Northcross v. Memphis City Schools Board of Education Motion to Advance and Petition for Writ of Certiorari to the US Court of Appeals for the Sixth Circuit

    P U E R T O  R IC A N  L E G A L  D E F E N S E  
& E D U C A T IO N  F U N D , IN C .

8 1 5  SECOND AVENUE  
N E W  YORK, N E W  YOR K  1 0017

3 1 2 -6 8 7 - 6 6 4 4

VICTOR MARRERO 
CHAIRMAN OF THE BOARD

CESAR A, PERALES
8XECUTIVE DIRECTOR

May 20, 1974

Steve Ralston 
NAACP Legal Defense &

Educational Fund, Inc.
10 Columbus Circle 
New York, New York

Re: Cruz v. United States

Dear Steve,

Enclosed is a copy of the Amici 

in Cruz v. United States. Thank you 

for all your guidance and assistance

Sincerely,

brief filed 

very much 

in writing it.

Kenneth Kimerling 
Staff Attorney

/amp 
Enc.



§«jirm r (Emtrt nf %  Intipfc H>tat£a
October Term:, 1973 

No. 73-6484

I n  th e

J ose T orres Cruz and R uben A lberto Y ega y Merced,

Petitioners,

United States oe A merica,

Respondent.

p e t i t i o n  e o r  w r i t  o p  c e r t io r a r i  t o  t h e  u n it e d  s t a t e s

COURT OE APPEALS FOR THE SECOND CIRCUIT

BRIEF AMICI CURIAE OF THE PUERTO RICAN 
DEFENSE AND EDUCATION FUND, INC., AND 

THE NATIONAL CONFERENCE OF BLACK 
LAWYERS IN SUPPORT OF THE PETITION

Cesar A. P erales 
Herbert Teitelbaum 
K enneth K imerling 
Jose A. R ivera

Puerto Rican Legal Defense and 
Education Fund, Inc.

815 Second Avenue 
New York, New York 10017

L ennox S. H inds

National Conference of Black Lawyers 
126 West 119th Street 
New York, New York 10026

Attorneys for Amici Curiae



I N D E X

PAGE

Interest of Amici Curiae ................................................  1

Preliminary Statement ....................................................  2

Reasons for Granting the W r it :

Introduction .............   3

Discussion.......... ........................................................  3

Conclusion...........................................................................    11

Table of A uthorities

Cases:

Aldridge v. United States, 283 U.S. 308 (1931) ............  4, 8

Ballard v. United States, 329 U.S. 187 (1946) ..............  8

Communist Party of U.S.A. v. Subversive Activities 
Control Board, 351 U.S. 115 (1956)....................    8

Earn v. South Carolina, 409 U.S. 524 (1965)..................  4
Hernandez v. Texas, 347 U.S. 475 (1954) ... ..................  4
Hurd v. Hodge, 334 U.S. 24 (1948) .................................  9

Irvin v. Dowd, 336 U.S. 717 (1961) ..........................4, 5, 6, 7

McGlotten v. Connally, 338 P. Supp. 449 (D.D.C. 
1972)............................................................................. 4, 9,10



11

PAGE

Patriarca v. United States, 402 F.2d 314 (1st Cir. 1968), 
cert, denied, 393 U.S. 1022, rehearing denied, 303 U.S.
1124 (1969) .....................................................................  6,7

Rideau v. Louisiana, 373 U.S. 723 (1963) ...........'........... 7

Sheppard v. Maxwell, 384 U.S. 333 (1966) .................... 7
Silverthorne v. United States, 400 F.2d 627 (9th Cir.

