Opposition Brief — Morgan v. Jefferson

No. 92-193 i ce oes ee

IN THE

SUPREME COURT OF THE UNITED STATES

OCTOBER TERM 1992

JACK MORGAN, Warden,

Petitioner,

vs.

JAMES THOMAS JEFFERSON,

Respondent.

Petition For Writ Of Certiorari To The

United States Court Of Appeals

For The Sixth Circuit

BRIEF IN OPPOSITION TO PETITION FOR WRIT OF CERTIORARI

CHARLES R. RAY

DONALD E. DAWSON

RAY & HOUSCH

211 Third Avenue, North

P.O. Box 198288

Nashville, TN 37219

(615) 256-2111

Counsel For Respondent

QUESTIONS PRESENTED

As When there is clear evidence of discrimination against

African Americans in the selection of grand jury members for a

period of over ten years, does the coincidence that the racial

makeup of the grand jury that indicted the defendant approximates

the racial makeup of the community obviate the inherent prejudice

of a discriminatory grand juror selection process?

2. Should the Court overrule the longstanding precedent that

discriminatory selection of the grand jury venire is not subject to

harmless error analysis?

OPINIONS BELOW

SUMMARY OF ARGUMENT.

ARGUMENT

CONCLUSION

CERTIFICATE OF SERVICE

TABLE OF CONTENTS

16

16

TABLE OF AUTHORITIES

Cases

Ballard v. United States,

229 U.S. 187, 195, 91 L.Ed.2d 181, 67 S.Ct. 261 (1946) . . 8

Bank of Nova Scotia v. United States,

487 U.S. 250 (1988) . . 15

Castaneda v. Partida,

430 U.S. 482, 51 L.Ed.2d 498, 97 S.Ct. 1272 (1977) . . 23 20

Hilton v. South Carolina Railways Commission,

Use , 212 $.Ct. 560, 363 (1991) ie

Jefferson v. Dutton,

607 F.Supp. 355 (M.D. Tenn. 1985)

Jefferson v. Dutton,

No. 85-5335 (6th Cir. June 10, 1986)

Jefferson v. State,

ay 29 Dy &V

559 S.W.2d 649, 651, 652 (Tenn. Cr. App. 1977) fy 4

Norris v. Alabama,

294 U.S. 587, 589, 55 S.Ct. 579, 79 L.Ed. 1074 (1934) ee

12

Powers v. Ohio,

U.S. , 212 S.Ct. 1364 (1991) 8

Rose v. Lundy,

455 U.S. 509, 102 S.Ct. 1198, 71 L.Ed.2d 379 (1982) a ee ee

Rose v. Mitchell,

443 U.S. 545, 99 S.Ct. 2993, 61 L.Ed.2d 739 (1979) . 2-4, 8,

Smith v. Texas,

311 U.S. 128, 130 (1940) . « « «

State v. Jefferson,

529 S.W.2d 674, 677 (Tenn. 1975) .

State v. Jefferson,

769 S.W.2d 875 (Tenn. Cr. App. 1988)

Strauder v. West Virginia, :

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

United States v. Mechanik,

475 U.S. 66, 106 S.Ct. 938, 89 L.Ed.2d 50 (1986)

10, i2, -14

14

Vasquez v. Hillery,

474 U.S. 254, 106 S.Ct. 617, 88 L.Ed.2d 598 (1986) . ‘Poe > F

28 U.S.C. §@ 2206 .~ s ws se essen nvnevennvnanevees ees so em

Federal Rules of Criminal Procedure, Rule 6(d) ee «2 ee oe

OPINIONS BELOW

The opinions of the United States Court of Appeals for the

Sixth Circuit and of the United States District Court for the

Middle District of Tennessee are properly cited in the Petition for

Writ of Certiorari filed on behalf of Jack Morgan and are contained

in the state’s Petition.

For a complete understanding of the Opinion of the District

Court it is necessary to include the Report and Recommendation of

the Magistrate which was excluded from the state’s Petition and is

attached.

STATEMENT OF -THE CASE

Respondent, James Thomas Jefferson, was indicted in 1968 by a

Davidson County, Tennessee grand jury for first degree murder, rape

and two counts of assault with intent to commit murder. These

offenses were tried separately. See, State v. Jefferson, 529

S.W.2d 674, 677 (Tenn. 1975). Jefferson was tried first for the

rape and the jury was unable to reach a verdict. Jefferson was

then tried on the charge of murder and received a sentence of 99

years in the state penitentiary. 529 S.W.2d at 678. Prior- to

trial, Jefferson filed a plea in abatement challenging the racial

compositions of both the grand jury and the petit jury venires.

