Amicus Curiae Brief — Cain v. Rideau

No. 00-1577 OREIGS OF THR CLEEK

Supreme Court of The

Gnited States

JOHN P. WHITLEY, WARDEN |

LOUISIANA STATE PENITENTIARY

Petitioner,

V.

WILBERT RIDEAU

Respondent,

On Petition for a Writ of Certiorari to the

United States Court of Appeals for the Fifth Circuit

AMICUS CURIAE BRIEF

ON BEHALF OF THE

LOUISIANA DISTRICT ATTORNEYS ASSOCIATION

ELLIS PAUL ADAMS, JR.*

Executive Director

Louisiana District Attomeys Assn’

REBECCA J. BECKER

A.D.A., 24” Judicial District

MARTIN K. MALEY, SR.

Staff Attorney

Louisiana District Attorneys Assn

1645 Nicholson Drive

Baton Rouge, Louisiana 70802

(225) 343-0171

Attorneys for Amicus Curiae

(*) Counsel of Record

QUESTION PRESENTED

Whether discrimination in the selection of grand

jury members, resulting in the underrepresentation of

African Americans or any other minority, requires reversal

of the conviction of the defendant and dismissal of the

original indictment against him.

TABLE OF CONTENTS

CUI TICE PU sk NES hie ee aed ii

TOU GP Cee an o's oh Rs CS iii

TABLE OF CITED AUTHORITIES ............. iv-v

TALES GH APP 6 a i i on we ee es vi

ee eee eee rr er vi

STATEMENT OF JURISDICTION ............... vi

DTP FEE Ee GI COED cosa cce sens wunevenns vi

PROCEDURAL HISTORY OF CASE ............. vi

REASONS FOR GRANTING THE WRIT ...... ae

SUMMARY OF THE ARGUMENT ............... 1

ARGUMENT (0 kha s eat ee Rik eee 2-13

1. Discrimination in the Selection of Grand Jury

Members, Resulting in the Underrepresentation of

African Americans or Other Minority Groups Does Not

Require Automatic Reversal of the Conviction of the

Defendant or Dismissal of the Indictment .......... 2

ll. The Grand Jury Does Not Decide Guilt or Innocence

of a Party and Therefore Error Should Not Require

i, ee Ser Ne ete eae 7

Ill. Constitutional Violations in the Grand Jury Process

Should Be Reviewed under the Harmless Error

EN ok Rc Kc cu k RA a a ee a

TABLE OF CASES AND AUTHORITIES

Arizona v. Fulminante, 499 U.S. 279, 111 S.Ct. 1246,

TUS Re OE CIN ED oon oes Sac bs cee ae 10

Cassell v. Texas, 339 U.S. 282, 302,

70 S.Ct. 629, 639, 94 L.Ed. 839 (1950) ... 5, 13

Chapman v. California, 386 U.S. 18, 21-24, 87 S.Ct. 824,

826-828, 17 L.Ed.2d 705 (1967) ........... 9

Coleman v. Alabama, 399 U.S. 1, 90 S.Ct. 1999,

Se Ee ee ENN aicisnsnldn eos eens 9

Davis v. Georgia, 429 U.S. 122, 97 S.Ct. 399,

Py ED SP OOD bs 5 oo 0s chs ad eeiwee 8

Gerstein v. Pugh, 420 U.S. 103, 95 S.Ct. 854,

oe es 10

Gideon v. Wainwright, 372 U.S. 335, 83 S.Ct.

Ce, Oe FEL UMOOD cow vicsuscncvene 1]

Harrington v. California, 395 U.S. 250, 89 S.Ct. 1726,

ih ss gis pas pe aly a

Hobby v. United States, 468 U.S. 339,

NS ED ons na wna naaciewceian 10, 13

Hurtado v. People of State of California, 110 U.S. 516,

EE snd cccecceaucccsene 5,6

Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2871,

AE EEUU nod ch vcchoasnddececswes 5

Johnson v. United States, 520 U.S. 461, 468,

117 S.Ct. 1544, 137 L.Ed.2d 718 (1997) ........ 1]

iv

McKaskle v. Wiggins, 465 U.S. 168, 104 S.Ct. 944,

pi Peed | rr rrr rrr 1]