1968)....................................................................... ......... 6, 7
Shelley v. Kraemer, 334 U.S. 1 (1948) ........................... . 9
Smith v. Texas, 311 U.S. 128 (1940) .............................  4
Strauder v. West Virginia, 100 U.S. 303 (1880) ........... 3

Thiel v. Southern Pacific Co., 328 U.S. 217 (1946) ....... 8

United States v. Dellinger, 472 F.2d 340 (7th Cir. 1972) 6
United States ex rel. Bloeth v. Denno, 313 F.2d 364 (2nd 

Cir.), cert, denied, 372 U.S. 978 (1963) ...................... 6, 7

Constitution of the United States:

Fifth Amendment .............................................................  5

Sixth Amendment .............................................................  5

Miscellaneous:

New York Times, August 13,1973, Section VI, p. 7 4



I n  t h e

CEmirt of %  Inttefc Stairs
October Term, 1973 

No. 73-6484

J ose T orres Cruz and R uben A lberto Y e g a  y  Merced,

Petitioners,

United States oe A merica,
Respondent.

PETITION FOR WRIT OF CERTIORARI TO THE UNITED STATES 
COURT OF APPEALS FOR THE SECOND CIRCUIT

BRIEF AMICI CURIAE OF THE PUERTO RICAN 
DEFENSE AND EDUCATION FUND, INC., AND 

THE NATIONAL CONFERENCE OF BLACK 
LAWYERS IN SUPPORT OF THE PETITION

Interest o f Amici Curiae

The Puerto Rican Legal Defense and Education Fund, 
Inc. (the “PRLDEF” ) is a privately funded, not-for-profit, 
New York corporation organized in 1972. Its mandate 
includes conducting litigation concerning issues which af­
fect the Puerto Rican community as a whole. In that 
connection, the PRLDEF has commenced and participated 
in lawsuits involving education, voting rights, public as­
sistance, migrant labor, employment discrimination, and



2

the administration of justice. The issues presented by 
question one of the petition are important issues for the 
Puerto Bican community.

The National Conference of Black Lawyers (NCBL) is 
an incorporated association of approximately 500 black 
lawyers in the United States and Canada, and 2,500 law 
students affiliated with NCBL through their membership 
in the Black American Law Student Association (BALSA). 
Since its inception in December of 1968, NCBL, through 
its national office, local chapters, co-operating attorneys 
and the BALSA organization has defended black men 
and women in the halls of criminal justice, filed civil suits 
on behalf of the black community, monitored governmental 
activity involving black interests and provided services to 
the black bar. The right to have a jury free of racial 
prejudice is central to NCBL’s functioning and mandate.

Preliminary Statement

Amici present this brief in support of the petition for 
a Writ of Certiorari with consent of all parties, pursuant 
to Supreme Court Rule 42 (1). Copies of the letters of 
consent are attached to our covering letter to the Clerk 
of this Court. Amici rely on petitioners’ treatment of this 
Court’s jurisdiction, the questions presented for review, 
constitutional and statutory provisions involved and the 
statement of the case.



3

REASONS FOR GRANTING THE WRIT

Introduction

The petition for Writ of Certiorari raises an issue of 
importance to the Nation and especially to Puerto Ricans, 
blacks and other minorities. As framed by petitioners, 
the question is whether Puerto Rican defendants were 
denied a fair trial by the trial judge’s refusal to grant 
challenges for cause to prospective jurors who knowingly 
and voluntarily were members of organizations which ex­
clude Puerto Rican and black persons. Petitioners have 
adequately briefed the issue whether the status of member­
ship in discriminatory organizations is a sufficient basis 
for challenge for cause. Accordingly, amici will address 
another issue included in the question presented—i.e. 
whether the inference of racial prejudice resulting from 
membership in an organization which discriminates on 
the basis of race requires the same type of probing of 
prospective jurors as does the inference of prejudice 
caused by extensive pre-trial publicity. This question, 
which is a novel one for this Court, has importance not 
only because of its constitutional dimensions, but also 
in regards to this Court’s supervisory powers over the 
federal judiciary. Accordingly, review is warranted.

