Carmical v. Craven Reply Brief for Appellant

    IN THE
UNITED STATES COURT OF APPEALS 

FOR THE NINTH CIRCUIT

No. 26236

RICHARD L. CARMICAL,

Petitioner-Appellant,
vs.

WALTER E. CRAVEN, Warden 
California State Prison at Folsom,

Respondent-Appellee.

On Appeal from the United States District Court 
for the Northern District of California

REPLY BRIEF FOR APPELLANT

WILLIAM BENNETT TURNER 
OSCAR WILLIAMS

1095 Market Street, Suite 418 
San Francisco, California 94103

JUDITH ANN CIRAOLO 
160 Taurus Avenue 
Oakland, California

JACK GREENBERG 
CHARLES STEPHEN RALSTON 

10 Columbus Circle 
New York, New York 10019

Attorneys for Petitioner-Appellant



TABLE OF CONTENTS

TABLE OF AUTHORITIES

I. Petitioner Cannot Be Held To Have
Deliberately By-Passed State Procedure 
With Respect To The Issue Of Racial 
Discrimination In The Composition Of 
The Jury Panel.

II. Petitioner Established A Prima Facie 
Case Of Unconstitutional Jury 
Discrimination Which Has Not Been 
Rebutted By The State.



TABLE OF AUTHORITIES

CASES Page

Clark v. American Marine Corp., 
304 F.Supp. 603 (E.D. La. 1969) 9

Cobb v. Balkcom, 339 F.2d 95 
(5th Cir. 1964) 4, 5

Curry v. Wilson, 405 F.2d 110 
(9th Cir. 1968) 4

Fay v. Noia,•372 U.S. 391 (1963) 2, 3, 4
Fernandez v. Meier, 408 F.2d 974 

(9th Cir. 1969) 2, 3
Gaston County v. United States, 

395 U.S. 285 (1969) 9
Gregory v. Litton Systems, Inc., 

316 F.Supp. 401 (C.D. Cal. 1970) 9
Henry v. Mississippi, 379 U.S. 443 (1965) 5
Henry v. Williams, 299 F.Supp. 36 

(N.D. Miss. 1969) 5
Hunter v. Erickson, 393 U.S. 385 (1969) 9
Local 189 v. United States, 416 F.2d 980 

(5th Cir. 1969), cert, denied,
397 U.S. 919 (1970) 9

McNeil v. State of North Carolina,
368 F.2d 313 (4th Cir. 1968) 3, 4, 5

Nelson v. California, 346 F.2d 73 
(9th Cir. 1965) 5

Quarles v. Philip Morris, Inc., 
279 F.Supp. 505 (E.D. Va. 1968) 9

Southern Alameda Spanish Speaking 
Organization v. Union City,
424 F .2d 291 (9th Cir. 1970) 9

iii



Page

Turner v. Fouche, 396 U.S. 346 (1970) 6, 8
United States v. Logue, 344 F.2d 290

(5th Cir. 1965) 9
United States v. Sheet Metal Workers,

Local 36, 416 F.2d 123 (8th Cir. 1969) 9
United States ex rel Seals v. Wirnan,

304 F .2d 53 (5th Cir. 1962) 9
Whippier v. Balkcom, 342 F.2d 388

(5th Cir. 1965) 4

4

STATUTES, RULES AND REGULATIONS

California Code of Civil Procedure,
Section 198(2) 6

iv



IN THE

UNITED STATES COURT OF APPEALS 
FOR THE NINTH CIRCUIT

NO. 26236

RICHARD L. CARMICAL,
Petitioner-Appellant,

v s .

WALTER E. CRAVEN, Warden,
California State Prison at Folsom,

Respondent-Appellee.

On Appeal from the United States District Court 
for the Northern District of California

REPLY BRIEF FOR APPELLANT

I. Petitioner Cannot Be Held To Have Deliberately 
By-Passed State Procedure With Respect To The 
Issue Of Racial Discrimination In The Composition 
Of The Jury Panel.

