No. 15-0715
In the Supreme Court of the United States
CHERYL ROBINSON,
Petitioner,
v.
UNITED STATES OF AMERICA,
Respondent.
On Writ of Certiorari to the United States Court
of Appeals for the Thirteenth Judicial Circuit
BRIEF FOR PETITIONER
TEAM 4
GREGORY G. PETERSON
CARTER S. PLOTKIN
MATTHEW SKIBA
Counsel for Petitioner
[THIS PAGE PRINTED ON LIGHT BLUE PAPER]
QUESTIONS PRESENTED
1.
Whether religious bias is an exception to Federal Rule of Evidence
606(b).
2.
Whether a juvenile adjudication without a jury may be used as the
basis for a sentence enhancement under the Armed Career
Criminal Act, 18 U.S.C. § 924(e).
ii
TABLE OF CONTENTS
Questions Presented ........................................................................................... ii
Statement of the Case ....................................................................................... 1
Statement of Facts .......................................................................................... 1
Procedural Background ................................................................................... 4
Argument............................................................................................................ 10
I. The text and intent of Federal Rule of Evidence 606(b), as well as
Sixth Amendment precedent and policy concerns, permit judicial review
of jury verdicts for unconstitutional religious bias................................... 10
A.
The text of Rule 606(b) contemplates an exception for outside
bias brought into jury deliberations. ....................................................... 11
B.
The legislative history of Rule 606 indicates that verdicts tainted
by jurors’ religious bias should be subject to judicial review. ............ 15
C.
This Court’s no-impeachment rule jurisprudence envisions, rather
than forecloses, a finding that the Sixth Amendment compels an
exception for jury bias on basis of religion. ........................................... 18
D. An exception to Federal Rule of Evidence 606 for testimony of
jury bias will improve, not hinder, the functioning of the legal
system. ......................................................................................................... 26
II. Robinson’s prior juvenile adjudications may not be used to
enhance her sentence under the Armed Career Criminal Act ............... 29
A.
Juvenile adjudications do not count as “prior convictions”
because the Supreme Court, in developing the Apprendi rule against
sentencing factors, has treated jury trial—which juvenile
adjudications lack¬—as an absolute necessity. ...................................... 31
B.
Juvenile adjudications should not count as “prior convictions”
because doing so would force the juvenile justice system and the
adult criminal justice system into lockstep, depriving the juvenile
system of its unique character and benefits. ......................................... 34
C.
Even if juvenile adjudications do count as “prior convictions,”
Cheryl Robinson’s sentence may not be increased because she lacks
the three violent felonies required for a sentence to be enhanced by
the text of the Armed Career Criminal Act........................................... 37
Conclusion .......................................................................................................... 39
iii
TABLE OF AUTHORITIES
Cases
Abramski v. United States, 134 S. Ct. 2259 (2014) ....................................... 13
Almendarez-Torres v. United States, 523 U.S. 224 (1998) ............................. 31
Am. Tobacco Co. v. Patterson, 456 U.S. 63 (1982) ......................................... 10
Anderson v. Miller, 346 F.3d 315 (2d. Cir. 2003) .......................................... 20
Apprendi v. New Jersey, 530 U.S. 466 (2000) ................................... 29, 30, 31
Ballentine’s Law Dictionary (2010).............................................................. 11, 12
Batson v. Kentucky, 476 U.S. 79 (1986) ............................................. 24, 25, 28
Black's Law Dictionary (10th ed. 2014) ..................................................... 10, 12
Church of the Lukumi Babalu Aye, Inc. v. City of Hialeah, 508 U.S. 520
(1993) ............................................................................................................... 24
Clark v. US, 289 U.S. 1, 13 (1933) ................................................................. 26
Duncan v. Louisiana, 391 U.S. 145 (1968) ..................................................... 30
Gallegos v. Colorado, 370 U.S. 49 (1962) ........................................................ 34
In re Gault, 387 U.S. 1 (1967)............................................................ 33, 34, 36
In re Murchision, 75 U.S. 133 (1955).............................................................. 28
In re Winship, 397 U.S. 358 (1970) ................................................................ 34
Jones v. United States, 526 U.S. 227 (1999) ............................................ 30, 32
Mattox v. U.S., 146 U.S. 140 (1892) ............................................................... 19
McDonald v. Pless, 238 U.S. 264 (1915) ......................................................... 19
McKeiver v. Pennsylvania, 403 U.S. 528 (1971).......................... 32, 33, 34, 35
Merriam-Webster Dictionary ............................................................................... 11
Park ’N Fly, Inc. v. Dollar Park & Fly, Inc., 469 U.S. 189 (1985) ......... 10, 14
Parker v. Gladden, 385 U.S. 363 (1966) ..................................... 13, 14, 23, 25
Richards v. United States, 369 U.S. 1 (1962) ................................................. 10
Ristaino v. Ross, 424 U.S. 589 (1976) ............................................................. 24
Rose v. Mitchell, 443 U.S. 545 (1979) ....................................................... 22, 25
Shillcutt v. Gagnon, 827 F.2d 1155 (7th Cir. 1987) ...............................passim
Smith v. Phillips, 455 U.S. 209 (1982) ........................................................... 22
Tanner v. United States, 483 U.S. 107 (1987) ............................ 12, 21, 25, 26
Thomas v. Freeman, 79 Ohio St.3d 221 (1997) .............................................. 37
Turner v. Murray, 476 U.S. 28 (1986) ........................................................... 23
United States v. Benally, 546 F.3d 1230 (10th Cir. 2008) ............. 21, 26, 27
United States v. Carolene Products Co., 304 U.S. 144 (1938) ....................... 23
United States v. Heller, 785 F.2d 1524 (11th Cir. 1986) ........................ 24, 27
United States v. Henley, 238 F.3d 1111 (9th Cir. 2001) ......................... 23, 27
United States v. Taylor, 464 F.2d 240 (2d Cir. 1972) ..................................... 4
iv
United States v. Tighe, 266 F.3d 1187 (9th Cir. 2001) ................................. 29
US v. Villar, 586 F.3d 76 (1st Cir. 2009) ...................................................... 20
Warger v. Shauers, 135 S. Ct. 521 (2014) ...............................................passim
Williams v. Price, 343 F.3d 223 (3d Cir. 2003) ............................................. 21
Statutes
18 U.S.C. § 924. .......................................................................................... 36, 37
Other Authorities
120 CONG. REC. H12253, as reprinted in 1974 U.S.C.C.A.N. 7108, 7109. 17
H.R. REP. NO. 93-650, at 9 (1974), as reprinted in 1974 U.S.C.C.A.N. 7075,
7083 ................................................................................................................. 16
National Juvenile Defender Center, Right to Jury Trial Chart (July 2014)
......................................................................................................................... 32
Rules
FED. R. EVID. 102. ....................................................................................... 13, 34
FED. R. EVID. 606(b). .................................................................................... 9, 15
Treatises
Julian Mack, The Juvenile Court, 23 HARV. L. REV. 104, 119–20 (1909) .. 33
Note, Racist Juror Misconduct During Deliberations, 101 Harv. L. Rev.
