Opposition Brief — Campbell v. Louisiana (No. 08-399)

a ———

0d No. 06-399 OCT 17 2008

OFFICE OF THE CLERK

Jn The

Supreme Court of the Anited States

¢

LADERRICK CAMPBELL,

Petitioner,

V.

STATE OF LOUISIANA,

Respondent.

On Petition For Writ Of Certiorari

To The Supreme Court Of Louisiana

*

BRIEF IN OPPOSITION TO

PETITION FOR WRIT OF CERTIORARI

PAUL J. CARMOUCHE

Counsel of Record

Caddo Parish District Attorney

CATHERINE M. ESTOPINAL

Assistant District Attorney

501 Texas St.

Shreveport, LA 71101

(318) 429-7618

COCKLE LAW BRIEF PRINTING CO (800) 225-6964

OR CALL COLLECT (402) 342-2831

CAPITAL CASE

QUESTIONS PRESENTED

Is the trial judge no longer to be accorded due

deference in ruling on challenges for cause?

Does historical precedent endorse jury nullifica-

tion?

Does Indiana v. Edwards apply to a state which

does not impose counsel on a mentally ill defen-

dant who wishes to represent himself?

li

TABLE OF CONTENTS

Page

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I. Deference is still due to trial judge’s de-

terminations of merit for challenges for

A. Equivocal answers did not outweigh

Ms. Lee’s positive assertions of inabil-

ity to return death sentence.................. 6

B. Juror Payne clearly able to consider

sentencing OptionsS.....................c.ceeee ay 10

Il. Historical precedent does not support

WOTILIONCT S ASSETTIONS........ .....000.0.00ccreccoeveveseses 18

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ne I cas visanicerevonusenn tua incapepeoeeesees 20

Ill. Indiana v. Edwards irrelevant to instant

Nik ccc tnicscansiucchvescisduapdisesduvecwieneraebesneene 22

lll

TABLE OF AUTHORITIES

Page

LOUISIANA CASES

State v. Campbell, 2006-0286 (La. 5/21/08),

983 So.2d 810, rehearing denied (La.

SS EE a ated ae AM ke REN cre SUSE 3. 9, 16, 23, 24

State v. Jackson, 450 So.2d 621 (La. 1984)................ 10

State v. Wilson, 467 So.2d 503 (La. 1985),

certiorari denied 474 U.S. 911, 106 S.Ct. 281,

88 L.Ed.2d 246 (1985), rehearing denied 474

U.S. 1027, 106 S.Ct. 585, 88 L.Ed.2d 567

REE Scar M cee ape Se ACIS ey ak RN Re OE 10

LOUISIANA STATUTES

Louisiana Code of Criminal Procedure Article

ELEVENTH CIRCUIT COURT OF APPEALS

U.S. v. Funches, 135 F.3d 1405 (11th Cir. 1998),

certiorart denied 524 U.S. 962, 118 S.Ct.

Se RA WON dinciccescisedineanndasencumlinstaxcterncn! 21

1V

TABLE OF AUTHORITIES — Continued

Page

UNITED STATE SUPREME COURT

Faretta v. California, 422 U.S. 806, 95 S.Ct.

BE Bae a O iaiee ks ire cccnssccvsscsneicccinns 22

Godinez v. Moran, 509 U.S. 389, 113 S.Ct.

DEBE, TAS Fi Bee ee ek CO iis cnceicecincsvcdsiconssccosecs 24

Gray v. Mississippi, 481 U.S. 648, 107 S.Ct.

SES, Be Fa ee CE iiteivcnic inn csitccecsiieiccereniveis 10

Indiana v. Edwards, __ U.S. __, 128 S.Ct.

2379, 171 L.d.2d 346 (2008) ...........0.665.5., a2; 23, 24

Lockhart v. McCree, 476 U.S. 162, 106 S.Ct.

DF Re BET CH ce bivvdccesrcccteet edie 4

Lockett v. Ohio, 4388 U.S. 586, 98 S.Ct. 2954, 57

ise IE I shies, s sacs onic apece etumeeeamvebeheekia 4

Morgan v. Illinois, 504 U.S. 719, 112 S.Ct.

Se RR Fe Fe Ce os onknnns sacccnccsitasensaciscninns 4

Snyder v. Louisiana, ____ U.S. , 128 S.Ct.

RS, DFO Dea ee Be CE ini evicsecnicenetewanciaeccenivesens 6

Standefer v. United States, 447 U.S. 10, 100

S.Ct. 1999, 64 L.Ed.2d 689 (1980)....................eeeee 22

Uttecht v. Brown, __ U.S. __, 127 S.Ct. 2218,

IGT EL. B.D 1914 (BOOT) .ncccccccscccosssceeses 4,6, 9,11, 16

Wainwright v. Witt, 469 U.S. 412, 105 S.Ct.

