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

Supreme Court, U nd)

MOTION FILED 0\

DCL 272m __No. 08.508

te K. Suter,

IN THE

ae Court of the United States

LADERRICK CAMPBELL,

Petitioner,

V.

STATE OF LOUISIANA,

Respondent.

On PETITION FOR A Writ OF CERTIORARI TO THE

SUPREME CourRT OF THE STATE OF LOUISIANA

MOTION FOR LEAVE TO FILE AMICI CURIAE

BRIEF AND BRIEF ON BEHALF OF ACADEMICS AS

AMICI CURIAE IN SUPPORT OF PETITIONER

Rory K. Litre Douc.as E.. WHITNEY

HAasTINGs CoLLEGE oF Law (U.C.) Counsel of Record

200 McAllister Street JOSHUA G. HERMAN

San Francisco, CA 94102 ERICA GHOLSON

(415) 565-4669 McDermott, WILL & EMery

227 West Monroe Street

Chicago, IL 60606

(312) 372-2000

Attorneys for Amici Curiae

219093 g

COUNSEL PRESS

(800) 274-3321 ¢ (800) 359-6859

MOTION FOR LEAVE TO FILE AMICI BRIEF

Amici Stanley Katz, Ronald Sullivan, Matthew

Harrington, Charles Ogletree, Randolph Stone, Janet

Hoeffel, Chuck McCurdy, Paul Baier and Joseph Thai

(“amici”) hereby move, pursuant to S. Ct. R. 37.2(b), for

leave to file the accompanying amicus curiae brief in

support of the petition for a writ of certiorari to the

Louisiana Supreme Court. Petitioner, Laderrick

Campbell, consented to the filing of this brief.

Respondent, the State of Louisiana, did not consent.*

As set forth in the accompanying brief under

“Statement of Interest,” amici consist of nine law

professors and historians who teach and write about

Sixth Amendment jurisprudence, Constitutional law,

English History, Early American History, and Criminal

Procedure at eight different universities, and have an

interest in the proper interpretation and application of

the Sixth Amendment of the United States Constitution.

Amici have varying views on whether the original

understanding of the Sixth Amendment controls or

informs current understanding and practice. Amici are

concerned that the Court’s current death qualification

practice is inconsistent with the jury envisioned by the

Framers and the original understanding of the Sixth

Amendment. Accordingly, amici respectfully request

that the Court grant leave to file the attached amicus

curiae brief.

* In response to a request for consent to the filing of an

amicus curiae brief, Respondents’ counsel stated over the

telephone on October 21, 2008 that she respectfully declined to

consent to the filing of an amicus brief in support of petition.

October 27, 2008

Respectfully submitted,

DouGLas E. WHITNEY

Counsel of Record

JOSHUA G. HERMAN

ERICA GHOLSON

McDermott, WILL & EMERY

227 West Monroe Street

Chicago, IL 60606

(312) 372-2000

Rory K. Litre

HASTINGS COLLEGE OF LAw (U.C.)

200 McAllister Street

San Francisco, CA 94102

(415) 565-4669

Attorneys for Amici Curiae

1

QUESTION PRESENTED

Whether this Court should reevaluate the “death-

qualification” framework established by Witherspoon

and Witt in light of the original purpose of the Sixth

Amendment guarantee to an impartial jury?

i

TABLE OF CONTENTS

Page

ESE He ee ME ee aE i

Nee en ee ae ae ii

Table of Cited Authorities Ge ake! ae a iv

SG i SIG fh ion dk os Seance eh bea eee 1

Summary of Armument .........scecvecsscses 3

Argument

I. The Court Should Grant Certiorari To

Review The Practice Of Death

Qualification Of Juries In Capital Cases

Because It Is Inconsistent With The Role

The Framers Intended A Jury To Have

When Enacting The Sixth Amendment. . 4

A. The Court’s Cases Giving Rise to the

Death Qualification Process Do Not

Sufficiently Address the Jury’s

PRMD SERS o 4 Ska cd Se weenassds

qn

B. Historical Evidence Concerning the

Origins of the Sixth Amendment and

the Role of the Jury in Criminal

ili

Contents

Page

C. Jurors Could Determine Both Fact

and Law When the Sixth Amendment

CE hs on eek es She bees 11

D. The 18th Century Meaning of

I by ate ee es 6s 16

E. The Practice of Death Qualification is

Inconsistent with the Historical

Role of Jurors and the Framers’

Understanding of the Sixth Amendment.