529 S.W.2d at 678. The trial court denied that there was a

systematic exclusion of blacks from the grand and petit juries in

Davidson County. 529 S.W.2d at 680. This ruling of the trial

court was reached without the benefit of a hearing. 529 S.W.2d at

680.

On appeal the issues of systematic exclusion of black citizens

from the grand and petit juries were remanded to the trial court to

determine whether there was a systematic exclusion of African-

Americans from those bodies. 529 S.W.2d at 680.

When the trial court addressed the issue on remand, it limited

proof of the composition of the particular grand jury which

indicted Jefferson and the petit jury which convicted him. The

trial court, basing its finding on focusing on the May 1968 grand

jury and 1971 petit jury, held that there was no systematic

exclusion of blacks from the grand jury or petit jury. Jefferson

v. State, 559 S.W.2d 649, 651, 652 (Tenn. Cr. App. 1977). The

Court of Criminal Appeals affirmed the holding of the trial court.

239 S$.W.2d at 652.

Jefferson next filed a pro se habeas corpus petition in the

United States District Court for the Middle District of Tennessee

pursuant to 28 U.S.C. § 2254. Jefferson v. Dutton, 607 F.Supp. 355

(M.D. Tenn. 1985). Counsel was appointed and filed a response to

the state’s motion for summary judgment that included a challenge

to the systematic exclusion of blacks as foremen of the Davidson

County grand jury based upon this Court’s holding in se _v.

Mitchell, 443 U.S. 545 (1979), which had been decided after the

Jefferson’s Plea in Abatement but was encompassed within his

i

general challenge to the composition of the grand jury.

After a lengthy evidentiary hearing the district court ruled

that there had been a systematic exclusion of blacks as foremen of

the grand jury based upon a ten year history wherein no blacks were

appointed foreman. 607 F.Supp. at 358 - 360). The district court

further held that the method of selecting the grand jury foreman

had been encompassed within Jefferson’s original claims and that

state remedies had been exhausted. Jefferson v. Dutton, 607

F.Supp. at 357, n. 4. The district court ordered Jefferson

released or retried within 90 days. The state appealed to the

Sixth Circuit, which reversed the district court, finding under

Rose v. Lundy, 455 U.S. 509 (1982), that the issue of systematic

exclusion in the selection of the grand jury foreman had not been

exhausted. Jefferson v. Dutton, No. 85-5335 (6th Cir. June 10,

1986).

On August 26, 1986, Jefferson filed his petition for post

conviction relief in the state trial court challenging the grand

jury foreman issue. The state trial court ruled that the Supreme

Court’s holding in Rose v. Mitchell, supra, was in error because

the foreman of the grand jury in Tennessee had no enhanced powers.

Therefore, any racial discrimination engendered in that process was

to be treated as discrimination in the seiection of the entire

grand jury.' State v. Jefferson, 769 S.W.2d 875 (Tenn. Cr. App.

' The state, after raising the exhaustion issue in the United

States District Court through a motion to dismiss (State v.

Jefferson, 769 S.W.2d at 876), apparently abandoned that position

ence the case was again before the state courts, and argued that

the grand jury foreman issue was not a separate issue after all.

3

1988). The trial court then considered the question of systematic

exclusion of blacks in the entire grand jury selection process and

held that it was bound by the previous findings of the Court of

Criminal Appeals in Jefferson v. State, 559 S.W.2d 649. On

December 28, 1988, the Tennessee Court of Criminal Appeals

concluded that the holding in Rose v. Mitchell did not create an

independent claim under the Equal Protection Clause of the

Fourteenth Amendment to the United States Constitution because the

Supreme Court had misstated the powers of the office. 769 S.W.2d

at 877. The majority opinion went on to conclude that the prior

finding that there had been no discrimination in the selection

_process rendered by the Court of Criminal Appeals in Jefferson v.

State, 559 S.W.2d 649, was correct. 769 S.W.2d at 878.

One judge dissented pointing out the significance, for equal

protection analysis, of the Davidson County procedure for

appointing grand jury foremen was that they were appointed

separately from the other grand jurors. Therefore, if the

selection process were racially biased it would impermissibly

effect the makeup of the grand jury notwithstanding the powers or

lack of powers of office of foreman. 769 S.W.2d at 878-880 (Wade

dissenting).