1595, 1598 (1988) .......................................................................................... 23
v
OPINIONS BELOW
The opinion of the United States District Court for the Eastern
District of Everton, ruling in favor of the United States of America, is
reported at United States v. Robinson, No. 14-CR-100045 (E.D. Ever. 2014)
and can be found in the Record at 2–5.
The opinion of the United States Court of Appeals for the
Thirteenth Circuit, affirming the lower court, is reported at United States
v. Robinson, No. 15-0715 (13th Cir. 2015) and can be found in the Record
at 6–19.
vi
JURISDICTIONAL STATEMENT
The United States Court of Appeals for the Thirteenth Circuit
affirmed the United States District Court for the Eastern District of
Everton’s ruling in favor of Respondent United States of America on
October 15, 2015. R. at 6, 14. This Court granted a petition for writ of
certiorari to the Court of Appeals on December 1, 2015. R. at 20. This
Court has jurisdiction pursuant to 28 U.S.C. § 1254(1).
vii
CONSTITUTIONAL PROVISIONS AND STATUTES AT ISSUE
The Sixth Amendment of the United States Constitution, U.S.
CONST.
AMEND.
VI, provides that:
In all criminal prosecutions, the accused shall enjoy the right to a
speedy and public trial, by an impartial jury of the State and district
wherein the crime shall have been committed, which district shall
have been previously ascertained by law, and to be informed of the
nature and cause of the accusation; to be confronted with the
witnesses against him; to have compulsory process for obtaining
witnesses in his favor, and to have the Assistance of Counsel for his
defense.
Rule 606 of the Federal Rules of Evidence generally prohibits
admission of testimony regarding the validity of the verdict. FRE 606 (b)
provides:
(1) Prohibited Testimony or Other Evidence. During an inquiry
into the validity of a verdict or indictment, a juror may not testify
about any statement made or incident that occurred during the
jury's deliberations; the effect of anything on that juror's or
another juror's vote; or any juror's mental processes concerning the
verdict or indictment. The court may not receive a juror's affidavit
or evidence of a juror's statement on these matters.
However, Rule 606 (b) allows for three broad exceptions. This list
includes:
(2) Exceptions. A juror may testify about whether:
viii
(A) extraneous prejudicial information was improperly brought to
the jury's attention;
(B) an outside influence was improperly brought to bear on any
juror; or
(C) a mistake was made in entering the verdict on the verdict
form.
The Federal Rules of Criminal Procedure provide for mechanisms
for parties to seek a new trial, notwithstanding the jury’s verdict.
Federal Rule of Criminal Procedure 33 provides:
(a) Defendant's Motion. Upon the defendant's motion, the court
may vacate any judgment and grant a new trial if the interest of
justice so requires. If the case was tried without a jury, the court
may take additional testimony and enter a new judgment.
Federal Rule of Criminal Procedure 29 further provides:
(c) After Jury Verdict or Discharge.
(1) Time for a Motion. A defendant may move for a judgment of
acquittal, or renew such a motion, within 14 days after a guilty
verdict or after the court discharges the jury, whichever is later.
(2) Ruling on the Motion. If the jury has returned a guilty
verdict, the court may set aside the verdict and enter an acquittal.
If the jury has failed to return a verdict, the court may enter a
judgment of acquittal.
(3) No Prior Motion Required. A defendant is not required to
move for a judgment of acquittal before the court submits the case
ix
to the jury as a prerequisite for making such a motion after jury
discharge.
The Armed Career Criminal Act, 18 U.S.C. § 924, provides for a
number of criminal penalties for firearm possession. In relevant part,
§ 924(e) provides:
(1) In the case of a person who violates section 922(g) of this title and
has three previous convictions by any court referred to in section
922(g)(1) of this title for a violent felony or a serious drug offense,
or both, committed on occasions different from one another, such
person shall be fined under this title and imprisoned not less than
fifteen years, and, notwithstanding any other provision of law, the
court shall not suspend the sentence of, or grant a probationary
sentence to, such person with respect to the conviction
under section 922(g).
(2) As used in this subsection-(A) the term “serious drug offense” means-(i) an offense under the Controlled Substances Act (21 U.S.C.
801 et seq.), the Controlled Substances Import and Export Act
(21 U.S.C. 951 et seq.), or chapter 705 of title 46, for which a
maximum term of imprisonment of ten years or more is
prescribed by law; or
(ii) an offense under State law, involving manufacturing,
distributing, or possessing with intent to manufacture or
distribute, a controlled substance (as defined in section 102 of
the Controlled Substances Act (21 U.S.C. 802)), for which a
maximum term of imprisonment of ten years or more is
prescribed by law;
x
(B) the term “violent felony” means any crime punishable by
imprisonment for a term exceeding one year, or any act of juvenile
delinquency involving the use or carrying of a firearm, knife, or
destructive device that would be punishable by imprisonment for
such term if committed by an adult, that—
(i)
has as an element the use, attempted use, or threatened
use of physical force against the person of another; or
(ii)
is burglary, arson, or extortion, involves use of explosives,
or otherwise involves conduct that presents a serious
potential risk of physical injury to another; and
(C) the term “conviction” includes a finding that a person has
committed an act of juvenile delinquency involving a violent felony.
xi
STATEMENT OF THE CASE
STATEMENT OF FACTS
Cheryl Robinson, the petitioner, is a practicing Waldenist. R. at 7.
In the spirit of Waldenism’s focus on simple living--what they call the
“UnAmerican dream”-- Ms. Robinson purchased a “tiny house,” a 400
square foot house that is built on wheels. R. at 8. Because of its unique
nature, Ms. Robinson’s “tiny house” attracted an influx of visitors to her
neighborhood that sought to tour the odd house. Id. Ms. Robinson’s
neighbors soon became displeased by the unwanted attention; one
neighbor in particular threatened her by allowing his two large dogs to
circle around her, bark, and jump on her. R. at 9. Though he claimed it
was an accident, his demeanor led Ms. Robinson to take the threats
seriously. R. at 9. Thus, she soon obtained a handgun. R. at 9.
