Amicus Curiae Brief — Campa v. United States (No. 08-987)

\oo

FILED

@ MAR 6 ~ 2009

No. 08-987 OF EICE OF THE aif: |

Jn the Supreme Court of the Gnited States

RUBEN CAMPA, RENE GONZALEZ, ANTONIO GUERRERO,

GERARDO HERNANDEZ, AND LUIS MEDINA,

Petitioners,

Vv.

UNITED STATES OF AMERICA,

Respondent.

On Petition for a Writ of Certiorari to

the United States Court of Appeals

for the Eleventh Circuit

BRIEF OF NATIONAL ASSOCIATION OF

CRIMINAL DEFENSE LAWYERS AS AMICUS

CURIAE IN SUPPORT OF PETITIONERS

AMANDA K. HINE* JEFFREY W. SARLES

Mayer Brown LLP Counsel of Record

1909 K Street, NW MICHAEL S. PAIK

Washington, DC 20006 Mayer Brown LLP

(202) 263-3000 71 South Wacker Drive

Chicago, IL 60606

(312) 782-0600

*Admitted in Virginia only; not admitted in the District

of Columbia. Practicing under the supervision of firm

principals.

“pe ie aOR RAIN EI Nf I RSL RIE SUPE EOS A ELIE TR ISSN ESA SEAS RTE BEAR EES

VALSON-EPES PRINTING Co., INC. — (202) 789-0096 — WASHINGTON, D.C. 20002

1

QUESTION PRESENTED

Whether the Eleventh Circuit failed to account

for the historical importance of the right to change

venue to avoid pervasive community prejudice.

l

TABLE OF CONTENTS

Page

i 1

gs 8 6 S| ll

INTEREST OF THE AMICUS CURIAE................... 1

RMRPPEE DE CPE FARROW UIVIIGINT ..............c0ccccressccesscccneces 2

Neen ee sia csccscccnsscessceesecececsscoeses 3

A. The Right To Transfer Venue To

Avoid Community Prejudice Is

Rooted In Early English Practice.........3

B. The Right To Transfer Venue To

Avoid Community Prejudice Is

Rooted In American Colonial

Nee TT sas sssncvnnscccceseeces. 8

i. The Ratification Of The Sixth

Amendment Recognized That The

Vicinage Provision Reflects A

Criminal Defendant's Right ............... 11

D. The Right To Transfer Venue To

Avoid Community Prejudice Is

Reflected In Early State Practice....... 14

Ny ocaiessssrnescccssnnessssccosaseesees: 18

ll

TABLE OF AUTHORITIES

Page(s)

Cases

Cochecho R.R. v. Farrington,

Oe TE es ee Oh inkks divas tnthtccdnirasemeaann rere 15

Cochrane v. State,

Se ices ncdacminnmeucneas oe 16

Crocker v. Superior Court,

Oe I, He ESD vaca cas seetevexscnrsseinsanace 14, 15, 17

Dula v. State,

DG FM, Fe Oe acon bia rseisstasisnvrntuccs 14, 16

Groppt v. Wisconsin,

400 U.S. 506 G87))............... eck wint pcesancce 3, 16, 17

The King v. County of Cumberland,

OD Te Fe er 00 Oe astisinstticdesitrinceomncmians 6

The King v. Thomas,

DE Mae, PN, Tr Ci ein uti. ckcacsewecdanvencensersucsseas 6

Kirk v. State,

BE ee bo eked AG Bic 14, 16

Osborn v. State,

Fe, cies aero has canines cheers 14, 15

People v. Powell, 87 Cal. 348 (1891) .................... 4,15

Perteet v. Illinois,

Bee ee ee te ieacccvo ato ae ee ee 15

Poole v. Bennet,

93 Eng. Rep. 909 (1730) .........6....0.045: Sek acres 6

The Queen v. County of Wilts,

eM eg. :) nr nmr Ti: rise 5

The Queen v. Palmer,

ER Bee, Fe Te Ce ons sci cidsnnccevessscasininctoats 6

Rex v. Cowle,

Sy Kee. Webi. GOT 6F FO vcs vices cknecsste 6

1V

TABLE OF AUTHORITIES—continued

Page(s)