Permission to appeal to the Tennessee Supreme Court was denied

on April 3, 1989. State v. Jefferson, 769 S.W.2d at 875.

On May 19, 1989, Jefferson filed his second petition for a

writ of habeas corpus, pursuant to 28 U.S.C. § 2254, in the United

769 S.W.2d at 876, 877.

States District Court. The matter was then referred to the

magistrate who reinstated the prior opinion of the district court

as the law of the_case, and concluded that the district court’s

former opinion was not premised on the theory that the foreperson

played a distinct role, and that the district court’s view of the

rule of the foreperson was similar to that articulated by the state

courts. (Appendix at A-11).

On May 20, 1991, the district court adopted the Report and

Recommendation of the magistrate and ordered the state to reindict

Jefferson within 90 days or release him from custody. (Appendix B

to State’s Petition). Subsequently, this order was stayed and the

state filed notice of appeal to this court.

The salient facts in this case were set out in the Report and

Recommendation of the magistrate which was adopted by the district

court. The magistrate recommended that the prior findings of facts

and conclusions reported in Jefferson v. Dutton, 607 F.Supp. 355

(M.D. Tenn. 1985), be reinstated under the doctrine of the "law of

the case." (Appendix at A-2). |

In the decade prior to Jefferson’s indictment (1958-1968),

there had been thirty-three grand juries selected by the criminal

court judges of Davidson County. Seventeen of these thirty-three

grand juries had only one black member, seven had no blacks, and

the number of blacks on eight of the grand juries was unknown. Two

blacks participated in the grand jury that indicted Jefferson. The

court below found that "all twenty-five of the grand juries, for

which data is available, had a percentage of blacks that was

4.

significantly less than the percentage of the population of blacks

in Davidson County. (Appendix at A-4).

During the period in question, the Davidson County grand

juries were selected under a key-man system, primarily by the

Honorable Raymond H. Leathers, who served as Criminal Court Judge

from 1958 throughout the relevant period, and the Honorable John L.

Draper, who served as the Judge of Division II of the Davidson

County Criminal Court beginning in October 1960. Judges Draper and

Leathers testified that they selected members of the grand jury,

and in particular the grand jury forepersons, on characteristics

that included “citizenship activities, maturity, work experience,

standing in the community, and general qualities of good

citizenship." They further testified that they depended on first-

hand knowledge and referrals from friends and civic groups as the

basis for recruiting grand jurors. (Appendix at A-4, A-5).

Utilizing this criteria and the basis of evidence available of

twenty-six grand juries selected from 1958 through i968, all

twenty-six foremen were white. Fourteen of the two hundred and

fifty-two grand jurors were black. In addition, there was evidence

of five additional grand juries and seven additional foremen

indicating that all thirty-three grand jury foremen during the

period were white and on twenty-six grand juries there were a total

of three hundred and twelve non-foreman positions of which “no more

than twenty (6.45%) were black." (Appendix at A-4, A-5). In

addition, the proof showed that the grand jury that actually

indicted Jefferson included two black members.

In 1971, three years after the indictment in this matter, the

procedure was "changed to a system whereby both grand jurors and

petit jurors were selected by computerized lists." (Appendix at A-

4).

During this relevant period of time census figures showed that

the black population of Davidson County was approximately nineteen

percent. (Appendix at A-4). Therefore, all twenty-five grand

juries for which a racial breakdown exists had a significantly

lower proportion of blacks than did the population of the county.

(Appendix at A-4).

SUMMARY OF ARGUMENT

In the instant matter, respondent, James T. Jefferson,

demonstrated that the grand jury selection process excluded Africar

Americans. This type of discrimination has been severely

criticized by this Court since its decision in Strauder v. West

Virginia, in 1880. It is no less serious today and its presence

requires reversal of the conviction.

Vasquez v. Hillary continues to be good law and the harmless

error analysis is inappropriate to constitutional violations that

strike at the fundamental nature of the criminal justice system and

of our society as a whole.

ARGUMENT

UPON A SHOWING OF DISCRIMINATORY SELECTION OF THE GRAND JURY

VENIRE, A CRIMINAL DEFENDANT IS ENTITLED TO THE REVERSAL OF

HIS CONVICTION AND DISMISSAL OF THE INDICTMENT.