Shortly after the incident, Ms. Robinson was pulled over by the police,
who discovered the gun on her person. R. at 9. Ms. Robinson could not
legally own a firearm and was arrested, as she was adjudicated
delinquent for two counts of heroin possession with intent to deliver and
aggravated battery with a dangerous weapon in her youth. R. at 9. The
U.S. Attorney’s Office for the Eastern District of Everton charged Ms.
Robinson with felon in possession with a firearm under 18 U.S.C. §
1
922(g) and sought sentencing enhancements based on her juvenile
Petitioner Cheryl Robinson practices Waldenism. R. at 7. In the spirit of
Waldenism’s focus on simple living, Petitioner purchased a “tiny house”:
a 400 square foot house that is built on wheels. R. at 8. Because of its
unique nature, Petitioner’s “tiny house” attracted an influx of visitors to
her neighborhood that sought to tour the odd house. R. at 8. Petitioner’s
neighbors soon became displeased by the unwanted attention; one
neighbor in particular threatened her by allowing his two large dogs to
circle around her, bark, and jump on her. R. at 9. Though the neighbor
claimed it was an accident, his demeanor led Petitioner to take the
threats seriously. R. at 9. Thus, she expediently obtained a handgun. R.
at 9.
Shortly after Petitioner obtained her handgun, she was pulled over
by the police, who discovered the gun on her person. R. at 9. Petitioner
could not legally own a firearm, as she had been adjudicated delinquent
for two counts of heroin possession with intent to deliver and aggravated
battery with a dangerous weapon in her youth. R. at 9. She was
arrested. R. at 9. The U.S. Attorney’s Office for the Eastern District of
Everton charged Petitioner with the crime of being a felon in possession
with a firearm in violation of 18 U.S.C. § 922(g). R. at 9. The prosecutor
2
sought sentencing enhancements based on her juvenile convictions,
despite the fact that she successfully participated in the “Scared Straight
juvenile awareness program.” R. at 9.
Petitioner was tried in the Eastern District of Everton. R. at 9. As
many Waldenists do, Petitioner has a visible tattoo of the letter “W” on
her wrist to signify adherence to her faith. R. at 7. During voir dire,
several jurors recognized the “W” tattoo on Petitioner’s wrist. R. at 10.
The district judge asked the venire whether there was “anything about
[Robinson] or this case that [might] lea[d] [them] to think that [they]
could not be a fair juror,” but none of the jurors impaneled indicated any
bias. R. at 9–10. The jury subsequently found Petitioner guilty of being a
felon in possession of a firearm after two days of deliberation. R. at 10.
However, one juror, named “A.W.,” came forward the afternoon
after the verdict was rendered and later stated in an affidavit to
Petitioner’s defense counsel that five jurors made biased statements like,
“remember the nut case who slashed clothes at the mall, they’re all
criminals,” “she’s no better than a terrorist and should be locked up,”
and “the only reason their houses are on wheels is so they can make a
quick getaway!” R. at 10. A.W. further asserted that the jurors made
the statements to cause a sixth juror, a holdout, to change her vote to
3
guilty. R. at 10. Petitioner’s attorney filed a motion for judgment
notwithstanding the verdict and a new trial based on the affidavit of
A.W. R. at 10.
PROCEDURAL BACKGROUND
Petitioner moves for a judgment of acquittal under Federal Rule of
Criminal Procedure 29, which allows a court to vacate a conviction if “no
evidence upon a reasonable mind might fairly conclude guilt beyond a
reasonable doubt.” R. at 3; United States v. Taylor, 464 F.2d 240, 243 (2d
Cir. 1972). Petitioner relies upon Federal Rule of Criminal Procedure
33(a), which allows courts to “vacate any judgment and grant a new trial
if the interests of justice so require.” R. at 3.
The United States District Court for the Eastern District of
Everton declined to grant Petitioner a new trial. R. at 5. District Judge
Lynn reasoned that courts may order a new trial solely on admissible
evidence, and that Federal Rule of Evidence 606(b) precludes the
admission of juror A.W.’s affidavit. R. at 4. In particular, the court noted
that Rule 606 precludes courts from “inquiring into the jury’s deliberative
process” and that a juror’s prejudices were not “extraneous prejudicial
information” subject to Rule 606(b)’s exception. R. at 4. The district court
4
also found that Petitioner was eligible for sentencing enhancements
under 18 U.S.C. § 924(e) and added fifteen years to her five-year
sentence. R. at 5.
The Court of the Appeals for the Thirteenth Circuit affirmed
the District Court. R. at 14. Judge Eckford reasoned that this Court’s
holding in Warger v. Shauers, 135 S. Ct. 521 (2014), “foreclosed” the
argument that admission of the juror affidavit was required under the
Sixth Amendment. R. at 12. The Thirteenth Circuit reasoned that juror
bias could effectively be revealed in voir dire. R. at 13. Further, the
majority affirmed her sentence, noting that a juvenile adjudication counts
as a prior conviction for sentencing purposes. R. at 13.
Judge Karlmark vigorously dissented, arguing that voir dire is an
ineffective remedy for statements of bias that go unmentioned in jury
selection. R. at 15. The dissent relied on Justice Sotomayor’s opinion in
Warger that “there may be cases of juror bias so extreme that, almost by
definition, the jury trial right has been abridged.” 135 S. Ct.
at 529 n.
3. Similarly, the dissenting judge found that juvenile convictions are not
“prior convictions,” as such a decision would violate the Constitution’s
guarantee of jury determination. R. at 19.
5
On December 1, 2015, this Court granted Petitioner’s petition for
certiorari. R. at 20.
6
SUMMARY OF THE ARGUMENT
This Court should reverse the Thirteenth Circuit’s holding that
evidence of religious bias during jury deliberations is inadmissible under
Federal Rule of Evidence 606. The broad definition of the term
“extraneous,” and Congress’s intentional selection of that term, suggests
that this Court should hold that the phrase “extraneous prejudicial
information” encompasses juror testimony of religious bias. FED. R. EVID.
606(b)(2). The term “extraneous” includes outside information that is
irrelevant to the matters at hand, suggesting a broader interpretation
than a different term, like “external,” might signify. Furthermore, the
legislative history of Rule 606 does not support a narrow reading of Rule
606(b)’s exceptions. In addition, the Thirteenth Circuit erred in holding
that this Court’s opinion in Warger v. Shauers, 135 S. Ct. 521 (2014) did
not permit testimony of religious jury bias. Rather, Warger expressly
contemplates an exception for extreme cases of jury bias, which is
consistent with over a century over this Court’s precedent. Issues of
racial and religious bias present unique issues for the Sixth Amendment
right to an impartial jury, and this Court should find that an exception
is compelled by the Sixth Amendment itself.
