Death Penalty Clinic Amicus Curiae Briefs


Williams v. California

On November 15, 2013, the Death Penalty Clinic filed an amicus curiae brief in Williams v. California, in support of Mr. Williams’s petition for writ of certiorari. The case will likely be conferenced by the U.S. Supreme Court in the first part of January 2014. The case involves the application of the Court’s rule in Batson v. Kentucky, 476 U.S. 79 (1986)—prohibiting racial discrimination in the exercise of peremptory challenges during jury selection—to address the prosecution’s exclusion of five of six African-American women from jury service in a Los Angeles County capital trial. The Clinic’s brief was filed on behalf of the National Congress of Black Women and the Black Women Lawyers Association of Los Angeles, Inc. The Clinic’s Director, Professor Elisabeth Semel, and two Clinic students, Celia dePentheny O’Kelly and Jesus Mosqueda, working under her supervision, drafted the amicus brief. Two other students, Paul Meyer and Kayla Delgado, provided significant assistance. The brief presents the interests of amici — organizations with a long-standing commitment to advancing the civil rights of African-American women — in enforcing Batson’s mandate.

In 1991, less than six months after Rodney King’s beating, six African-American women entered the Compton courthouse for jury service in George Brett Williams’s capital trial. The prosecutor exercised a peremptory challenge against the first five African-American women. He offered nearly identical reasons for each strike—reasons that had little or nothing to do with the women’s answers, but instead with their “demeanor” and the prosecutor’s “general impression” “in spite of what they said.” Defense counsel, who objected to the strikes under Batson, asked if this pattern was mere “coincidence.” “No,” replied the trial judge. “I have to say in my other death penalty cases I have found that the black women are very reluctant to impose the death penalty; they find it very difficult no matter what it is. I have found it to be true.” In denying the Batson motions as to the last two jurors the prosecutor struck, the judge stated that she could “only go by” the prosecutor’s assertions because she had stopped taking notes and had no recollection of either prospective juror. The prosecutor then addressed the remaining prospective jurors in open court, asking if it “cause[d] anybody any concern” that he was repeatedly going up to the bench after “I kick a female black.”

Mr. Williams was convicted of capital murder and sentenced to death. Earlier this year, the California Supreme Court affirmed the judgment. People v. Williams, 56 Cal. 4th 630 (2013). Justices Goodwin Liu and Kathryn M. Werdegar dissented from the majority opinion on the Batson issue.

The petition raises two questions:

(1) Whether, as some courts have held, reviewing courts are required to accord “great deference” to an unexplained Batson ruling, or whether, in light of Snyder v. Louisiana, 552 U.S. 476 (2008), and as other courts have held, such a ruling is not entitled to deference?

(2) Whether deference is due where the trial judge admits she cannot independently evaluate the prosecutor’s contested, demeanor-based explanation and denies a Batson motion by simply accepting the prosecutor’s stated reason after observing that it comports with racial and gender stereotypes the judge believes to be true?

The Clinic’s amicus brief argues that the prosecutor’s strikes and the trial judge’s comments offend the Court’s Equal Protection guarantees, which hold that a juror’s competence depends on “individual qualifications,” not “group membership,” and parrot “entrenched assumptions about African-American women as prospective jurors.” The brief discusses racial and gender stereotypes historically used to exclude African Americans and women from civic life and how those stereotypes translate into the assumption that Black women will not impose the death penalty against an African-American male defendant. Amici explain how the case-specific circumstances of Mr. Williams’s trial—including the race of the defendant, the trial’s location in Compton, California and the timing of the trial several months after the beating of Rodney King—contributed to the racialized environment in the courtroom. The brief concludes with a discussion of the social science research on judicial bias, which lends support to the position that precluding deference to unexplained Batson rulings will reduce discriminatory jury selection practices.