Rideau vy. Louisiana,

PT Boe FB CBE) vesnccnevaconsscvserdacsescesengsierets 17, 18

State v. Albee,

OE FE We. ee CED vkeecccecsiccenicscescssavsessccesceene 5, 6, 16

State v. Cutshall,

Be i I ica dain sapssccwnvancevoenscbcens sores 3

State v. Denton,

By he 1 RD has sccedtvcccnecrcnssvecsncanencscecnnensses 15

Wheeler v. State,

i a oe, cia casescnuunvourisicsctiaxsaesiean tune 15

Zicarelli v. Gray,

Bo FSO SSS (G0 Car. YET) ooccccceccccccccccevcesscssccseces 5

Other Authorities

Address and Reasons of Dissent of the Minority

of the Pennsylvania Convention, Dec. 12,

oo - & MRA ES Aes Ra SRC Peen tees RO Ree Elen One Ere ll

I ANNALS OF CONGRESS OF THE UNITED STATES

Ist Cong., Ist Sess. (1789) .............0....000000000. 11, 12

4 WILLIAM BLACKSTONE, COMMENTARIES ON

THE LAE OF TONGGAND o.vckidnecccceccsssvessecesesscsssccssenes 5

William Wirt Blume, The Place of Trial of

Criminal Cases: Constitutional Vicinage

and Venue, 43 Mich. L. Rev. 59 (1944)... 4, 7, 8, 14

NEIL H. COGAN, THE COMPLETE BILL OF RIGHTS

ET chit sd dance real Leip die 11, 13

Comment, Multi-Venue and the Obscenity

Statutes, 115 U. Pa. L. Rev. 399 (1967)................ 5

Henry G. Connor, The Constitutional Right to

a Trial by a Jury of the Vicinage, 57 U. Pa.

RS a Bh. |.) eo eRe ae ve 7,8, 10

¥

TABLE OF AUTHORITIES—continued

Page(s)

FRANCIS H. HELLER, THE SIXTH AMENDMENT

TO THE CONSTITUTION OF THE UNITED

I IE sock castor eocecicgartsi ciecccadea sbsvcswasvens passim

FO RMN VERE G. Bh CRG vccccitiesicsceccdssccessestesccsesacteveves 7

Wm. Henry Jernigan, Jr., Note, The Sixth

Amendment and the Right to a Trial by a

Jury of the Vicinage, 31 Wash. & Lee L.

a ass sess acho on oes sacecoednicsneeossaiues 4

JOURNALS OF THE HOUSE OF BURGESSES 1766-

T7ED CROIMOGY OG... DIOS) ooccccscccicecsccccsssssescsssecsscss 9

Letter from Fisher Amcs to Thomas Dwight,

rt ES en eC Ne es 1]

Letter from James Madison

to Edmund Pendleton, Sept. 23, 1789................ 13

A Son of Liberty, Nov. 8, 1787...................cc0.0scccccees 11

BRIEF OF NATIONAL ASSOCIATION OF

CRIMINAL DEFENSE LAWYERS AS AMICUS

CURIAE IN SUPPORT OF PETITIONERS

The National Association of Criminal Defense

Lawyers (“NACDL’) is a nonprofit corporation with

more than 10,000 attorney members and 28,000 af-

filiate members in all fifty states. The NACDL is an

affiliate of the American Bar Association and has full

representation in the ABA’s ticuse of Delegates.

The NACDL was founded in 1958 to promote re-

search in the field of criminal law, advance knowl-

edge of the law among criminal law practitioners,

and encourage the integrity, independence, and ex-

pertise of defense lawyers in criminal cases. The

NACDL’s objectives include ensuring due process for

persons accused of crime, promoting the proper and

fair administration of criminal justice, and preserv-

ing the protections guaranteed to defendants by the

United States Constitution.

The NACDL urges the Court to grant the peti-

tion and review the venue transfer ruling below,

which we believe undermines a fundamental right of

criminal defendants.

' Pursuant to Rule 37.6, amicus affirms that no counsel

for a party authored this brief in whole or in part and that

no person other than amicus and its counsel made a

monetary contribution to its preparation or submission.

Counsel] of record for all parties received notice at least 10

days prior to the due date of the intention of amicus to file

this brief. The parties’ letters consenting to the filing of

this brief have been filed with the Clerk's office.