7
Finally, there are persuasive policy reasons to permit an exception
so that courts may receive testimony of religious jury bias. This Court
would enhance the functioning of the jury system, not damage it, by
finding an exception for evidence of religious bias. The finality of the
vast majority of jury decisions would be protected, and the public will
gain an increased confidence in the criminal justice system and the
impartiality of trials. This Court would further take an affirmative step
to eradicate bigoted statements from the jury room, which will ensure
that jurors decide cases solely on the merits of the case.
Even if this Court does not grant Petitioner’s motion for a new
trial, the Court should find that the Petitioner’s rights under the Sixth
and Fourteenth Amendment were abridged when the district court used
her juvenile adjudications for sentencing enhancements under the Armed
Career Criminal Act. Juvenile adjudications are not “prior convictions”
under the factors that this Court developed in Apprendi v. New Jersey,
530 U.S. 466 (2000). In particular, this Court treats a jury trial—which
juvenile adjudications lack—as an absolute necessity. Further, juvenile
adjudications do not count as “prior convictions,” as counting them as
such, would deprive the juvenile system of its unique character and
benefits relative to the adult criminal justice system. Even if juvenile
8
adjudications do count as “prior convictions,” Petitioner’s sentence may
not be enhanced because she lacks the three violent felonies requisite for
sentencing enhancement under the Armed Career Criminal Act, 18 U.S.C.
§ 924(e).
9
ARGUMENT
I.
THE TEXT AND INTENT OF FEDERAL RULE OF
EVIDENCE 606(B), AS WELL AS SIXTH AMENDMENT
PRECEDENT AND POLICY CONCERNS, PERMIT JUDICIAL
REVIEW OF JURY VERDICTS FOR UNCONSTITUTIONAL
RELIGIOUS BIAS.
The text and legislative history of Federal Rule of Evidence 606(b)
permits judicial review of jury verdicts for religious bias, and commands
reversal of the court below. A juror “may testify about whether
extraneous prejudicial information was improperly brought to the jury’s
attention.” FED. R. EVID. 606(b)(2)(A). In addition, a juror “may testify
about whether an outside influence was improperly brought to bear on
any juror.” FED. R. EVID. 606(b)(2)(B) In this case, five jurors maligned a
defendant’s religion in order to “persuade” another juror to change her
vote. R. at 2–3. Both the text of the rule and its underlying intent
support a finding that religious bias constitutes “extraneous prejudicial
information” under Federal Rule 606 (b)(2).
Further, this Court’s decisions in Warger, along with a majority of
the Courts of Appeals, support a finding that the Sixth Amendment
compels an exception for cases of extreme jury bias. In finding an
exception, this Court would not systematically disrupt the finality of jury
verdicts, nor would it chill open jury deliberation. This Court would
10
instill citizens with the confidence that juries will act impartially, in line
with requirements under the Sixth Amendment.
A.
The text of Rule 606(b) contemplates an exception for
outside bias brought into jury deliberations.
A valid interpretation of the language of Rule 606(b) allows for
admission of A.W.’s testimony that the jury was motivated by
unconstitutional religious bias. What constitutes “extraneous prejudicial
information” is not defined in the Rules of Evidence, “leaving an
important part of the scope of Rule 606(b) uncertain.” 27 Victor James
Gold, Federal Practice and Procedure § 6075 (2d ed. 2016) In order to
understand whether Rule 606(b) permits the court to receive juror
testimony, courts “must begin with the language employed by Congress.”
Park ’N Fly, Inc. v. Dollar Park & Fly, Inc., 469 U.S. 189, 194 (1985). To
determine what is meant by “extraneous prejudicial information,” courts
“assume ‘that the legislative purpose is expressed by the ordinary
meaning of the words used.’ ” Am. Tobacco Co. v. Patterson, 456 U.S. 63,
68 (1982) (quoting Richards v. United States, 369 U.S. 1, 9 (1962)). Black’s
Law Dictionary equates “extraneous” and “extrinsic” evidence as anything
“[f]rom outside sources; of, relating to, or involving outside matters.”
Extrinsic, Black's Law Dictionary (10th ed. 2014). Ballentine’s Law
Dictionary concurs and adds that “extraneous” can be something “[n]ot
11
pertinent.” Extraneous, Ballentine’s Law Dictionary (2010). Ballentine’s
agrees with the Merriam-Webster dictionary definition: “having no
relevance.” Extraneous, Merriam-Webster Dictionary, http://www.merriamwebster.com/dictionary/extraneous (last visited Oct. 8, 2016). Of course,
defendant’s religion was an “outside matter” that was “not pertinent” to
the trial.
Congress deliberately used this ambiguous term, rather than a
more precise term like “external,” because it meant to encompass
religious bias brought to bear in deliberations. “Extraneous,” as used by
its ordinary meaning in Rule 606(b), includes anything involving some
irrelevant outside matter, such as religious affiliation unconnected to the
indictment at trial. Respondent would limit the definition of “extraneous”
to information exclusively from outside sources, and ignore the other part
of the definition encompassing anything relating to non-pertinent outside
matters. Defendant’s religion has no relevance to any probative fact, and
was thus “extraneous” evidence. Congress’s use of an imprecise term was
intentional, in order to encompass the full range of the definitions. 1
The extraneous information must also be prejudicial to be included
within the Rule 606(b)(2)(A) exception. “[P]rejudicial information” is any
1
For a discussion of Congressional intent, see section I.B below.
12
information which relies on “[a] preconceived judgment or opinion formed
with little or no factual basis [or] a strong and unreasonable dislike or
distrust.” Prejudice, Black's Law Dictionary (10th ed. 2014). Juror
prejudice is any “leaning of the mind . . . so that the mind is not
indifferent.” Prejudice of juror, Ballentine’s Law Dictionary (2010). Five
jurors’ “disparaging and derogatory statements in reference to the
religion of Waldenism [made] during jury deliberations” reveals that some
jurors were not indifferent and exposes an unreasonable dislike based on
a preconceived opinion. R. at 3. Taken together, under the plain language
of Rule 606(b)(2)(A), a preconceived judgment which is related to some
outside, non-pertinent matter (i.e. matters outside the trial), constitutes
the “extraneous prejudicial information” that Rule 606(b) has excepted
from the rule against admission of juror testimony.
