Ross v OK Brief of Amici Curiae

    No. 86-5309

IN THE
SUPREME COURT OF THE UNITED STATES 

OCTOBER TERM, 1987

BOBBY LYNN ROSS,
Petitioner,

v.
OKLAHOMA,

Respondent.

ON WRIT OF CERTIORARI TO THE COURT 
OF CRIMINAL APPEALS OF OKLAHOMA-

BRIEF OF THE AMERICAN CIVIL 
LIBERTIES UNION AND THE ACLU OF 
OKLAHOMA AS AMICI CURIAE

John A. Powell 
Steven R. Shapiro 
American Civil Liberties 

Union Foundation 
132 West 43rd Street 
New York, New York 10036
Mandy Welch 
ACLU of Oklahoma 

Foundation 
P.O. BOX 799 
Oklahoma City,

Oklahoma 73101

Moses Silverman 
(Counsel of Record)
Alisa D. Shudofsky 
Lawrence E. Jacobs 
Paul, Weiss, Rifkind, 

Wharton 6 Garrison 
1285 Avenue of the 

Americas
New York, New York 10019 
(212) 373-300C



TABLE OF CONTENTS
S a g e

INTEREST OF THE AMICI ............. 2
STATEMENT OF THE C A S E ..........   4
SUMMARY OF ARGUMENT ............... 8
ARGUMENT ..............    12
I. THE RULING BELOW IMPROPERLY 

IMPAIRED THE FULL AND FAIR 
EXERCISE OF PETITIONER'S 
JURY CHALLENGES AND THEREBY 
ABRIDGED HIS RIGHT TO SECURE 
AN IMPARTIAL JURY UNDER THE 
SIXTH AND FOURTEENTH AMEND­MENTS .... ...................  12
A. Petitioner Was Denied 

The Effective Use of 
His Jury Challenges ....  12

B. The Denial of Petitioner's 
Effective Use of His Jury 
Challenges Violated His 
Constitutional Right To 
Secure An Impartial Jury ....................  21

i



rage
II. PETITIONER WAS DEPRIVED OF 

HIS STATE ENTITLEMENT TO 
PEREMPTORY CHALLENGES, IN 
VIOLATION OF THE FOURTEENTH
AMENDMENT ....................  28

III. THE TRIAL COURT'S INTER­
FERENCE WITH PETITIONER'S 
RIGHT TO AN IMPARTIAL JURY 
CANNOT’BE HARMLESS ERROR .... 35

CONCLUSION ........................  44

ii

TABLE OF AUTHORITIES

Page
Cases;
Batsop v. Kentucky. 106 S. Ct.

1712 (1986) ................... 3, 16,
36

ChaBJnan v. California. 386 u.s.18 (1967) ..................... 39, 40
Davis V. Georqia. 429 U.s. 122 

(1976) (per curiam) .......... 37
Duncan v. Lousiana. 391 u.s. 145 (1968) ........................ 111 .
Gardner V. Florida. 430 U.S. 349 

(1977) (plurality opinion) .... 34
Gray v. Mississippi. 107 S. ct. 

2045 (1987) ................... passim
Harrison v. United States. 163 

U.S. 140 (1896) ............... 32
Hicks v. Oklahoma. 447 U.S.

343 (1980) ................... 33, 34
In re Murchison. 349 U.S. 133 ' (1955) ........................ 41

iii



Page
Irvin v. Dowd. 366 U.S. 717

(1961) ......................... 13
Lockhart v. McCree. 106 S. ct.

1758 (1986) ...................  22, 24
Logan v. Zimmerman Brush Co..