GGG. BF Bs Wee ee Gk CRD vinvenvncccnscsticcessosecce 6, 16, 17

Witherspoon v. Illinois, 391 U.S. 510, 88 S.Ct.

LT TO, BO Ec TAR. Se TTS CRBC) 0 cvscscccsesnccesse 4,11, 16,17

TABLE OF AUTHORITIES — Continued

Page

OTHER AUTHORITIES

Blackstone’s Commentaries on the Laws of

RN, PIII EO iis ciiconrnincrceceveceiavcccsseninevents 18, 19, 21

U.S. v. Callender, 25 F.Cas. 239 (C.C.Va. 1800)..... 20, 21

1

STATEMENT OF FACTS

On the evening of February 11, 2002, Kathy

Parker was working as a cashier in the Magnolia

Club in the tiny town of Rodessa, Louisiana. At about

nine o'clock two young black males entered the Mag-

nolia and robbed Kathy Parker with a shotgun. The

robbery was recorded by one of four video surveillance

cameras, which reflected that the taller of the two

men, later identified as petitioner, Laderrick Camp-

bell, held the shotgun pointed at Ms. Parker and,

once she had emptied the cash register, shot her in

the chest after she had begged him not to kill her.

Kathy Parker died from blood loss due to the shotgun

blast to her chest. Petitioner and his partner in crime,

James “Peanut” Washington, ran out of the Magnolia

and sped away in a waiting car. The entire robbery

and murder took less than a minute. (Tr. Vol. 11, pp.

2246-2249, 2354; Vol. 12, p. 2498)

Petitioner’s voice was recognized by a patron of

the Magnolia. Later, Detective Charles Bradford

recognized both men on the video from seeing them

around in the small town of Rodessa. The bar patron,

Cardell Jackson, had known both men from the time

they were small children. He also identified Washing-

ton as being the other robber. (Tr. Vol. 11, pp. 2212-

2213, 2219, 2226-2230) Petitioner and Washington

were arrested on a warrant together in Texas. Wash-

ington admitted his involvement and took police to

the location where the shotgun had been hidden.

Petitioner made a statement to police upon his arrest

2

in which he denied any involvement in the offense.

(Tr. Vol. 11, pp. 2213-2215; Vol. 1, pp. 174-190)

The video surveillance tape was shown to the

jury by both the prosecution and defense. (Tr. Vol. 11,

pp. 2208, 2246-2248; Vol. 12, pp. 2497-2500) The

driver of the getaway car, Lakischa “Keeta” Holloway,

and the car’s owner, Virginia Burkette, both testified

to the events leading up to and following the robbery

and murder, and positively identified petitioner as

being the one who had the gun. (Tr. Vol. 11, pp. 2271-

2280, 2363-2371)

Petitioner was unhappy with the way his defense

counsel were handling his case and with what he

perceived as the weakness of the State’s case against

him. He made several complaints to the court in

earlier proceedings, claiming that the state had no

evidence other than hearsay against him, and filing

several pro se motions. (Tr. Vol. 2, p. 493; Vol. 3, pp.

497-517, 530; Vol. 5, pp. 959-971, 977, 1014) Peti-

tioner accused his counsel of physically assaulting

him before the trial began and made several accusa-

tions during voir dire that his counsel, and others,

were using hand signals to communicate with the

jury. (Tr. Vol. 5, pp. 1026-1031; Vol. 6, p. 1324; Vol. 7,

pp. 13386-1347, 1411-1421; Vol. 8, pp. 1730-1736,

1740-1743, 1749-1760, 1776-1779; Vol. 9, pp. 1866-

1867, 1902-1907) -

Finally, petitioner told the court that he wanted

to represent himself, after complaining of his coun-

sel’s voir dire on intent. After a lengthy colloquy, the

3

court agreed. Standby counsel was appointed, consist-

ing of the senior members of the Caddo Parish Indi-

gent Defender’s Office, Alan Golden and Kurt Goins,

who had been representing petitioner up to that

point, and with whom he apparently consulted during

the remainder of voir dire and the guilt phase. (Tr.