Milton v. Wainwright, 407 U.S. 371, 92 S.Ct. 2174,

SP Le SSPE 6c cc scv onsen tsaasdancase 9

Neder v. United States, 119 S.Ct. 1827,

I 6.0 cc we bens eked nanseeaaes 9,11, 12

Rose v. Mitchell, 443 U.S. 545, 561, 99 S.Ct. 2993, 3003,

RR es ho rer pres 4, 8, 12, 13

Strauder v. West Virginia, 100 Otto 303,

100 U.S. 303, 306, 25 L.Ed. 664 (1880) ......... 12

Strickland v. Washington, 466 U.S. 668, 687,

104 S.Ct. 2052, 2064, 80 L.Ed.2d 674 (1984) .... 10

Sullivan v. Louisiana, 508 U.S. 275, 113 S.Ct. 2078,

bof Gel... Be eee 11

Tumey v. Ohio, 273 U.S. 510, 535, 47 S.Ct. 437, 445,

gh By oi.) Be ee en oe 8, 11

United States v. Barnett, 376 U.S. 681, 699,

84 S.Ct. 984, 994, 12 L.Ed.2d 23 (1964) ......... 3

Vasquez v. Hillery, 474 U.S. 254, 260-261,

106 S.Ct. 617, 88 L.Ed.2d 598

i Rr Re rs Foret. 1-7, 10-12, 14

Waller v. Georgia, 467 U.S. 39, 104 S.Ct. 2210,

Be Ric EE oi kn ae bb hen Redd bbreake 11

INTEREST OF AMICUS

The interest of Amicus’ in this case is to urge this

Honorable Court to reexamine the present remedy under

Vasquez, v. Hillery, 474 U.S. 254, 106 S.Ct. 617, 88 L.Ed.

2d 598 (1986), with regard to discrimination in state grand

jury selection procedures resulting in underrepresentation of

African American or other minority. groups, thus violating

the Fourteenth Amendment, and fashion a new remedy

thereby invoking a case-by-case harmless error standard of

review. The effect of such a holding would also serve to

reverse the ruling of the United States Court of Appeal for

the Fifth Circuit in the instant, as urged by the State of

Louisiana, in its brief.

' Pursuant to Rule 37.6, this brief was written in whole by

Amicus counsel and its membership. Further, Amicus received

no contributions, monetary or otherwise, from any source other

than the Louisiana District Attorneys Association, for the

preparation or submission of this brief.

SUMMARY OF THE ARGUMENT

This Court has historically found that racial

discrimination in state grand jury procedures resulting in an

underrepresentation of African American or other minority

groups violates the Fourteenth Amendment. Although Vasquez

v. Hillery, 474 U.S. 254, 260-261, 106 S.Ct. 617, 88 L.Ed.2d

598 (1986) affirmed the appropriateness of mandatory reversal

of the defendant’s conviction when this rule is violated, Amicus

respectfully urges this Honorable Court to reexamine the present

remedy.

This Court has consistently held that certain

constitutional violations may be reviewed under the harmless

error standard. Vasquez as currently applied, elevates violations

in the grand jury process of this sort to a status above other

constitutional safeguards which are reviewed for harmless error.

Amicus contends that this rule should be reversed and a case by

case analysis be adopted. Such analysis should balance harm

from a racially discriminatory grand jury selection process, with

the fairness of the entirety of the criminal process.

ARGUMENT

1. DISCRIMINATION IN THE

SELECTION OF GRAND JURY

MEMBERS, RESULTING IN THE

UNDERREPRESENTATION OF AFRICAN

AMERICANS OR OTHER MINORITY

GROUPS DOES NOT REQUIRE

AUTOMATIC REVERSAL OF THE

CONVICTION OF THE DEFENDANT OR

DISMISSAL OF THE INDICTMENT.

Since 1880, this Court has upheld the principle that

racial discrimination in state grand jury selection is

unquestionably a violation of the Fourteenth Amendment.

Vasquez v. Hillery, 474 U.S. 254, 260-261, 106 S.Ct. 617, 88

L.Ed.2d 598 (1986) and cases cited therein. Amicus neither

contests this principle nor condones its violation. However,

since that earlier time, this Court has held that the appropriate

and automatic remedy for this constitutional violation is the

mandatory reversal of the conviction of the criminal defendant

who was indicted by the grand jury. Jd. Amicus believes that

the time is appropriate to reconsider the remedy for this type of

constitutional violation.

Considerations of stare decisis do not preclude this

Court from reconsideration of an appropriate remedy.