455 U.S. 422 (1982) ............  31
Patten v. Yount, 467 u.s. 1025

(1984) ........................  13
Peters v. £i_ff,

407 U.S. 493 (1972)
(opinion of Marshall, J.) ....  41

Ross v. State. 717 P.2d 117
(Okla. Crim. App. 1986) ...... 5

Swain v. Alabama. 380 U.S. 202 
(1965) ....................... . 15, 3 5 

41
Stroud v. United states.

251 u.s. 15 (1919), reh'g
denied. 251 U.S. 380 fl920) ... 6, 14

Tavlor v. Louisiana, 419 U.S. 522 
(1975) ........................ 42

Turney v. Ohio, 273 U.S. 510
(1927) ........................ 42

Turner v. Louisiana, 379 u.s. 466 
(1965) ........................ 42

iv

Page :
Turner v. Murray. 106 S. Ct.
.1683 (1986) ................... 22, 27 ['

Klthergpoon V. Illinois. ['■391 U.S. 510 (1967) ..........  26
Halnwrlght v. Witt. 469 u.s. 412 

(1985) ........................  13

Constitutional Provisions: 
United States Constitution

Amendment VI ............... passim
Amendment XIV .............. passim

Statutes:
Okla. Stat. Ann. tit. 22,

§§ 621-693 (1969 & West Supp.
1987) .........................  21

Okla. Stat. Ann. tit. 22,
§ 655 (West Supp. 1987) ......  29

Other Authorities:
IV W. Blackstone, Commentaries

(15th ed. 1809) ......... . 18, 30.



Page
J. Van Dyke, Jury Selection

Procedures (1977) ............. 12, 14,
18, 30

Note, Deadly Mistakes: Harmless
Error.In Capital Sentencing.
54 U. Chi. L. Rev. 740 (1987) .. 41

Vi

No. 86-5309

IN THE
SUPREME COURT OF THE UNITED STATES 

OCTOBER TERM, 1987

BOBBY LYNN ROSS,
Petitioner,

v.
OKLAHOMA,

Respondent.

ON WRIT OF CERTIORARI TO THE COURT 
OF CRIMINAL APPEALS OF OKLAHOMA

BRIEF OF THE AMERICAN CIVIL 
LIBERTIES UNION AND THE ACLU OF 
OKLAHOMA AS AMICI CURIAE

The American Civil Liber­
ties Union and the ACLU of Oklahoma 
respectfully submit this amici 
suriae brief in support of the 
petitioner, Bobby Lynn Ross. The 
parties' consents to the submission 
of this brief are on file with the 
Clerk of the Court.

1



INTEREST OF THE AMICI
The American Civil Liber­

ties Union ("ACLU") is a nation­
wide, nonpartisan organization of 
more than 250,000 persons dedicated 
to preserving and protecting the 
civil rights and civil liberties 
guaranteed by law. The ACLU of 
Oklahoma is its statewide affili­
ate.

Since its creation more 
than sixty years ago, the ACLU has 
been involved in the effort to 
ensure fair criminal procedures, 
including the right to be tried by 
an impartial jury. In furtherance 
of that goal, the ACLU participated 
as amicus curiae in this Court's

2

most recent decision on peremptory 
challenges. See Batson v.
Kentucky. 106 s. ct. 1712 (1986).

The ACLU has also partic­
ipated in numerous capital cases 
before this Court, recognizing, as 
this Court has recognized, that 
imposition of the death penalty 
adds a 'special constitutional 
dimension to the general require­
ment of procedural fairness. This 
case implicates those values and 
therefore lies at the core of the 
ACLU's organizational interest.

3



STATEMENT OF THE CASE^ 
Petitioner Bobby Lynn 

Ross was brought to trial by the 
State of Oklahoma for capital 
murder. During voir dire, venire 
member Darrell Huling, in response 
to questions from defense counsel 
(J.A. 18),^ "stated twice that he 
would automatically vote for the

1/ Amici adopt the Statement of 
the Case set forth in 
petitioner's brief. The 
Statement of the Case set 
forth here is meant only to 
highlight the important facts 
relevant to amici's argument.

2J "J.A." refers to the Joint
Appendix filed by petitioner 
and respondent. "Tr." refers 
to the trial transcript.

