United States v. Curtis Brief of Amicus Curiae

    IN THE UNITED STATES COURT OF MILITARY APPEALS
UNITED STATES OF AMERICA )

)
Appellee )

)
v. )

)
CURTIS, Ronnie A. )
511 74 5202 )
Lance Corporal (E-C) )
U.S. Marine Corps )

)
Appellant )

BRIEF OF AMICUS CURIAE, 
NAACP LEGAL DEFENSE AND 
EDUCATIONAL FUND, INC. 
IN SUPPORT OF APPELLANT

CMR Dkt. No. 87-3586

USCMA Dkt. No. 63044/MC

TO THE JUDGES OF THE UNITED STATES 
COURT OF MILITARY APPEALS

JULIUS L. CHAMBERS 
RICHARD H. BURR 
GEORGE H. KENDALL 
*STEVEN W. HAWKINS 
NAACP Legal Defense 
and Educational Fund 
99 Hudson Street, 16th FI. 
New York, New York 10013 
(212) 219-1900

Counsel for Amicus Curiae

♦Counsel of Record



CONTENTS
Page

Table of Authorities ......................................... ii

Introduction .................................................  1

Argument ......................................................  3

I. TRIAL COUNSEL DENIED PRIVATE CURTIS EQUAL 
PROTECTION BY PEREMPTORILY EXCUSING A 
PROSPECTIVE BLACK JUROR ON ACCOUNT OF 
HIS RACE ......................................  3

II. IN VIOLATIONS OF THE FIFTH AND EIGHTH
AMENDMENTS, TRIAL COUNSEL IMPERMISSIBLY
APPEALED TO RACIAL BIAS BY INACCURATELY
PORTRAYING THE INDECENT ASSAULT CHARGE AS
AN INDEPENDENT CRIME, AND BY ENCOURAGING
THE PANEL TO ACT UPON THE RACIAL BIAS
EVOKED BY THE FALSE CHARACTERIZATION OF
THIS INCIDENT .................................  13

III. IN VIOLATION OF THE FIFTH AND EIGHTH
AMENDMENTS, TRIAL COUNSEL USED RACIAL BIASES 
AND STEREOTYPES TO DENIGRATE THE SEVERITY 
OF THE RACIAL HARASSMENT ENDURED BY
PRIVATE CURTIS ................................ 22

Conclusion .................................................... 28

i



CASES
Acres v. State. 548 So. 2d 459 Ala. Cr. App. 1987) ....... 10

Batson v. Kentucky. 476 U.S. 79 (1986) ..................... passim

Brown v. State of Alabama. 121 Ala.9, 25 So. 744 (1899) ... 21

Bucklev v. Valeo. 424 U.S. 1 (1976).......................  5

Gamble v. State. 357 S.E.2d 792 (Ga. 1987) ................  11

Garrett v. Morris. 815 F.2d 509 (8th Cir. 1987) ...........  10,11

People v. Hall. 672 P.2d 854 (Cal. 1983) ................... 10

State v. Neil. 457 So. 2d 481 (Fla. 1984), clarified sub
nom. State v. Castillo. 486 So. 2d 565 (1986) ..........  7

Powell v. State. 548 So. 2d 590 (Ala. Cr. App. 1988),
affld, 548 So. 2d 605 (Ala. 1989) .......................  10

Roman v . Abrams. 822 F.2d 214 (2d Cir. 1987) ..............  10

State v. Slappy. 522 So. 2d 18 (Fla.), cert, denied. 108 S.
Ct. 2873 (1988) ........................................... 7, 8,

12, 27
Commonwealth v. Soares. 387 N.E.2d 499 cert denied. 444

U.S. 881 (1979) ........... ...............................  7

People v. Thompson. 453 N.Y.S. 739 (1981) .................. 7

People v. Turner. 726 P.2d 102 (Cal. 1986) ................  11

Stanley v. Maryland. 524 A.2d 1262 (Md. Ct. App. 1988) .....  12

Turner v. Murray, 476 U.S. 28 (1986) .......................  18

United States v. Clemmons. 843 F.2d 741 (3d Cir. 1988) .... 12

United States v. Curtis. 28 M.J. 1074 (N.M.C.M.R. 1989) ... 2

United States v. David. 803 F.2d 1567 (11th Cir. 1986)   12

United States v. Davis. 809 F.2d 1194 (1987)   10

United States v. Horsley. 864 F.2d 1543 (11th Cir. 1989) .. 12

United States v. Santiaqo-Davila. 26 M.J. 380 (C.M.A.1988) 4, 5,
12

ii



United States v. Tucker. 836 F.2d 334 (7th Cir. 1988)   11

United States v. Thompson. 827 F.2d 1254 (9th Cir. 1987) .. 10

United States v. Wilson. 853 F.2d 606 (8th Cir. 1988)   10

United States v. Wilson. 884 F.2d 1121 (8th Cir. 1989). 12

Vasouez v. Hillerv. 474 U.S. 254 (1986) .................... 13

People v. Wheeler. 583 P.2d 748 (1978) .....................  7

MISCELLANEOUS
An American Dilemma (1944) ..................................  22

Black Rage (1968) ............................................ 25, 27

C. Hernton, Sex and Racism in America 4 (1965) ............  22

Southern Rape Complex: Hundred Year Psychosis (1966) .....  20
t
\

• • • ill



IN THE UNITED STATES COURT OF MILITARY APPEALS
UNITED STATES OF AMERICA )

)
Appellee )

)
v. )

)
CURTIS, Ronnie A. )
511 74 5202 )
Lance Corporal (E-C) )
U.S. Marine Corps )

)
Appellant )

BRIEF OF AMICUS CURIAE, 
NAACP LEGAL DEFENSE AND 
EDUCATIONAL FUND, INC., 
IN SUPPORT OF APPELLANT

CMR Dkt. No. 87-3586

USCMA Dkt. No. 63044/MC

TO THE HONORABLE, THE JUDGES OF THE UNITED STATES 
COURT OF MILITARY APPEALS

Introduction
The government has sought to portray the conviction and death 

sentence of Ronnie A. Curtis as involving a case where there were 

three aggravating circumstances warranting death, and no evidence 

of mitigation whatsoever. However, this case truly concerns the 

devastating and pernicious effects the vestitudes of the 

institution of slavery has visited upon our society, and its 

accompanying racism that continues to engulf and strangle inter­

personal relationships between blacks and whites. These forces 

worked to vitiate the fairness of the judicial proceedings below.