Vol. 9, pp. 1925-1970; Vol. 10, pp. 1976-1999, 2173;

Vol. 11, p. 2349) After the guilty verdict had been

returned, petitioner told the court that he wanted his

standby counsel to represent him for the penalty

phase, which they did. (Tr. Vol. 11, p. 2437; Vol. 12,

pp. 2445-2446)

Petitioner was convicted of the first degree

murder of Kathy Parker, and was sentenced to death

by the unanimous vote of the jury. On appeal, the

Louisiana Supreme Court affirmed petitioner’s con-

viction and sentence. State v. Campbell, 2006-0286

(La. 5/21/08), 983 So.2d 810, rehearing denied (La.

6/27/08). This application for writ followed.

+

ARGUMENT

I. DEFERENCE IS STILL DUE TO THE

TRIAL JUDGE’S DETERMINATIONS OF

MERITS OF CHALLENGES FOR CAUSE

On appeal petitioner complained that the trial

court improperly refused three challenges for cause to

the defense, and improperly granted two challenges

for cause to the State. These complaints have now

been reduced to two: one prosecution challenge for

4

cause that was granted and one defense challenge

that was denied.

Appellant also agues that where potential jurors

are excluded under Witherspoon v. Illinois, 391 U.S.

510, 88 S.Ct. 1770, 20 L.Ed.2d 776 (1968) challenges,

the resultant jury lacks impartiality and is more

conviction-prone. This argument was addressed and

rejected by this Court more than twenty years ago in

Lockhart v. McCree, 476 U.S. 162, 106 S.Ct. 1758, 90

L.Ed.2d 137 (1986). The State, just as the defense, is

entitled to jurors who will follow the law. Lockett v.

Ohio, 438 U.S. 586, 596-597, 98 S.Ct. 2954, 2960, 57

L.Ed.2d 973 (1978). Moreover, the State has a strong

interest in selecting jurors who are able to apply

capital punishment “within the framework state law

prescribes.” Uttecht v. Brown, ___ U.S. ___, 127 S.Ct.

2218, 2224, 167 L.Ed.2d 1014 (2007).

Petitioner oddly cites Justice Scalia’s dissent in

Morgan uv. Illinois, 504 U.S. 719, 112 S.Ct. 2222, 119

L.Ed.2d 492 (1992) for the proposition that a juror

should not be excluded because of her attitude to-

wards capital punishment. Oddly because in Morgan,

the juror was one who would have voted automati-

cally for the death penalty.

Perhaps petitioner is willing to accept the selec-

tion of jurors who are strongly inclined to impose the

death penalty as well as those who are strongly

inclined to vote for a life sentence: after all, under

Louisiana law the State must get all twelve jurors to

agree in order to obtain a death penalty, whereas the

)

defense needs only one hold-out against the death

penalty in order to obtain a life sentence.’

Procedural safeguards already stringently favor

a life sentence. Out of twelve jurors, even if there

were eleven jurors who would impose death auto-

matically, and only one juror who would automati-

cally vote for a life sentence, a sentence of life would

be imposed. The “playing field” is already tilted

against the imposition of a death sentence.

Viewed in light of these realities, petitioner’s

professed desire for a “level playing field” is revealed

as specious: the odds for a life sentence would be, and

still are, in the criminal defendant’s favor, and not at

all “level.”

Petitioner is asking this court to make a review

of the credibility of jurors Lee and Payne based on a

‘ Louisiana Code of Criminal! Procedure Article 905.6 Jury;

unanimous determination

A sentence of death shall be imposed only upon a

unanimous determination of the jury. If the jury

unanimously finds the sentence of death inappropri-

ate, it shall render a determination of a sentence of

life imprisonment without benefit of probation, parole

or suspension of sentence.

La.C.Cr.P. Art. 905.8 Imposition of sentence

The court shall sentence the defendant in accor-

dance with the determination of the jury. If the jury is

unable to unanimously agree on a determination, the

court shall impose a sentence of life imprisonment

without benefit of probation, parole or suspension of

sentence.

6

cold record. Petitioner apparently seeks to extend

Snyder v. Louisiana, __. U.S. ___, 128 S.Ct. 1203, 170

L.Ed.2d 175 (2008) to include some requirement that

the trial judge must have made a finding on the

record in order for the trial court’s ruling to be

granted the deference to which it is due. Snyder, a

Batson case, does not stand for that proposition,

however.

Due deference is not dependant on the trial court

making any specific analysis or findings on the record.

Rather, the principle recognizes that the trial court is

in a superior position to determine the demeanor and

qualifications of a potential juror. Wainwright v. Witt,

469 U.S. 412, 105 S.Ct. 844, 83 L.Ed.2d 841 (1985),

and Uttecht, 127 S.Ct. at 2223-2224.