The Attorney General argues that since petitioner did 
not challenge the composition of the jury panel before or at 
his trial, he is precluded from raising the issue on federal 
habeas corpus because he has deliberately by-passed state 
procedure. This contention is wholly without merit.

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The Attorney General made the same contention in 
the District Court. The District Court, however, proceeded 
directly to the merits of the case, thereby necessarily 
rejecting the "by-pass" contention. In other words, the 
court below sub silentio found that petitioner had not 
waived his important constitutional right to a jury selected 
without racial discrimination.

The Supreme Court has laid down the test for a 
deliberate by-pass or waiver as follows:

"If a habeas applicant, after consultation 
with competent counsel or otherwise, 
understandingly and knowingly forewent the 
privilege of seeking to vindicate his federal 
claims in the state courts, whether for 
strategic, tactical, or any other reasons 
that can fairly be described as the deliberate 
by-passing of state procedures, then it is 
open to the federal court on habeas to deny 
him all relief. . .though of course only 
after the federal court has satisfied itself, 
by holding a hearing or by some other means, 
of the facts bearing upon the applicant's 
default." Fay v. Noia, 372 U.S. 391, 439 
(1963).

In the instant case, the court below obviously "satisfied 
itself" that no waiver could be found on this record. The 
District Court's conclusion was compelled by controlling 
precedent and was plainly correct.

In Fernandez v. Meier, 408 F.2d 974 (9th Cir. 1969), 
this Court dealt with a collateral attack on jury composition 
by a federal prisoner. No objection had been raised at trial.

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The Court held that the issue could be raised on collateral 
attack unless it was waived in accordance with the test of 
Fay v. Noia. Referring to the question of whether the issue 
was waivable by counsel, as opposed to a personal waiver by 
the petitioner, this Court relied (408 F.2d at 977, n. 5) 
on McNeil v. State of North Carolina, 368 F.2d 313 (4th Cir. 
1968). The McNeil case is directly in point. There, a state 
prisoner, on federal habeas corpus, attacked racial 
discrimination in the composition of the jury. The issue 
had not been raised by him before or at trial. The Court 
said that there is every reasonable presumption against 
waiver of this issue. 368 F.2d at 315. Waiver may not be 
presumed from a silent record. Id. No waiver may be found 
in the absence of "affirmative conduct on the part of a 
defendant evidencing a deliberate and conscious rejection 
of a constitutional guarantee." Id. The Court gave special 
emphasis to the Supreme Court's language in Fay v. Noia, that 
a decision to forego this constitutional claim must be "the 
considered choice of the petitioner." I_d. (Emphasis by the 
Court). Waiver of this issue by counsel does not bar relief 
on habeas corpus. Id.; Cf. Fay v Noia, 372 U.S. at 439.

The Court in McNeil found that there was "no evidence" 
that the defendant, after intelligent conversation with his 
attorney, had understandingly and knowingly waived the right 
to challenge the composition of the jury. The Court therefore

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held as a matter of law that there had been no waiver and 
directed the District Court to grant the writ of habeas 
corpus. 368 F .2d at 317.

Also squarely in point is the Fifth Circuit's 
decision in Cobb v. Balkcom, 339 F.2d 95 (5th Cir. 1964). 
Again, a state prisoner on federal habeas challenged racial 
discrimination in the composition of the jury. The issue 
had not been.raised at trial. The Court of Appeals, in a 
careful and thorough opinion, noted the trial attorney's 
affidavit that he was well aware of the issue but did not 
raise it because he was satisfied that a fair and impartial 
jury could be obtained and that it was in the best interest 
of the defendant not to raise the issue. The Court 
nevertheless stated that waiver of this issue must be made 
by the defendant personally and not by counsel. 339 F .2d 
at 102; accord, Whippier v. Balkcom, 342 F.2d 388, 392 
(5th Cir. 1965). The Court held that the defendant had not 
waived or by-passed this important constitutional protection.