The relation between Private Curtis and Lieutenant Lotz took 

on a dynamic like that which existed between a slave and his

1



master. Through unrelenting racial harassment, Lieutenant Lotz 

stripped Private Curtis of his name, his sense of self-worth, and 

his family honor. Private Curtis became invisible, a non-person 

who could be summoned by the snap of a finger. Private Curtis' 

desire to be treated as a human being was met with unceasing 

mockery and indignation by Lieutenant Lotz. Nothing, not even an 

official reprimand from a superior, could deter Lieutenant Lotz.

It is inconceivable that any person could love and value 

himself or herself and survive as a slave. Private Curtis came to 

know his fate as a Hobson's choice; he could suffer the social 

death of the subjugated, or strike back at his oppressor. One 

night, after a walk around the yard and a pint of alcohol failed 

to repress the haunting fact that Lieutenant Lotz treated him as 

if he were a dog, Private Curtis decided to end to his suffering.

Tragically, but as surely, the same racism that ultimately 

drove Private Curtis to kill Lieutenant Lotz and his wife found its 

way into each and every step of his capital trial. First, the 

government, in an action that was clearly racially motivated, used 

its only peremptory strike to exclude a black person from the jury 

who was as qualified as the whites who served. Secondly, the 

government sought to evoke racial bigotry and bias in the hearts 

and minds of the jury by admitting into evidence highly prejudicial 

photographs that had, at best, only the slightest relevance. 

Finally, the government embraced racism to cover up racism by 

denigrating racial harassment as a substantial mitigating factor.

2



In the decades of the NAACP Legal Defense Fund's involvement 

in cases tainted by racial bias and bigotry, the capital trial of 

Private Ronnie A. Curtis stands out as one of the most straight 

forward instances of where an entire proceeding was infected by 

racism. Because Private Curtis was denied a fundamentally fair 

trial process, this Court must reverse both his conviction and 

sentence.

Argument

I. TRIAL COUNSEL DENIED PRIVATE CURTIS 
EQUAL PROTECTION BY PEREMPTORILY 
EXCUSING A PROSPECTIVE BLACK JUROR 
ON ACCOUNT OF HIS RACE.

After completion of voir dire in Private Curtis' court- 

martial proceeding, trial counsel used his only peremptory 

challenge to excuse one of the black members of the court, Staff 

Sergeant Edwards. Record at 334. Defense counsel objected. Id. 

The military judge then recessed the proceeding in order for he 

and counsel for the parties to familiarize themselves with Batson 

v . Kentucky. 476 U.S. 79 (1986) . After the recess, the defense

counsel articulated the basis for his objection, stating, inter 

alia, that the government was aware that one of the theories of 

the defense was racial; that it was strange that the government 

was using its only,peremptory strike to exclude a black person; 

and that the use of the strike created an impression harmful to 

the role of the jury as an instrument of fairness. Record at 336- 

37.

3



The military judge then asked the prosecutor to explain his 

reasons for the challenge. Record at 336-37. Trial counsel 

stated:

[I]n my opinion, Staff Sergeant Edwards' response to the 
voir dire, while satisfactory, didn't indicate to me to 
be the kind of member the government would want on this 
case . . .  he said that he would consider this a learning 
experience which, in the government's opinion, . . . 
while not challengeable for cause, that is why the 
government chose to exercise its peremptory challenge on 
him.

Record at 337. Reasoning that three black members would remain on 

the panel with the removal of Sergeant Edwards, the military judge 

found the government's challenge to be "understandable" and to have 

enough of a foundation to satisfy Batson. Consequently, the judge 

overruled the defense counsel's objection to striking Sergeant 

Edwards from the court-martial panel. Record at 338.

This Court has previously held that Batson is applicable to 

trials by court-martial. United States v. Santiago-Davila. 26 M.J. 

380, 389-90 (C.M.A. 1988) . This holding is based on a recognition 

that the accused has "an equal-protection right to be tried by a 

jury from which no 'cognizable racial group' has been excluded." 

Santiago-Davila. 26 M.J. at 390 (quoting Batson. 476 U.S. at 96).1

In Batson. 476 U.S. 79 (1986), the Supreme Court held "that 

a defendant may establish a prima facie case of purposeful 

discrimination in selection of the petit jury solely on evidence

1 The equal protection principles of the Fourteenth Amendment 
are implicit in the Fifth Amendment Due Process Clause and are 
therefore applicable to the federal government. See Buckley v. 
Valeo. 424 U.S. 1 (1976)(per curiam)("Equal protection analysis in 
the Fifth Amendment area is the same as that under the Fourteenth 
Amendment.")

4



concerning the prosecutor's exercise of peremptory challenges at

the defendant's trial." 476 U.S. at 96.

The Court set out a multi-part test to determine whether a

defendant had established a prima facie case:

[T]he defendant first must show that he is a member of 
a cognizable racial group . . . and that the prosecutor 
has exercised peremptory challenges to remove from the 
venire members of the defendant's race. Second, the 
defendant is entitled to rely on the fact that, as to 
which there can be no dispute, peremptory challenges 
constitute a jury selection practice that permits 'those 
to discriminate who are of a mind to discriminate.' . .
. Finally, the defendant must show that these facts and 
any other relevant circumstances raise an inference that 
the prosecutor used that practice to exclude the 
veniremen from the petit jury on account of their race.

476 U.S. at 96 (quoting Avery v. Georgia. 345 U.S. 559, 562

(1953)). The Court added that, "[i]n deciding whether the
I

defendant has made the requisite showing, the trial court should 

consider all relevant circumstances." Id. "For example, a 

'pattern' of strikes against black jurors" or "the prosecutor's 

questions and statements during voir dire examination and in 

exercising his challenges" may provide clues indicating whether the 

prosecutor has intentionally discriminated. 476 U.S. at 97.