A. Equivocal answers did not outweigh

Ms. Lee’s positive assertions of inabil-

ity to return death sentence

The Louisiana Supreme Court took a thorough

and well-rounded view of Ms. Rosie Lee’s voir dire:

The defendant challenges the trial court’s

decision to grant the state’s challenge for

cause as to Rosie Lee. When the prosecutor

asked the group of prospective jurors if there

was anyone among them who could not im-

pose the death penalty because of personal or

religious beliefs, Lee answered that she could

not. She explained: “... t#’s against my re-

ligion. I don’t believe you should take a

person’s life. I think they should be put

7

up in a place where they can be rehabili-

tated or life in prison.” When asked if her

opposition to the death penalty would re-

main the same, regardless of the evidence,

she concluded that she would “have to really

pray about it and see the evidence before I

could vote to take a man’s life or a woman’s

life.”

Later, the district attorney returned to Lee,

who acknowledged that it would not be fair

to the other jurors if someone who was op-

posed to the death penalty under any cir-

cumstance sat on the jury. Taking that

sentiment into consideration, the district at-

torney then asked her again if she could con-

sider the death penalty. Lee answered, “No,

I could not decide to take a man[’s] life”

and “I couldn’t do the death penalty on

no man or no woman.” The district at-

torney continued to question Lee about

her opinion and she consistently and

adamantly claimed that she could not

impose the death penalty.

Upon questioning by defense counsel, Lee

acknowledged her “strong feelings” against

the death penalty. When pushed to articu-

late circumstances where she would im-

pose the death penalty, Lee concluded

that she would only do so if it was “out-

right evil” such that “[the defendant]

had no compassion, beat to death, really

angry, then after that killed and all

that, like they was tortured or some-

thing.” Under these circumstances, Lee

8

acknowledged, for the first time during voir

dire, that she would “consider” the death

penalty. However, she qualified her admis-

sion by suggesting that she would also con-

sider “the age factor” before coming to the

decision.

When asked by defense counsel if she could

sit on the jury, even with her strong feelings,

and consider the death penalty for someone

convicted of an intentional murder, Lee re-

sponded, “Yes, I could sit on a death penalty

[case] and consider it and think about it and

pray about it and come up with a decision.”

But when pressed to clarify whether she

could render a death verdict for such a per-

son, Lee replied, “{t/f they could prove

that he was a - was really like « torture,

a bad serious, really didn’t have no con-

scious [sic] about killing nobody, yes,

sir.”

After the state challenged Lee for cause, the

trial court acknowledged that her an-

swers to the state had been forthright in

her inability to consider the death pen-

alty under any circumstances. Although

the trial court was aware of Lee’s admission

that she would consider the death penalty if

it were a case of “outright evil,” the trial

court indicated his satisfaction that the

totality of Lee’s responses indicated an

inability to impose the death penalty.

We find no abuse of the trial court’s discre-

tion in granting the state’s cause challenge

9

as to prospective juror Lee. Much deference

“must be afforded to a trial court’s first-hand

observation of tone of voice, body language,

facial expression, eye contact, or juror atten-

tion.” ... This court has previously held

“significantly, it is in the determination of

substantial impairment that the trial judge’s

broad discretion plays the critical role.” ...

Lee’s admission that she would consider

the death penalty under certain extreme

circumstances ts outweighed by her con-

sistent statements during the majority of

voir dire that she would not impose the

death penalty under any circumstance.

As a result, the trial court properly

granted the state’s challenge.

State v. Campbell, 2006-0286 (La. 5/21/08), 983 So.2d

810, 863-864, emphasis added, footnotes and citations

omitted.

The few instances where Ms. Lee claimed she

would impose the death penalty were the most ex-

treme, and ultimately unconvincing. In short, Ms.

Lee’s responses were so equivocal that the trial court

did not err in granting the state’s challenge for cause.

In Uttecht, the Court upheld the excusal of a juror on

the same basis, observing that even assurances that a

juror would consider imposing the death penalty and

would follow the law do not require the trial court to

deny the State’s motion to excuse, if “these respunses

were interspersed with more equivocal statements,”

id. at 2227, 2229.

-

Even if there had been error by the trial court in

granting the State’s challenge for cause of Ms. Lee, it

was harmless. The record reflects that the State used

only five of its twelve allotted peremptory challenges,

so that even if the State challenge complained of had

been improperly granted, the State did not receive

any undue advantage thereby.

Under Louisiana Code of Criminal Procedure

Article 800.B, the State must have exhausted all its

peremptory challenges before a defendant may com-

plain about the alleged improper granting of chal-

lenges for cause. State v. Jackson, 450 So.2d 621, 627

(La. 1984), State v. Wilson, 467 So.2d 503, 514 (La.