In short, in the instant case, as a matter of law, 
there could be no waiver or deliberate by-pass. It is true 
that some federal rights may be waived by counsel for a 
defendant if this is done as a matter of trial strategy or 
tactics. See Fay v. Noia, 372 U.S. at 439; Curry v. Wilson, 
405 F.2d 110 (9th Cir. 1968)(objection to admission in

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evidence of recordings, where counsel entered express 
stipulation); Nelson v. California, 346 F.2d 73 (9th Cir.
1965)(objection to admission of illegally seized evidence).
But objection to composition of the jury panel is not one 
of the issues waivable by counsel without the express 
personal concurrence of the defendant. See McNeil v. State 
of North Carolina, supra; Cobb v. Balkcom, supra.

Challenging racial discrimination in the composition 
of the jury panel is not a matter of trial tactics. Rather, 
jury discrimination involves a systemic defect in the 
administration of justice. In the instant case, there is 
nothing to show that petitioner ever agreed to forego the 
constitutional right to challenge the system of jury selection 
in Alameda County, or that he even knew of either the method 
of selecting prospective jurors or his right to question it. 
Petitioner's important federal right to a fairly selected 
jury has not, on this record, been deliberately by-passed 
or waived. The Court should, as did the District Court, 
proceed directly to the merits.

V

1/ Cf. Henry v. Mississippi, 379 U.S. 443, 450-451 (1965). 
On remand, the District Court in Henry found that the 
State had failed to meet the heavy burden--a "high 
quality of proof, with every reasonable presumption 
indulged against waiver"--of showing that the right was 
explained to the defendant and that he participated in 
the decision not to assert it. Henry v. Williams,
299 F.Supp. 36 (N.D. Miss. 1969).

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II. Petitioner Established A Prima Facie Case 
Of Unconstitutional Jury Discrimination 
Which Has Not Been Rebutted By The State.

It is undisputed that the "clear thinking" test used 
in the selection of petitioner's jury panel excluded 81.5% 
of eligible black or poor jurors, while excluding only 29% 
of eligible white middle class jurors. The Attorney General, 
in attempting to distinguish Turner v. Fouche, 396 U.S. 346 
(1970), urges that this racial and economic exclusion was 
not "intentional" or "purposeful" because it was accomplished 
by an "objective" standard, that of "ordinary intelligence."
The Attorney General therefore concludes that such exclusion 
was not unconstitutional.

There are two critical defects in the Attorney 
General's argument: (1) the "clear thinking" test, although
purporting to objectively measure ordinary intelligence, did 
not in fact reliably do so; and (2) the only requirement of 
"intent" or "purpose" is that the practice having discriminatory 
effect be engaged in deliberately, as distinguished from an 
accidental act.

1. The "Objective" Standard of Intelligence. The 
"clear thinking" test was apparently Alameda County's response 
to California Code of Civil Procedure, Section 198(2), which 
specifies that for a person to be "competent" to serve as a 
juror, he need be "in possession of his natural faculties

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The test,and of ordinary intelligence and not decrepit." 
however, determined that more than 80% of the registered 
voters of the Oakland ghetto did not possess "ordinary 
intelligence." Even if this inherently incredible result 
does not conclusively show the unfairness and unreliability 
of the test, there is the affidavit of Dr. Jay Rusmore, an 
expert in psychological testing of this kind, which 
establishes (without contradiction by the State) that the 
"clear thinking" test did not reliably measure a prospective 
juror's intelligence (R.70-73). Dr. Rusmore noted several 
fundamental defects in the test and its administration:
(1) it contained too few questions to produce reliable 
results; (2) it was improperly administered in that persons 
tested were not advised that they would be stopped after 
ten minutes; (3) it was never "validated" to determine 
whether it in fact measured "ordinary intelligence;" (4) the 
cut-off score for passing was too high; (5) the failure rate 
of all persons and especially for ghetto persons was too high 
to indicate that the test actually measured intelligence; and 
(6) certain questions were culturally biased against poor or 
minority persons (R.70-73). His conclusion was that "it can 
in no way be said that the test provided an accurate or 
adequate measure of the intelligence of prospective jurors. . . 
(R.72-73). This evidence stands unchallenged in the record. 
Indeed, the Attorney General apparently concedes the fact

