Opposition Brief — Ricketts v. City of Hartford

i Susreme Court. U.S y

, Se eS

JUN 2

N 27 1996

CLERK

In The

Supreme Court Of The United States

October Term, 1995

x

WELDON L. RICKETTS,

Petitioner

v.

CITY OF HARTFORD; BERNARD SULLIVAN; SAL GALLO;

ROB DAVIS; JOHN DEMAIO; FRANK SANZO; ARMAND

LUPO; MATTHEW RIVERA; PAUL CHERNIAK; MARK

PAWLINA; MICHAEL FALLON and THOMAS DONOVAN,

Respondents

+

ON PETITION FOR WRIT OF CERTIORARI TO

THE UNITED STATES COURT OF APPEALS

FOR THE SECOND CIRCUIT

—o-

BRIEF IN OPPOSITION

.

Counsel of Record:

JAMES J. SZEREJKO, ESQ. MICHAEL J. GUSTAFSON, ESQ.

HALLORAN & SAGE HALLORAN & SAGE

225 Asylum Street 225 Asylum Street

Hartford, CT 96103 Hartford, CT 06103

(860) 522-6103 (860) 522-6103

Attorneys for the Respondents

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TABLE OF CONTENTS

PAGE

pro Ge OF ig 8 oy. re ii

STATEMENT OF THE CASE ..........00.. l

I. Relevant Factual Background .......... l

II. Procedural History of the Case ........ 2

REASONS FOR DENYING WRIT ........... 4

I. It Is Undisputed That The Underrepresentation Of

Minorities In The Venire Was

Ea ak aa ee 4

II. The Petitioner Did Not Challenge The Alleged

Improper Venire In A Timely Fashion .... 6

ee Oe ee re ae eee ee eee 7

TABLE OF AUTHORITIES

CASES PAGE

Arlington Heights v. Metropolitan Housin Vv.

Com., 429 U.S. 252 GFF eh see 0 4

Castaneda v. Partida, 430 U.S. 482 (1977) ....... 5

McClesky v. Kemp, 481 U.S. 279 (1987) ....... 4

United States v. Jackman, 46 F.3d 1240 (2d Cir.

1999) 0630 eee eee 3,4,5

OTHER AUTHORITIES

£0 U.5.C. 9 1068 6s wee ee 5

20 U.3.C. § 106 oi ip eee ees ae ss 2

42 U.S.C. § 1968 ce ere eee ee ee 2

ee

STATEMENT OF THE CASE

I. Relevant Factual Background

On August 12, 1987, several uniformed police officers

were engaged in a lengthy pursuit in a largely residential

area of a black man, Timothy Moore, suspected of assault

and attempted robbery in Hartford, Connecticut. This

chase continued through a soccer field where the Peti-

tioner, Weldon L. Ricketts, was coaching a youth soccer

team. An adult soccer team was also on the field. None

of the soccer players or coaches assisted the officers in their

efforts to apprehend the suspect, as he ran onto the crowded

field, and some even obstructed the officers pursuing Mr.

Moore (See Petitioner's Appendix at 8A, hereinafter "Pet.

App. at "). Mr. Moore eventually fell on the

lawn of a housing complex across the street from the

soccer field, and a struggle ensued as the officers took him

into custody. A hostile crowd of bystanders came close to

the arresting officers, while other police officers engaged in

crowd control.

The Petitioner, Weldon Ricketts, engaged the arresting

officers by grabbing or jumping on one or more of the

officers, and a brief struggle followed, after which the

Petitioner was arrested and taken into custody, being placed

in a nearby police vehicle (Pet. App. at 9A to 10A).

The Petitioner asked to be taken to a hospital where

he was examined and no serious injuries were documented.

(Pet. App. at 12 A to 14A). Although the Petitioner sought

medical care for his alleged injuries over a several year

period after the subject incident, he conceded at trial that

two orthopedists found that he suffered from degenerative

arthritis prior to the incident, and that Mr. Ricketts never

revealed these findings to his primary treating physician.

=

Il. Procedural History of the Case

The Petitioner, Weldon L. Ricketts, brought an action

pursuant to 42 U.S.C. Section 1983, alleging multiple

violations of his constitutional rights, directed against the

defendants-appellees, Sai Gallo, Rob Davis, John DeMaio,

Frank Sanzo, Armand Lupo, Matthew Rivera, Paul

Cherniak, Mark Pawlina, Michael Fallon and Thomas

Donovan, as well as the City of Hartford and its Chief of

Police, Bernard Sullivan. At trial, the Petitioner withdrew

claims as to three other original defendants, and still other

defendants had been removed from the case prior to trial

when the district court granted those defendants’ Motion for

Summary Judgment (Pet. App. at 3A to 4A).

Following a jury trial, judgment was entered in favor

of the relevant defendants-appellees on ail claims on

October 15, 1993. The Petitioner moved for a new trial,

and an order entered on April 6, 1994, denying same.

(Pet. App. at 2A)

The Petitioner appealed to the Court of Appeals for

the Second Circuit from the judgment dismissing his

complaint, and from the district court's order denying his

Motion for a New Trial. (Pet. App. at 3A). Various

evidentiary rulings of the trial court were the subject of the

appeal, and the Petitioner also challenged the composition

of the venire panel from which his jury was chosen,

claiming a violation of his fifth amendment right to equal

protection, as the panel was almost entirely comprised of

white jurors. The Petitioner had moved to strike the jury

panel after the jury was selected, having failed to challenge

the racial composition of the venire prior to jury selection.

At the district court's hearing on the Petitioner's

Motion to Strike the Jury Panel, he offered no evidence to

; 2

support his claim of intentional discrimination by the court

officials in selecting jurors, but relied upon the record of a

hearing stemming from a challenge to the same jury venire,

based upon a sixth amendment violation (Pet. App. at 23A

to 24A). The district court found at the Jackman pretrial

hearing that there was no intentional discrimination. (Pet.

App. at 23A-24A). That finding was then applied by the

district court at the Petitioner's hearing on the Motion to

Strike the Jury Panel. See United States v. Jackman, 46

F.3d 1240 (2d Cir. 1995).

The district court denied the Petitioner's Motion to

Strike the Jury Panel, expressly finding that there was no

intentional discrimination on the part of the court officials

and, alternatively, that the Petitioner's motion was

untimely. The Petitioner did not contend on appeal that the

underepresentation of minorities on his jury was a product

of intentional discrimination (Pet. App. 24 - 25A).

The Court of Appeals for the Second Circuit (Winter,

Mahoney and Godbold, Js.) affirmed the judgment entered

in the district court, with Judge Godbold dissenting on the

issue of a denial of equal protection based upon the jury

composition.

The Petitioner filed a petition for rehearing and a

Suggestion for rehearing en banc before the court of

appeals, which petitions were denied with only a minor

amendment to the court's slip opinion not related to the

equal protection/jury selection issue.

The Petitioner then filed this Petition for Writ of

Certiorari.

REASONS FOR DENYING WRIT

I. It Is Undisputed That The Underrepresentation Of

Minorities In The Venire Was Unintentional

In his zeal to attain additional review, the very first

thing the Petitioner represents to this Court is that "[i]n the

present case, the majority opinion incorrectly concluded that

the record does not support intentional discrimination."

(Pet. App. at p. 11) To the contrary, the court of appeals

expressly stated that, "[o]n appeal, Ricketts failed even to

contend that the underrepresentation of minorities on his

jury resulted from their intentional exclusion." (Pet. App.

24 - 25A) Additionally, the district court determined that

there was no intentional discrimination by court officials.

See United States v. Jackman, 46 F.3d 1240, 1248 (2nd

Cir. 1995) ("Gary Jackman's venire was clearly the product

of misfeasance (although, as the majority notes, not

malfeasance) of the Hartford jury clerk's office.") (Walker,

J., dissenting). Thus, the petition should be denied. As a

matter of fact and law, there was no intentional exclusion

of minorities from the venire.

It is equally undisputed that, for a civil litigant to

sustain an equal protection challenge such as the one at bar,

he must establish intentional discrimination. McClesky v.

Kemp, 481 U.S. 279, 292 (1987); Arlington Heights v.

Metropolitan Housing Dev. Corp., 429 U.S. 252, 265

(1977).

Rather than address this reality, the Petitioner seeks

instead to obscure the issue by clutching to dicta contained

in the court of appeals' dissenting opinion. In the dissent,

Judge Godbold opined that the decision of the Second

Circuit in United Siates v. Jackman, 46 F.3d at 1240

required reversal of the instant matter. This observation

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SAD RG Mt LINE RL BREE aI sO aa, BU RS

a a A I

is utterly unavailing, however, because Jackman involved

only a sixth amendment challenge; it did not consider the

element of intentional discrimination to the extent required

in a fifth amendment challenge. '

) Cognizant of this distinction, the majority opinion in

. the case below recognized that, at best, the record in light

: of Jackman arguably raises only a presumption of

discriminatory intent. (Pet. App. 23A) The Respondents

acknowledge that Castaneda v. Partida, 430 U.S. 482

(1977), establishes that a habeas petitioner bringing an

equal protection challenge can raise a_ rebuttable

presumption of discriminatory purpose that the government,

in turn, must rebut.? As the court of appeals aptly

emphasized, while the district court's pretrial hearing in

Jackman established a sixth amendment violation that

required reversal of Jackman's conviction, the "govern-

1/ The Petitioner is not a defendant in a criminal case

and therefore cannot rely upon the guarantees of the

sixth amendment. Additionally, the protection of

the Jury Selection and Service Act of 1968, 28

U.S.C. § 1861, is inapplicable because the

Petitioner failed to file a sworn statement setting

forth facts showing how the jury panel did not

reflect a fair cross-section of the community, as is

required by § 1867.

) 2/ It is unclear, however, exactly how the

Respondents, as civil litigants, could have stepped

into the shoes of the government for purposes of

rebutting a prima facie showing. Nonetheless, the

government successfully rebutted any presumption

that existed at the pretrial hearing in Jackman.

(Pet. App. at 23A).

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WUDNUMNDDONDAI Bens GRU NAR NAA MRM GE es ES MR RET SY oa mem

a a a

ment's cross-examination established that the jury

administrator had never intentionally excluded any potential

juror from selection on account of race, or because ‘they

were of black or of Puerto Rican descent.'" (Pet. App.

23A) Simply put, the district court found as a matter of

fact that while minorities were underrepresented in the pool

of names from which the jury administrator chose, that flaw

was not the product of intentional discrimination. To the

contrary, the district court found, and the appellate court

affirmed, that the mistake was inadvertent; until the hearing

itself, the jury administrator believed that she was following

the correct procedures. (Pet. App. 24A) Against this back-

drop, the Petitioner can hardly claim that he is entitled to

a new trial on the basis that he has raised vicariously an

unrebutted presumption of discrimination.

Because the Petitioner has never claimed that there

was intentional discrimination at play, and given that the

district court expressly ruled as a matter of fact that there

was no intentional discrimination at hand, the Petitioner's

Suggestion that there is ground for certiorari rings hollow.

The decision of the court of appeals does not conflict

with applicable decisions of this Court.

If. The Petitioner Did Not Challenge The Alleged

Improper Venire In A Timely Fashion

It is undisputed that the Petitioner did not challenge

the racial composition of the venire until thirteen days after

he had selected his jury. Thus, the Petitioner's challenge

was untimely; his claim of error can be rejected on this

basis as well.

The composition of the panel was noticeable to the

Petitioner at the time of jury selection. The Petitioner,

; os

however, remained silent, completed jury selection, and

only then did he assert a challenge. The incongruity of this

process is obvious. To ignore the untimely challenge is to

condone juror shopping. Extended to its logical conclusion,

the Petitioner could have waited for the jury's verdict and

then, if not satisfied, challenged the composition of the

venire. The Petitioner's equal protection challenge should

have been raised prior to jury selection, as opposed to

nearly two weeks after the jury had been impaneled and on

the eve of trial. Certiorari should therefore be denied.

CONCLUSION

The Respondents respectfully submit that the petitioner

has failed to demonstrate a basis for the Court to exercise

its judicial discretion to grant the Petition for Writ of

Certiorari. The Second Circuit Court of Appeals properly

applied the law, and its decision in no way conflicts with

applicable decisions of this Court.

The Respondents respectfully request that the Petition

for Writ of Certiorari be denied.

Respectfully submitted

y | gy

mes J. — Yo —s

ounsel of Record

Halloran & Sage

One Goodwin Square

225 Asylum Street

Hartford, Connecticut 06103

(860) 522-6103

Michael J. Gustafson

Halloran & Sage

One Goodwin Square

225 Asylum Street

Hartford, Connecticut 06103

(860) 522-6103

Attorneys for the Respondents