EE CREM ee Gre aA Lae ET RRS Sa Peart 24

iv

TABLE OF CITED AUTHORITIES

Page

Cases

Adams v. Texas,

nl nec ov wn ee ues ae eens 6

Apprendi v. New Jersey,

ik cece scccsereewaeaes 22

Blakely v. Washington,

A cc cttccaeccwnseese 3, 9, 23

Buchanan v. Kentucky,

sg Ee era 7

California v. Ramos,

ED csc kcecccssasscveveses 23

Commonwealth v. Lesher,

17 Serg. & Rawle 155 (Pa. 1828) ........... 19, 20

Crawford v. Washington,

Eg os psn saseenvewveveevens 3, 23

Georgia v. Brailsford,

ee eb cle weed avedunee awe 12

Lockhart v. McCree,

Ue PTE) «nc ccc ccc ccctescceceues 7

Morgan v. Illinois,

SP PT ETON. See vcs sce te passes cuesss 16

Vv

Cited Authorities

Page

People v. Croswell,

3 Johns. Cas. 337 (N.Y. Sup. Ct. 1804) ...... 13

Ring v. Arizona,

ee ED oo ig bee ce eds Sele vale ane 3, 23

Roberts v. Ohio,

I I 6s ca csv aaecreuvsbvedewwe 23

Sparf v. United States, |

ccs pw ekseccewsnounss passim

State v. Kennedy,

ee bee gddnewlbee ea 20

United States v. Battiste,

24 F. Cas. 1042 (C.C.D. Mass. 1885) ......... 17

United States v. Burr,

ae OA: OD. VO: TB0T) oo ook caccnien 19

United States v. Callender,

oo Cas. Zoe (OC: Va. 1808 2... ccc eas 13, 14

United States v. Gaudin,

ee We Ek ound eesvcnescedeede war 15

United States v. Kandirakis,

441 F. Supp. 2d 282 (D. Mass. 2006) ......... 10

vi

Cited Autnorities

Page

Uttrecht v. Brown,

Oe es IG). i kde baciecvwa daebeweee 5, 21

Wainwright v. Witt,

RT EEE vos Gv cae vue ccnweees 1 7, 17, me

Walton v. Arizona,

ee ers RED eves vccuunevteeneawennsd 3

Witherspoon v. Illinois,

Me. Oe ee COE) cc kk cv te ole eee ews passim

Constitutions

Ga. Const., art..1, § 1, para. AMS) «0... eccecees 16

Se: SO BG 88 Ee 5 ba ds chweda bea kee saan 16

Md. Const., Decl. of Rts., art. 23 .............. 16

oe RO OG SO Oe bn akin sd xed 16

To COUR I, FE ick vib eines pp eee passim

vii

Cited Authorities

Page

Other Authorities

1 Legal Papers of John Adams 230 (L. Kinvin

Wroth & Hiller B. Zobel eds., 1965) ........ 12, 15

Albert W. Alschuler and Andrew G. Deiss, A Brief

History of the Criminal Jury in the United

States, 61 U. Chi. L. Rev. 867 (1994) ..... 8, 18, 14

Akhil Reed Amar, America’s Constitution:

A Biography (Random House 2005) ........ 9,11

Akhil Reed Amar, The Bill of Rights: Creation

and Reconstruction (1998) .......... 9, 10, 13, 14

James Alexander, A Brief Narrative of the Case

and Trial of John Peter Zenger (Stanley N.

Katz ed., Harvard Univ. Press 2d ed. 1972) ... = 11

William Blackstone, 3 Commentaries ......... 18, 20

1 Sir Edward Coke, The First Part of the

Institutes of the Laws of England (Hargrave

and Butier, 16th ed. 1809) .........ccccece. 15

3 Jonathan Elliot, The Debates in the Several

State Conventions, on the Adoption of the

Federal Constitution as Recommended by the

General Convention at Philadelphia in 1787

I SUE 6 6 va oa etn ee ndenwaeases 17

vill

Cited Authorities

Page

Federalist 83 (Hamilton), in Clinton Rossiter, ed.,

The Federalist Papers 491 (Penguin, 1961) .. 9

Matthew P. Harrington, The Law-Finding

Function of the American Jury, 1999 Wis. L.

Ee ME 8b ies ce okee sy ka dewdns 11, 15, 16, 17

John Hostettler, Criminal Jury Old and New:

Jury Power from Early Times to the Present

Day (Waterside Press 2004) ............... 10

Chris Kemmitt, Function over Form: Reviving

the Criminal Jury’s Historical Role as a

Sentencing Body, 40 U. Mich. J.L. Reform 93

CE FN eed 50s PRONG ea eee eee ete. 9

Letters from the Federal Farmer (IV), reprinted

in 2 The Complete Anti-Federalist (Herbert

SRE Hs DEBE 66 60k 6a cd ewe enee ees 10

Donald M. Middlebrooks, Reviving Thomas

Jefferson's Jury: Sparfand Hansen v. United

States Reconsidered, 46 Am. J. Legal Hist. 353

CE 5 Ck hack k SN EAS PARR aR eee Ds 15

John Quigley, Exclusion of Death-Scrupled

Jurors and International Due Process, 2 Ohio

Oe. U.S Bi le EE 008 Ve ieee eseeades 20

ix

Cited Authorities

Page

Arie M. Rubenstein, Verdicts of Conscience:

Nullification and the Modern Jury Trial,106

Colum. L. Rev. 959 (2006) ............06- 8, 13, 14

Douglas G. Smith, The Historical and

Constitutional Contexts of Jury Reform, 25

Hofetra Lb: Rev: ST7 CIGGS) oni ccccvcsscccces 8

2 J. Story, Commentaries on the Constitution of

the United States (4th ed. 1873) ............ 23

1

STATEMENT OF INTEREST

Amici curiae, academics representing fields including

law and history, submit this brief in support of Petitioner

and assert that the current practice of excluding potential

jurors in capital cases based on their views toward the

death penalty is inconsistent with the original

understanding of the Sixth Amendment’s “impartial jury”

right and the historical role of the jury in criminal cases.'

Amici do not take any position on questions presented

1A or 2 in Petitioner’s petition for certiorari.

The amici are:

Paul R. Baier

George M. Armstrong, Jr.

