# Amicus Curiae Brief — Cain v. Rideau

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URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386010_1074%3A2

## Record

- **Collection:** Supreme Court brief
- **Document type:** Amicus Curiae Brief
- **Published:** January 1, 2001
- **Citation:** 533 U.S. 924

## Text

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

-3-

—_ —_—-——-—-— --

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.

-10-

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,

-11-

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.

-12-

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.

---

Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386010_1074%3A2. Public record. Not legal advice.