4

death penalty if he found the 
defendant guilty." Ross v. State. 
717 P.2d 117, 120 (Okla. Crim. App. 
1986). (J.A. 36)

Defense counsel immedi­
ately requested that Huling be 
stricken for cause. The trial 
court denied this request without 
‘explanation. (J.A. 19)

As a result of the trial 
court's ruling, petitioner was 
forced to use the sixth of his nine 
peremptory challenges to remove 
Huling from the panel. (J.A. 19; 
Tr. 392) Petitioner subsequently 
exhausted his remaining peremptory 
challenges. (J.A. 25) After 
trial* petitioner was convicted of

5



murder in the first degree and 
sentenced to death. (J.A. 33)

On appeal from the 
judgment and sentence, the Oklahoma 
Court of Criminal Appeals, citing 
this Court's decision in Stroud v. 
United gttttgg, 251 u.s. 15 (1919), 
geh'g denied, 251 u.s. 380 (1920), 
ruled that the trial court had 
erred in failing to excuse Huling 
for cause. (J.A. 36-37) 
Nevertheless, the court affirmed 
petitioner's conviction and 
sentence because "there [was] 
nothing in the record to show,that 
any juror who sat on trial was 
objectionable." (J.A. 37) The 
appellate court rejected

6

petitioner's remaining assignments 
of error and, consequently, 
affirmed petitioner's judgment of 
conviction and sentence. (J.A. 46)

7



SUMMARY OF ARGUMENT
The Oklahoma Court of 

Criminal Appeals wrongly assumed 
that the trial court's error in 
failing to excuse juror Huling for 
cause had been cured by 
petitioner's use of a peremptory 
challenge to remove Huling from the 
petit jury. The court then upheld 
petitioner's sentence in the 
absence of a showing that any of 
the remaining jurors was 
objectionable.

The holding of the court 
below rests on a fundamental „ 
misunderstanding of the peremptory 
challenge. The Court effectively 
held that the deprivation of

8

petitioner's peremptory challenge 
was of no consequence because there 
was no showing that any of the 
jurors who sat should have been 
excused for cause. But the 
peremptory challenge does not serve 
the same purpose as the challenge 
for cause. As this Court has 
recognized, the purpose of the 
peremptory challenge is to remove 
jurors perceived to be 
objectionable in circumstances in 
which the party cannot sustain a 
challenge for cause.

Furthermore, the court 
below ignored the crucial role of 
the peremptory challenge in secur­
ing the accused's constitutional

9



right to an impartial jury, effec­
tively denying him that right as 
guaranteed by the Sixth and Four­
teenth Amendments. Additionally, 
the court's ruling deprived 
petitioner of a substantive right 
guaranteed by state law —  the 
effective use of nine peremptory 
challenges —  in violation of the 
due process clause of the 
Fourteenth Amendment.

Finally, petitioner's 
loss of his peremptory challenge 
cannot be dismissed as harmless 
error. This Court's decisions*have 
consistently recognized that the 
"nature of the jury selection 
process" in capital cases does not

10

lend itself to harmless error
analysis. Sffly v. Mississippi, 107 
s. Ct. 2045, 2055 (1987). There­
fore, petitioner's sentence should
be vacated



ARGUMENT
I.

THE RULING BELOW IMPROPERLY 
IMPAIRED THE FULL AND FAIR 

EXERCISE OF PETITIONER'S JURY 
CHALLENGES AND THEREBY ABRIDGED 

HIS RIGHT TO SECURE AN IMPARTIAL 
JURY UNDER THE SIXTH AND 

______ FOURTEENTH AMENDMENTS_____
A. Petitioner Was Denied 

The Effective Use of 
His Jury Challenges

Defendants in criminal 
cases have two important tools with 
which to safeguard their constitu­
tional right to trial by an impar­
tial jury: the challenge for cause
and the peremptory challenge. Gray 
v. Mississippi. 107 S. Ct. 2045, 
2048 n.3 (1987); gee J. Van Dyke, 
Jury Selection Procedures 139-75 
(1977). Petitioner was effectively

12

denied use of both of those tools 
by the ruling below.^

In a capital case, the 
defendant is entitled to a 
challenge for cause to exclude 
jurors, such as Huling, whose 
beliefs preclude them from 
faithfully applying the law to 
determine whether a defendant lives 
or dies, gee Walnwrlaht v. Witt. 
469 U.S. 412, 423-26 (1985); Patton 
V. Xount, 467 U.S. 1025, 1036

1/ The right to trial by an
impartial jury is guaranteed 
by the Sixth and Fourteenth 
Amendments. Duncan v. 
Louisiana. 391 U.S. 145 
(1968); Irvin v. Dowd. 366 U.S. 717 (1961).