Courts have treated some juror issues of incompetence (e.g.,
intoxication) as “internal” influences, but that does not foreclose a finding
that statements of bigotry could be an “external” influence subject to the
Rule 606(b) exception. Tanner v. United States, 483 U.S. 107, 122 (1987)
(finding that drugs, alcohol, poorly prepared food, and lack of sleep are
all “internal” influences). Rule 606(b) is concerned not only about
information that can be “improperly brought to the jury’s attention,” but
13
with the potential effect that the information may have on the votes of
the jurors. See Parker v. Gladden, 385 U.S. 363, 365–66 (1966) (noting
that bailiff’s prejudicial statements “materially affected the rights” of the
petitioner when multiple jurors heard the same statement). Each of the
examples cited by Tanner concern states of mind that are individualized
to the juror; the votes of the other eleven jurors are wholly unaffected.
In contrast, bigotry has the potential to affect the votes of every juror. A
narrow construction of the term “extraneous” may allow bigoted
statements to have compounding effects in the court room, as statements
by one juror may create a racist groupthink regarding the same bias.
No rule or canon of interpretation supports Respondent’s
particularly narrow reading of the words. The Federal Rules of Evidence
counsel that their purpose is “securing a just determination” in each
individual case and that the Rules should be “construed so as to
administer every proceeding fairly.” FED. R. EVID. 102. Courts look to the
scheme of a law to implement its objective, rather than interpreting
“each word in a statute with blinders on,” accordingly, Rule 606 is read
in the liberalizing context of Rule 102. Abramski v. United States, 134 S.
Ct. 2259, 2267 and n.6 (2014). If some jurors pressure another so that
religious bigotry influences their verdict, Rule 102 requires a broader
14
interpretation of “extraneous prejudicial information” than strictly the
kind of information, like a bailiff’s statement, literally coming from
outside the jury room. See Parker, 385 U.S. at 363–64 (1966). Under the
plain language and ordinary meaning of the Rule 606(b) exceptions—the
interpretive starting point according to Park ’N Fly, 469 U.S. at 194—the
jurors’ religious bigotry is extraneous prejudicial information subject to
judicial review under Rule 606(b)(2)(A). The Thirteenth Circuit erred in
refusing to grant a new trial, and this Court should reverse.
B.
The legislative history of Rule 606 indicates that
verdicts tainted by jurors’ religious bias should be subject to
judicial review.
Even if the text is unclear, Congress intended the Rule 606
exceptions to be broad enough to cover illicit prejudice. Rule 606(b)
purposefully left the phrase “extraneous prejudicial information”
ambiguous so that the judiciary would be empowered to safeguard
defendants from improper jury prejudice, such as racial, gender, or
religious discrimination. 27 Victor James Gold, Federal Practice and
Procedure § 6075 and n.1 (2d ed. 2016). The advisory committee pointed
out that Congress sought compromise between two competing policies:
“The values sought to be promoted by excluding the evidence include
freedom of deliberation, stability and finality of verdicts . . . . On the
15
other hand, simply putting verdicts beyond effective reach can only
promote irregularity and injustice. The rule offers an accommodation
between these competing considerations.” FED. R. EVID. 606(b) advisory
committee’s note. Since the advisory note, “[c]ommentators have noted
that the rule that a juror cannot impeach the verdict is a rule of
administrative convenience . . . and that there is a discernible trend
towards broadening the exceptions to the rule that a juror cannot
testify.” Wisconsin v. Shillcutt, 350 N.W.2d 686, 705 n.7 (Wis. 1984)
(Abrahamson, J., dissenting). Congress was attempting, with Rule 606(b),
to balance a competing policy of preventing unjust or irregular verdicts,
and specifically sought to include an exception that would prevent unjust
results. See Clark v. United States, 289 U.S. 1, 13 (1933) (“[T]he
recognition of a [jury deliberation] privilege does not mean that it is
without conditions or exceptions. The social policy that will prevail in
many situations may run foul in others of a different social policy,
competing for supremacy. It is then the function of a court to mediate
between them . . . .”); After Hour Welding, Inc. v. Laneil Mgmt. Co., 324
N.W.2d 686, 689 (Wis. 1982) (“While the rule against impeachment of a
jury verdict is strong and necessary, it is not written in stone nor is it a
door incapable of being opened. It competes with the desire and duty of
16
the judicial system to avoid injustice and to redress the grievances of
private litigants.”) (footnote omitted). Most importantly, “[t]he [legislative]
policy does not . . . foreclose testimony by jurors as to prejudicial
extraneous information or influences injected into or brought to bear
upon the deliberative process.” FED. R. EVID. 606 advisory committee’s
note. Congress explicitly contemplated that certain “extraneous prejudicial
information” would not be literally external, but would nevertheless be
admissible to impeach the verdict.
When Congress passed Rule 606, it refused to narrow the meaning
of “extraneous prejudicial information,” and the Court should not do so
now. The House Report on Rule 606 attempted to define “extraneous
prejudicial information”: “[A juror] could testify as to the influence of
extraneous prejudicial information brought to the jury’s attention (e.g. a
radio newscast or a newspaper account) . . . .” H.R. REP. NO. 93-650, at 9
(1974), as reprinted in 1974 U.S.C.C.A.N. 7075, 7083. The House’s
interpretation would have narrowed the meaning of extraneous, but
Congress explicitly rejected the narrow interpretation: “The Conference
adopts the Senate Amendment.” H.R. REP. NO. 93-1597, at 8 (Conf. Rep.),
as reprinted in 1974 U.S.C.C.A.N. 7098, 7102. Congress explained that
“[t]he Conferees believe that jurors should be encouraged to be
17
conscientious in promptly reporting to the court misconduct that occurs
during jury deliberations.” Id. The Senate amendment was being adopted
precisely because it allowed for reporting whenever extraneous prejudicial
information was improperly brought to the jury’s attention, but the
Conference Report conspicuously failed to give narrowing examples of
what “extraneous prejudicial information” might be, as the House Report
had done. Id. The Conference Report is significant because it was
adopted unanimously. 120 CONG. REC.
H12253, as reprinted in 1974
U.S.C.C.A.N. 7108, 7109 (statement of Sen. William L. Hungate, Chair,
H. Subcomm. on Criminal Justice ). The enactment of the Federal Rules
of Evidence “culminate[d] some 13 years of study by distinguished
experts . . . .” 11 WEEKLY COMP. PRES. DOC. 1, 12 (Jan. 3, 1975). The
language of Rule 606(b)(2)(A) was intentionally broadened and left
ambiguous so that courts could construe it whenever “cases of juror bias
[are] so extreme that . . . the jury trial right has been abridged.” Warger
v. Shauers, 135 S. Ct. 521, 529 n.3 (2014).
C.