2

SUMMARY OF ARGUMENT

The right of a criminal defendant to transfer

venue to avoid severe community prejudice reflects

values originating in early English and colonial prac-

tice that the Framers enshrined in our Constitution

after deliberative debate. That right is embodied in

two constitutional provisions.

Article III, Section 2, Clause 3 of the Constitution

provides:

The Trial of all Crimes, except in Cases of

Impeachment, shall be by Jury; and such

Trial shall be held in the State where the

said Crimes shall have been committed; but

when not committed within any State, the

Trial shall be at such Place or Places as the

Congress may by Law have directed.

The Constitution’s Sixth Amendment provides in

relevant part:

In all criminal prosecutions, the accused

shall enjoy the right to a speedy and public

trial, by an impartial jury of the State and

district wherein the crime shall have been

committed, which district shall have been

previously ascertained by law.

The Article IL] provision addresses the location of

trial and thus is a venue provision, while the Sixth

Amendment provision addresses the place from

which jurors are selected and thus is a vicinage pro-

vision. These provisions reflect the long established

common law rule that a defendant has a right to be

tried where the alleged crime occurred rather than

be transported to a distant locale and forced to forfeit

the procedural advantages of being adjudged in one’s

home court. The vicinage right was, therefore, a right

historically held by the defendant to protect against

malicious or unfair presecution. It was not intended

to alter the long-established common law rule that

allowed the defendant to waive that right when

widespread community prejudice impeded his ability

to a fair trial by an impartial jury, a right also incor-

porated in the Sixth Amendment. The restrictive ap-

proach of the courts below to this issue runs counter

to the historical foundation of these provisions. As a

result, petitioners were convicted by a jury of the

vicinage at the expense of their right to trial by an

impartial jury.

ARGUMENT

As this Court explained in Groppi v. Wisconsin,

400 U.S. 505, 511 (1971), its authorization of venue

changes to avoid pervasive community prejudice

“echoes more than 200 years of human experience in

the endless quest for the fair administration of jus-

tice.” However, the Court’s decisions on this issue

lack a detailed discussion of the historical back-

ground to the Sixth Amendment’s vicinage provision.

This brief offers a brief summary of that history,

which amicus believes supports the need for this

Court to review whether the Eleventh Circuit’s treat-

ment of the transfer of venue issue departed from the

historical meaning of the Sixth Amendment.

A. The Right To Transfer Venue To Avoid

Community Prejudice Is Rooted In

Early English Practice

Juries were not always the impartial administers

of justice that we know today. The original Anglo-

Saxon criminal jury consisted of individuals selected

precisely because they were familiar with the alleged

crime or knew the accused person. FRANCIS H.

HELLER, THE SIXTH AMENDMENT TO THE

CONSTITUTION OF THE UNITED STATES 8 (1951). If the

jurors were unfamiliar with the alleged criminal ac-

tivity, they were expected to do their own investiga-

tion prior to trial and then testify at trial as to what

they had learned. /bid. Accordingly, it was impera-

tive that juries be drawn from the community where

the alleged crime occurred. This requirement was so

strict that, if a crime was committed partly in one

county and partly in another, the defendant could

not be tried. William Wirt Blume, The Place of Trial

of Criminal Cases: Constitutional Vicinage and

Venue, 43 Mich. L. Rev. 59, 61 (1944) (citing 3 COKE,

INSTITUTES 48 (1797)); People v. Powell, 87 Cal. 348.

358 (1891) (citing Hawk. P.C., b. 2, c. 25; 1 CHITTY’S

CRIMINAL LAW 177).

By the eighteenth century, the jury had gradu-

ally developed into “a body of impartial men who

come into court with an open mind[,] instead of find-

ing the verdict out of their own knowledge.” Blume,

supra, 43 Mich. L. Rev. at 60 n.8. As Lord Mansfield

put it in 1764: “A juror should be as white Paper, and

know neither Plaintiff nor Defendant, but judge the

Issue merely as an abstract Proposition, upon the

evidence produced before him.” Jd. at 60-61 (citing

Mylock v. Saladine, 1 Wm. Blackstone Rep. 480, 481

(1781)).

Jurors nevertheless continued to be summoned

from the locality where the crime was committed be-

cause of the obvious procedural advantages associ-

ated with having the trial near the scene of the crime

and the defendant’s likely residence. Wilham Henry

Jernigan, Jr., Note, The Sixth Amendment and the

Right toa Trial by a -ury of the Vicinage, 31 Wash

& Lee L. Rev. 399, 404 (1974). According to Black-

5

stone, the sheriff was required to “return a panel of

jurors, liberos et legaies homuines, de vicineto, that is,

free holders, without just exception, and of the visne

or neighborhood; which is interpreted to be of the

county where the fact is committed.” 4 WILLIAM

BLACKSTONE, COMMENTARIES ON THE LAWS OF ENG.

LAND *344.?

But English courts began to depart from the

strict vicinage rule as they came to recognize that a

local jury in communities infected by prejudice could

impede a fair trial. See Zicarelli v. Gray, 543 F.2d

466, 475 (3d Cir. 1976) (discussing the history of im-

partial juries). ‘lo ensure a fair trial, they therefore

developed a common law rule allowing them to

change venue upon a showing of extreme prejudice in

the community. See State v. Albee, 61 N.H. 423, 425

(1881) (“As the right of trial by a jury de vicineto, or

of the visne or neighborhood, was given for the pro-

tection of the subject, so the power was early given to

the court of king’s bench for the protection also of the

subject to remove the venue upon a suggestion duly

supported that a fair and impartial trial cannot be

had”).

This new and developing rule was apphed in

numerous cases. For example, in ordering a change

of venue, the court in The Queen v. County of Wilts,

87 Eng. Rep. 1046, 1047 (1705), explained that “this

matter concerning the whole county, suggestion may

—

* Early discussions of the vicinage right often assumed

that the locality where the crime occurred would be the

same locality where the defendant resided, an assumption

that made sense “in an age of restricted travel and mobil

ity.” Comment, Multi-Venue and the Obscenity Statutes,

115 U. Pa. L. Rev. 399, 413 (1967).

6

be of any other county's being next adjacent, and the

venue shall come from thence for the necessity of an

indifferent trial.” bid. Again, in Rex v. Cowle, 97

Eng. Rep. 587, 603 (1759), the court ordered a

change of venue in an assault case, stating the rule

that “whether a fair, impartial, or satisfactory trial

or judgment can be had there, is a reason to remove

from the highest.” The court noted that the case was

“a great contention in the borough” and that the

“matter laid in the indictment arose from a warm

dispute at the guild, upon a point of business, which

produced a riot and tumult, that broke up the guild

in great confusion.” /bid. Similarly, in The King v.

County of Cumberland, 101 Eng. Rep. 507, 507

(1795), Lord Kenyon stated that it would be an

“anomalous case in the law of England” were the

court not to have the power to order a change of

venue where the “inhabitants of the county are in-

terested” in the verdict. And in Poole v. Bennet, 93

Eng. Rep. 909, 909 (1795), the court ordered a

change of venue on motion where it appeared “there

could be no fair trial” in the county where the matter

arose.

Changing venue to ensure a fair trial remained

an established feature of English criminal law prac-

tice. See The King v. Thomas, 105 Eng. Rep. 897

(1815); The Queen v. Palmer, 119 Eng. Rep. 762

(1856). As nineteenth-century treatises recognized,

“[aJt common law, when a fair and impartial trial

cannot be obtained, and the indictment has been re-

moved into the king’s bench by certiorari, the court

have a power of directing the trial to take place in

the next adjoining county when justice requires it.”

Albee, 61 N.H. at 425 (quoting 1 CHITTY'S CRIMINAL

LAW 201).

7

Trial by a jury of the vicinage increasingly came

to be seen during the eighteenth century as a right

belonging to the defendant. As explained by the

Chief Justice of the North Carolina Supreme Court,

it facilitated the defendant’s collection of evidence,

gathering of witnesses, and empanelment of a sym-

pathetic jury of neighbors. Henry G. Connor, The

Constitutional Right to a Trial by a Jury of the Vici-

nage, 57 U. Pa. L. Rev. 197, 205 (1909). This under-

standing is manifest in parliamentary records from

1768 and 1769 debating the revival of 35 Henry VIII,

c. 2 (1543), which permitted trial for treason commit-

ted in the American colonies to occur in England at a

location chosen by the King. Blume, supra, 43 Mich.

L. Rev. at 63-65. Parliamentary opponents of the

measure argued vigorously that the law would de-

prive colonists of their basic right to a jury of their

peers:

They commented forcibly on the cruelty and

injustice of dragging an individual three

thousand miles from his family, his friends,

and his business, “from assistance, counte-

nance, comfort and counsel necessary to sup-

port a man under such trying circum-

stances,” in order that, with the Atlantic be-

tween him and his own witnesses, he might

be put to peril of his life before a panel of

twelve Englishmen, in no true sense of the

word his peers. Of those jurymen the accused

colonist would not possess the personal

knowledge which alone would enable him to

avall himself of his right to challenge; while

they on their side would infallibly regard

themselves as brought together to vindicate

the law against a criminal of whose guilt the

responsible authorities were fully assured.

8

Connor, supra, 57 U. Pa. L. Rev. at 206. Thus, by the

mid-eighteenth century in England, a jury of the

vicinage was viewed as a right of the defendant that

he could waive if it would impede his right to a fair

and impartial jury.

B. The Right To Transfer Venue To Avoid

Community Prejudice Is Rooted In

American Colonial Practice

The colonists “at all times, insisted that they

brought with them across the seas, either as their

inalienable birthright, or, as guaranteed by the char-

ters, trial by jury, as it existed in England.” Connor,

supra, 57 U. Pa. L. Rev. at 197. However, as tensions

grew between Great Britain and its American colo-

nies, many colonists believed that right to be increas-

ingly jeopardized.

As noted above, beginning in December 1768

Parliament debated and approved the revival of a

statute that would allow persons accused of commit-

ting treason in the American colonies to be trans-

ported to England for trial. Blume, supra, 43 Mich.

L. Rev. at 63-64. This measure was met with fervent

resistance in the American colonies. On May 17,

1769, Virginia delegates adopted an address to the

King stating:

When we consider, that by the established

Laws and Constitution of this Colony, the

most ample Provision is made for apprehend-

ing and punishing all those who shall dare to

engage in any treasonable Practices against

your Majesty, or disturb the Tranquility of

Government, we cannot, without Horror,

think of the new, unusual, and permit us,

with all Humility, to add, unconstitutional

and illegal Mode, recommended to your Maj-

esty, of seizing and carrying beyond Sea, the

Inhabitants of America, suspected of any

Crime; and of trying such Persons in any

other Manner than by the ancient and long

established Course of Proceeding: For, how

truly deplorable must be the Case of a

wretched American, who, having incurred

the Displeasure of any one in Power, is

dragged from his native Home, and his dear-

est domestick Connections, thrown into

Prison, not to await his Trial before a Court,

Jury, or Judges, from a Knowledge of whom

he is encouraged to hope for speedy Justice;

but to exchange his Imprisonment in his own

Country, for Fetters amongst Strangers?

Conveyed to a distant Land, where no Friend,

no Relation, will alleviate his Distresses, or

munister to his Necessities; and where no Wit-

ness can be found to testify his Innocence;

shunned by the reputable and honest, and

consigned to the Society and Converse of the

wretched and the abandoned; he can only

pray that he may soon end his Misery with

his life.

Id. at 64-65 (citing JOURNALS OF THE HOUSE OF BUR-

GESSES 1766-1769, at 215-216 (Kennedy, ed.,1906))

(emphasis added). It is hence not surprising that this

offense was among those listed in the Declaration of

Independence, which complained of “transporting us

beyond Seas to be tried for pretended offenses” and

“depriving us in many cases, of the benefits of Trial

by Jury.”

When the Constitution was subsequently sub-

mitted to the States for ratification, the lack of a nar-

10

rowly drawn vicinage provision was a major source of

opposition, with many arguing forcefully that the Ar-

ticle III venue provision was too vague to protect de-

fendants’ rights. HELLER, supra, at 25; see also Con-

nor, supra, 57 U. Pa. L. Rev. at 200. State legislators

argued vigorously that the common law right to a

jury of the vicinage must be more clearly secured for

the benefit of defendants. A complaint lodged by Pat-

rick Henry was typical:

This great privilege [is] prostrated by this

paper. Juries from the vicinage being not se-

cured, this right is in reality sacrificed. All is

gone. * * * Why do we love this trial by jury?

Because it prevents the hand of oppression

from cutting you off. *** Has not your

mother country magnanimously preserved

this noble privilege upwards of a thousand

years? * * * And shall Americans give up that

which nothing could induce the English peo-

ple to relinquish? The idea is abhorrent to my

mind.

HELLER, supra, at 25. William Grayson, who became

one of Virginia’s first two Senators, seconded Henry’s

opposition, stating:

[Wlhere the governing power possesses an

unlimited control over the venuc, no man’s

life is in safety. * * * The idea which I call

true vicinage is, that a man shall be tried by

his neighbors. But the idea here is, that he

may be tried in any part of the state. * * *

The jury may come from any part of the state

[and] they can hang any one they please, by

having a jury to suit their purposes.

Id. at 26.

11

The outcry is well documented in the political lit-

erature of the time. For instance, one pamphlet ob-

jected to the “loss of the invaluable right of trial by

an unbiassed jury, so dear to every friend of liberty.”

NEIL H. COGAN, THE COMPLETE BILL OF RIGHTS 457

(1997) (reprinting Address and Reasons of Dissent of

the Minority of the Pennsylvanta Convention, Dec. 12,

1787). Another complained of the “loss of the trial in

the vicinage, where the fact and the credibility of

your witnesses are known, and where you can com-

mand their attendance without insupportable ex-

pence, or inconveniences.” /d. at 452 (reprinting A

Son of Liberty, Nov. 8, 1787).

These substantial protests reflected a deeply felt

concern for the rights of criminal defendants. Al-

though the Constitution was ratified over these ob-

jections, demand for a Bill of Rights immediately fol-

lowed.

C. The Ratification Of The Sixth Amend-

ment Recognized That The Vicinage

Provision Reflects A Criminal Defen-

dant’s Right

Following ratification of the Constitution, James

Madison, after extensive “labour and research” in the

“grievances and complaints of newspapers—all the

articles of Conventions—and the small talk of their

debates.” drafted the Bill of Rights. COGAN, supra, at

479 (reprinting Letter from Fisher Ames to Thomas

Dwight, June 11, 1789). His draft included a vici-

nage provision that stated: “Trial of all crimes * * *

shall be by an impartial jury of freeholders of the

vicinage.” [I ANNALS OF CONGRESS OF THE UNITED

STATES Ist Cong., Ist Sess., at 452 (1789) (hereinaf-

ter | ANNALS).

12

That draft provision was a major source of debate

in the first Congress. Concern persisted that the

term “vicinage” was too vague. Aedamus Burke of

South Carolina introduced an amendment after the

provision was submitted to the House:

Mr. Burke moved to change the word “vici-

nage” into “district or county in which the of-

fence has been committed.” He said this was

conformable to the practice of the State of

South Carolina, and he believed to most of

the States in the Union; it would have a ten-

dency also to quiet the alarm entertained by

the good citizens of many of the States for

their personal security; they would no longer

fear being dragged from one extremity of the

State to the other for trial, at the distance of

three or four hundred miles.

I ANNALS at 789. The proposed amendment was de-

nied after another representative asserted that the

term vicinage was “well understood by every gentle-

man of legal knowledge.” Jbid. Ultimately, the House

passed the vicinage provision as it was presented by

Madison, apparently with a consensus understand-

ing that the provision incorporated a defendant's

right against transport to an unfair venue.

In the Senate, the vicinage provision did not fare

as well due to apparent concern that the term “vici-

nage” was too vague and would afford insufficient

protection to defendants. Little is known about the

Senate debates surrounding the Sixth Amendment,

but when the amendments were returned to the

House, the vicinage provision had been deleted.

HELLER, supra, at 32. A letter from Madison sheds

some light on the debate:

13

[The Senators] are equally inflexible in op-

posing a definition of the locality of Juries.

The vicinage they contend is either too vague

or too strict a term: too vague if depending on

limits to be fixed by the pleasure of the law,

too strict if limited to the County. It was pro-

posed to insert after the word juries—“with

the accustomed requisites’—leaving the

definition to be construed according to the

judgment of professional men. Even this

could not be obtained. * * * The Senate sup-

pose also that the provision for vicinage in

the Judiciary bill, will sufficiently quiet the

fears which called for an amendment on this

point.

COGAN, supra, at 480-481 (reprinting Letter from

James Madison to Edmund Pendleton, Sept. 23,

1789).

The House, however, refused to agree to the Sen-

ate’s deletion. After a number of compromises, the

vicinage provision was included in the Sixth

Amendment, with its draft language changed to

“State and district wherein the crime shall have been

committed, which district shall have been previously

ascertained by law,” thereby allowing Congress to

determine the boundaries of the districts. HELLER,

supra, at 33-34. Although not conclusive, this ratifi-

cation debate indicates that that the adopters of the

Sixth Amendment understood the vicinage provision,

hke the other provisions in that amendment, to be an

important procedural . .otection for criminal defen-

dants.

14

D. The Right To Transfer Venue To Avoid

Community Prejudice Is Reflected In

Early State Practice

Following ratification of the Constitution and

adoption of the Bill of Rights, the States adopted

their own constitutional provisions. These varied

from State to State, but their content was generally

consistent with the Federal Constitution’s Sixth

Amendment. Blume, supra, 43 Mich. L. Rev. at 67.

The States also continued to follow the common law

rule allowing change of venue in cases where a fair

trial was jeopardized due to strong community

prejudice.

Indeed, a number of states considered the right

to change venue to obtain a fair trial to be so funda-

mental that they enshrined the common law doctrine

into their state laws. For example, Arkansas enacted

a statute granting defendants the right to change

venue where “the minds of the inhabitants of the

county in which the cause is pending, are so preju-

diced against the defendant that a fair and impartial

trial cannot be had therein.” Osborn v. State, 24 Ark.

629, 632 (1867). See also Kirk v. State, 41 Tenn. 344,

350 (1860) (referring to an Act of 1827 that allowed

defendants to change venue in criminal cases); Dula

v. State, 16 Tenn. 511, 513 (1835) (“it would be a se-

rious injury inflicted, in forcing a man to commit his

life into the hands of a prejudiced jury” and noting

that laws allowing for change of venue in criminal

cases had “existed ever since the year 1808”); Crocker

v. Supertor Court, 208 Mass. 162, 174 (1911) (“Since

the adoption of the Constitution, several statutes

have been passed enlarging the venue of actions, in

order to secure trials before indifferent jurors’).

15

Courts also continued to assert their common law

power to allow a defendant to change venue due to

prejudice. As the New Hampshire Supreme Court

explained, the practice of English courts to change

the venue “became thoroughly engrafted upon the

common law long before the independence of this

country; and from that time forth not only has the

practice prevailed in the courts of England, but the

power is now exercised by the courts of very many if

not all of our States, either by force of express stat-

ute or the adoption of the common law into the juris-

prudence of the same.” Cochecho R.R. v. Farrington,

26 N.H. 428, 436 (1853); see also Crocker, 208 Mass.

at 175 (“it is an inherent power of common law courts

to order a change [of venue] for the purpose of secur-

ing an impartial trial’). And state courts consistently

articulated the right to a jury of the vicinage as a de-

fendant’s right that could be waived to obtain an im-

partial jury.’

3 See, e.g., State v. Cutshall, 110 N.C. 538, 543-544 (1892

(a defendant is entitled to a jury of his peers unless it is

“necessary to remove the case to some neighboring county

in order to secure a fair trial”); People v. Powell, 87 Cal.

348, 360-361 (1891) (venue cannot be changed without de-

fendant’s consent who “} as only to show that a fair and

impartial trial cannot be had in the county”); Perteet v. /l

linois, 70 IL. 171, 173 (1873) (trial court erred by refusing

defendant's requested hange of venue); Wheeler v. State,

24 Wis, 52, 52-53 (1869) (trial court crroneously ordered

change of venue over defendant’s objection; right exists to

prevent defendant “from being taken out of the district for

trial”); State v. Denton, 46 Tenn. 539, 541 (1869) (the

“right of the accused to be . ried in the county in which the

offense is alleged to have bee committed, is a right se-

cured to him by the Constitution, and of which he cannot,

in any case, be deprived without his consent given in open

court’); Osborn v. State, 24 Ark. 629, 633 (1867) (change

16

In 1881, the New Hampshire Supreme Court, in

a case cited by this court in Groppi, 400 U.S. at 511

n.12, articulated the nature and importance of the

right to transfer venue in the face of community

prejudi 2. Albee, 61 N.H. at 425. After a thorough re-

view of the history of this principle, the court con-

cluded:

It is the respondent’s privilege to be tried in

the county where the offence was committed.