The record clearly demonstrates that Private Curtis has 

established a prima facie case of intentional discrimination under 

Batson. Private Curtis satisfies the first portion of the Batson 

test because he is a member of a cognizable racial group, and the 

government struck a member of his race from the jury panel. He is 

entitled to a presumption with respect to the second part of the 

test. Finally, after completion of voir dire and all challenges 

for cause, the trial counsel used his only peremptory strike to

5



exclude a member of Private Curtis' race in a capital case

involving a black defendant and white victims. In light of the

prosecution's trial strategy —  which included a significant

attempt to evoke racial stereotyping and racial bias against Mr.

Curtis, see points II and III, infra —  this exercise of the

peremptory challenge was plainly racially-motivated. The use of

the government's strike under the relevant circumstances of this

case, therefore, is sufficient "to raise an inference" that the

juror was excluded "on account of [his] race," thereby satisfying

the final portion of the Batson test. 476 U.S. at 96.

The Batson court held that "[o]nce the defendant makes a prima

facie showing, the burden shifts to the [government] to come

forward with a neutral explanation" for its apparent racially

motivated challenge. 476 U.S. at 97. The Court emphasized that

the prosecutor's explanation need not rise to the level 
justifying exercise of a challenge for cause. . . . But 
the prosecutor may not rebut the defendant's prima facie 
case of discrimination by stating merely that he 
challenged juror of the defendant's race on the 
assumption —  or his intuitive judgment —  that they 
would be partial to the defendant because of their shared 
race. . . . Nor may the prosecutor rebut the defendant's 
case merely by denying that he had a discriminatory 
motive or affirming his good faith in individual 
selections.

476 U.S. at 97-98 (citing Alexander v. Louisiana. 405 U.S. 625, 632 

(1972)). Instead, the prosecutor "must articulate a neutral 

explanation related to the particular case to be tried," 476 U.S. 

at 98, giving a "'clear and reasonably specific' explanation of his 

'legitimate reasons' for exercising the challenges," id. at n. 20 

(quoting Texas Department of Community Affairs v. Burdine. 450 U.S.

6



248, 258 (1981)). Accordingly, a questioned challenge is only

permissible when, first, it is neutral and reasonable, and, second, 

not a pretext.

The Florida Supreme Court has adopted a five-factor test for

determining the legitimacy of a race-neutral explanation which we

urge this Court also to adopt. That Court's judgment is due a

level of deference since Florida was one of the jurisdictions that

recognized a protection against improper bias in the selection of

juries that preceded Batson.2 In State v. Slappy. 522 So.2d 18

(Fla.), cert, denied. 108 S.Ct. 2873 (1988), the Court held that

one or more of the following factors would tend to show that the

prosecutor's race-neutral explanation was either not supported in

the record or was merely pretext:

(1) alleged group bias not shown to be shared by the 
juror in question, (2) failure to examine the juror or 
perfunctory examination, assuming neither the trial court 
nor the opposing counsel had questioned the juror, (3) 
singling the juror out for special questioning designed 
to evoke a certain response, (4) the prosecutor's reason 
is unrelated to the facts of the case, and (5) a 
challenge based on reasons equally applicable to juror[s] 
who were not challenged.

522 So.2d at 22. When the Slappy criteria are applied to the facts 

of this case, the government's sole reason for excluding Sergeant 

Edwards fails to stand up as a racially neutral explanation.

By analogy to the first Slappy factor, the purported rationale

See State v. Neil. 457 So.2d 481 (Fla. 1984), clarified 
sub nom. State v. Castillo. 486 So.2d 565 (1986). Neil followed 
the adoption of similar standards in California, People v. Wheeler. 
583 P.2d 748 (1978), Massachusetts, Commonwealth v. Soares. 387 
N.E.2d 499, cert denied. 444 U.S. 881 (1979) , and New York, People 
v. Thompson. 453 N.Y.S. 739 (1981).

7



for striking Sergeant Edwards —  i.e., he did not understand the

jury process —  loses legitimacy when Sergeant Edwards' remarks in

voir dire are fully examined. In response to trial counsel's

question concerning how he felt about sitting as a member of the

court-martial in Private Curtis' case, Sergeant Edwards responded:

I feel, sir, basically that it would be to me a learning 
experience. And coming in with an open mind, being able 
to give everything, weighing out everything, and 
listening to all the facts before I finally sav whether 
a person is innocent or guilty, it would be a good 
experience for me and something that I would like to go 
through, sir.

Record at 257. Sergeant Edward's response clearly demonstrates

that he understood the critical nature of the duty he was being

asked to perform. Therefore, he did not possess the "trait" that

was the government's premise for striking him from the panel.

With respect to the fifth Slappy factor, trial counsel's

purported explanation for Edwards' exclusion is pretextual since

the challenge was based on a reason equally applicable to a white

prospective member who was not challenged. The voir dire of

Sergeant Justice, a white member of the panel, clearly showed that

he did not understand the most basic rules governing the trial:

ATC: . . . [D]o you agree that the accused has no 
obligation, whatsoever to present any evidence or the 
accused has no burden of proof?

MEM (SGT JUSTICE): I don't really understand.

ATC: The accused starts out, he's innocent before the 
court today.

MEM (SGT JUSTICE): Yes, sir.

ATC: The government has the burden to prove the accused's 
guilt. Do you agree with that proposition of law and do 
you believe that the accused has no burden to put on

8



evidence, that the government has the burden?

MEM (SGT JUSTICE): To prove his innocence.

ATC: To prove his guilt.

MEM (SGT JUSTICE): To prove his guilt.

ATC: The accused has no burden to prove his innocence.

MEM (SGT JUSTICE) : I have a hard time with, sir —  maybe 
I'm just nervous. I don't know. I can't —  for some 
reason I can't think of what your —  accused and the 
terms as far as —  are you asking me this, sir, that if 
the government has to prove the individual guilty, okay?

ATC: Yes.

MEM (SGT JUSTICE) : And that he does not have to prove
himself to be innocent?