“[{P]articularly where constitutional issues are involved ‘[t]his

Court has shown a readiness to correct its errors even though of

long standing.”” Vasquez, 474 U.S. at 269 (Powell, J.

dissenting), citing United States v. Barnett, 376 U.S. 681, 699,

84 S.Ct. 984, 994, 12 L.Ed.2d 23 (1964). In referring to the

application of stare decisis in affirming the appropriateness of

mandatory reversal in Vasquez, this Court supplied the very

reasons for which Amicus now seeks reconsideration of the

penalty--changes in society and changes in the law. Vasquez,

474 U.S. at 266 (“Every sucéessful proponent of overruling

precedent has borne the heavy burden of persuading the Court

that changes in society or in the law dictate that the values

served by stare decisis yield in favor of a greater objective.”’).

Mandatory reversal of the criminal conviction where

racial discrimination in the grand jury proceeding is found has

been supported by several rationales. The Vasquez majority

found that “intentional discrimination in the selection of grand

jurors is a grave constitutional trespass, possible only under

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—_ —_—-——-—-— --

color of state authority, and wholly within the power of the State

‘to prevent.” Vasquez, 474 U.S. at 262; see see Rose v. Mitchell,

443 U.S. 545, 561, 99 S.Ct. 2993, 3003, 61 L.Ed.2d 739 (1979).

Violation(s) of constitutional rights by a government authority,

however, are not limited to racial discrimination in grand jury

proceedings. For example, illegal searches and seizures and

coerced confessions are serious constitutional violations.

However, as will be discussed further infra, mandatory reversal

of criminal convictions is not considered an appropriate remedy

for these and many other constitutional errors.

The Vasquez Court reasoned that mandatory reversal of

conviction was the only effective remedy for this type of

Fourteenth Amendment violation and that mandatory reversal

was not disproportionate to the evil that it sought to deter.

Vasquez, 474 U.S. at 262. Amicus respectfully submits that

racial discrimination in the grand jury selection process has been

made, for all practical purposes, obsolete by the widespread

adoption of prophylactic laws and procedures which assure —

minority participation in all phases of the grand and petit jury

process. We further suggest that, there was no prejudice to this

particular criminal defendant, therefore, mandatory reversal is

clearly unnecessary in the instant case.

The Vasquez Court determined that the grand jury’s

decisions had an effect on the subsequent criminal trial which

could not be discounted. The Court found the grand jury has the

power to determine the grade of the offense charged, the number

of the counts and whether a case should be charged as a capital

offense. Vasquez, 474 U.S. at 263. Amicus agrees, but suggests

that any‘ prejudice to the process is purged by a subsequent

constitutional trial. No matter which charging instrument is

used to bring a charge against a defendant, (indictment;

information; affidavit) the state must still prove the charge

against the defendant beyond a reasonable doubt in order to

secure a conviction. Jackson v. Virginia, 443 U.S. 307, 99 S.Ct.

2871, 61 L.Ed.2d 560 (1979). As noted by Justice Jackson in

his dissent in Cassell v. Texas, 339 U.S. 282, 302, 70 S.Ct. 629,

639, 94 L.Ed. 839 (1950).

The grand jury [as opposed to the trial jury] is

a very different institution. The States are not

5-

required to use it at all. Hurtado v. People of

State of California, 110 U.S. 516, 4 S.Ct. 292,

28 L.Ed. 232. Its power is only to accuse, not

to convict. Its indictment does not even create

a presumption of guilt; all that it charges must

later be proved before the trial jury, and then

beyond a reasonable doubt. The grand jury

need not be unanimous. It does not hear both

sides but only the prosecution’s evidence, and

does not face the problem of a choice between

two adversaries. Its duty is to indict if the

prosecution’s evidence, unexplained,

uncontradicted and unsupplemented, would

warrant a conviction. If so, its indictment

merely puts the accused to trial. The difference

between the function of the trial jury and the

function of the grand jury is all the difference

between deciding a case and merely deciding

that a case should be tried.

Vasquez held that “even if a grand jury’s datisliiianen

of probable cause is pe ee in hindsight by a conviction on

the indicted offense, that confirmation in no way suggests that

the discrimination did not impermissibly infect the framing of

the indictment and, niet ale. the nature or very existence of

the proceedings to come.” Jd., 474 U.S. at 263. Insofar as this

statement suggests that a racial motive might be present in the

initial charging of a defendant, the Court is correct that a

violation of the Fourteenth Amendment might have occurred.

Such a violation is unconstitutional and is denounced by Amicus.

However, this observation in no way supports the conclusion

that mandatory reversal is the appropriate and automatic remedy

for such a violation. Amicus suggest that this Honorable Court

adopt a balancing test by which errors in the grand jury selection

process are considered in the context of an evihetion of the

entire tnal process.