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that the test does not reliably measure what it is supposed
to measure; the brief for appellee acknowledges that the test
"may measure something higher or somewhat different from
'average intelligence'" (p. 11), that it may exhibit some
"cultural bias" (Id) and that it was a "poorly drawn test
which was eliminating too many people of ordinary intelligence

2/
both black and white" (p. 18). The court below also noted 
that the test "may have been imperfect" (R.88).

On this record, then, it cannot be maintained that 
the mechanism for excluding black and poor persons from the 
jury was the "objective" factor of "ordinary intelligence."
As we stated in our main brief (pp. 16,20), we do not contend 
that the State may not require that jurors be intelligent.
We contend simply that since the "clear thinking" test 
excluded a disproportionate number of minority persons, the 
burden was on the State to show that it in fact adequately 
and accurately measured the intelligence of prospective 
jurors. See Turner v. Fouche, 396 U.S. 346, 358 (1970).
This, the State has not done. Indeed, petitioner has 
affirmatively demonstrated that the test did not reliably 

measure intelligence. Therefore, the test's exclusion of 
black and poor jurors was unconstitutional.

2/ As stated in the brief for appellee (pp. 7-8) , the State 
accepted as true the facts set forth in the petition, the 
opinion in People v. Craig and petitioner's supplemental 
memorandum (including the affidavit of Dr. Rusmore).

-8



2. The Requirement of "Intentional" or "Purposeful" 
Discrimination. The Attorney General argues that the 
discrimination was not "intentional" or "purposeful" because 
it results from the "objective" factor of intelligence. We 
have shown above that the State has not carried its burden of 
showing that the discrimination in fact results from 
objectively measuring intelligence. It remains only to note 
that petitioner is not required to show actual racial 
motivation, ill will, evil intent or lack of good faith on 
the part of the jury commissioner; the only requirement is 
that the practice having discriminatory effect be engaged in 
deliberately, as distinguished from an accidental act. Cf. 
United States ex rel Seals v. Wiman, 304 F.2d 53, 65 (5th Cir 
1962); Local 189 v. United States, 416 F.2d 980, 995-997 
(5th Cir. 1969), cert, denied, 397 U.S. 919 (1970); United 
States v. Sheet Metal Workers, Local 36, 416 F.2d 123 (8th 
Cir. 1969); Gregory v. Litton Systems, Inc., 316 F.Supp. 401, 
403 (C.D. Cal. 1970); Quarles v. Philip Morris, Inc., 279 
F.Supp. 505, 517-518 (E.D. Va. 1968); Clark v. American 
Marine Corp., 304 F.Supp. 603 (E.D. La. 1969); Gaston County 
v. United States, 395 U.S. 285 (1969); Hunter v. Erickson,
393 U.S. 385 (1969); United States v. Logue, 344 F.2d 290 
(5th Cir. 1965); Southern Alameda Spanish Speaking 
Organization v. Union City, 424 F.2d 291, 295 (9th Cir. 1970) 
Here, of course, administration of the exclusionary "clear 
thinking" test was an established official practice, not an 
accident.

9-



Respectfully submitted,

UJa JU -. 7? jZULww-
WILLIAM BENNETT TURNER 
OSCAR WILLIAMS

1095 Market Street, Suite 418 
San Francisco, California 94103

JUDITH ANN CIRAOLO 
160 Taurus Avenue 
Oakland, California

JACK GREENBERG 
CHARLES STEPHEN RALSTON 

10 Columbus Circle 
New York, New York 10019

Attorneys for Petitioner-Appellant

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