ATC: Yes.

Record at 262-63.
The record shows that Sergeant Justice had limited knowledge 

about the most basic rules governing the trial. While Sergeant 

Edwards at least had an interest in learning the trial process and 

performing a juror's duty properly in that process, the record of 

Sergeant Justice's voir dire gives no indication that he had any 

such interest. From the perspective of whether the prospective 

juror already had an understanding of the trial process, Sergeant 

Justice certainly was no more worthy of being a member of the jury 

than Sergeant Edwards. The military judge should have recognized - 

- based on the answers given by both Sergeants Edwards and Justice 

to questions during voir dire —  that the government possessed no 

legitimate basis for using its peremptory challenge since both 

Sergeants Edwards and Justice were equally objectionable on the 

grounds given for Sergeant Edwards' exclusion.

9



Numerous state and federal courts have used this test of

comparing black and white venirepersons to ferret out whether the 

prosecutor's actions were racially motivated. See. e.g.. United 

States v. Wilson. 853 F.2d 606, 610-12 (8th Cir. 

1988)(comparability under Batson principle); United States v. 

Thompson. 827 F.2d 1254, 1260-61 (9th Cir. 1987)(same); see also 

Roman v. Abrams. 822 F.2d 214, 228 (2d Cir. 1987) (comparability 

under a sixth amendment analysis); Garrett v. Morris. 815 F.2d 509, 

514 (8th Cir. 1987)(comparability under application of Swain v. 

Alabama. 380 U.S. 202 (1965)). Generally, courts have found 

pretext where the reasons proffered for striking blacks from the 

venire were applicable to whites who were not stricken. See United 

States v. Wilson. 853 F.2d at 611; Powell v. State. 548 So.2d 590, 

593-94 (Ala. Cr. App. 1988), aff'd. 548 So. 2d 605 (Ala. 1989); 

Acres v. State. 548 So.2d 459, 473-74 (Ala. Cr. App. 1987); People 

v. Hall. 672 P.2d 854, 858-59 (Cal. 1983) (in banc). Cf. United 

States v. Davis. 809 F.2d 1194, 1203 (1987)(legitimate reasons for 

exclusion since applicable to black and white venirepersons alike). 

Specifically, both federal and state appellate courts have refused 

to credit the prosecutor's explanation for striking blacks with 

"low education" or "lack of knowledge" when unexcused whites were 

found to have comparable levels of intelligence. See Garrett v. 

Morris. 815 F.2d at 513-14; Gamble v. State. 357 S.E.2d 792, 795- 

77 (Ga. 1987); People v. Turner. 726 P.2d 102, 109-110 (Cal. 

1986) (in banc). Cf. United States v. Tucker. 836 F.2d 334, 340 

(7th Cir. 1988)(exclusion of four black venirepersons from

10



complicated commercial case deemed legitimate since solely based 

on their limited education).

In stark contrast, the military judge in Private Curtis' case 

employed no meaningful evaluation to determine if the purportedly 

neutral justification given by the government for striking Sergeant 

Edwards was legitimate. Instead, the judge accepted it at face 

value, merely noting that the government's reason for excluding 

Sergeant Edwards was "understandable" and that "it appear[ed] to 

have enough foundation to satisfy the rule announced in Batson v. 

Kentucky." Record at 338 (emphasis added). In conducting such 

cursory review of alleged racial motivations in the striking of a 

black person from the panel, the military judge "failed to 

discharge this] duty to inguire into and carefully evaluate the 

explanation[] offered by the prosecutor." People v. Turner. 726 

P.2d at 112.

Likewise, this Court must reject the rationale of the trial 

judge in allowing the exclusion of Sergeant Edwards. In overruling 

the defense counsel's objection to the strike, the judge noted that 

"[w]ith the challenge of Staff Sergeant Edwards there would still 

be three black members" on the jury panel. Record at 338. This 

Court has previously rejected an argument by the government that 

a prima facie case under Batson could not be established unless the 

prosecution struck all members of the cognizable racial group from 

the jury. See Santiaoo-Davila. 26 M.J. at 380 ("we do not think 

that it is decisive that a prosecutor runs out of his peremptory 

challenges before he can exclude all the members of a particular

11



group").

Numerous other courts have universally condemned any notion 

that the Constitution would tolerate even a minuscule amount of 

discrimination in the exercise of peremptory strikes. See United 

States v. Wilson. 884 F.2d 1121, 1122-23 (8th Cir. 1989) (en 

banc)(under Batson, the striking of one black juror for a racial 

reason violates the Equal Protection Clause, even where other black 

jurors are seated, and even when valid reasons for the striking of 

some black jurors are shown); United States v. Horsley. 864 F.2d 

1543, 1546 (11th Cir. 1989); United States v. Clemmons. 843 F.2d 

741, 746 (3d Cir. 1988); Stanley v. Maryland. 542 A.2d 1267, 1277- 

78 (Md. Ct. App. 1988); State v. Slappy. 522 So.2d at 21.

Clearly, "the command of Batson is to eliminate, not merely 

to minimize, racial discrimination in jury selection." United 

States v. David. 803 F.2d 1567, 1571 (11th Cir. 1986). This Court 

would thus dishonor the command of Batson if it were to sanction 

the prosecution's striking of Sergeant Edwards under the facts of 

this case. The court would send a clear message to prosecutors 

that it will permit "a little bit" of race discrimination. It 

would be granting a license to those trial counsel who are of a 

mind to discriminate to use the single peremptory strike afforded 

them to exclude from the panel a member of a cognizable racial 

group in every single case they try without any fear of 

repercussion.

The record demonstrates that the government has failed to meet 

its burden of showing a racially neutral reason for the exclusion

12



of Sergeant Edwards. In an analogous setting, the Supreme Court 

held, in Vasouez v. Hillerv. 474 U.S. 254 (1986), that the 

exclusion of blacks from a grand jury venire was a grave 

constitutional error since it "call[ed] into question the 

objectivity of those charged with bringing a defendant to 

judgment." 474 U.S. at 263. The Court appropriately concluded 

that its only recourse was to reverse the judgment of conviction 

since it could "neither indulge a presumption of regularity nor 

evaluate the resulting harm." Id. This reasoning is even more 

pertinent in this case since it concerns the racially motivated 

exclusion of a black from the jury that actually tries and convicts 

a criminal defendant.