Baze v. Rees

The Death Penalty Clinic drafted an important amicus brief in Baze v. Rees, a Kentucky case that that represented the only time the Supreme Court has evaluated the procedures by which lethal injection executions are administered in this country. The Clinic’s brief was filed on behalf of death row inmates in California, Missouri, Maryland, and Florida. Professor Ty Alper and two Clinic students, Joy Haviland and Vanessa Crawford, working under his supervision, surveyed thousands of pages of documents from more than a dozen states, with the aim of presenting to the Court a detailed account of the widespread lack of professionalism and competency in the administration of lethal injection in this country, using compelling examples from states with more detailed records of lethal injection problems than the Kentucky record in the Baze case.

Allen Snyder

On March 19, 2008, the United States Supreme Court reversed the conviction and death sentence Allen Snyder. Snyder v. Louisiana, 552 U.S. 472 (2008). On September 5, 2007, the Death Penalty Clinic and WilmerHale filed an amicus curiae brief in the Supreme Court on behalf of the Constitution Project in support of Mr. Snyder. Two Death Penalty Clinic students, Desiree Ramirez and Armilla Staley, and the Clinic Staff Attorney, Kate Weisburd, worked on the amicus brief with Professor Elisabeth Semel. At issue was the prosecutor’s exercise of peremptory challenges to remove African Americans from the trial jury in violation of Batson v. Kentucky, 476 U.S. 79 (1986), which prohibits racial discrimination in the exercise of peremptory challenges in jury selection. In a 7-2 opinion authored by Justice Samuel Alito, the majority held that “the trial court committed clear error in overruling petitioner’s Batson objection with regard to [one of the African-American jurors].” 552 U.S. at 474.

Mr. Snyder, who is African American, was tried by an all-white jury, convicted of capital murder and sentenced to death in 1996 in Jefferson Parish, Louisiana. Mr. Snyder was arrested the year before, and charged with the murder of his estranged wife’s male companion. His trial took place less than a year after O.J. Simpson was acquitted of murder in California. Prior to Mr. Snyder’s trial, the prosecutor publicly referred to Mr. Snyder’s case as “his O.J. Simpson case.” During jury selection, the prosecutor used his peremptory challenges to strike all qualified prospective African Americans from the panel. Despite his promise to the trial judge that he would not refer to O.J. Simpson before the jury, the prosecutor, in his rebuttal penalty phase argument, compared Mr. Snyder’s conduct to that of the defendant in “[t]he most famous murder case” that all the jurors “have heard about,” pointing out that the “perpetrator” in that case “got away with it.” On direct appeal, the Louisiana Supreme Court upheld Mr. Snyder’s conviction and death sentence against a claim that the prosecutor had exercised his peremptory challenges in a discriminatory manner in violation of Batson. See State v. Snyder, 750 So.2d 882 (La. 1999). In 2005, the Supreme Court granted certiorari, vacated the judgment of the Louisiana Supreme Court, and remanded the case to that court in light of the Supreme Court’s decision in Miller-El v. Dretke, 545 U.S. 231 (2005). See Snyder v. Louisiana, 545 U.S. 1187 (2005). The Court’s landmark opinion in Miller-El, and the Clinic’s role in that case, is discussed below. On remand, by a 4-3 majority, the Louisiana Supreme Court affirmed its opinion, denying relief to Mr. Snyder, who again petitioned the Supreme Court for certiorari. The Court granted review to decide whether Mr. Snyder’s right to Equal Protection was violated by the prosecutor’s use of his peremptory challenges. See State v. Snyder, 942 So.2d 484 (La. 2006); Snyder v. Louisiana, 551 U.S. 1144 (2007).

The Clinic’s amicus brief on behalf of Mr. Snyder argued that the Louisiana Supreme Court majority failed, at the final step of the Batson inquiry, to take into consideration all relevant evidence in determining whether the State had struck black jurors based upon their race. It emphasized the “unusual, unethical, and unconstitutional nature” of the prosecutor’s conduct in regard to the O.J. Simpson comparisons as “powerful evidence of the prosecutor’s discriminatory intent to use his peremptory challenges to purge the capital jury of all African Americans.” The case was argued before the Supreme Court on December 4, 2007.