Professor of Law

Louisiana State University

Matthew P Harrington

Professor of Law

Université de Montréal

Janet C. Hoeffel

Associate Professor of Law

Tulane University

1. No counsel for any party to this case authored this brief

in whole or in part, no such counsel or party made a monetary

contribution intended to fund the preparation or submission of

this brief, and no person or entity other than the Amici Curiae

or their counsel made such monetary contribution. Counsel of

record for Petitioner and Respondent were timely notified of

the intent to file this brief and only counsel for Petitioner has

consented to its filing; a letter of consent has been filed with

the Clerk of the Court.

Stanley N. Katz

Woodrow Wilson School of Public

and International Affairs

Princeton University

Charles W. McCurdy

Professor of History and Law

University of Virginia

Charles J. Ogletree

Jesse Climenko Professor of Law

Harvard University

Ronald S. Sullivan

Clinical Professor of Law

Harvard University

Joseph Thai

Presidential Professor of Law

University of Oklahoma

Randolph N. Stone

Clinical Professor of Law

University of Chicago

3

SUMMARY OF ARGUMENT

State and federal courts across the country must

strike jurors for cause and exclude them from capital

juries if their views toward the death penalty are deemed

to substantially impair those individuals from ultimately

voting to impose a death sentence. The Court’s decisions

that forged this “death qualification” practice have

neither sufficiently explored the origins of the Sixth

Amendment’s guarantee of an “impartial jury” nor

afforded adequate attention to the jury’s historical role

in criminal cases. As a consequence, the current death

qualification practice effectively undermines the

intended role of the jury in criminal cases. The time is

ripe for the Court to reconsider its jurisprudence

governing the exclusion of jurors in capital cases,

especially in light of the Court’s recent decisions that

have reevaluated Sixth Amendment issues through a

historical lens. See, e.g., Ring v. Arizona, 5386 U.S. 584,

599 (2002) (overruling Walton v. Arizona, 497 U.S. 639

(1990) in part because when the Sixth Amendment was

ratified it was the jury that determined which homicide

defendants would be subject to capital punishment);

Crawford v. Washington, 541 U.S. 36, 43 (2004)

(rejecting Confrontation Clause analysis from Roberts

v. Ohio, 448 U.S. 56 (1980)); and Blakely v. Washington,

542 U.S. 296, 313-14 (2004) (evaluating the jury’s

historical role in ruling that the jury must decide facts

that elevate a sentence beyond its statutory maximum).

Historical evidence suggests that the drafters of the

Sixth Amendment would not have viewed sitting jurors

who are deemed to be “substantially impaired” as

excludable for not being impartial. Specifically, historical

4

evidence contemporary with the ratification of the Sixth

Amendment shows that a jury could determine both law

and fact. The Framers would not have excluded jurors

because they expressed conscientious scruples against

a law. Moreover, the Framers would have understood a

“partial” juror most clearly as one who was biased based

on a personal relationship with one of the parties—not

based on a certain view of a law. While it would be

anachronistic and unwise to recreate in a wholesale

manner juries as they existed at the time of the Sixth

Amendment’s enactment, the Court should, as its recent

Sixth Amendment opinions have demonstrated, ensure

that the core functions of today’s capital jury are

consistent with, or at least do not contradict, the

functions envisioned by the Framers.

ARGUMENT

I. The Court Should Grant Certiorari To Review

The Practice Of Death Qualification Of Juries In

Capital Cases Because It Is Inconsistent With

The Role The Framers Intended A Jury To Have

When Enacting The Sixth Amendment.

The Sixth Amendment guarantees defendants the

fundamental right to an “impartial jury.” U.S. Const.

amend. VI. In many respects the Framers viewed the

jury as an essential bulwark against the authority of

the State, and before that, the Crown. One way that

jurors fulfilled this role was by reviewing both the law

and facts in cases. In the colonies at the time of framing,

and in the late 18th century generally, jurors could not

be excluded from juries based on their beliefs about a

law. Thus, the Framers would have found it alien to

+)

exclude jurors on the grounds that their attitude toward

a law could substantially impair their discretion.

However, this concept—undeniably foreign to the

Framers—is precisely what the death qualification

process now requires. In terms of decision-making

authority, the Framers would have seen little

resemblance between the jury they envisioned and

guaranteed through the “impartial jury” clause and the

death-qualified jury that found Petitioner Laderrick

Campbell guilty and sentenced him to death.

The Court should grant certiorari in order to

determine whether the current death qualification

practice is consistent with the jury envisioned by the

Framers and the original understanding of the Sixth

Amendment.

A. The Court’s Cases Giving Rise to the Death

Qualification Process Do Not Sufficiently

Address the Jury’s Historical Role.

Discussion of the historical role of the jury is

curiously missing from the Court’s seminal death

qualification decisions, in stark contrast to the Court’s

recent Sixth Amendment rulings, which prominently

rely on the original understanding of a jury’s role in

criminal cases. Omitting this discussion is significant,

as the death qualification decisions inherently concern

fundamental rights set forth in the Sixth Amendment.

The result is a doctrine with limited historical fidelity.