Il. THE GRAND JURY DOES NOT

DECIDE GUILT OR INNOCENCE OF A

PARTY AND THEREFORE ERROR

SHOULD NOT REQUIRE REVERSAL.

The Vasquez Court held that a reviewing court could

neither indulge in a presumption of regularity nor evaluate the

resulting harm when constitutional error calls into question the

objectivity of those charged with bringing a defendant to

judgment. Vasquez, 474 U.S. at 263. This finding results from

two false premises. First, as will be discussed infra, reviewing

courts are routinely called upon to evaluate the resulting harm

when constitutional error occurs. Second, a grand jury does not

bring a defendant to judgment; a grand jury brings a defendant

to trial. Only after a constitutionally valid trial is a judgment of

--

conviction obtained. In support of its position, the Vasquez

Court cited cases dealing with a biased judge or a biased petit

jury. See Tumey v. Ohio, 273 U.S. 510, 535, 47 S.Ct. 437, 445,

71 L.Ed. 749 (1927); Davis v. Georgia, 429 U.S. 122, 97 S.Ct.

399, 50 L.Ed.2d 399 (1976); Vasquez, 474 U.S. at 263. Yet this

support begs the question whether a harmless error analysis is

appropriate for this pretrial constitutional error once a

conviction is obtained after a constitutionally fair trial. The

Vasquez Court held that, like these fundamental trial flaws,

“discrimination in the grand jury undermines the structural

integrity of the criminal tribunal itself, and is not amenable to

harmless-error review.” Jd.,474 U.S. at 263-264. However, the

el jury is not the ultimate criminal tribunal. The trial is the

criminal tribunal which determines the guilt or innocence of the

defendant. The grand jury is merely a charging instrument

which brings a case to trial. As this Court has held, “[i]t is well

settled that deprivations of constitutional rights that occur before

trial are no bar to conviction unless there has been an impact

upon the trial itself.” Rose v. Mitchell, 443 U.S. at 576, 99 S.Ct.

at 3010 (Stewart, J. concurring).

Ill. CONSTITUTIONAL VIOLATIONS IN

THE GRAND JURY PROCESS SHOULD

BE REVIEWED UNDER THE HARMLESS

ERROR STANDARD.

This Court has recognized that most constitutional errors

can be harmless. Neder v. United States, 119 S.Ct. 1827, 1833

(1999). The continued viability of the reasoning of Vasquez and

the cases cited therein, which demand mandatory reversal of a

criminal conviction, elevates this particular Fourteenth

Amendment violation over other constitutional violations which

are reviewed for harmless error. See Chapman v. California,

386 U.S. 18, 21-24, 87 S.Ct. 824, 826-828, 17 L.Ed.2d 705

(1967) (Fifth and Fourteenth icseabiiia violation by trial

judge’s improper comment on the defendant’s failure to testify

reviewed for harmless error); Harrington v. California, 395 U.S.

250, 89 S.Ct. 1726, 23 L.Ed.2d 284 (1969) (Sixth Amendment

Confrontation Clause violation by use of co-conspirator

confession reviewed for harmless error); Coleman v. Alabama,

399 U.S. 1, 90 S.Ct. 1999, 26 L.Ed.2d 387 (1970) (Sixth

Amendment denial of counsel at preliminary hearing reviewed

for harmless error); Milton v. Wainwright, 407 U.S. 371, 92

S.Ct. 2174, 33 L.Ed.2d 1 (1972) (Fifth and Sixth Amendment

violations by use of confession obtained in violation of right to

counsel reviewed for harmless error);Gerstein v. Pugh, 420 U.S.

103, 95 S.Ct. 854, 43 L.Ed.2d 54 (1975) (Fourth Amendment

violation for pretrial illegal arrest reviewed for harmless error);

Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052,

2064, 80 L.Ed.2d 674 (1984) (Sixth Amendment violation of

right to competent counsel requires showing of prejudice);

Hobby v. United States, 468 U.S. 339, 104 S.Ct. 393 (1984)

(Fifth Amendment violation based on discriminatory selection

of federal grand jury foreperson reviewed for harmless error);

Arizona v. Fulminante, 499 U.S. 279, 111 S.Ct. 1246, 113

L.Ed.2d 302 (1991) (Fifth Amendment violation based on

coerced confession reviewed for harmless error). As pointed out

by Justice Powell in Vasquez:

Grand jury discrimination is a serious violation

of our constitutional order, but so also are the

deprivations of rights guaranteed by the Fourth,

Fifth, Sixth, and Fourteenth Amendments to

which we have applied harmless-error analysis

or an analogous prejudice requirement.