The problem of exclusion of blacks and other well-defined

groups from proper representation on state petit and grand juries

has long been recognized in the United States. The Supreme Court

made the eradication of such a system a priority over 100 years ago

in the landmark decision of Strauder v. West Virginia, 100 U.S. 303

(1880). The Court stated at that time that the ramifications of

such a system are repugnant to our notion of justice as it denies

and excludes potential jurors "the privilege of participating

equally. . . in the administration of justice." 100 U.S. at 308.

As noted by the court below, in Rose _v. Mitchell this Court

summarized the harm resulting from intentional discrimination in

the jury selection process as follows:

Discrimination on the basis of race, odious in all

aspects, is especially pernicious in the administration

of justice. Selection of members of a grand jury because

they are of one race and not another destroys the

appearance of justice and thereby casts doubt on the

integrity of the judicial process. The exclusion from

the grand jury service of Negroes, or any group otherwise

qualified to serve, impairs the confidence of the public

in the administration of justice. As this Court

repeatedly has emphasized, such discrimination "not only

violates our Constitution and the laws created under it,

but is at war with our basic concepts of a democratic

society and a representative government." Smith v.

Texas, 311 U.S. 128, 130 (1940) (footnote omitted). The

harm is not only to the accused, indicted as he is by a

jury from which a segment of the community has been

excluded. It is to society as a whole. " The injury is

not limited to the defendant -- there is injury to the

jury system, to the law as an institution, to the

community at large, and to the democratic ideals

reflected in the processes of our courts." Ballard v.

United States, 229 U.S. 187, 195, 91 L.Ed.2d 181, 67

S.Ct. 261 (1946).

439 U.S. at 555-556. The importance of this issue not only to the

defendant but to the system of justice was reiterated in Powers v.

ee

Ohio, in which the Court reiterated "the broader constitutional

imperative of race neutrality in jury selection and gave standing

to criminal defendants to raise the interest of the excluded juror.

U.S. » 12313 S.Ct. 1364, 1366, 1373 (19912).

Castaneda v. Partida, 430 U.S. 482, 51 L.Ed.2d 498, 97 S.Ct.

1272 (1977) sets forth the standard for determining whether a

defendant has made a prima facie showing of discrimination in the

selection of a state grand jury in violation of the equal

protection clause of the Fourteenth Amendment. Under the rules set

forth in Castaneda the petitioner is required to show that "the

procedure employed resulted in substantial underrepresentation of

his race or of the identifiable group to which he belongs." 430

U.S. at 494. First the individual must show that he is an

identifiable member of a group that is a "recognizable, distinct

class, singled out for different treatment under the laws, as

written or as applied." 430 U.S. at 494. The next step under

Castaneda is to prove a degree of underrepresentation over a

Significant period of time by "comparing the proportion of the

group in the total population to the proportion called to serve as

grand jurors over a significant period of time." 430 U.S. at 494.

Once this showing is made, the petitioner need only show that the

selection procedure employed "is susceptible of abuse or is not

racially neutral" in order to support a_= presumption of

discrimination. Id. After this showing is made, the burden shifts

to the state to present proof to rebut the petitioner’s case. 430

U.S. at 495.

In the instant case, as held by the district court and

affirmed by the court of appeals, there can be no question that

Jefferson has established a prima facie case. The district court

found that Jefferson was a black citizen, and with regard to the

first prong of the Castaneda test, "blacks are clearly a suspect

category for purposes of equal protection analysis." (Appendix at

A-3, A-6; Jefferson v. Dutton, 607 F.Supp. 355, 357, 358 (M.D.

Tenn. 1985)). With regard to the "rule of exclusion" Jefferson

produced evidence concerning thirty-three (33) grand juries

empaneled over the relevant period. Of these thirty-three grand

juries surveyed during the period, seventeen had only one black

member, seven had no blacks and the number of blacks on the

additional eight was unknown. With regard to the grand jury

foremen, who were separately selected, not a single of the thirty-

three foremen was black nor a nenber of any other minority group.

However, in considering twenty-six juries for which there were

statistics during the period, only fourteen of two hundred and

fifty-two jurors were black. Thus, approximately 6.45% of the

grand jurors were black at a time when 19% of the population of

Davidson County was black. (Appendix at A-4, A-5).

Moreover, not only has Jefferson established the requisite

underrepresentation under Castaneda, his position is’ further

supported in this matter in that the key-man system which was

utilized in Davidson County at the time has been repeatedly held to

be susceptible to abuse. Rose v. Mitchell, 443 U.S. at 566; see

also, Castaneda v. Partida, 430 U.S. at 497 (Texas’ key-man system

10

| ,

is susceptibie to abuse). As noted by the district court in its

earlier opinion, the appointing judges under the Davidson County

key-man system were aware of the race of the grand jurors they

appointed. 607 F.Supp. at 358.