1985), certiorari denied 474 U.S. 911, 106 S.Ct. 281,

88 L.Ed.2d 246 (1985), rehearing denied 474 U.S.

1027, 106 S.Ct. 585. 88 L.Ed.2d 567 (1985). In other

words, the State would have removed Ms. Lee witha

peremptory challenge if the challenge for cause had

been denied.”

B. Juror Payne clearly able to consider

sentencing options

Appellant also complains that one of his chal-

lenges for cause should have been granted. The

* The State is aware of the seemingly contrary holding of

this court in Gray v. Mississippi, 481 U.S. 648, 107 S.Ct. 2045,

95 L.Ed.2d 622 (1987). Gray, however, was based on peculiar

factual circumstances, including the trial court granting the

state additional peremptory challenges to make up for the trial

court’s wrongful denial of meritorious challenges for cause,

factual peculiarities which are not present in the instant case.

11

dispositive question is whether a potential juror is

“substantially impaired in his or her ability to impose

the death penalty under the governing legal frame-

work.” Uttecht, at 2224. As noted above, the trial

court is accorded great discretion in its decision to

grant or deny peremptory challenges, and such a

decision is entitled to great deference when it is fairly

supported by the record. Witherspoon, supra. The

trial court’s ruling warrants deference, even on direct

review. Uttecht, at 2223.

Petitioner claims that his challenge for cause of

prospective juror Payne should have been granted,

alleging that he refused to consider specific mitigat-

ing circumstances, and would only consider life where

the murder was justified. On the contrary, Mr. Payne

stated that he would impose the death penalty if the

murder was brutal, or a case of “overkill” where the

victim was shot or stabbed three or more times, and

characterized himself as middle of the road, saying

“we've got to be reasonable.” (Tr. Vol. 6, pp. 1172-

1173) The victim in the instant case suffered a single

gunshot wound.

Appellant also omits that portion of Mr. Payne’s

voir dire where he assured the court that he would

consider mitigating factors, even if not proven beyond

a reasonable doubt, if that’s what the judge told him

to do. (Tr. Vol. 6, p. 1173) He stated that he would

consider the mitigating factors of lack of a substantial

criminal history and remorse. He also stated that if

there were two equally reasonable theories of the

offense, one being an intentional shooting (first

12

degree murder) and one being an accidental shooting

(second degree murder), he would return a verdict of

second degree murder. (Tr. Vol. 6, pp. 1145-1146,

1158, 1179; Vol. 8, p. 1581)

As to Mr. Payne, the Louisiana Supreme Court

found, in part:

When asked his feelings about the death

penalty, Payne responded:

I think of the death penalty as

necessary to the degree that the

murder was unnecessary. The

brutality, the savagery, the un-

necessity [sic] of the killing. Ob-

viously, the mitigating factors

with me have a bearing, some

have no bearing on that list with

me, but some could have a bear-

ing with me.

When the prosecutor asked further questions

about Payne’s ability to consider the mitigat-

ing circumstances that might be presented,

Payne replied:

I’m an opinionated person, but

before I make an opinion I try

to puli all the factors in. And

just reading those seven things

[mitigating circumstances], and

I understand there can be many

other factors, but just reading

some of those, for example, the

first one up there no significant

13

prior criminal history, depend-

ing on the savagery of the mur-

der, that may or may not have

any significance with me...

However, when asked point-blank whether

he could consider imposing a life sentence,

Payne responded, “sure” and indicated he

could consider either a life sentence or the

death penalty. In addition, Payne told the

prosecutor that, he could vote for a death

penalty, “but I won’t do it because 11 other

people felt that way. I believe this is 12 sepa-

rate decisions that would have to be made.”

Defense counsel engaged in an extended col-

loqguy with Payne. When defense counsel

asked Payne to describe severai aspects of

his feelings about the death penalty, Payne

responded:

Well, that’s about an hour long

speech. I think it is necessary. |

have to believe that when someone

is intending to commit a murder, it

has to be in their mind that there

could be the death penalty involved.

They probably never think that

they’re going to get caught or they’re

too angry or whatever the situation,

but I still think that it is a deter-

rent. Are there downsides to it, sure.

If someone is convicted wrongly,

then that’s a horrible situation. But

some of the savagery and some of

the brutality that we see in mur-

der, just the callousness I think

14

make the death penalty ex-

tremely necessary. I don’t have

reservations about invoking the

death penalty on someone if the

situation is warranted...