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Moreover, grand jury discrimination occurs

prior to trial, while the asserted constitutional

violations in most of the above-cited cases

occurred during trial. The Court does not

adequately explain why grand jury

discrimination affects the “integrity of the

judicial process” to a greater extent than the

deprivation of equally vital constitutional

rights, nor why it is exempt from a prejudice

requirement while other constitutional errors

are not.

Vasquez, 474 U.S. at 271 (Powell, J. dissenting).

Constitutional violations which this Court has deemed

“structural” errors, and thus remedied only by automatic

reversal, are a very limited class of cases. Neder, 119 S.Ct. at

1833. In fact, the cases listed by this Court as being in that very

limited class in Neder are:

Johnson v. United States, 520 U.S. 461, 468,

117 S.Ct. 1544, 137 L.Ed.2d 718 (1997) (citing

Gideon v. Wainwright, 372 U.S. 335, 83 S.Ct.

792, 9 L.Ed.2d 799 (1963) (complete denial of

counsel); Tumey v. Ohio, 273 U.S. 510, 47

S.Ct. 437, 71 Ll.Ed. 749 (1927) (biased trial

judge); Vasquez v. Hillery, 474 U.S. 254, 106

S.Ct. 617, 88 L.Ed.2d 598 (1986) (racial

discrimination in selection of grand jury);

McKaskle v. Wiggins, 465 U.S. 168, 104 S.Ct.

944, 79 L.Ed.2d 122 (1984) (denial of self-

representation at trial); Waller v. Georgia, 467

U.S. 39, 104 S.Ct. 2210, 81 L.Ed.2d 31 (1984)

(denial of public trial); Sullivan v. Louisiana,

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508 U.S. 275, 113 S.Ct. 2078, 124 L.Ed.2d 182

(1993) (defective reasonable-doubt instruction).

Neder, 119 S.Ct. at 1833. This Court should note that the only

case cited which requires automatic reversal for a pretrial

constitutional violation is Vasquez; all of the other cases cited in

this group involve constitutional violations in the trial context.

That such an unyielding remedy was first fashioned for

grand jury racial discrimination is not surprising. “The true

spirit and meaning of the amendments ... cannot be understood

without keeping in view the history of the times when they were

adopted, and the general objects they plainly sought to

accomplish.” Strauder v. West Virginia, 100 Otto 303, 100 U.S.

303, 306, 25 L.Ed. 664 (1880). The earlier cases decided by this

Court involved discrimination both in the selection of the grand

jury as well as the petit jury which determined the guilt or

innocence of the criminal defendant. The evil of racial

discrimination in the stebiiatiesten of the criminal justice

system was the evil which mandatory reversal sought to deter.

Rose v. Mitchell, 443 U.S. at 554-555.

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Racial discrimination in the selection of grand jurors is

unquestionably a violation of an important constitutional right.

Yet the automatic and mandatory remedy of reversal of a

conviction where a trial jury, selected without discrimination,

has subsequently found a criminal defendant guilty of a crime

beyond a reasonable doubt, is no longer appropriate. There are

other important principles in our system of law which must be

considered. “No conviction should be set aside for errors not

affecting substantial nights of the accused.” Cassell, 339 U.S. at

299 (Jackson, J. dissenting). In addition, “[a]bsent an

infringement of the fundamental right to fairness that violates

[equal protection], there is no basis upon which to reverse

petitioner’s conviction or dismiss the indictment.” Hobby v.

United States, 468 U.S. 339, 346, 104 S.Ct. 3093, 3097, 82

L.Ed.2d 260 (1984). Valid convictions must not be reversed on

collateral attack on the basis of claims that have nothing to do

with a criminal defendant’s guilt or innocence. Rose v. Mitchell,

443 U.S. at 586 fn 8 (Powell, J. concurring).

-13-

CONCLUSION

Amicus respectfully requests that this Honorable Court

reconsider Vasquez insofaras its holding requires automatic and

mandatory reversal of a criminal conviction for racial

discrimination in the selection of grand jury members when

there has been a subsequent constitutionally fair trial. The

present case presents an excellent example for the necessity of

a harmless error rule in such circumstances. Amicus would

therefore urge this Honorable Court to adopt a system of case-

by-case analysis, whereby a reviewing court may balance the

racially discriminatory grand jury selection process with the

fairness of the entire criminal process.