The state does not challenge the finding that Jefferson proved

the discriminatory selection of the grand jury during the relevant

time frame. Rather the state argues that the equal protection

violation is cured by the accidental coincidence that, of all the

many grand juries over a more than ten year period, the one that

indicted Jefferson included two African Americans, which

constituted the requisite proportional representation from the

defendant’s racial group. The state suggests the ten years prior

to Jefferson’s indictment as well as the three years after

Jefferson’s indictment which amply demonstrate the absolute

underrepresentation of blacks on the grand jury, not to mention the

fact that there were no black grand jury hereon should be ignored.

The state suggests that because the percentage of blacks on this

one isolated grand jury approximated the proportion in the

community that Jefferson cannot challenge the venire. (Petition

for Writ of Certiorari at 7-10). This logic flies in the face of

all the precedent on this issue.

This Court has repeatedly reminded us of the gravity upon

which it views the systematic exclusion of African-Americans from

the grand and petit juries which the Court first announced in

Strauder v. West Virginia, 100 U.S. 303, 25 L.Ed. 664 (1880). In

Norris v. Alabama, 294 U.S. 587, 589, 55 S.Ct. 579, 79 L.Ed. 1074

11

(1934), the Court stated:

There is no controversy as to the constitutional

principle involved. That principle, long since declared,

was not challenged, but was expressly recognized, by the

Supreme Court of the State. Summing up precisely the

effect of earlier decisions, this Court thus stated the

principle in Carter v. Texas [citation omitted] in

relation to exclusion from service on grand juries:

"whenever by any action of a State, whether through its

legislature, through its courts, or through its executive

or administrative officers, all persons of the African

race are excluded, solely because of their race or color,

from serving as grand jurors in a criminal prosecution of

a person of the African race, the equal protection of the

laws is denied to him, contrary to the Fourteenth

Amendment of the Constitution of the United States.

[citations omitted]

As observed by the Norris Court, this statement has been often

repeated. Id. The Court again emphasized this position in Vasquez

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

598 (1986), and further stated:

We reaffirmed our conviction that discrimination on

the basis of race in the selection of grand jurors

"strikes at the fundamental values of our judicial system

and our society as a whole," and that the criminal

defendant’s right to equal protection of the laws has

been denied when he is indicted by a grand jury from

which members of a racial group purposefully have been

excluded.

474 U.S. at 262 (citing Rose v. Mitchell, 443 U.S. at 556, 99 S.Ct.

at 3000). The courts have made it very clear that the right to be

indicted and tried by a grand and petit jury free from intentional

discrimination is neither subject the limitations of harmless error

nor to the particular make-up of the jury involved in an

individual’s case.

This Court has recently cited Vasquez in reminding us of the

importance of precedent. The Court stated in Hilton v. South

Carolina Railways Commission, "the doctrine of stare decisis is of

12

fundamental importance to the rule of law." U.S. » £22

§.¢ct. 8560, S63 (1991). The Court continued, "Adherence to

precedent promotes stability, predictability, and respect for

judicial authority." Id. at 564 (quoting Vasquez, 474 U.S. at 265

- 266).

II. THERE IS NO REASON TO OVERRULE THE LONGSTANDING PRECEDENT THAT

SYSTEMATIC EXCLUSION OF A RACIAL-GROUP FROM THE GRAND JURY

VENIRE IS NOT SUBJECT TO HARMLESS ERROR ANALYSIS.

The state argues that the indictment by a grand jury that was

chosen in violation of the Equal Protection Clause of the

Fourteenth Amendment to the United States Constitution should be

subjected in this matter to the harmless error standard. In

Vasquez vy. Hillery, 474 U.S. 254 (1986), this Court reviewed its

history of finding that the purposeful exclusion of a racial group

from service on petit and grand juries and observed that the Court

had repeatedly upheld, for over a hundred years, the conclusion

that such violation of the Equal Protection Clause required the

reversal of the conviction and the dismissal of the indictment.

474 U.S. at 264. The Court observed in Vasquez v. Hillery, 747

U.S. at 260, 261 that:

In 1880, this Court reversed a state conviction on the

ground that the indictment charging the offense had been

issued by a grand jury from which blacks had been

excluded. We reasoned that deliberate exclusion of

blacks “is practically a brand upon them, affixed by the

law, an assertion of their inferiority, and a stimulant

to that race prejudice which is an impediment to the

securing to individuals of the race that equal justice

which the law aims to secure to all others."