Defense counsel asked Payne if he leaned

one way or the other as far as imposing the

death penalty or a life sentence for an armed

robbery and an intentional killing. Payne re-

plied “[t]/hat’s fully hard to answer that

because I don’t know the real facts of the

case.” Finally, as defense counsel began to

ask yet another question on this issue, Payne

answered:

I’m open to anything, okay. But it’s

going to be very difficult. Again, I

once said during the mitigating, if

you use mitigating circumstances

with me, you're going to have to

prove them beyond a really reason-

able doubt. I mean, I hear a doctor

come in and say the person is men-

tally ill, youre going to have to

make me understand that really

good for me to accept that.

When defense counsel asked whether

Payne could consider mitigating cir-

cumstance if instructed to do so by the

judge, even if the mitigating evidence

was far less than beyond a reasonable

doubt, he answered, “Yes, I would con-

sider it.” ...

15

When asked to describe his feelings about a

life sentence, Payne indicated:

I think that’s a tough sentence as-

suming they don’t get out of prison.

I have to consider the victim in that,

also, and I think that the death

penalty is going to put an end to it

for that person, for the two people,

the victim and the accused, but that

doesn’t end it for the other folks. I

don’t like this term closure because I

don’t think there is closure. On the

other hand, a life sentence, I think

the reason we should send people to

prison is so we can redeem them.

And if you’re sending them for lfe

with no parole, redemption is not

necessary because they’re not ever

going to get out anyway...

When asked later whether religious ideas

about redemption were valid considerations

for a life sentence, Payne replied:

They’re all considerations, but I, too

am a religious person, but you know,

you can be forgiven just before you

are executed, too....So I don’t have

a problem with life imprisonment,

but it has to be a pretty good stan-

dard for me to get out of the death

penalty, assuming the kinds of

crime that I have discussed pre-

viously about the brutality, the

savagery, the callousness, the in-

tent, the meanness. Mitigating

16

circumstances are going to have to

prove to me that life imprisonment

is deserving.

Finally, Payne indicated that anger was not

an excuse for a first degree murder.

Defense counsel challenged Payne for cause

arguing that he would require the defense to

prove mitigating circumstances beyond a

reasonable doubt; thus, holding the defense

to a higher burden than was required by law.

The state objected. After listening to the ar-

gument of counsel, the trial court denied the

defense challenge for cause as to Payne.

Considering the whole of Payne’s voir

dire testimony, we do not find any abuse

of the trial court’s discretion in denying

the challenge for cause. Payne’s willing-

ness to follow the court’s instructions

combined with his willingness to impose

life imprisonment or the death penalty,

depending on the circumstances, ne-

gated the defense’s inference that Payne

was biased, prejudiced, or unable to

render a judgment according to law.

Thus, the trial court properly denied the

defense challenge for cause.

Campbell, supra, 983 So.2d at 859-862, emphasis

added, footnotes omitted.

In Uttecht the Court reaffirmed Witherspoon and

Witt, regarding the great discretion afforded the trial

court in granting challenges for cause of a juror on

the ground of an inability to be impartial in deciding

17

whether to impose the death sentence. The trial judge

in the instant case made determinations based on his

assessment of each juror’s responses and demeanor,

and those determinations are entitled to due defer-

ence.

Although petitioner makes sweeping claims

about the increase of juries “that are uncommonly

and arbitrarily willing to sentence a person to death,”

the facts do not show that there has been a dispropor-

tionate number of death penalties returned by the

juries so selected. In the First Judicial District of

Louisiana, where this case arose, for example, from

1976 to the present, there have been 41 persons

convicted of first degree murder. Of these, only seven-

teen were sentenced to death. Others tried for first

degree murder were found guilty of lesser offenses.

This hardly amounts to a disproportionate number: if

petitioner’s claim were true that the juries selected

under Witherspoon and Witt are so eager to impose

the death penalty, a number much closer to 100

percent would be expected.

Petitioner has shown no abuse of the trial court’s

great discretion in ruling on challenges for cause.

Viewing the voir dire of each of these jurors as a

whole, as the Louisiana Supreme Court has done, it is

clear the trial court did not err in denying appellant’s

challenge for cause or in granting the State’s chal-

lenge. Petitioner’s claims are without merit.

18

il. HISTORICAL PRECEDENT DOES NOT

SUPPORT PETITIONER’S ASSERTIONS

A. Blackstone

Petitioner attempts to invoke historical precedent

in support of his claim that so-called “Witherspoon

excludables” would not have been excludable “at the

time of the founding.” Petitioner begins by making a

rather telling omission from his assertion that “(i)n

Blackstone’s England, as at common law, there were

only four challenges for cause.”