Witherspoon v. Illinois, 391 U.S. 510, 519 (1968),

set the early standard governing who may be excluded

from a capital jury. See Uttecht v. Brown, 1275S. Ct. 2218,

6

2222 (2007) (“Witherspoon is not the final word, but it

is a necessary starting point.”). Witherspoon addressed

the exclusion of venirepersons who expressed

“conscientious or religious scruples against the infliction

of the death penalty’ or against its infliction ‘in a proper

case.’” 391 U.S. at 515. The Court held that the

imposition of the death penalty by a jury from which

venirepersons were excluded based on their general

objections against the death penalty violated the Sixth

Amendment. /d. at 522. However, the Court observed

that jurors could be excluded for cause if they “made

unmistakably clear (1) that they would automatically

vote against the imposition of capital punishment

without regard to any evidence that might be developed

at the trial of the case before them, or (2) that their

attitude toward the death penalty would prevent them

from making an impartial decision as to the defendant’s

guilt.” Id. at 522, n.21. The Court briefly mentioned

impartiality in the opinion, but only to emphasize that

the exclusion of conscientious objectors deprived the

capital defendant of an impartial jury. See 7d. at 518 (with

respect to sentencing, the jury “fell woefully short of

that impartiality to which the petitioner was entitled

under the Sixth and Fourteenth Amendments.”).

In Adams v. Texas, 448 U.S. 38 , 49 (1980), the Court

held that a Texas law, which permitted exclusion on

grounds broader than Witherspoon, was impermissible.

In the course of the decision, the Court observed that

its line of death qualification rulings “establishes the

general proposition that a juror may not be challenged

for cause based on his views about capital punishment

unless those views would prevent or substantially impair

the performance of his duties as a juror in accordance

7

with his instructions and his oath.” Jd. at 45. In making

that observation, the Court did not discuss the historical

role of the jury nor did it discuss the likely original

understanding of “impartiality.”

In Wainwright v. Witt, 469 U.S. 412, 484 (1985), the

Court adopted the “substantial impairment” test from

_ Adams and it described the test as differing markedly

from the “unmistakable clarity” standard from

Witherspoon. The Court streamlined the Witherspoon

standard and declared that the substantial impairment

test was proper in light of the guided discretion regime

that governed capital jurors’ sentencing decisions.

Id. at 421. With respect to impartiality, the Court

observed that a panel was impartial and therefore did

not violate the Sixth and Fourteenth Amendments if it

was composed of “jurors who will conscientiously apply

the law and find the facts.” Jd. at 423.

The Court echoed this definition of impartiality in

Lockhart v. McCree, 476 U.S. 162, 177-78 (1986), when

it specifically held that removing Witherspoon-

excludables from the jury pool did not deprive a

defendant of his right to an impartial jury. The following

year, in Buchanan v. Kentucky, 483 U.S. 402, 416-17

(1987), the Court reinforced this decision by extending

Witt to joint trials. Thus, the genesis of the Court’s

death qualification jurisprudence has transpired without

any meaningful reference to or analysis of historical

evidence contemporary with or pre-dating the

ratification of the Sixth Amendment, specifically

evidence that sheds light on the jury’s historical role

and the meaning of “impartiality.”

8

B. Historical Evidence Concerning the Origins

of the Sixth Amendment and the Role of the

Jury in Criminal Cases.

The Sixth Amendment’s guarantee that “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” (U.S. Const. .

amend. VI) enshrined rights that had already become a

hallmark of the colonial courtroom. The role of the jury

was so widely accepted by the Founders that the right

to a jury trial in criminal cases was the only right that

appeared in the original Constitution, the Bill of Rights,

and every state constitution penned between 1776 and

1787. Arie M. Rubenstein, Verdicts of Conscience:

Nullification and the Modern Jury Trial, 106 Colum.

L. Rev. 959 (2006); Douglas G. Smith, The Historical

and Constitutional Contexts of Jury Reform, 25 Hofstra

L. R 2v. 377, 424 (1996); Albert W. Alschuler and Andrew

G. Deiss, A Brief History of the Criminal Jury in the

United States, 61 U. Chi. L. Rev. 867, 870 (1994).

At the Constitutional Convention, for instance, the

desirability of safeguarding the right to a jury trial was

such a uniform point of agreement that Alexander

Hamilton wrote:

The friends and adversaries of the plan of the

convention, if they agree in nothing else,

concur at least in the value they set upon the

trial by jury; or if there is any difference

between them it consists in this: the

[Federalists] regard it as a valuable safeguard

9

to liberty, the [Anti-Federalists] represent it

as the very palladium of free government.

Federalist 88 (Hamilton), in Clinton Rossiter ed., The

Federalist Papers 491, 499 (Penguin 1961). As the

Founders created a federal government predicated on

a system of checks and balances, they bestowed the

power to restrict judicial overreach upon the citizenry

in the form of the jury trial. Akhil Reed Amar, America’s

Constitution: A Biography 233 (Random House 2005).

The Maryland Farmer defined the jury as the

“democratic branch of the judiciary power—more

necessary than representatives in the legislature.” Akhil

Reed Amar, The Bill of Rights: Creation and

Reconstruction 95 (1998). As a result, the early American

jury “reflected the Founders’ vision that the jury [] serve

as a bulwark against government oppression and a

check against an unresponsive central government.”

Chris Kemmitt, Function over Form: Reviving the

Criminal Jury’s Historical Role as a Sentencing Body,

40 U. Mich. J.L. Reform 93, 95 (2006). This view still

resonates. See Blakely v. Washington, 542 U.S. 296, 306

(2004) (“Just as suffrage ensures the people’s ultimate

control in the legislative and executive branches, jury

trial is meant to ensure their control in the judiciary.”).

This concept of a robust and independent citizen

jury can be found throughout the political literature at

the time of the founding. According to the Federal

Farmer:

It is essential in every free country, that

common people should have a part and a share

of influence, in the judicial as well as in the

10

legislative department. The trial by jury in the

judicial department .. . [has] procured for

them, in this country, their true proportion of

influence, and the wisest and most fit means

of protecting themselves in the community.