Accordingly, this Court must reverse Private Curtis's 

conviction and sentence.

II. IN VIOLATION OF THE FIFTH AND EIGHTH 
AMENDMENTS, TRIAL COUNSEL IMPERMISSIBLY 
APPEALED TO RACIAL BIAS BY INACCURATELY 
PORTRAYING THE INDECENT ASSAULT CHARGE AS 
AN INDEPENDENT CRIME, AND BY ENCOURAGING 
THE PANEL TO ACT UPON THE RACIAL BIAS 
EVOKED BY THE FALSE CHARACTERIZATION OF 
THIS INCIDENT.

Based on his statements taken at the time of his arrest and 

from his testimony at trial, Private Curtis' actions on the night 

of April 17 were all centered on Lieutenant Lotz. Private Curtis' 

only thoughts that night were to end the racial harassment that 

had caused him so much psycho-emotional pain and suffering, by 

killing Lieutenant Lotz. Record at 542. He killed and assaulted 

Mrs. Lotz not because of any animus he felt towards her, but

13



purely as a vav of further hurting Lt. Lotz. This fact is 

reflected in Private Curtis' answers to the questions posed by his 

attorney during direct examination:

Q. What were you thinking about Mrs. Lotz when you 
stabbed her?

A . That she was part of . . . Lieutenant Lotz.

Q. How did you feel after this was all over, Lance
Corporal Curtis?

A. Felt like it was just . . .  a madness, you know.
And I ripped off her panties and he saw me and [I]
said to myself, . . . You wanted a dog, you snapped 
you fingers, you called me names, you wanted a dog, 
here's vour dog right here.

Record at 544 (emphasis added). The emphasized segments of Private 

Curtis' questions revealed the proper context in which his acts 

against Mrs. Lotz had to be evaluated: he stabbed Mrs. Lotz because 

she was "part of" the man against whom he felt enormous rage, and 

he fondled her solely to humiliate the person who had so often 

humiliated him. His acts against Mrs. Lotz were in no way 

motivated by feelings about her —  sexual or otherwise. She had 

the misfortune of being "part of" the Lieutenant.

The trial counsel was erroneously permitted to rip the 

indecent assault charge against Private Curtis for fondling Mrs. 

Lotz out of context. In the total context of the crime, the 

assault charge —  viewed as an independent crime —  was only a 

minor offense. Its significance lay only in its illumination of 

the rage and anger that Mr. Curtis directed toward Lieutenant Lotz. 

However, the prosecutor was permitted to make it a centerpiece of 

the government's case. In a pre-trial motion, defense counsel 

tried to prevent this abuse from happening by moving for the

14



military judge to use his discretionary authority under the Rules

of Court Martial to sever the indecent assault charge from the rest

of the charges against Private Curtis in order to prevent a

manifest injustice. As defense counsel prudently cautioned:

[W]e're concerned that even if Lance Corporal Curtis 
were to be found not guilty of that charge, it would 
inherently prejudice the members in determining whether 
or not Lance Corporal Curtis should live or die.

Record at 36. Trial counsel's rejoinder was that the charge was

merely part of the circumstances surrounding the event; however,

he then went so far as to propose a charge on the lesser offense

of "attempted indecent assault" in order to preserve the sexual

charge in the case. Record at 36-37.

The defense pointed out to the military judge the ulterior

motive behind the government's position, explaining that

there is one and only one reason for this offense being 
on the charge sheet: . . . [it] is simply to inflame the 
prejudice of the jury, because it's not an aggravating 
factor, but everyone here knows good and well that sexual 
assault has an extremely inflammatory effect upon a jury 
and that's . . . why [the government is] adding it, even 
though it's very nebulous.

Record at 37-38. The import of defense counsel's warning with 

respect to how the indecent assault could be abused was lost on the 

military judge. His only reaction was that "it is the more minor 

variety of sexual assault certainly as it is alleged." Record at 

38. Moreover, the military judge believed that any harm could be 

cured through the government's proposed lesser-included charge. 

Id. Consequently, he denied the defense counsel's motion for 

severance.

As predicted, the government used the indecent assault charge

15



as a vehicle to inflame the prejudices of the court-martial panel. 

By manipulating the evidence and presenting inflammatory argument, 

trial counsel held up for the jury a vision of Ronnie Curtis 

sexually assaulting Mrs. Lotz which created a false impression. 

This impression —  that there was an independent sexual assault by 

a black man against a white woman —  was then repeatedly paraded 

before the jury by reference to the symbols of the assault, in an 

effort to stir up one of the primordial components of racial bias 

in this country: the belief that black men will take any

opportunity to sexually ravish white women.

Trial counsel began to evoke racial bias by trying to 

introduce a photograph of Mrs. Lotz lying naked on the floor with 

her bloody panties next to her. The defense moved to exclude the 

admission of this picture prior to trial, arguing that it was 

irrelevant since it showed no stab wounds, unlike other pictures 

that the government sought to admit, and that the only reason the 

picture was being used was to inflame the passions of the panel. 

Record at 315-16.

Trial counsel did not stop with the introduction of this 

picture. He went further, attempting to introduce into evidence 

the blood-soaked panties. The defense counsel's motion in limine 

sought to exclude the panties' admission, first on grounds that it 

would be merely cumulative evidence if the picture of Mrs. Lotz 

were admitted. Record at 316. Second, the defense counsel clearly 

explained that

anytime you put a woman's undergarments in, especially
covered with blood, they can't help but excite the

16



passions of the members. Immediately, connotations come 
to mind of, oh, rape or whatever type of heinous sex 
crime that could possibly have been committed.

Id. Once again, however, the import of the inherent racial

prejudice in the admission of the picture and bloody panties was

lost on the military judge. He consequently denied the defense

counsel's motions without any limiting instructions.3 Record at

322.

The Supreme Court has recognized that any evidence of 

interracial violence, even when related to a constitutionally 

legitimate, aggravating factor —  as distinct from its role in this 

case —  carries with it a very high potential for evoking race bias 

and prejudice: "[f]ear of blacks, which could easily be stirred

up by the violent facts of petitioner's crime, ... might incline 

a juror to favor the death penalty." Turner v . Murray. 476 U.S. 

28, 35 (1986). In the face of the acknowledged potential for

evidence of the sort relied on by trial counsel to evoke racial 

concerns, trial counsel took no steps to guard against its 

evocation. To the contrary, he did all he could to maximize the

i In making his decision to deny the defense counsel's 
motions, the military judge relied on cases where this Court found 
no abuse of discretion in the admission of victims' photographs. 
Apart from the fact that the descriptions of the pictures allowed 
into evidence in those cases were highly distinguishable from the 
photographs in the case at bar, the judge could not simply base his 
decision to admit the picture of Mrs. Lotz and her bloody panties 
on the basis of past cases. Military Rules of Evidence Rule 403 
required him to conduct an independent balancing test that would 
examine the admission of such evidence under the facts and 
circumstances of this case. Because he never performed the 
required balancing test, the judge erred, as a matter of law, in 
admitting this evidence. Therefore, his decision to deny defense 
counsel's motions to exclude the evidence are subject to plenary 
review.

17



potential of the sexual assault charge to stir up racial passions.

Trial counsel immediately began to exploit race bias and

prejudice in his opening statement by portraying the assault

against Mrs. Lotz as an independent crime:

[Private Curtis] grabbed [Mrs. Lotz] by the legs, he 
pulled her towards him, and he ripped off her panties, 
and he not only ripped them off, he couldn't get them 
off, so he used a knife, and then he indecently assaulted 
her as she lay in her last moments . . . .

Record at 354.
This statement was followed by unrelenting reference to the 

indecent assault charge throughout the trial. Since the picture 

of Mrs. Lotz had no clinical value, trial counsel had to introduce 

it4 through testimony of Naval Investigative Officer, Robert John 

Vankuiken. Record at 414-16. Although not trained as a 

pathologist, Special Agent Vankuiken's opinion about blood seepage 

from stab wounds was erroneously used to substantiate the charge 

that Private Curtis dragged Mrs. Lotz by the legs. Id. Trial

counsel next made continuous references to Mrs. Lotz's panties 

during the course of testimony by his witnesses. Mr. Vankuiken so 

testified. Record at 415. Special Agent Jackson so testified. 

Record at 440. And David B. Flohr, a chemist with the Army Crime 

Lab, so testified. Record at 465-467. After Mr. Flohr testified 

about the tests he performed to determine that the panties had been 

ripped and cut to produce "separations which the agents had noted 

in the fabric," id. at 466, the panties were finally admitted into

4 Marked as Prosecution Exhibit 13.

18



evidence.5 Id. at 474-75. Still, mention of Mrs. Lotz panties 

arose thereafter in the numerous persons' testimony. See, e .q. . 

Record at 488, 528.

However, the trial counsel did not stop his race baiting at

this point. He further exploited race bias and prejudice through

the testimony of Special Agent Dobbs, who claimed that Mrs. Lotz

had pleaded with Curtis to stop stabbing her; had asked him what

she and her husband had ever done to him; and had called him by his

name. Record at 523. Supposedly, Private Curtis had given Special

Agent Dobbs this account, but it was not part of the Curtis'

statement admitted into evidence by the prosecution. Id.

Unquestionably, this hearsay statement painted for the jury a vivid

picture of a black man brutally assaulting and sexually molesting

an innocent white woman as she pled for Jher life. It was

specifically introduced for that purpose since it was the only

pertinent question asked of Special Agent Dobbs, whose entire

testimony was 1 1/2 pages. Record at 523-24.

Trial counsel's closing argument at the guilt-innocence phase

of the trial took full advantage of the racial prejudice that could

be evoked from the charge of sexual assault. He made certain that

the panel focused on the claim that

as [Mrs. Lotz] fell, [Private Curtis] grabbed her by the 
legs and dragged her to him. . . . And then he ripped 
her panties off. .- . . And then what did he do? He 
placed his hand in her vaginal area and fondled her.

Record at 695. And during his closing argument at the sentencing

5 Marked as Prosecution's Exhibit 24.

19



phase, trial counsel pushed race bias and fear to the ultimate 

level, reminding the panel of the stereotype of black men as 

"savages" in their lust of white woman:, "[a]nd then he [Private 

Curtis] committed the ultimate act of savagery, he violated her, 

indecently assaulted her." Record at 815.

This Court can ill afford to sanction the injection of racial 

bias and prejudice into this case by ignoring trial counsel's 

flagrant misconduct in creating a false impression concerning the 

indecent assault charge. The mere accusation that a black man has 

sexually assaulted a white woman invariably unleashes racial bias. 

Social scientists have documented for many years the role that 

racial bias has played when such a charge is made. Indeed, it is 

the archetypical example of the criminal charge that readily 

inflames the prejudices of white jurors and interferes with their 

ability to treat the black defendant fairly. In his classic study, 

Southern Rape Complex: Hundred Year Psychosis (1966), Laurence Alan 

Baughman chronicled a century's worth of cases where appeals to 

racial bigotry, inflamed by allegations of inter-racial sexual 

encounter, filled in the evidentiary gaps for whatever the 

prosecution sought to prove. Id. at 110-36.

For example, the actions of the prosecutor in the case of 

Brown v. State of Alabama. 25 So. 744 (1899), bear a frightening 

resemblance to the behavior of the trial counsel in Private Curtis' 

case. Brown, a black male, was charged with an assault with intent 

to rape a young white girl. In his closing statement, the 

prosecutor characterized Brown as "a fiend and a demon having a

20



foul heart." 25 So. at 745. Upon Brown's conviction, his attorney 

appealed on grounds that the prosecution's attack on Brown was 

clearly prejudicial. The appellate court denied relief, holding 

that the solicitor's statements were proper because the charge 

against Brown disclosed that he was a "fiendish" and "demoniacal" 

person. Id. One hundred years later, this Court cannot tolerate 

the use of such terms as "savagery" in a prosecutor's closing 

argument in a case involving a black defendant and white victim. 

As in 1899, the use of such terms as "savage" and "demon" is not 

innocuous. It is a purposeful effort by the prosecutor to 

stigmatize black men as something less than human, and to evoke 

racial animus, rather than dispassionate analysis, as the basis for
<

decisionmaking. 1

The profoundly prejudicial impact of the government's abuse 

of the indecent assault charge cannot be discounted by this court. 

While we would all hope that racial bigotry with respect to inter­

racial sex was on the wane, it is deeply rooted in the American 

psyche. In his classic study, An American Dilemma (1944), Gunnar 

Myrdal noted that when he asked Southern whites what they thought 

blacks wanted most, they ranked "intermarriage and sex[ual] 

intercourse" at the very top. Id. at 60-61. Another scholar has 

similarly observed that "[t]he white man, especially the 

Southerner, is overtly obsessed by the idea of [blacks] desiring 

sexual relations with whites." C. Hernton, Sex and Racism in 

America 4 (1965).

The record of Private Curtis' trial reflects that the

21



prosecutor transformed an incident that was motivated wholly by the 

anger that drove Private Curtis to kill Lieutenant Lotz into an 

independent crime against Mrs. Lotz that was motivated by sexual 

passion —  in blatant disregard of the facts. The reason for such 

egregious misconduct was to interject racial bias against Private 

Curtis in order to assure conviction and imposition of the death 

sentence. The inflaming of racial prejudice was accomplished 

through the picture of Mrs. Lotz lying naked on the floor, the 

admission into evidence of her blood-soaked panties, and the 

closing argument by the prosecutor. For these reasons, Private 

Curtis's conviction and death sentence must be reversed. There was 

an unacceptable risk that racial prejudice may have infected his 

entire capital trial. Turner v. Murray. 476 U.S. at 37.

III. IN VIOLATION OF THE FIFTH AND 
EIGHTH AMENDMENTS, TRIAL
COUNSEL USED RACIAL BIASES AND 
STEREOTYPES TO DENIGRATE THE 
SEVERITY OF THE RACIAL
HARASSMENT ENDURED BY PRIVATE 
CURTIS.

Defense counsel presented overwhelming evidence of the racial 

harassment to which Private Curtis was subjected on a continual 

basis by Lieutenant Lotz. Shortly after Private Curtis reported 

for duty in January 1985, Lieutenant Lotz began calling Private 

Curtis names such as "Bebop Curtis" and "Curtis Blow." Record at 

534-35, 580, 634. At first Private Curtis thought that the 

Lieutenant was merely joking, but he soon discovered that the

22



Lieutenant was a racist who was always going to refer to him in a 

derogatory fashion.

Contrary to the view of the U.S. Navy-Marine Corps Court of 

Military Review, the Amicus respectfully asserts that Lieutenant 

Lotz1s behavior towards Private Curtis was not the innocent 

mistake of an inexperienced junior officer who had become too 

familiar with his subordinates in an effort to be accepted.6 If he

merely wanted to be accepted, he would not have continued to
. /

insult Private Curtis and subject him relentlessly to indignities 

after being told by Private Curtis that he found the Lieutenant's 

behavior to be offensive. Record at 535, 581.

Indeed, the Lieutenant was fond of using racist terms to 

describe his subordinates who were people of color. He would use 

such despicable comments as "fuzzy-headed foreigner" and "dark 

green Marine." Record at 632-36. Even though he was reprimanded 

for this intolerable conduct, Record at 650-51, 689, Lieutenant

Lotz ignored the chain of command and continued his racist ways.

The Lieutenant's racist insults continued unabated against 

Private Curtis. He would imitate a walk and style of talk that 

symbolized the racist stereotypes of African-Americans and then 

have the audacity to ask: " [I]s that how they do it Curtis?"

Record at 582. The racist image of a black man with a rag tied on 

his head was also one of his favorite insults. Id. at 537. He 

also got great joy out of portraying Private Curtis as some

6 See U.S. v. Curtis. N.M.C.M. 87-8586, slip op. at 21 
(N.M.C.M.R. June 30, 1989).

23



stupid, confused person. He would call him "the lost one" and 

relate to everyone in the supply office how "lost" Private Curtis 

was when he arrived. Id. at 536.

Having stripped Lieutenant Curtis of his identity and his 

dignity, Lieutenant Lotz also sought to cheapen and delegitimize 

his family. He began by offensively referring to Private Curtis' 

mother by her first name, although he had never met her. Record 

at 538-39. Private Curtis told the Lieutenant to please refer to 

his mother as "Mrs. Curtis," but the Lieutenant, having crossed 

the boundaries of human decency, callously ignored the request and 

continued to inquire about "Marie." Id.

Recounting the practices of past slavemasters, Lieutenant 

Lotz successfully objectified Private Curtis by taking away his 

name, his sense of self and his .family honor. Treating Private 

Curtis in the same way slaves were treated, Lieutenant Lotz began 

to refer to him as if he were merely chattel. He began summoning 

him as if he were a dog by snapping his fingers. Record at 538- 

39. If Private Curtis protested against such degradation, Lotz 

would accuse him of having an "attitude" problem. Id. When he 

could no longer bear the psycho-emotional pressure caused by Lt. 

Lotz's unrelentless racial harassment, Private Curtis exploded. 

Afterwards, unable to understand what had possessed him to do the 

terrible deeds he committed, Private Curtis tried to find a guh in 

the Lotz's home. If he had found a gun, Private Curtis would have 

killed himself. Record at 544.

Private Curtis was a victim of oppression who finally lashed

24



back at his oppressor in a fit of uncontrollable anger. In their 

seminal work, Black Rage (1968), William H. Grier and Price M. 

Cobbs, two black psychiatrists, examined how racism could impact 

on the psyche of black people to the extent that it did on Private 

Curtis. They undertook their study because of the powerful 

psycho-emotional dynamic they saw existing between whites and 

blacks in the United States as a result of the institution of 

slavery. They observed:

White citizens have grown up with the identity of 
an American and, with that, the unresolved conflicts of 
the slaveholder. White Americans are born into a culture 
which contains the hatred of blacks as an integral part.

Blacks are no longer the economic underpinnings of 
the nation. But they continue to be available as victims 
and therefore a ready object for the projection of 
hostile feelings. . . .

Because there has been so little change in the 
attitudes, the children of bondage continue to suffer the 
effects of slavery. There is a timeless quality to the 
unconscious which transforms yesterday into today. The 
obsessions of slave and master continue a deadly struggle 
of which neither is aware. It would seem that for most 
black people emancipation has yet to come.

Id. at 27.

This type of tension described by Grier and Cobbs defined the 

relationship between Lt. Lotz and Private Curtis. Lt. Lotz assumed 

the role of the tormenter, the slavemaster, and Private Curtis 

assumed the role of the tormented, the slave. Ultimately, the 

oppressed struck back at the oppressor. While Private Curtis' 

response to his oppression was extreme, it was neither 

unpredictable nor reflective of the moral bankruptcy of the 

premeditated, mean-spirited murderer. As Grier and Cobbs noted:

25



"Oppression which is capable of producing fear and paranoia may 

under slightly different circumstances produce the deadliest of 

enemies." Id. at 93. They believed this to be true because 

"[oppressed people] reduced to the status of non-persons and 

removed from the protection of the social code can hardly be 

expected to honor the responsibilities imposed by that code." Id.

The psychological phenomenon that Grier and Cobbs would 

attribute to Private Curtis' actions in this case is analogous to 

the recognized phenomenon of "battered wife syndrome." Both share 

the elements of fear and vulnerability that are common to all 

victims of oppression. Compare State v. Wanrow. 559 P.2d 548, 

(Wash. 1977) (respondent was entitled to have the jury consider her
t

claim of self-defense in light of our nation's' "long and 

unfortunate history of sex discrimination.")(quoting Frontiero v. 

Richardson. 411 U.S. 677, 684 (1973)), with State v. Lamar. 698 

P. 2d 735, 740 (Ariz. App. 1984) (jury asked to consider 

reasonableness of black youths' reaction to white police officers 

in light of their perception about the actions of police officers 

being different from that of whites).

Moreover, such states as Florida and texas recognize, by 

statute, that a victim's participation in the defendant's conduct 

is a basis for mitigation in capital sentencing. See § 

921.141(6)(c), Fla. Stat. (1983); Tex. Code Crim. Proc., Art. 

37.071(b)(3) (Vernon 1981). Under those states' laws, Private 

Curtis' conduct in light of Lieutenant Lotz's racial harassment, 

though less than reasonable to support a claim of self-defense,

26



would clearly be mitigated by the Lieutenant's provocation.

However, trial counsel denigrated the significance of the 

Lieutenant's racial harassment by once again appealing to racial 

biases and prejudices. In his closing argument at the guilt- 

innocence stage of Private Curtis' trial, the prosecutor tried to 

portray the talks Private Curtis had with Trooper Addison, Major 

Freeman and Special Agents Butler and Green as some kind of special 

"black-to-black" talks in which Private Curtis would have allegedly 

told them that racial prejudice was the reason why he killed 

Lieutenant Lotz if it were. Record at 707-08. The trial counsel 

discounted the offensiveness of the racist terms that Lieutenant 

Lotz used to describe Private Curtis by telling the jury to think 

of them as merely "nicknames." Id. at 709. He used the comments 

of someone who was not African-American —  and thus would have no 

reason to be insulted by the term "fuzzy-headed foreigner" —  to 

sanitize the usage of that term to describe black people. Id. 

Finally, and most shockingly, trial counsel injected pure racism 

into the jury's deliberations by claiming that it was universally 

recognized that some marines "were a darker green than others" and 

that Lotz's use of the term "dark green marine" could not be 

offensive to anyone. Id.

The government thus reverted to racial bias to portray the 

comments made by Lieutenant Lotz as merely terms that anybody would 

use to describe African-Americans. And in so doing, the government 

doubled —  and added its authority to —  the racial mistreatment 

of Private Curtis. The first form of racial mistreatment —

27



Lieutenant Lotz's unrelenting harassment —  was the deeply tragic 

legacy of slavery, which wounded Private Curtis so deeply that he 

ultimately lashed out at the source of his injury. Except by its 

relative inaction, the government bore no official responsibility 

for this racial mistreatment. The second form, however —  the 

prosecutor's attempt to make light of Lieutenant Lotz's racial 

harassment —  was the sole responsibility of the government. The 

Constitution cannot readily prevent persons like Lieutenant Lotz 

from heaping their abuse upon others. It can —  and must —  

however, prevent the government from following suit. Accordingly, 

the Constitution dictates that Private Curtis' conviction and death 

sentence be reversed.

Conclusion

Because racial bias impermissibly tainted the entire trial, 

through the racially motivated exclusion of a black from the jury 

panel, through the appeal to prejudice by the prosecutor's abusive 

manipulation of the indecent assault charge, and through the 

prosecutor's impermissible denigration of racial harassment as a 

mitigating factor, Private Curtis' conviction and sentence must be 

reversed.

28



Respectfully submitted,

JULIUS L. CHAMBERS 
RICHARD H. BURR 
GEORGE H. KENDALL 
♦STEVEN W. HAWKINS 
NAACP Legal Defense 
and Educational Fund 
99 Hudson Street, 16th FI. 
New York, New York 10013 
(212) 219-1900

♦Counsel of Record

29



Certificate of Service

I hereby certify that the foregoing Motion was filed in 
the Court of Military Appeals, and copies were served upon counsel 
for the parties by first class mail addressed to:

SUSAN K. MILLIKEN 
LCDR, JAGC, SUN 
Appellate Defense Division 
Namara, JAG, Bldg. Ill, WNY 
Washington, D.C. 20374

T.W. OSBORNE 
CDR, JAGC, USN 
Appellate Government Div. 
NAMARA-JAG, Bldg. Ill, WNY 
Washington, D.C. 20374

This day of April, 1990

Steven Hawkins

30



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