What petitioner omits is the fact that, “in Black-

stone’s England,” the mid-18th century, the death

penalty was mandatory, not only for murder and

treason, but also for 150 other offenses. Blackstone’s

Commentaries on the Laws of England, Book IV,

Chapter 1, page 18. Blackstone addresses the matter

of determining which crimes are deserving of the

death penalty as follows:

“When a question arises, whether death may

be lawfully inflicted for this or that trans-

gression, the wisdom of the laws must decide

it: and to this public judgment or decision all

private judgments must submit: else there is

an end of the principle of all society and gov-

ernment.” Jbid, Ch. 1, p. 11.

It is apparent that Blackstone pondered the fact

that individual jurors might have personal opinions

contrary to that established by the law as to the

suitability of capital punishment for particular of-

fenses: these “private judgments must submit” to the

wisdom of the laws.

19

The jury in “Blackstone’s England,” unlike mod-

ern capital juries, had no direct input into the sen-

tence to be imposed, so a juror’s opinion regarding the

death penalty was not consulted. Voir dire as to a

juror’s opinion regarding the imposition of sentence

would therefore have been irrelevant.

Blackstone refers to “deliberate and willful

murder; a crime at which human nature starts, and

which is I believe punished almost universally

throughout the world with death.” Jbid, Ch. 14, p.

194. In “Blackstone’s England” the judge imposed the

mandatory sentence for all capital crimes and he and

the king alone were empowered to impose a lesser

sentence if so moved. In fact, as Blackstone observed,

lesser capital offenses were often punished by the

imposition of fines, imprisonment and deportation

rather than the death penalty. /bid, Book IV, Ch. 1, p.

19, Ch. 14, p. 202.

Since the time of Blackstone and of the Framers,

qualification for jury service has shifted away from

classifications based on nobility, wealth, freehold

status, landownership, gender and race, to jurors who

are able to understand and apply the law as given to

them by the courts. This represents the American

tradition of regard for the procedural rights of every

individual defendant to have an impartial jury,

setting aside antiquated preconceptions of juror

suitability based on birth and social standing. Such

preconceptions are anathema in a country founded on

the principle that all men are created equal.

20

The Louisiana capital sentencing system places

trust in individual jurors and juries to render the

appropriate sentence based on the facts of the case

and the character and propensities of the offender.

Adopting Blackstone’s juror qualification system, as

petitioner seems to urge, would prohibit consideration

of jurors who are otherwise qualified to serve, con-

trary to egalitarian principles.

Petitioner has not made a showing, or even a

convincing argument, that any historical basis for

addressing this issue, even Blackstone, would be

enlightening or instructive. Petitioner’s argument

rests on a selective and distorted review of the evolu-

tion of jury selection.

B. The Framers

Petitioner raises questions long answered regard-

ing whether a jury may determine that a law is

unconstitutional. In U.S. v. Callender, 25 F-Cas. 239,

255-257 (C.C.Va. 1800), Justice Samuel Chase, signa-

tory of the Declaration of Independence, expounded:

Was it ever intended, by the framers of the

constitution, or by the people of America,

that it should ever be submitted to the ex-

amination of a jury, to decide what restric-

tions are expressly or impliedly imposed by it

on the national legislature? I cannot possibly

believe that congress intended, by the stat-

ute, to grant a right to a petit jury to declare

a statute void...

21

it a petit jury can rigntiuily exercise tnis

power over one statute of congress, they

must have an equal right and power over

any other statute, and indeed over all the

statutes; for no line can be drawn, no restric-

tion imposed on the exercise of such power; it

must rest in discretion only. If this power be

once admitted, petit jurors will be superior to

the national legislature, and its laws will be

subject to their control...

From these considerations I draw this con-

clusion, that the judicial power of the United

States is the only proper and competent au-

thority to decide whether any statute made

by congress (or any of the state legislatures)

is contrary to, or in violation of, the federal

constitution. That this was the opinion of the

senate and house of representatives, and of

General Washington, then president of the

United States, fully appears by the statute,

entitled “An act to establish the judicial

courts of the United States,” made at the

first session of the first congress.

To seat jurors who would refuse to follow the law

would be to invite chaos, as these great legal minds

clearly understood. Callender, supra, Blackstone,

supra, Book IV, Ch. 1, p. 11.

Petitioner’s thinly veiled assertion of the right to

seat a juror who he anticipates will invoke jury

nullification is insupportable. There is no right to

jury nullification. U.S. v. Funches, 135 F.3d 1405,

1408-1409 (11th Cir. 1998), certiorari denied 524 U.S.