Amar, The Bill of Rights, at 94 (quoting Letters from

the Federal Farmer (IV), reprinted in 2 The Complete

Anti-Federalist 249-50 (Herbert Sorting ed. 1981)). See

also United States v. Kandirakis, 441 F. Supp. 2d 282,

312-313 (D. Mass. 2006).

In the 18th Century, judges and juries often battled

with each other over unjust, politically-motivated laws

enacted by Parliament. John Hostettler, Criminal Jury

Old and New: Jury Power from Early Times to the

Present Day 82 (Waterside Press 2004). In England, the

Waltham Black Act of 1723, passed to prevent the

stealing or killing of deer in royal forests, added 50 new

capital offenses to the legal code. /d. Jurors responded

by committing so-called “pious perjury,” where they

would reduce capital penalties to non-capital sentences

by partial verdicts in order to save the lives of the

prisoners. /d. at 97. Juries in England and America also

returned general verdicts of acquittal, rather than

specific verdicts on the facts of the case, in order to save

a defendant prosecuted under an unjust law. Sparf v.

United States, 156 U.S. 51, 143 (Gray, J., dissenting)

(1895).

Bold local juries that served as a check on authority

were prevalent in colonial America. For example, in 1734,

the Royal Governor of New York sought to punish John

Peter Zenger for publishing criticism about the colonial

1]

administration. Andrew Hamilton represented Zenger

at trial. Hamilton argued that jurors “have the right

beyond all dispute to determine both the law and the

fact” and could conclude that the fact Zenger was telling

the truth merited an acquittal, even though the laws at

the time stated that truth was not a defense to libel.

James Alexander, A Brief Narrative of the Case and

Trial of John Peter Zenger 78-9 (Stanley N. Katz ed.,

Harvard Univ. Press 2d ed. 1972); see also Sparf, 156

U.S. at 146 (Gray, J., dissenting). The jurors returned a

general verdict to acquit Zenger. The trial was famous

throughout the century and likely would have provided

an important background to the drafting and ratification

of the Sixth Amendment.

C. Jurors Could Determine Both Fact and Law

When the Sixth Amendment was Ratified.

At the time the Sixth Amendment was ratified, a

jury could determine both law and fact in criminal cases.

This authority was viewed as a central aspect of the

jury’s role as a protector against the State and a check

on the judiciary. See Amar, America’s Constitution, at

238; Matthew P. Harrington, The Law-Finding

Function of the American Jury, 1999 Wis. L. Rev. 377,

378 (1999) (“American judges actually asserted an almost

plenary power in the jury to decide the law as it saw

fit.”). Emphasizing these duties of the jury, in 1771 John

Adams asserted:

Whenever a general verdict is found, it

assuredly determines both the fact and the

law. It was never yet disputed or doubted that

a general verdict, given under the direction

12

of the court in point of law, was a legal

determination of the issue. Therefore, the

jury have the power of deciding an issue upon

a general verdict. And, if they have, is it not

an absurdity to suppose that the law would

oblige them to find a verdict according to the

direction of the court, against their own

opinion, judgment and conscience?

1 Legal Papers of John Adams 230 (L. Kinvin Wroth &

Hiller B. Zobel eds., 1965). In Georgia v. Brailsford,

3 U.S. 1 (1794), a famous jury trial held before the Court,

Chief Justice Jay recognized the “good old rule” that

questions of law were for the court and questions of fact

were for the jury, but he then undercut that dichotomy

by authorizing the jury to determine questions of law.

Specifically, Chief Justice Jay instructed the jury that,

under the same “good old rule” both law and fact were

“within [the jury’s] power of decision.” Jd. at 4.

Alexander Hamilton emphasized the authority of the jury

to determine law and fact when he defended Harry

Croswell, who faced trial on charges that he libeled

Thomas Jefferson and John Adams. In Croswell’s

defense, Hamilton recognized that it was the court’s

duty to direct the jury as to the law, but he forcefully

argued that the jury had the authority, indeed the duty,

to determine the law:

It is admitted to be the duty of the court to

direct the jury as to the law, and it is advisable

for the jury, in most cases, to receive the law

from the court; and in all cases, they ought to

pay respectful attention to the opinion of the

court. But, it is also their duty to exercise their

}

13

judgments upon the law, as well as the fact;

and if they have a clear conviction that the

law is different from what it is stated to be by

the court, the jury are bound, in such cases,

by the superior obligations of conscience, to

follow their own convictions. It is essential to

the security of personal rights and public

liberty, that the jury should have and exercise

the power to judge both of the law and of the

criminal intent.

People v. Croswell, 3 Johns. Cas. 337, *15-16 (N.Y. Sup.

Ct. 1804).

At the time of the founding, the analogous concept

of the power of jury review was approved in America.

Amar, Bill of Rights, at 98. Jury review—not to be

mistaken with jury nullification, which occurs when a

jury refuses to apply a law it deems to be unjust—is

when a jury refuses to apply a law to a particular

defendant because it believes the law to be

unconstitutional, much like an appellate judge would

employ judicial review. /d. In practice, this situation

would arise when a defense lawyer would argue

unconstitutionality to the jury itself as a basis to acquit.

Id.