Briefs, opinions, oral argument and are available in PDF format:

September 2007 Brief of Petitioner
November 2007 Brief of Respondent
November 2007 Reply Brief of Petitioner

September 2007 Brief of Amicus Curiae, The Constitution Project
September 2007 Brief of Amici Curiae, Jefferson Parish Ministers

Oral Argument Transcript (Dec. 4, 2007)

Opinion (March 19, 2008)

Thomas Miller-El

On June 13, 2005, the U.S. Supreme Court granted relief to Thomas Miller-El, who had been convicted of capital murder and sentenced to death in Texas in 1986 Miller-El v. Dretke, 545 U.S. 231 (2005). The Death Penalty Clinic and the firm of Sidley Austin Brown & Wood had filed amicus curiae briefs in support of the petition for writ of certiorari and after review was granted, urging that Miller-El’s conviction and death sentence be overturned. At issue was the prosecution’s use of peremptory challenges to strike 91 percent of African Americans from the jury. Justice Souter, writing for a six-justice majority, concluded that the State’s explanations for its strikes were “pretextual,” noting that it “blinks reality” for the State to deny that it had challenged specific jurors because they were black. Id. at 266.

The Clinic and Sidley Austin filed four briefs in this matter on behalf of former judges and prosecutors. Amici included former federal appellate court judges, a former deputy U.S. attorney general, a former F.B.I. director, former state attorneys general, former assistant U.S. attorneys, and the former district attorney of Boston. Amici joined in this effort because of their commitment to the principle that members of the bench and law enforcement officials bear responsibility to carry out constitutional mandates such as the Equal Protection Clause and ensure the integrity of the criminal justice system.

Three Death Penalty Clinic students, Racheal Turner, Jessica Simbalenko and Portia Glassman, worked on the briefs with Professor Elisabeth Semel, who was counsel of record in the Supreme Court for the amici.

At stake in this litigation was enforcement of the rule in Batson v. Kentucky, 476 U.S. 79 (1986), which prohibits racial discrimination in the exercise of peremptory challenges in jury selection. The Clinic’s first amicus brief was filed in support of a petition for writ of certiorari, which was pending when Miller-El was facing an execution date. In February 2002, the Supreme Court agreed to hear the case, and, in May 2002, the Clinic filed an amicus brief urging reversal of the conviction and death sentence.

In 2003, the Supreme Court, in an 8-1 opinion in Miller-El v. Cockrell, 537 U.S. 322 (2003), held that the Fifth Circuit Court of Appeals had applied ‘too demanding a standard” when it declined to consider Miller-El’s Batson claim. Id. at 341. It concluded that Miller-El had clearly demonstrated his case should be heard by the lower federal court. The opinion corrected long-standing errors in the Fifth Circuit’s habeas corpus practice. While the majority did not reach the merits of the Batson claim, it engaged in a detailed review of the extensive evidence concerning the prosecution’s discriminatory jury selection practices and also criticized the lower court’s “dismissive and strained interpretation” of the evidence. Id. at 344. Justice Kennedy’s opinion modeled for the lower courts how Batson claims should be addressed.

In March 2004, the Fifth Circuit held that prosecutors had not intentionally excluded African Americans from Mr. Miller-El’s capital jury. Miller-El v. Dretke, 361 F.3d 849 (5th Cir. 2004). The Clinic and Sidley Austin filed an amicus brief in support of the petition for writ of certiorari. Their brief argued that the circuit court panel refused to follow the Supreme Court’s directives regarding the application of Batson and adopted instead an illogically truncated framework for review that simply ignored key aspects of the evidence.

In September 2004, after the Supreme Court granted review, the Clinic and Sidley Austin filed another amicus brief arguing for reversal of Miller-El’s conviction and death sentence. The amici urged that, in addition to the egregious constitutional error in Mr. Miller-El’s case, relief was necessary because the Fifth Circuit’s treatment of the Batson claim gave other courts a road map for insulating discriminatory peremptory challenges from judicial scrutiny. They further argued that, left to stand, the lower court’s decision would do grave damage to public confidence in our judicial system. The case was argued on December 6, 2004.

Briefs, opinions, oral argument and are available in PDF format: