Carmical v. Craven Reply Brief for Appellants Richard L. Carmical, et al.
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November 18, 1974

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Brief Collection, LDF Court Filings. Carmical v. Craven Reply Brief for Appellants Richard L. Carmical, et al., 1974. 05b429d0-ac9a-ee11-be37-00224827e97b. LDF Archives, Thurgood Marshall Institute. https://ldfrecollection.org/archives/archives-search/archives-item/04bd18ce-2c2b-4c67-8f60-53405cb04175/carmical-v-craven-reply-brief-for-appellants-richard-l-carmical-et-al. Accessed May 17, 2025.
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IN THE t ( 9 2 - UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT •N0o 74-2333 ( O o O 6,00 RICHARD L. CARMICAL, et al. , petitioners-Appellants, vs. WALTER E. CRAVEN, et al., Respondents-Appellees. APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF CALIFORNIA REPLY BRIEF FOR APPELLANTS RICHARD L. CARMICAL, ET AL. WILLIAM BENNETT TURNER LOWELL JOHNSTON 12 Geary Street San Francisco, Calif. 94109 JUDITH ANN CIRAOLO 360 Taurus Avenue Oakland, California JACK GREENBERG CHARLES STEPHEN RALSTON 10 Columbus Circle Suite 2030 New York, N.Y. 10019 Attorneys for petitioners- Appellants Index Page ARGUMENT 1.........................................................1 II. A. "Retroactive" application of Carmical 1........... 4 B. There is No Basis For A Finding of Waiver Here. . , . ...................... . ............ 8 Table of Cases Bridgeport Guardians v. Members of Bridgeport Civil Service Comm., 354 F. Supp. 778 (D. Conn. 1973), aff1d, 482 F.2d 1333 (2nd Cir. 1973) .............................. Carter v. Jury Commission of Greene county, 396 U.S. 320 (1970) ................ . . . . . . . . . . . . ........ 2 Chance v. Board of Examiners, 458 F.2d 1167 (2nd Cir. 1972).............................. . .~.............. 1 Destefano v. Woods, 392 U.S. 631 (1968)...................... 6 Duncan v. Louisiana, 391 U.S. 145 (1968) .................... 6 Fay v. Noia, 372 U.S. 391 (1963) ............................ 9 Hernandez v. Texas, 347 U.S. 475 (1954) ....................... 6 Hairston v. Cox. 459 F.2d 1382 (4th Cir. 1972) .............. 6 Humphrey v. Cady, 405 U.S. 504 (1972)........................ 8 Johnson v. zerbst, 304 U.S. 458 (1938) ........ .. 9 Labat v. Bennett, 365 F.2d 698 (5th Cir. 1966) .............. 9 McNeil v. North Carolina, 368 F.2d 313 (4th Cir. 1966) . . . . 9 Norris v. Alabama, 294 U.S. 587 (1935).......... ..............5 Scott v. Walker, 358 F.2d 561 (5th Cir. 1966)................ 4 - i - Page Smith v. Yeager, 465 F.2d 272 (3rd Cir. 1 9 7 2 ) ............... 6 Strauder v. West Virginia, 100 U.S. 303 (1880)........... 5 Swain v. Alabama, 380 U.S. 202 ( 1 9 6 5 ) .................... 5 Turner v. Fouche, 396 U.S. 346 ( 1 9 7 0 ) .................... 2 United States v. Scott, 425 F.2d 55 (9th Cir. 1970) . . . . 8 United States ex rel. seals v. Wiman, 304 F.2d 53 (5th Cir. 1962)............................................. 6 Vaccaro v. United States, 461 F.2d 626 (5th Cir. 1972) . . . 8 Vulcan Society v. Civil Service Comm., 360 F. Supp. 1265 (S.D. N.Y. 1973)...................................... 2 Witherspoon v. Illinois, 391 U.S. 510 (1968).............. 8 li IN THE UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT NO. 74-2333 RICHARD L. CARMICAL, et al., petitioners-Appellants, vs. WALTER E. CRAVEN, et al., Respondents-Appellees. Appeal From the united States District. Court For The Northern District of California REPLY BRIEF FOR APPELLANTS RICHARD L. CARMICAL, ET AL. I. The arguments urged, by Respondent-Appellee are in error in a number of respects. First, petitioners do not rely primarily on employment cases arising under Title VII of the civil Rights Act of 1964. To the contrary, we cited and rely primarily on employment discrimination cases against state and local officials arising directly under the 14th Amendment.^ The jury discrimination Bridgeport Guardians v. Members of Bridgeport Civil Service Commission, 354 F. Supp. 778 (D. Conn. 1973), aff'd, 482 F.2d 1333 (2nd Cir. 1973); Chance v. Board of Examiners, 458 F.2d 1167 (2nd. • • claim here, of course, also arises under the Fourteenth Amendment and respondent advances no argument whatsoever as to why the same standards should not apply. Moreover, as petitioners point out in their main brief at page 15, one of the reasons why the courts have read broadly the provisions of Title VII is that it expresses Congressional policy to root out employment discrimination. The Congressional policy (now embodied in 18 U.S.C. §243) against discrimination in jury selection is of even longer standing, dating from 1875. It was this fact that Justice white, relied upon in his concurring opinion in peters v. Kiff, 407 U.S. 493, 505 (1972), granting whites standing to challenge the exclusion of* blacks from juries. Second, respondent urges that the Supreme court's decision in f a r h e r v . .Tu t v C o m m i s s i o n . 398 TT.S. 320 f l Q7D) and T u r n e r v . Fouche, 396 U.S. 346 (1970) are directly in conflict with the position of petitioners in this case (Brief of Respondent, p. 76.). This is simply not the case; rather, those decisions directly sup port petitioners' central contention that the burden is on the state to explain and justify a differential rate of exclusion of blacks, whatever the standard for selection is. Turner explicitly held that where a standard of intelligence, resulted in a much greater rate of exclusion of blacks the jury commissioners 1/ (Cont'd) Cir. 1972); Vulcan Society v. Civil service Commission, 360 F. Supp. 1265 (S.D. N.Y. 1973). 2 responsible for administering such a standard must justify the result. 396 U.S. at 361. petitioners here, of course, do not argue that the carter and Turner holdings that the states could require that jurors be intelligent should be overruled, but only that the mandate of those decisions be applied here. Third, Respondent, in his attempt to justify the test, con tinues in his fundamental misunderstanding of what is at issue. Petitioners do not argue that those persons chosen for jury service by the test were not competent and proper jurors. Indeed, they argue that all registered voters must be presumed to be com petent to serve as jurors. we again point out that Alameda County (since 1968), all other counties in California, and the federal C U U i . Ld C v w I iC jl C _l_ J. i. C-AlC tail U J . y H Q V C l U l i L . C x U U X A i t j |r/ w j . J . C c o X iy well with jury lists drawn from registered, voters without resorting to the use of tests such as the one at issue here. The point is not that the test included competent jurors, but that it excluded persons who were also competent. This is ex plicitly acknowledged, by the diagram drawn by Respondent's expert, Dr. Rusmore, reproduced in Respondent's brief on page 40, n. 33. That diagram shows that the high cutting score that was used ex cluded. from the pool of jurors a large number of persons who in fact were competent to serve on juries, i.e.„ everyone above the horizontal line and to the left of the right-hand vertical broken line. it is this exclusion that is at issue here. petitioners' claim is simple; the clear thinking test excluded large numbers of persons competent to be jurors and the persons so excluded were disproportionately blacks and low income. The result was that the 3 ua jury lists did not reflect a cross-section of persons competent to serve on juries. Thus, it was not enough for respondent to introduce evidence that the test selected competent jurors. It had to be shown that either the test did not also exclude competent persons or there was a compelling need to use this particular device for selection. That is, the respondent's burden was to demonstrate that there was no other means by which jurors could be chosen. This they did not and could not do. Finally, with regard to the respondent's attack on the suf ficiency of petitioners' showing below, we again reiterate that the evidence points to the conclusion that blacks were under represented. Therefore, the burden was on the state, as the n a r f v r P . s n n n s ih l f i f o r a rim i n i » f e r i nrr t h e s y s t e m . f.O sh o w t h a t in fact blacks were properly represented. See Scott v. walker, 358 2/F.2d 561 (5th Cir. 1966). II. A. "Retroactive" application of Carmical I. Respondent's argument that this Court's prior decision in Carmical I should not be given "retroactive" application here must be rejected for three reasons. •2/ we would point out to the court that petitioners requested the district court, if it felt that the evidence was not conclusive, to provide for the supplementation of the record by the parties working together towards determining, as precisely as possible, the racial composition of the jury lists. Such a procedure was adopted by the district court in Chance v. Board of Examiners, 330 F. Supp. 203, 209 (SUD„N.Y. 1971) and resulted in detailed and reliable figures being obtained. If this Court also feels that the record is inconclusive as to the racial impact of the test 4 1„ There is No Question Of Retroactivity In This Case. This Court in Carmical I. did not hold for the first time that exclusion of blacks from juries is unconstitutional or that federal law on jury exclusion is applicable to the states through the Fourteenth Amendment. These are ancient principles. There is no occasion for this Court to consider the doctrine of "retroactivity", because Carmical marks no departure from previously prevailing law; nor does it involve the application of a constitutional right to the state for the first time. Rather, Carmical is only illustrative of a long and consistent line of erases going back 93 years to Strauder v. west Virginia, 100 U.S. 303 (1880). rnhat- r'amlnai r!i H not- announce any new constitutional rule is amply demonstrated by this Court's opinion. Thus, although the respondent here has urged that Carmical is in conflict with Swain v. Alabama, 380 U.S. 202 (1965), and therefore marks a departure with prevailing law, the fact is that the same argument was made on the earlier appeal. This Court discussed Swain, dis tinguished it, and rejected the state's argument that Swain fore closed. Carmical1s claims. 457 F.2d at 587. Therefore, this Court clearly did not view its decision as a departure in the law. Furthermore, Carmical I. was based on a lengthy discussion of prior decisions of the Supreme Court and other Courts of Appeals going back to, e.g„, Norris v. Alabama, 294 U.S. 587 (1935), and 2/ (Cont'd) then it would be appropriate to remand to the district court for further proceedings in accord with petitioners' request. 5 Hernandez v. Texas, 347 U.S. 475 (1954), decided long before Carmical and petitioner here were tried.--/ The Court placed particular reli- iance on a 1962 decision of the Fifth Circuit (which in turn re lied on prior holdings of the Supreme Court) that held "it is not necessary . . . to establish ill will, evil motive, or absence of good faith." United States ex rel seals v. Wiman, 304 F.2d 53, 65 (5th Cir. 1962).^/ In other words, it was no departure from previous law to hold that intentional or purpose ful discrimination by jury commissioners need not be proved. Nor, for similar reasons, is pestefano v. Woods, 392 U.S. 631 (1968), of help to the respondent, because the present case does not present an instance where a constitutional guarantee is applied to the states for the first time. pestefano held that , . . . _ ^ • • t t n i/ltr f 1 r> /C O \ 1 ^ L X i C U ^ U I O I U U juXX v » ^ ^ -*■- ̂ ** ̂ •*- * ^ v ^ / / f **------- ing for the first time that the Sixth Amendment right to a jury trial applies to the states, should not be given retroactive effect. Here, the long line of Supreme Court decisions reaching back to Strauder v. West Virginia, supra, has consistently forbade —/ The court said that "The opinions take into account the historical prevalence of intentional discrimination against Negroes, but the court has never implied that the absence of that factor destroys a prima facie case." 457 F.2d at 586. The Third Circuit has reached the same conclusion. see Smith v. Yeaqer, 465 F.2d 272 (3d Cir. 1972). The Fourth Circuit, in Hairston, v, Cox, 459 F.2d 1382, 1384 (4th Cir. 1972), said that "Since Neal v. Pelaware, 103 U.S. 370, 26 L.Ed. 567 (1881), federal courts have allowed Negroes complaining of indict ment or conviction by juries from which members of that race were systematically excluded to rely upon circumstantial factors tending to show discriminatory practices in order to obtain relief, rather than to require direct proof of dis crimination. " 6 5/the states from discriminating against blacks in jury selection.-^ 2. The Attorney General Has Admitted That Carmical Is Fully Retroactive. The Attorney General (by the same Deputy representing the state in this case) sought certiorari from the Supreme Court in Carmical I. In the Attorney General's reply brief in the Supreme Court, it was argued that the Court should exercise cer tiorari jurisdiction because of the great potential impact of the decision in upsetting convictions in Alameda County. In the reply brief, the Attorney General represented to the Supreme Court that the carmical decision "is totally retroactive" (reply % 1 brief, page 2). Having made such a flat admission to the Supreme Court, the Attorney General cannot in good faith now assume an entirely contrary position. If the Attorney General is not formally estopped from urging a contrary position, at least the admission in Carmical is strong evidence against the state's position here. see generally, 5 Wright & Miller, Federal Practice and Procedure, 377 (1969). 