This provision in our bill of rights, designed

for the protection of the accused, was re-

garded by the framers of the constitution as a

privilege of the highest importance, because

it would prevent the possibility of sending

him for trial to a remote county, at a distance

from friends, among strangers, and perhaps

among parties animated by prejudices of a

personal or partisan character. But they did

not intend to destroy his common-law right to

a change of venue whenever a fair and impar-

tial trial could not be had in the county where

the fact happened. The purpose of this consti-

tutional provision was the protection, not the

destruction, of individual rights. The consti-

tutional provision is an affirmance of the

prisoner's common-law right not to be tried

at a distance from the county in which his of-

of venue could not be ordered without defendant’s con-

sent): Kirk v. State, 41 Tenn. at 350 (defendant “may

waive” a jury of the vicinage); Cochrane v. State, 6 Md.

40, 404 (1854) (noting that venue was changed at defen

dants request); Dula v. State, 16 Tenn. 511, 512-513

(1835) (a defendant's right to a trial by a jury of the vici-

nage does not “prevent him from choosing another county

Ito] effectuate the great end, for which the one beforemen-

tioned was by the constitution secured’).

17

fence is charged; and this common-law and

constitutional right he may waive for the

purpose of securing the fair trial which the

constitution guarantees. A change of venue

under such circumstances is calculated to

preserve the system of jury trial in its purity,

and thereby to increase the confidence of the

community in its safety and usefulness.

Td. at 429 (citation omitted) (emphasis added).

Similarly, in Crocker, 208 Mass. at 178-179,

which also was cited by this Court in Groppi, 400

U.S. at 511 n.12, the Massachusetts Supreme Court

exhaustively reviewed the common law practice of

changing venue to ensure a fair trial, concluding:

It is the night of every citizen to be tried by

judges as free, impartial, and independent as

the lot of humanity will admit. There can be

no justice in a trial by jurors inflamed by

passion, warped by prejudice, awed by vio-

lence, menaced by the virulence of public

opinion or manifestly biased by any influ-

ences operating either openly or insidiously

to such an extent as to poison the judgment

and prevent the freedom of fair action.

This right of a criminal defendant to change

venue to avoid pervasive prejudice and obtain a fair

trial was later enshrined in this Court’s decisions in

Rideau v. Louisiana, 373 U.S. 723 (1963), and

Groppi, 400 U.S. 505. The Eleventh Circuit's deci-

sion in this case represents a giant step backwards

from this enlightened jurisprudence.

* * *

In sum, the principle that the vicinage right be-

longs to the defendant—to protect his right to a fair

18

trial—is rooted in the origins of the jury, in English

practice, in the establishment of our Constitution

and its Bill of Rights, and in post-enactment statutes

and common law. The courts below gave insufficient

weight and consideration to this fundamental! right

by failing to recognize that otherwise appropriate

courtroom procedures (such as comprehensive vouire

dire) can amount to but “a hollow formality” in the

face of pervasive community prejudice. Rideau, 373

U.S. at 726. Amicus urges this Court to grant the pe-

tition, reverse the judgment of the Eleventh Circuit,

and uphold the right to a fair and impartial trial] free

from the taint of community prejudice.

CONCLUSION

The petition for a writ of certiorari should be

granted.

Respectfully submitted.

AMANDA K. HINE* JEFFREY W. SARLES

Mayer Brown LLP Counsel of Record

1909 K Street, NW MICHAEL S. PAIK

Washington, DC 20006 Mayer Brown LLP

(202) 268-3000 71 South Wacker Drive

Chicago, 1L 60606

(312) 782-0600

* Admitted in Virginia only; not admitted in the Dis-

trict of Columbia. Practicing under the supervision

of firm principals,

Counsel for Amicus Curiae

National Association of Criminal Defense Lawyers

MARCH 2009