This Court’s no-impeachment rule jurisprudence
envisions, rather than forecloses, a finding that the Sixth
Amendment compels an exception for jury bias on basis of
religion.
18
The court below erred in finding that this Court’s opinion in Warger
v. Schauers, 135 S. Ct. 521 (2014), foreclosed an exception for jury bias.
First, the majority misinterprets Justice Sotomayor’s opinion in a way
that would render it internally inconsistent. This Court did not
“foreclose” an exception for evidence of jury bias, R. at 12, but rather
expressly contemplated one. While noting that FRE 606 broadly
proscribes juror testimony about jury deliberations, Justice Sotomayor
argued in dictum that there may be cases where “juror bias [is] so
extreme that, almost by definition, the jury trial right has been
abridged.” Warger v. Shauers, 135 S. Ct. 521, 529 n.3 (2014). In such
extreme cases, Justice Sotomayor noted that this “Court can consider
whether the usual safeguards are or are not sufficient to protect the
integrity of the process.” Id. Thus, this Court may fashion a remedy to
address the shortcomings of voir dire.
Further, the prejudicial statements in Warger are different in kind
and prejudicial effect from bigoted statements directed at a criminal
defendant’s guilt or innocence. In Warger, the jury foreperson told the
other jurors that “…if her daughter had been sued, it would have ruined
her life.” 135 S. Ct. at 524. This Court declined to admit the testimony
because it represented the “general body of experiences that jurors are
19
understood to bring with them to the jury room,” which are internal
rather than extraneous matters. Id. at 529. Determinations of guilt based
on a defendant’s religion, unlike heuristics and general observations
about the world, are not inevitable occurrences; rather, they have no
place in the jury room. Further, in Warger, the foreperson made a
generalized statement, and there there was no definitive evidence that
any juror voted based on that statement. In contrast, A.W.’s affidavit
shows that five jurors made specific prejudicial comments about Ms.
Robinson herself, including “she’s no better than a terrorist and should
be locked up” because of her religion. R. at 10. The statement goes
beyond “the general body of experiences” of the jurors and constitutes
bigoted statements specifically directed at Ms. Robinson’s guilt that would
prevent the jury from fairly deciding the case.
Second, Justice Sotomayor’s dicta in Warger is consistent with over
a century of this Court’s precedent. In construing the scope of the noimpeachment rule, this Court in McDonald v. Pless, 238 U.S. 264, 269
(1915), cautioned against an “inflexible rule” that would “violat[e] the
plainest principles of justice” in the “gravest and most important cases.”
(internal quotations omitted); see also Mattox v. U.S., 146 U.S. 140, 148
(1892) (noting that juror testimony “ought always to be received with
20
great caution, but cases might arise in which it would be impossible to
refuse them without violating the plainest principles of justice.”). This
Court has never rejected the flexibility envisioned in Pless for cases of
bigoted statements in the jury room, and it should not do so here.
Even circuits that support a generally narrow reading of FRE 606
nevertheless implicitly agree with this Court’s call for flexibility
envisioned in Pless and Warger. See Shillcutt v. Gagnon, 827 F.2d 1155,
1159 (7th Cir. 1987) (applying the no-impeachment rule to exclude
testimony over a juror’s alleged racial slur, but noting that it should not
be applied in an “unfair manner” that would deprive the defendant of
due process); US v. Villar, 586 F.3d 76, 87 (1st Cir. 2009) (“[T]he rule
against juror impeachment cannot be applied so inflexibly as to bar juror
testimony in those rare and grave cases where claims of racial or ethnic
bias during jury deliberations implicate a defendant's right to due process
and an impartial jury.”); Anderson v. Miller, 346 F.3d 315, 327-29 (2d.
Cir. 2003) (noting that “credible allegations of threats of violence” to
intimidate other jurors would fall within 606(b)’s exception despite the
fact that the statements are part of internal deliberation).
Some courts have ignored this Court’s pronouncement in Pless by
creating an unduly broad understanding of this Court’s holding in Tanner
21
v. U.S., 483 U.S. 107 (1987). See United States v. Benally, 546 F.3d 1230,
1241 (10th Cir. 2008) (using Tanner to equate instances of racial bias to
jurors who do not “follow the jury instructions… ignor[e] relevant
evidence…fli[p] a coin, or fall[s] asleep”); Williams v. Price, 343 F.3d 223,
235 (3d Cir. 2003) (“[T]he Supreme Court's decision in Tanner implies
that the Constitution does not require the admission of evidence that
falls within Rule 606(b)'s prohibition,” including jury bias). Tanner only
addresses the narrow issue of juror competency, not bigotry. 483 U.S. at
122 (comparing the effects of drugs or alcohol on a juror’s competency to
“a virus, poorly prepared food, or a lack of sleep”). Even the most severe
cases of competency of single jurors not influence the votes of the other
eleven jurors. In contrast, in Shillcutt, the Seventh Circuit noted the
potential danger for racial prejudice to “pervad[e] the jury room,” leading
to a “substantial probability” that bigoted slurs affect the outcome of the
trial. 827 F.2d at 1159. Racial or religious slurs by even one juror have
the potential to create a broader discussion of irrelevant traits, creating
the danger that a racist group think will affect the votes of multiple
jurors. If jurors discuss and vote based on explicit or implicit biases,
defendants are systematically deprived of their due process right to be
tried solely on the merits of the case. See Smith v. Phillips, 455 U.S. 209,
22
209 (1982) (Due process requires a “jury capable and willing to decide
the case solely on the evidence before it”).
In Shillcutt, only one juror made racial slurs, and they were
isolated to one instance that occurred “15 to 20 minutes before the end
of deliberations.” 827 F.2d at 1159. Thus, they were unlikely to be
outcome determinative. Id. In contrast, A.W. stated that five of the
twelve jury members “had vocally and repeatedly expressed religious
slurs” about the defendant throughout the jury deliberations in order to
influence the vote of a sixth. R. at 10 (noting allegation that “five jurors
made the negative comments about defendant’s religion to persuade one
juror in particular to change her vote so that the jury would be
unanimous in finding defendant guilty). Ms. Robinson’s case is precisely
the kind of egregious display of bigotry in the jury room envisioned by
this Court in Warger, Pless, and by a majority of Courts of Appeals. The
statements not only “pervaded the jury room,” but also stacked the deck
against Ms. Robinson in a way that substantially affected the outcome at
trial. Shillcutt, 827 F.2d at 1159.