747 U.S. at 260, 261 (citing Strauder v. West Virginia, 100 U.S. at

308). The Court then stated "Thereafter, the Court has repeatedly

13

rejected all arguments that a conviction may stand despite racial

discrimination in the selection of the grand jury." [citations

omitted] The Court observed that it had “explicitly addressed the

question" of whether they should reconsider this line of cases as

late as 1979 in Rose v. Mitchell, 443 U.S. 545. The Court then

stated:

We reaffirmed our conviction that discrimination on the

basis of race in the selection of grand jurors "strikes

at the fundamental values of our judicial system and our

society as a whole," and that the criminal defendant’s

right to equal protection of the laws has been denied

when he is indicted by a grand jury from which members of

a racial group purposely have been excluded.

474 U.S. at 262 (citing Rose v. Mitchell, 443 U.S. 556). The Court

further found that it was improper to use harmless error analysis

in these violations because “intentional discrimination in the

selection of grand jurors is a grave constitutional trespass,

possible only under color of state authority, and wholly within the

power of the State to prevent." 474 U.S. at 262.

The state’s reliance on United States v. Mechanik, 475 U.S.

66, 106 S.Ct. 938, 89 L.Ed.2d 50 (1986), is simply misplaced. In

Mechanik the error befcsre the grand jury that was found to be

harmless was that two government witnesses had appeared

simultaneously in violation of Rule 6(d) of the Federal Rules of

Criminal Procedure. It is beyond question that the violaticn of a

rule of procedure does not raise to the same level for the purpose

of harmless error analysis as does violation which effects not only

the accused but the race or class which is systematically excluded

from jury service, and therefore, effects the society as a whole.

14

The state also misses the mark with its citation to Bank of Nova

Scotia v. United States, 487 U.S. 250 (1988). The Court made very

clear that Bank of Nova Scotia involved the use of the supervisory

power of the federal courts to circumvent the harmless error rule

when only nonconstitutional interests were involved. Id. at 254.

The Court specifically addressed the issue raised here when it

stated:

To be distinguished from the cases before us are a

Class of cases in which indictments are dismissed,

without a particular assessment of the prejudicial impact

of the errors in each case, because the errors are deemed

fundamental. These cases may be explained as isolated

exceptions to the harmless-error rule. We think,

however, that an alternative and more clear explanation

is that these cases are ones in which the struétural

protections of the grand jury have been so compromised as

to render the proceedings fundamentally unfair, allowing

the presumption of prejudice. (citation omitted). These

cases are exemplified by Vasquez v. Hillary (citation

omitted) where we held that racial discrimination in

selection of grand jurors compelled dismissal of the

indictment. In addition to involving an error of

constitutional magnitude, other remedies were impractical

and it could be presumed that a discriminatorily selected

grand jury would treat defendants unfairly. (citation

omitted).

ig. Qt 256, 257.

The State of Tennessee has provided no reason for the Court to

reconsider this long enduring and carefully considered ‘imited

exception to the harmless error rule.*

¢ Before the district court the state had submitted evidence

through the District Attorney of Davidson County that evidence was

no longer available to retry Jefferson and submitted that as

grounds to impose the harmless error rule. However, since the

decision of the Sixth Circuit the state has suddenly discovered

that the evidence was available all along and Jefferson has now

been reindicted.

iS

CONCLUSION

For the reasons set forth above the instant case does not

present an issue for review on certiorari and the respondent, James

Thomas Jefferson, prays that this Court will deny the petition of

the State of Tennessee.

Respectfully submitted,

RAY & HOUSCH

BY: (J Qu Ce 41, (‘Caz

VA

Charles R. Ray —

cr

} oe

a. Cy _z tLe = << Cc ee

Donald E. Dawson

211 Third Avenue North

P.O. Box 2643

Nashville, TN 37219

615 / 256-2111

Counsel for Respondent

CERTIFICATE RVICE

The undersigned hereby certifies that three true and exact

copies of the foregoing have been forwarded by first class mail,

postage prepaid, to Charles Burson, Attorney General and Reporter,

and Debra kK. Inglis, Assistant Attorney General, 450 James

Robertson Parkway, Nashville, Tennessee 37243-0485, on this the Phe

day of August, 1992.

Donald E. Dawson

16