3. settled. Principles Require The Application Of Carmical To This Case. Even assuming Carmical did announce a new rule of constitutional 5/ The respondent's attempted reliance on peters v. Kiff, 407 U.S. 495 (1972), is also misplaced. First, it was not the judgment of the Supreme Court that the peters rule on standing be prospect ive — three concurring justices merely suggested that in future cases white defendants could challenge exclusion of blacks from juries. Second, peters in fact involves a new rule of law in the Supreme court. Prior to peters, the right of whites to challenge the exclusion of blacks had not been recognized. As we have explained , Carmical I. did not involve a new rule of law. 7 law, settled principles require its "retroactive" application. Ordinarily, of course, all decisions apply retroactively; in ex ceptional circumstances a few decisions have been held prospective only. See generally United States v. Scott, 425 F.2d 55, 58 (9th Cir. 1970) (en banc). The specific constitutional right involved here has never been held prospective. Indeed, "systematic ex clusion of blacks from juries calls for retroactive vindication." Vaccaro v. United States, 463 F.2d 626, 629 (5th Cir. 1972). The Supreme Court decision most closely in point is Witherspoon v. Illinois, 391 U.S. 510 (1968), where the Court held;• "The jury-selection standards employed here necessarily undermined 'the very integrity of the . . . process' that decided the petitioner's f a t e r o i t a t i o n o m i t t e d ! and we tia\re o o n o l n d e d that neither the reliance of law enforcement officials [citations omitted] nor the impact of a retroactive holding on the administration of justice [citation omitted] warrants a decision against the fully retroactive application of the holding we announce today." 391 U.S. at 523, n.22. In short, there is no basis for holding Carmical I. to be in applicable to the present case. B. There is No Basis For A Finding Of Waiver Here. As this Court said in Carmical I., a holding of deliberate must be based on evidence that the defendant, not his attorney, made an "affirmative act . . . evidencing his deliberate re jection of his constitutional guaranty." 457 F.2d at 584. See also Humphrey y, Cady, 405 U.S. 504, 517 (1972) (requiring a knowing waiver by the defendant himself, not his attorney); McNeil 8 v. North Carolina, 368 F.2d 313 (4th Cir. 1966); Labat v. Bennett, 365 F.2d 698, 707 (5th Cir. 1966) The short answer to the Attorney General's novel contention that petitioner is bound by the rule of deliberate bypass unless Carmical I. announced a "new" rule of law is that the deicision in Carmical I. itself shows that there was no deliberate bypass here -- regardless of whether the court announced a new standard for jury selection. That is, this Court in Carmical I. did not rest its holding on deliberate bypass on the proposition that a new standard was being announced. Rather, it relied on the doctrine of Fay v. Noia, 372 U.S. 391 (1963), and squarely held« that the federal standard established there must be met. Moreover, whether a defendant has knowingly waived a federal constitutional right is, of course, primarily a question of fact, and the court below made no finding on the question. Thus, at the most, if this court reverses the district court on the merits it might then be appropriate to remand for de cision on the issue of waiver as to petitioners Early and Lawrence. With regard to petitioner Carmical, on the other hand, this court has already held that there was no waiver. The respondent sought review on certiorari from the Supreme Court of the United States on that specific issue and certiorari was Although the Attorney General asserts that "all parties were 'satisfied' with the jury selected," the record provides no support whatever for this assertion. Of course, even if petitioner himself said he was "satisfied" with the jury, that does not meet the federal standard of deliberate bypass. See Carmical I., supra; Humphrey v. Cady, supra; cf. Fay v. Noia, 372 U.S. 391 (1963); Johnson vP zerbst, 304 U.S. 458 (1938). 9 denied (409 U.S. 929 (1972)), six days after the granting of certiorari in the case that the state now relies upon, Davis v. United States (cert. granted, 409 U.S. 841 (1972)), and on the same day that certiorari was granted in the companion case to Davis, Tollett v. Henderson (cert. granted, 409 U.S. 912 (1972)). Thus, at least with regard to Carmical, the prior decision of this Court is the law of the case and can not be changed. WILLIAM BENNETT TURNER ' WILLIAM E. HICKMAN 12 Geary StreetSan Francisco, California 94108 JUDITH ANN CIRAOLO 160 Taurus Avenue Oakland, California JACK GREENBERG CHARL.ES STEPHEN RALSTON 10 Columbus Circle Suite 2030 New York, New York 10019 Attorneys for petitioners-Appellants 10 Certificate of service I hereby certify that I have served copies of the Reply Brief for Appellants in the above case by depositing copies of same in the United States Mail, air-mail, postage prepaid, addressed as follows to the attorney for respondents-appellees: Ms. Gloria F. DeHartDeputy Attorney General 6000 State Building San Francisco, California 94102 * Dated: November 18, 1974. n . Asa y }\/‘YD̂ i Attorney for petitioners- Appellants 11 \