Third, and finally, the Sixth Amendment compels this Court to find
an exception for bigoted statements. Rose v. Mitchell, 443 U.S. 545, 557
(1979) (noting that it is the Court’s “duty…to see it through [criminal]
23
procedure” that defendants are protected under the Constitution’s
guarantees); Parker v. Gladden, 385 U.S. at 364 (1966) (mistrials based on
extraneous prejudicial information “are controlled by the command of the
Sixth Amendment.”). Unlike allegations of mere incompetency, courts see
issues of bigotry as uniquely problematic for purposes of the Sixth
Amendment. See Note, Racist Juror Misconduct During Deliberations, 101
Harv. L. Rev. 1595, 1598 (1988) (“The unique evils associated with
racism alter the balance implicitly struck by the Tanner Court…the
Court has regarded racism as an especially problematic breach of the
sixth amendment’s guarantee of an impartial jury.”); see also Turner v.
Murray, 476 U.S. 28, 35-36 (1986) (arguing that racial prejudice presents
a particular challenge in death penalty sentencing, especially in light of
implicit bias). United States v. Henley, 238 F.3d 1111, 1120 (9th Cir. 2001)
(holding that the Sixth Amendment is violated if even one racist juror
serves on the jury).
Discrimination on the basis of religion has long been thought to be
equally odious and deserving of judicial eradication. See United States v.
Carolene Products Co., 304 U.S. 144, 153 n. 4 (1938) (calling for a “more
searching judicial inquiry” for acts “directed at particular religious… or
racial minorities”); United States v. Heller, 785 F.2d 1524, 1527 (11th Cir.
24
1986) (noting broad legislative and judicial remedies “to purge our society
of the scourge of racial and religious prejudice.”); Church of the Lukumi
Babalu Aye, Inc. v. City of Hialeah, 508 U.S. 520, 546 (1993) (applying
strict scrutiny to ordinances that burden particular religious groups).
Biases based either on the defendant’s race or religious affiliation
equally deprive defendants of their Sixth Amendment’s right to a fair
trial. This Court should act to ensure that neither has a place in the
jury room. See Ristaino v. Ross, 424 U.S. 589, 596 n.8 (1976) (cautioning
against the “divisive assumption” that “justice in a court of law may turn
upon the pigmentation of skin, the accident of birth, or the choice of
religion.”); Heller, 785 F.2d at 1527 (noting that both racism and religious
prejudice “sa[p] the strength of our body politic” and “prevent impartial
decision-making that both the Sixth Amendment and fundamental fair
play require.”).
This Court has rejected a rigid adherence to historical practice or
deference to Congress in determining what is compelled under the Sixth
Amendment. See Batson v. Kentucky, 476 U.S. 79, 112 (1986) (Rehnquist,
C.J., dissenting) (noting that the Court’s prohibition of peremptory
challenges because of race rejected an unqualified right that was “part of
the common law for many centuries and part of our jury system for
25
nearly 200 years.”). This court should not find the availability of voir
dire as consequential. See Rose v. Mitchell, 443 U.S. 545, 558 (1979)
(prohibiting racial discrimination against the right to serve on grand
juries despite the availability of “alternative remedies.”). If, as this Court
found in Gladden, a defendant’s Sixth Amendment right to a fair trial is
violated when two jurors heard the bailiff’s prejudicial statements, then
this Court should be equally proactive in cases where religious bias
affected the votes of half the jury. Gladden, 385 U.S. at 365-66
(“[P]etitioner was entitled to be tried by 12, not 9 or even 10, impartial
and unprejudiced jurors.”). In Batson, this Court declined to “sit supinely
by” where defendants were systematically deprived of their right to a fair
trial and no other “remedy [was] available,” and it should not do so here.
476 U.S. at 102 (Marshall J. concurring) (omitting internal quotation
marks).
D.
An exception to Federal Rule of Evidence 606 for
testimony of jury bias will improve, not hinder, the functioning
of the legal system.
First, allowing a narrow exception for jury testimony over jury bias
would not hinder this Court’s goal of protecting the finality of the
process. Tanner, 483 U.S. at 120 (“Allegations of juror misconduct,
incompetency, or inattentiveness, raised for the first time days, weeks, or
26
months after the verdict, seriously disrupt the finality of the process.”).
All jury deliberations that are free from bigoted statements would be free
from judicial second guessing, thus protecting the finality of the vast
majority of jury verdicts across the country. The Sixth Amendment does
not require a perfect system, but there must be a floor of acceptable
behavior to ensure that all defendants are entitled to juries that do not
prejudge them based on their immutable characteristics or chosen faiths.
See Tanner, 483 U.S. 107, 142 (Marshall, J. dissenting) (“Petitioners are
not asking for a perfect jury. They are seeking to determine whether the
jury that heard their case behaved in a manner consonant with the
minimum requirements of the Sixth Amendment. If we deny them this
opportunity, the jury system may survive, but the constitutional
guarantee on which it is based will become meaningless.”).
Second, an exception for jury bias will not chill nonbigoted speech
that properly belongs in the jury room. Concerns over freedom of
expression come from Justice Cardozo, who argued that “[f]reedom of
debate might be stifled and independence of thought checked if jurors
were made to feel that their arguments and ballots were to be freely
published to the world.”). Clark v. US, 289 U.S. 1, 13 (1933); See also
Benally, 546 F.3d at 1234 (“It is essential that jurors express themselves
27
candidly and vigorously as they discuss the evidence presented in court.
The prospect that their words could be subjected to judicial critique and
public cross examination would surely give jurors pause before they
speak.”). Any jury deliberation free from bigoted speech would remain
free from judicial second-guessing, ensuring the finality of the verdict in
the vast majority of cases.
Further, Justice Cardozo’s broad justification for protecting jury
deliberations is inapposite here. It is precisely because bigoted speech
should be eliminated from the jury room that the exception ought to
exist in the first place. The biased speech found in many lower court
decisions is unworthy of this Court’s protection.
See United States v.
Henley, 238 F.3d 1111, 1113 (9th Cir. 2001) (“All the niggers should
hang.”); Benally, 546 F.3d at 1231 (“[W]hen Indians get alcohol, they all
get drunk, and that when they get drunk, they get violent.” (internal
quotes omitted); United States v. Heller, 785 F.2d 1524, 1526 (11th Cir.
1986) (“Well, the fellow we are trying is a Jew. I say, ‘Let's hang him.’”);
Shilicutt, 827 F.2d at 1159 (“Let’s be logical: he’s a black, and he sees a
seventeen-year-old white girl—I know the type.”). The interests of justice
are better served by ridding this sort of hateful speech from the jury
room, not by allowing it to flourish in the interest of open deliberation.