Discussion

Racial prejudice in the jury process has long been an 
area of concern for this Court. Almost a hundred years 
ago, it struck down a “whites only” jury system in the 
State of West Virginia. Strauder v. West Virginia, 100 
U.S. 303 (1880). This decision has been constantly re­



4

inforced by the Court. See e.g. Smith v. Texas, 311 U.S. 
128 (1940); Hernandez v. Texas, 347 U.S. 475 (1954).

The Court has also mandated that inquiries into the 
racial prejudices of prospective jurors be allowed. Al­
dridge v. United States, 283 U.S. 308 (1931). This directive 
was recently extended to the state courts under the Four­
teenth Amendment. Ham v. South Carolina, 409 U.S. 524 
(1965).

This Court’s attempt to keep the jury process free 
from racial prejudice was undermined by the trial court’s 
ruling below. Eight prospective jurors admitted under 
questioning that they were members of an organization 
which excludes Puerto Ricans and blacks—the Benevolent 
and Protective Order of Elks. The Elks, under their con­
stitution, have a “whites only” membership policy. See, 
McGlotten v. Connally, 338 F. Supp. 449, 450 fn. 1 (D.D.C. 
1972). This discriminatory policy is not simply a vestige 
of a now renounced past, but was reaffirmed through three 
recent membership votes.1 Moreover, the policy is not 
benign but is based on a philosophy of racial supremacy. 
McGlotten v. Connally, supra at 454.

Membership in a discriminatory organization is a status 
which creates an inference of racial prejudice. Once this 
inference is raised, it must be overcome through an in 
depth probe of the individual prospective juror in order 
to protect petitioners’ rights to “ a panel of impartial, ‘in­
different’ jurors.” Irvin v. Dowd, 336 U.S. 717, 722 (1961).

1 New York Times, August 13, 1972, Section VI, p. 7. The vot­
ing was held at the annual membership conferences in 1968, 1969, 
1971 and 1972, and each time an amendment to change the whites 
only membership clause in the constitution was defeated.



5

That inference was not overcome in this case, and the 
judge’s denial of petitioners’ challenges for cause violated 
their Fifth and Sixth Amendment rights.2

It was not sufficient to ask the jurors whether or not 
membership in the Elks “ [w]ould . . . in any wav cause 
you to be prejudiced in hearing this type of criminal case, 
where the defendants are Puerto Rican!” [Trial Tran­
script p. 57]. Assurances of impartiality in response to such 
general questions do not remove the taint of prejudice from 
these prospective jurors who have segregated their social 
lives with a “whites only” policjv

The influence that lurks in opinion once formed is so 
persistent that it unconsciously fights detachment from 
the mental process of the average man. Irvin v. Dowd, 
supra at 727.

The trial judge recognized the futility of these general 
inquiries made in the presence of the whole jury panel.

Mr. Amsterdam: Frankly, I don’t think that peo­
ple may respond affirmatively to some of the ques­
tions unless they are asked in an individual way. I 
mean, you see one person standing among 54, saying 
that he would regard the testimony of Puerto Ricans 
with less weight than whites—I don’t think he would 
say that in the presence of the other people.

2 The need for close scrutiny to exclude racially prejudiced 
prospective jurors was of particular importance herein because 
the crimes of which petitioners were accused arose out of the racial 
disorders in Hartford, Connecticut in 1970. Moreover, not only 
were the jurors going to be called on to decide the guilt or inno­
cence of Puerto Rican defendants, but also to determine the credi­
bility of Puerto Rican and black witnesses called by petitioners.



6

The Court: He probably wouldn’t say it on the 
jury stand, either. But, we have already implanted 
the seed, for your purposes to protect the Defen­
dants, because that is the real purpose of establishing 
a relationship with jurors, as you know. [Trial Tran­
script p. 67.]

The Court below had a duty to inquire further than “ . . . 
merely going through the form of obtaining jurors’ assur­
ances of impartiality.” United States ex ret. Bloeth v. 
Denno, 313 F.2d 364, 372 (2nd Cir.), cert, denied, 372 U.S. 
978 (1963).

Once the inference of prejudice is raised, there should 
be a duty on the trial court to probe those tainted with 
prejudice individually outside of the presence of others. 
The court should not seek out general assurances of im­
partiality but should probe with more particularized ques­
tions which would draw out the hidden prejudices of the 
prospective jurors. Irvin v. Dowd, supra at 728 ;3 Silver- 
thorne v. United States, 400 F.2d 627, 639 (9th Cir. 1968) ; 
United States v. Dellinger, 472 F.2d 340, 374 (7th Cir. 1972), 
cert, denied, 410 U.S. 970 (1973); Patriarca v. United States, 
402 F.2d 314, 318 (1st Cir. 1968), cert, denied, 393 U.S. 1022, 
rehearing denied, 393 U.S. 1124 (1969). This was not done 
in the instant case despite requests by counsel for individual 
questioning of the jurors [Trial Transcript p. 67] and the 
submission of a large number of voir dire questions to as­
sist the court’s probe of the panel [Becord, Document 42],

3 “No doubt each juror was sincere when he said he would be 
fair and impartial to petitioner, but the psychological impact re­
quiring such declaration before one’s fellows if often its father.” Id.



7

In the past this Court has established a duty upon lower 
courts to probe for prejudice when there has been a show­
ing of extensive pretrial publicity. Irvin v. Dowd, supra; 
Bideau v. Louisiana, 373 U.S. 723 (1963); Sheppard v. Max­
well, 384 U.S. 333 (1966). These decisions have been inter­
preted by the circuit courts to require a careful examina­
tion of each prospective juror by the trial courts. United 
States ex rel. Bloeth v. Denno, supra at 372; Silvertkorne 
v. United States, supra at 639-640; United States v. Del­
linger, supra at 374-375; Patriarca v. United States, supra 
at 318. As the court said in Silvertkorne v. United States, 
supra:

Recognizing that “we must spare no effort to secure 
an impartial panel,” United States v. Dennis, 183 F.2d 
201, 226 (2nd Cir. 1950) aff’d 341 U.S. 494, 71 S. Ct. 
857, 95 L.Ed. 1137 (1951), we conclude the least re­
quired of the district court was to conduct a careful 
examination of each of the jurors.

 ̂  ̂ ^
The defendant in a criminal case has the right to 
“probe for the hidden prejudices of the jurors.” Lurd- 
ing v. United States, 179 F.2d 419, 421 (6th Cir. 1950). 
Id. at 639-640.

The duty to probe the prejudices of prospective jurors 
should be no less when there is a showing of a status which 
creates an inference of racial prejudices than where there 
is pretrial publicity which creates an inference of impar­
tiality. The issues raised concerning the duty of a trial 
court to probe for racial prejudice in prospective jurors 
who admit membership in discriminatory organizations



8

strikes at the heart of the jury system as envisioned by the 
Constitution and requires a pronouncement from this Court.

Moreover, because of the constitutional dimensions of 
the questions presented, this Court should exercise its 
supervisory powers over the federal court system in order 
to insure that every step is taken to prevent prejudice in 
the jury box.4 The duty to remove the taint caused by the 
trial judge’s denial of the challenges in this case is clear:

The untainted administration of justice is certainly 
one of the most cherished aspects of our institutions. 
Its observance is one of our proudest boasts. This 
Court is charged with supervisory functions in relation 
to proceedings in the federal courts. See McNabb v. 
United States, 318 U.S. 332, 87 L.ed. 819, 63 S. Ct. 608. 
Therefore, fastidious regard for honor of the adminis­
tration of justice requires the Court to make certain 
that the doing of justice be made so manifest that only 
irrational or perverse claims of its disregard can be 
asserted. Communist Party of TJ.S.A. v. Subversive 
Activities Control Board, 351 U.S. 115, 124 (1956).

As in Communist Party of TJ.S.A. petitioners are con­
cerned with a lower court’s discretionary decisions which 
severely affect the administration of criminal justice. The 
issues raised herein are neither irrational nor perverse.

Additionally, the taint caused by the trial court’s denial 
of petitioners’ challenge spreads beyond the instant case

4 The Supreme Court in the past has exercised its supervisory 
powers to correct discrimination in the jury system. Aldridge v. 
United States, supra; Thiel v. Southern Pacific Co., 328 U.S. 217 
(1946); Ballard v. United States, 329 U.S. 187 (1946).



9

and infects the whole federal judiciary. The decision not 
to intensively probe these prospective jurors legitimizes 
the private discrimination practiced by the Elks by per­
mitting its members to participate in judicial processes to 
which their prejudices directly and adversely relate. See 
Shelley v. Kraemer, 334 U.S. 1 (1948), and Hurd v. Hodge, 
334 U.S. 24 (1948); McGlotten v. Connolly, supra. It is 
incumbent upon this Court to disinvolve the federal courts 
from the segregation practiced by Elks and similar organ­
izations. Judge Bazelon, speaking for the three-judge court 
in McGlotten, stated, generally, the responsibility of gov­
ernment to carefully scrutinize situations where private 
discrimination intermingles with government action:

Better than one hundred years ago, this country 
sought to eliminate race as an operative fact in deter­
mining the quality of one’s life. The decision has yet 
to be fully implemented. As Mr. Justice Douglas has 
pointedly stated: “ Some badges of slavery remain 
today. While the institution has been outlawed, it has 
remained in the minds and hearts of many white men.” 
The minds and hearts of men may be beyond the pur­
view of this or any other court; perhaps those who 
cling to infantile and ultimately self-destructive no­
tions of their racial superiority cannot be forced to 
maturity. But the Fifth and Fourteenth Amendments 
do require that such individuals not be given solace in 
their delusions by the Government. Nor is this em­
phasis on the conduct of the Government misplaced. 
“ Government is the social organ to which all in our 
society look for the promotion of liberty, justice, fair 
and equal treatment, and the setting of worthy norms 
and goals for social conduct. Therefore something is



10

uniquely amiss in a society where the government, the 
authoritative oracle of community values, involves 
itself in racial discrimination.” Where that involve­
ment is alleged, the courts have exercised the most 
careful scrutiny to ensure that the State lives up to 
its own promise. [Footnotes omitted.] McGlotten v. 
Connally, supra, at 454-455.

This Court should require detailed questioning of prospec­
tive jurors belonging to segregated organizations with 
policies of racial superiority in order to avoid even the 
appearance of the federal judiciary’s legitimizing the “ in­
fantile and ultimately self-destructive notions of their racial 
superiority.” Id.



11

CONCLUSION

The issues raised are important ones calling into ques­
tion whether or not the trial judge had a duty to inquire 
in depth into the racial prejudices of prospective jurors 
where membership in a discriminatory organization raised 
the inference of prejudice. These issues also bring into 
question whether the whole federal court system is tainted 
when, without any substantial probing by the trial court, 
admitted segregationists are allowed to sit on juries judg­
ing those against whom they discriminate. Amici respect­
fully request that petitioners’ Writ of Certiorari be granted.

Dated: New York, New York 
May 9, 1974

Respectfully submitted,

C e s a r  A. P e r a l e s  

H e r b e r t  T e it e l b a t t m  

K e n n e t h  K im e r l in g  
J ose  A. R iv e r a

Puerto Rican Legal Defense and 
Education Fund, Inc.

815 Second Avenue 
New York, New York 10017

L e n n o x  S. H in d s

National Conference of Black Lawyers 
126 West 119th Street 
New York, New York 10026

Attorneys for Amici Curiae



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