In a famous sedition case in 1800, lawyer William

Wirt tried to argue the unconstitutionality of the law at

issue to the jurors, but Circuit Justice Samuel Chase

prevented him from doing so. United States v. Callender,

25 F. Cas. 239, 252-53 (C.C. Va. 1804). The exchange

between Wirt and Chase during the trial brings into

focus the power our original juries had in deciding the

14

unconstitutionality of laws. “If l understand you rightly,”

Chase said, “you offer an argument to the petit jury, to

convince them that the . . . Sedition Law[] is contrary to

the constitution of the United States and, therefore,

void. Now I tell you that this is irregular and

inadmissible; it is not competent to the jury to decide

on this point . . . we all know that juries have the right

to decide the law, as well as fact—and the constitution

is the supreme law of the land, which controls all laws

which are repugnant to it.” Jd. at 253. To which Wirt

replied, “Since, then, the jury have a right to consider

the law, and since the constitution is law, the conclusion

is certainly syllogistic, that the jury have a right

to consider the constitution.” /d. Justice Chase

was subsequently impeached by the House of

Representatives, with one of the charges relating

directly to his refusal to allow the jury to hear argument

and determine questions of law and fact. Amar, Bill of

Rights, at 98-99.

Over the course of the 19th Century, the jury’s

power to decide both law and fact and its ability to review

laws for constitutionality slowly dwindled due to the

rising legal profession and the growing trend of

formalism in law. See Alschuler and Deiss, 61 U. Chi. L.

Rev. at 904-06; Rubenstein, 106 Colum. L. Rev. at 965.

After centuries of celebrated use, the jury’s power to

determine the law was dealt a blow in Sparf v. United

States, 156 U.S. at 51, which upheld capital convictions

and affirmed the lower court’s refusal to instruct the

jury on manslaughter. In so doing, the majority

essentially adhered to the traditional civil jury principle,

described by Sir Coke, where the judge determines the

law and the jury serves as the fact finder. See Alschuler

15

and Deiss, 61 U. Chi. L. Rev. at 902 (citing 1 Sir Edward

Coke, The First Part of the Institutes of the Laws of

England, Lib 2, Cap 12 § 234 at 155(b) (Hargrave and

Butler, 16th ed. 1809)). The decision; which was

accompanied by a lengthy dissent from Justices Gray

and Shiras, has been met with strong criticism for

ignoring the jury’s enshrined constitutional role. See

Donald M. Middlebrooks, Reviving Thomas Jefferson’s

Jury: Sparf and Hansen v. United States Reconsidered,

46 Am. J. Legal Hist. 353, 355 (2004) (“Sparf was not

only wrong on the facts and wrong on the law, it was

and remains an assault on democracy.”).

This Court also has expressed caution over the

application of Sparfin criminal cases. In United States

v. Gaudin, the Court held that a criminal defendant

was denied his right to a jury when the trial court

refused to allow the jury to decide whether his false

statements were “material.” 515 U.S. 506, 507 (1995).

The government argued that under Sparf, such a

question was a matter of law and not the province of

the jury. 7d. at 511-12. However, the Court disagreed,

saying that “the jury’s responsibility is not merely to

determine the facts, but to apply the law to those facts

and draw the ultimate conclusion of guilt or innocence.”

Id. at 513. The Court also acknowledged that the specific

jury power Sparf struck down, namely the power to

decide issues of pure law, had a concrete basis in

American legal history. /d. The legacy of Sparf is also

questioned by a jury’s ability to return a general verdict,

which was viewed as an exercise of determining the law

prior to Sparf. See Harrington, 1999 Wis. L. Rev. at 380

(quoting 1 Legal Papers of John Adams 230 (L. Kinvin

Wroth & Hiller B. Zobel eds., 1965) (“Whenever a

16

general Verdict is found, it assuredly determines both

the Fact and the Law.”). Further, Georgia, Maryland,

Indiana and Oregon still expressly establish the jury as

the finder of find law and fact in criminal cases.’

D. The 18th Century Meaning of “Impartiality.”

The Court’s death qualification decisions rest on the

notion that a juror who expresses conscientious scruples

toward the death penalty cannot be impartial and should

thus be excluded for cause. Morgan v. Illinois, 504 U.S.

719, 728 (1992) (“[I]t is clear .. . that a juror who in no

case would vote for capital punishment, regardless of

his or her instructions, is not an impartial juror and must

be removed for cause”). However, these decisions fail to

address and reconcile the historical meaning of

“impartiality” in the jury context. The historical

evidence shows that the right to an impartial jury was

not originally understood to require that a jury blindly

follow the law as it was interpreted and determined by

the court. It was not until the end of the nineteenth

century that judges began instructing juries that they

were bound to follow the law as stated in the charge.

See Harrington, 1999 Wis. L. Rev. at 380. Indeed, up

2.-See Ga. Const., art. I, § I, para. X1(a) (“In criminal cases

.. . the jury shall be the judges of the law and the facts.”);

Md. Const., Dee]. of Rts., art. 23 (“In the trial of all criminal cases,

the Jury shall be the Judges of Law, as well as of fact, except that

the Court may pass upon the sufficiency of the evidence to sustain

a conviction.”); Ind. Const., art. I, § 19 (“In all criminal cases

whatever, the jury shall have the right to determine the law and

the facts.”); Or. Const., art. I, § 16 (“In all cri: 1inal cases whatever,

the jury shall have the right to determine the law, and the facts

under the direction of the Court as to the law”).

