here; the state Willis opinion is

treated in Indiana as precedent for its

holding on the merits. Even under the

Seventh Circuit's construction of Cole-

man, Indiana relied on federal law, not

state law.

III. UNDER THE SEVENTH CIRCUIT'S APPLI-

CATION OF TEAGUE V. LANE, ALL RULES ARE

NEW.+4

"Because the foregoing discus-

sion [of Coleman's effect on the Harris

presumption] involves an issue on which

there is no definitive guidance from the

Supreme Court," 8 F.3d at 567, App. A-20,

the Seventh Circuit reached an alterna-

tive holding. It held that Willis's

petition was barred by Teague v. Lane,

489 U.S. 288 (1989), because it sought a

14This section shows simultaneously

that the rule Willis seeks is not "new" under

Teague and is "implicit in the concept of ordered

liberty," an exception to Teague, because both

are true for the same reasons.

46

"new rule" which did not implicate "the

fundamental fairness and accuracy of the

criminal proceeding." Id. at 568, App.

A-22, quoting Gilmore v. Taylor, 113 S.

Ct. 2112, 2119 (1993) (in turn quoting

Teague at 311).

This section of the opinion too

was cautious, almost uncertain. "We cer-

tainly do not want to be misunderstood as

condoning the problematic instruction at

issue in this case," the court said. 8

F.3d at 568, App. A-22. And "[wle are

aware," the court went on, that the

Supreme Court has held recently that an

instruction relieving the state of the

burden of proof beyond a reasonable doubt

cannot be characterized as harmless

error." Id., App. A-22-23, citing Sulli-

van v. Louisiana, 113 S. Ct. 2078 (1993).

Nevertheless, said the court, the state

court's decision was "on the basis of the

47

established caselaw of the Supreme Court

of Indiana?>5 and not in contravention of

any explicit precedent of this court or,

more importantly, the Supreme Court of

the United States," id., and "whatever

its potential for confusion," id., App.

A-23, it was not one of Gilmore's "small

core of rules implicit in the concept of

ordered liberty." Id.

If that is right, then habeas

corpus is dead. If it is "new" to

require state juries to to presume inno-

cence, to reach unanimous verdicts when

only six are sitting, and to hold to the

reasonable doubt standard, for every ele-

ment, then all rules are new.

For the two decades before this

trial, it had been clear that the funda-

15Here, even the Seventh Circuit

seems to slip into the obvious reading of the

Indiana decision - that it was based on the

merits, not on waiver.

48

mental trial protections of the Bill of

Rights are binding upon the states by

virtue of the Fourteenth Amendment and,

specifically, that instructions diluting

or misstating those protections were

cause for reversal. From Griffin in 1965

through Winship, Taylor, Burch, and

Sandstrom, Carter, to Sullivan last year,

this Court consistently required that

state courts' jury instructions implement

the Constitution's trial guarantees.

Those decisions leave no room for a side

instruction which makes those guarantees

optional.

Indeed, the rule has been,

truly, implicit to the concept of ordered

liberty since long before Griffin:

"The doctrine that

jurors are judges of the law in

criminal cases abolishes the

sacred 'law of the land,'

which, since the days of King

John and Magna Charta, has been

the birthright of all English-

speaking people, and tends to

eT ty ee ee

49

the exercise of irresponsible

arbitrary power. They are

judges whose decision cannot be

reviewed. Their decrees are

irrevocable and final. If they

set aside a constitution or a

statute, their act cannot be

questioned. If in the jury

room they legislate and enact a

law for the case in hand it

never sees the light of day; it

is a mystery and a myth; no one

can lay his hands upon it; no

one can construe or interpret

it; it affords no guide for the

future, for it vanishes into

nonentity the moment the ver-

dict is returned, and the ver-

dict makes no sign; the deci-

Sion and the judges quickly

disappear.

'The showman and the

show, Themselves but shadows,

into shadows go.'"

State v. Burpee, 65 Vt. 1, 25 A. 964, 973

(1892); see also Battiste, 24 F. Cas. at

1043.

CONCLUSION

It is not too strong to say

that the fairness and legality of every

criminal trial in Indiana, and as to the

"new rule" issue, the writ of habeas cor-

pus itself, depend on the answers to the

50

questions presented in this petition.

Willis asks that it be granted.

Respectfully submitted this

27th day of January, 1994

James M. Shellow

Counsel of Record

SHELLOW, SHELLOW &

GLYNN, S.C.

222 East Mason Street

Milwaukee, Wisconsin

53202

[414] 271-8535

Dean A. Strang

Anne Willis Reed

Attorneys for

Petitioner