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

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Amicus Curiae Brief
- **Published:** January 1, 2008

## Text

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

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386020_0718%3A4. Public record. Not legal advice.