17

until Justice Story’s opinion in United States v. Battiste,

24 F. Cas. 1042 (C.C.D. Mass. 1835), federal judges

instructed juries that they were not bound by the court’s

opinion. See Harrington, 1999 Wis. L. Rev. at 425.

Moreover, the original understanding of the impartial

jury clause certainly did not require the exclusion of

jurors who may have expressed beliefs concerning the

law at issue.*

By implication, the “impartial jury” guarantee

establishes that a partial juror should be excluded from

a jury. Historical evidence—not discussed in

Witherspoon or Witt—shows that the Framers would

have most clearly identified a “partial” juror as one who

had a personal or relational bias toward one of the

parties. This understanding would have derived from

Blackstone, who noted that:

Jurors may be challenged propter affectum,

for suspicion of bias or partiality. This may

either b> a principal challenge, or to the

favour. A principal challenge is such where the

3. During the debates on Virginia’s ratification of the

Constitution, George Mason, Patrick Henry and John Marshall

engaged in a heated discussion of juror impartiality, yet nowhere

did they mention jurors’ personal beliefs about the laws before

them. The debate centered on whether government employees

or jurors selected from outside a defendant’s community would

be “partial” against the defendant because of their personal

backgrounds and biases. Marshall described this concern as

whether such partial jurors would be “tools and officers of the

government.” 3 Jonathan Elliot, The Debates in the Several

State Conventions, on the Adoption of the Federal Constitution

as Recommended by the General Convention at Philadelphia

in 1787, at 528, 542, 557-59 (Washington, 1836).

18

cause assigned carries with it prima facie

evident marks-of suspicion, either of malice

or favour: as, that a juror is of kin to either

party within the ninth degree; that he has

been arbitrator on either side; that he has an

interest in the cause; that there is an action

depending between him and the party; that

he has taken money for his verdict; that he

has formerly been a juror in the same cause;

that he is the party’s master, servant,

counselor, steward or attorney, or of the same

society or corporation with him: all these are

principal causes of challenge; which, if true,

cannot be overruled for jurors must be omni

exceptione majores.

See William Blackstone, 3 Commentaries *363.4 Chief

Justice Marshall emphasized the historical link between

partiality and relational bias in the context of Aaron

Burr’s trial:

Why is it that the most distant relative of a

party cannot serve upon his jury? Certainly

the single circumstance of relationship, taken

in itself, unconnected with its consequences,

would furnish no objection. The real reason

of the rule is, that the law suspects the relative

of partiality; suspects his mind to be under a

4. Blackstone specified three other grounds that justified the

exclusion of a juror: propter honoris respectum, which allowed

challenges on the basis of nobility; propter delictum, which allowed

challenges based on prior convictions; propter defectum, which

allowed challenges for defects, such as if the juror was an alien or

slave. Blackstone, 3 Commentaries *361-364.

19

bias, which will prevent his fairly hearing and

fairly deciding on the testimony which may be

offered to him. The end to be obtained is an

impartial jury; to secure this end, a man is

prohibited from serving on it whose connexion

with a party is such as to induce a suspicion of

partiality. The relationship may be remote; the

person may never have seen the party; he may

declare that he feels no prejudice in the case;

and yet the law cautiously incapacitates him

from serving on the jury because it suspects |

prejudice, because in general persons in a

similar situation would feel prejudice.

United States v. Burr, 25 F. Cas. 49, 50 (C.C.D. Va. 1807).

The Court relied on this connection between impartiality

and relational bias when it opined that a juror who held

a predetermined opinion of a defendant’s guilt could be

challenged for cause. Jd. at 51.

However, by treating “impartiality” to mean

“indifference” to the law, courts have embraced an

interpretation that stands on weak historical footing.

In one of the earliest cases to adopt this interpretation

to justify the exclusion of a capital juror, Commonwealth

v. Lesher, 17 Serg. & Rawle 155, 159 (Pa. 1828), the

Pennsylvania Supreme Court affirmed the exclusion of

a capital juror who volunteered to the court that he had

conscientious scruples against the death penalty that

would prevent him from finding the defendant guilty if

that would result in a death sentence. The majority

opinion viewed the exclusion of this juror as a valid

exercise of the propter affectum challenge. In support

the majority cited Sir Coke’s statement that “[h]e that

20

is of ajury must be liber homo; that is, not only a free man

and not bond, but also one that hath such freedom of mind,

that he stands indifferent, as he stands unsworn.”

Id. at 159. But in dissent, Chief Judge Gibson stated that

a proper understanding of Sir Coke’s statement failed to

support the juror’s exclusion. Jd. at 162. He argued that

“indifferent,” as used by Sir Coke and illustrated in his

examples of malice toward persons, meant indifferent as

to the parties, not indifferent as to an “abstract

proposition.” Jd.

In another case affirming the exclusion of jurors, the

court in State v. Kennedy, 8 Rob. 590 (La. 1845) adopted

the Lesher majority’s questionable interpretation of

“indifferent.” Kennedy affirmed the exclusion of jurors

who voiced conscientious and religious scruples in finding

a capital defendant guilty on the ground that they could

not “stand indifferent between the State and the accused,

upon a trial for a capital crime, when, from his religious

belief and conscientious scruples he cannot convict, and is

therefore previously determined to acquit.” Jd. at 594-95.

As in Lesher, the Louisiana Supreme Court’s rationale

ignores Blackstone’s explanation of propter affectum and

expands the definition of “impartiality.” See John Quigley,

Exclusion of Death-Scrupled Jurors and International

Due Process, 2 Ohio St. J. Crim. L. 261, 273 (2004)

(discussing Kennedy and noting that the “court was taking

the common law position that a juror who was ‘not

indifferent’ based on some relationship to the parties and

expanding it to say that a death-scrupled juror was ‘not

indifferent.””’).

The misapplication of “indifference” is central to the

Court’s death qualification cases, from Witherpsoon to

21

Uttrecht, which all require jurors to be indifferent to an

“abstract proposition” by requiring that they express

no significant scruples against the death penalty (2.e.,

not be “substantially impaired”) in order to avoid

disqualification. The exclusion of jurors on the grounds

that they are not indifferent to the law is inconsistent

with the original understanding of “impartial,” and is

certainly inconsistent with the powers of the jury at time

of the founding. At the very least, this Court should

examine the historical meaning of the Sixth

Amendment’s use of the term “impartial jury” because

it has yet to conduct such an examination in the death

qualification context.

E. The Practice of Death Qualification is

Inconsistent with the Historical Role of

Jurors and the Framers’ Understanding of the

Sixth Amendment.

The exclusion of jurors who express reservations

about the applicability of the death penalty is an

ahistorical doctrine. These jurors would not have been

excluded by the Framers unless they fell under one of

the four narrow cause challenges iterated by Blackstone.

Moreover, the justification for excluding these jurors is

based on an inaccurate assumption of the original

meaning of “impartiality.” Given that the term was

incorporated into the Sixth Amendment at a time when

jurors routinely had the ability to determine the law in

cases strongly suggests that “impartiality” is not

tantamount to having no view at all regarding the

suitability of a law in a given case.

22

Witt embodies the incompleteness of the Court’s

analysis and the failure to account for the historical

evidence. In Witt the Court relied on its understanding of

“impartiality” to justify the shift from the Witherspoon

“unmistakably clear” standard to the “substantial

impairment” standard. The Court held that a state may

exclude the venireperson if he “refuses to follow the

statutory scheme and truthfully answer the questions put

by the trial judge” because that venireperson “will be

unable to view the case impartially.” 469 U.S. at 422. The

Court further justified the substantial impairment test

because “it is in accord with traditional reasons for

excluding jurors and with the circumstances under which

such determinations are made.” /d. at 423. However, the

Court never specifically identified those “traditional

reasons.” Moreover, it defined impartiality as the ability

of jurors to “conscientiously apply the law and find the

facts,” thus adopting the dichotomy offered by the Sparf

majority. Jd. at 852. Had the Court examined 18th and early

19th century sources, such as those discussed above, it

would have been apparent that excluding a juror on

impartiality grounds required a relational bias, not simply

scruples toward a law—which the Framers in many

instances embraced.

Notably, Court’s recent Sixth Amendment decisions

have emphasized the importance of the historical role of

the jury and the Framer’s deep appreciation of that role.

For example, in Apprendi v. New Jersey, 530 U.S. 466, 477

(2000) the Court acknowledged the “historical foundation”

supporting its decisions that a defendant has the right to

have a jury find him guilty of every element of the charged

crime beyond a reasonable doubt. That individual right

derived directly from the jury’s historical role as a “guard

23

against a spirit of oppression and tyranny on the part of

rulers,” and “as the great bulwark of [our] civil and political

liberties.” Jd. (quoting 2 J. Story, Commentaries on the

Constitution of the United States 540-541 (4th ed. 1873));

accord Blakely, 542 U.S. at 306-08 (“The jury ... function(s]

as circuitbreaker in the State’s machinery of Justice”;

“(The very reason the Framers put a jury-trial guarantee

in the Constitution is that they were unwilling to trust

government to mark out the role of the jury.”). Illustrating

the significance of this revitalized emphasis into the Sixth

Amendment’s origins is the fact that the historical inquiry

has led the Court to abandon decisions that failed to honor

the historical role of the jury. See Crawford 541 U.S. at 53-

54 (rejecting Confrontation Clause analysis from Roberts

in part because “the Framers would not have allowed

admission of testimonial statements of a witness who did

not appear at trial”).

The return to the Sixth Amendment’s historical

foundations that underlies decisions including Ring,

Crawford and Blakely calls for the Court to reevaluate its

death qualification jurisprudence. Indeed, the issue of

death qualification should trigger the heightened scrutiny

attendant to capital cases. See California v. Ramos, 463

U.S. 992, 998-99 (1983) (“[T he qualitative difference of

death from all other punishments requires a correspondingly

greater degree of scrutiny”). Therefore, there is a

paramount need to reevaluate the rationale and

assumptions cited in support of death qualification,

particularly the interpretation of “impartiality” and the

reliance on that interpretation to exclude jurors who

express views that would, when the Sixth Amendment was

ratified, have been accepted and even embraced as central

to the jury’s role.

24

CONCLUSION

For the reasons stated above, amici respectfully

submit that the Court should grant the petition for

certiorari.

October 27, 2008

Respectfully submitted,

DouctLas E.. WHITNEY

Counsel of Record

JOSHUA G. HERMAN

ERICA GHOLSON

McDErRmotTT, WILL & EMERY

227 West Monroe Street

Chicago, IL 60606

(312) 372-2000

Rory K. Litre

HASTINGS COLLEGE OF Law (U.C.)

200 McAllister Street

San Francisco, CA 94102

(415) 565-4669

Attorneys for Amici Curiae