22

962, 118 S.Ct. 2389, 141 L.Ed.2d 754, Standefer v.

United States, 447 U.S. 10, 22, 100 S.Ct. 1999, 2007,

64 L.Ed.2d 689 (1980).

Despite this fact, there can be no denying that

jury nullification does occur, and that such occur-

rences are without recourse for the State in criminal

trials: there is no appeal from a jury’s acquittal, and

there is no provision under Louisiana law for chal-

lenging a jury’s verdicts in a capital case. Prosecutors

must therefore be alert to indications that a juror

may be inclined to resort to nullification. The exercise

of peremptory challenges is uniquely suited to ad-

dressing such possibilities.

Petitioner’s claim is without merit.

Ill. INDIANA V. EDWARDS IRRELEVANT TO

INSTANT CASE

Appellant attempts to apply a recent capital

opinion from this court, Indiana v. Edwards, __ US.

__, 128 S.Ct. 2379, 171 L.Ed.2d 345 (2008), to the

instant case. Edwards held that a state may choose to

require a mentally ill criminal defendant to submit to

representation without violating Faretta v. Califor-

nia, 422 U.S. 806, 95 S.Ct. 2525, 45 L.Ed.2d 562

(1975). Edwards holds that such a requirement is not

unconstitutional.

Edwards is inapplicable even on the most cursory

reading. Louisiana has passed no such legislation nor

has it invoked such a rule, and there is therefore no

23

need for a remand for the Louisiana Supreme Court

to reconsider its opinion “in light of Indiana v. Ed-

wards.” The trial court appointed standby counsel

for petitioner after a more than thorough Faretta

colloquy. After conducting part of voir dire and all of

the defense case in the guilt phase, petitioner decided

to accept the representation of his standby counsel for

the penalty phase.

The Louisiana Supreme Court thoroughly re-

viewed petitioner’s complaints that he was not com-

petent tc represent himself and rejected them.

Campbell, supra, 983 So.2d, at 851-854. In fact, the

court, even while noting the pendency of Edwards,

also noted its irrelevance to the instant case:

We are aware that the United States Su-

preme Court has granted certiorari and

heard oral argument in the case of Indiana v.

Edwards, 07-208. However, the question pre-

sented in Edwards is whether a state may

impose a higher standard: “May a criminal

defendant who, despite being legally compe-

tent, is schizophrenic, delusional, and men-

tally decompensatory in the course of a

simple conversation, be denied the right to

represent himself at trial when the trial

court reasonably concludes that permitting

self-representation would deny the defendant

a fair trial.” The State of Indiana required a

criminal defendant who requested self-

representation to meet a higher standard of

competency than the standard of competency

for proceeding to tria). Louisiana does not

24

impose a higher standard; thus, we do not

believe the Court’s holding in Edwards will

impact our decision here. In the event that

the Court overrules its previous holding in

Godinez [v. Moran, 509 U.S. 389, 398, 113

S.Ct. 2680, 2686, 125 L.Ed.2d 321 (1993)],

however, the defendant will be permitted to

raise the issue, depending on when Edwards

is rendered, either on rehearing or in post-

conviction.

Campbell, supra, at 853, fn. 149.

As of this date, therefore, the competence that is

required of a Louisiana defendant seeking to waive

his right to counsel remains “the competence to waive

the right, not the competence to represent himself.”

Godinez, supra, at 399, 113 S.Ct., at 2687. Peti-

tioner’s reliance on Edwards is misplaced. This claim

is without merit.

¢

CONCLUSION

Respondent shows that writ should not be

granted in the instant case:

I. Petitioner has failed to show that the trial

judge or the Louisiana Supreme Court erred in ruling

on the challenges for cause of which he complains,

and he has failed to show that a new/old approach to

voir dire on the death penalty is either required or

desirable.

25

II. Petitioner’s appeal to historical sources is ill-

founded. Neither Blackstone nor the Framers were in

favor of installing jurors who would be unable or

unwilling to apply the law as it was given to them.

Ill. Finally, there is no constitutional rule that

a trial court must foist an unwanted attorney on a

competent defendant who wishes to represent himself

at trial, even if that defendant is also mentally ill.

WHEREFORE, the State of Louisiana prays that

Laderrick Campbell’s application for writ of certiorari

be denied.

Respectfully submitted,

PAUL J. CARMOUCHE

Counsel of Record

Caddo Parish District Attorney

CATHERINE M. ESTOPINAL

Assistant District Attorney

501 Texas St.

Shreveport, LA 71101

(318) 429-7618

Fax (318) 841-4020