28
Additionally, suppressing outward manifestations of racial or
religiously motivated bias will remove the possibility that internal biases
create spillover effects that affect the votes of other jurors. An exception
will prevent racial bias from “pervading the jury room” enough to
substantially affect the outcome of a trial. Shillcutt, 827 F.2d at 1159.
Eliminating bigoted speech in the jury room would encourage jurors to
discuss only the merits of the case without bias, as due process requires.
In re Murchision, 75 U.S. 133, 136 (1955).
(“[F]air trial in a fair
tribunal is a basic requirement of due process. Fairness … requires an
absence of actual bias.”).
Third, and finally, an exception would not undermine confidence in
the legal system as a whole. On the contrary, this Court has long
recognized that Sixth Amendment violations do far worse for the public’s
confident in the legal system than judicial remedies. See Batson, 476 U.S.
at 87. If this Court turns a blind eye toward bigoted statements in the
jury room, this Court would undermine the public’s confidence that
parties across the country receive the promise of a fair trial under the
Sixth Amendment.
II.
ROBINSON’S PRIOR JUVENILE ADJUDICATIONS MAY
NOT BE USED TO ENHANCE HER SENTENCE UNDER THE
ARMED CAREER CRIMINAL ACT
29
The use of so-called “sentencing factors,” or facts which may
increase the maximum penalty for a crime without a jury finding them
to be true beyond a reasonable doubt, has been disparaged by the
Supreme Court. Apprendi v. New Jersey, 530 U.S. 466, 490 (2000). The
only such sentencing factor which remains constitutional today is the fact
of a prior conviction, and only the Ninth Circuit has found that a
juvenile adjudication may not count as a “prior conviction.” United States
v. Tighe, 266 F.3d 1187, 1197–98 (9th Cir. 2001).
However, this issue remains a matter of first impression for this
Court. Given the Court’s reasoning in the line of cases culminating in
Apprendi, the Court should continue to prioritize jury trial as an
inescapable component of due process in every adult criminal conviction.
By insisting that non-jury juvenile adjudications are kept from
being used (without the decision of a jury) in later criminal trials, this
Court will also ensure that the juvenile system retains its unique
characteristics; if the juvenile adjudication becomes a mere prelude to the
adult trial, on the other hand the rehabilitative purpose of the juvenile
system will be thwarted.
30
Cheryl Robinson does not have the three prior convictions required
to enhance a sentence under the Armed Career Criminal Act, and
therefore, this Court should reverse the Thirteenth Circuit.
A.
Juvenile adjudications do not count as “prior
convictions” because the Supreme Court, in developing the
Apprendi rule against sentencing factors, has treated jury
trial—which juvenile adjudications lack¬—as an absolute
necessity.
The Supreme Court has held that “other than the fact of a prior
conviction, any fact that increases the penalty for a crime beyond the
prescribed statutory maximum must be submitted to a jury, and proved
beyond a reasonable doubt.” Apprendi, 530 U.S. at 490, see also Jones v.
United States, 526 U.S. 227, 252–53 (1999) (Stevens, J., concurring). The
foundation upon which the Apprendi court’s general rule stands is one
built of procedural safeguards. 530 U.S. at 497 (praising “the jury
tradition that is an indispensable part of our criminal justice system”).
The reason for this is clear: the Sixth Amendment requires that the jury
be the final arbiter of any criminal punishment. Id. at 476. In cases—
such as this one—in which a state statute is involved, “[t]he Fourteenth
Amendment commands the same answer.” Id. at 476; also see Duncan v.
Louisiana, 391 U.S. 145, 161–62 (1968). The court’s defense of the jury
right has been expressed in no uncertain terms: “[I]t is unconstitutional
31
for a legislature to remove from the jury the assessment of facts that
increase the prescribed range of penalties to which a criminal defendant
is exposed.” Id. (quoting Jones, 526 U.S. at 252–53 (Stevens, J.,
concurring)).
Thus, the Apprendi Court almost entirely eliminated the use of
“sentencing factors”—facts not found by a jury which could affect the
sentence imposed by a judge—to extend a sentence beyond its statutory
maximum. Apprendi, 530 U.S. at 485–86, 490. One exception remained,
though: the so-called “recidivism exception” contained in the qualifier
“other than the fact of a prior conviction.” Id. at 490; also see AlmendarezTorres v. United States, 523 U.S. 224, 247 (1998) (upholding the recidivism
exception as constitutional). Per Almandarez-Torres, a sentencing judge
may increase a sentence beyond its statutory maximum—without a jury’s
involvement—based on evidence of the defendant’s prior having been
convicted of a crime.
This exception to the Apprendi rule stands alone.2 Apprendi, 539
U.S. at 490. And like the general rule, the exception was justified by the
Every sentencing factor other than recidivism is now treated by the Court as a
separate element requiring submission to a jury. See, e.g., Apprendi, 539 U.S. at 493
(defendant’s intent to harm victim based on victim’s race constitutes separate element of
offense detailed in hate crime statute); Jones (statute’s provision of extra penalties if
victim was injured or killed amounts to enumeration of three separate offenses).
2
32
Court because it did not circumvent the defendant’s right to jury trial.
Jones, 526 U.S. at 249. While factual elements concerning the charged
offense must be proven to a jury beyond a reasonable doubt, the fact of
“a prior conviction must itself have been established through procedures
satisfying the fair notice, reasonable doubt, and jury trial guarantees.” Id.
Thus, a defendant whose sentence is increased beyond its statutory
maximum need not worry that the government will deny her the right to
a jury: the mere fact of her “prior conviction” means that she has
already had the jury trial that was guaranteed to her by the Sixth
Amendment.
But juvenile courts in Everton, like those in majority of other
states, do not include a right to jury trial. R. at 17 (Karlmark, C.J.,
dissenting); National Juvenile Defender Center, Right to Jury Trial Chart
(July 2014), http://njdc.info/wp-content/uploads/2014/01/Right-to-Jury-TrialChart-7-18-14-Final.pdf. This does not violate the Due Process Clause of
the Fourteenth Amendment: the Supreme Court has ruled that the right
to trial by jury is not guaranteed in juvenile court delinquency
proceedings. McKeiver v. Pennsylvania, 403 U.S. 528, 545 (1971). It does,
however, clearly indicate that Everton’s juvenile adjudications are not
“prior convictions” in the Apprendi sense.
33
The Supreme Court has upheld the recidivism exception because
prior convictions involved a jury’s determination of guilt. Cheryl
Robinson’s juvenile adjudications did not involve a jury’s determination of
guilt. Therefore, Robinson’s juvenile adjudications must not be the “prior
convictions” described in the recidivism exception.
B.
Juvenile adjudications should not count as “prior
convictions” because doing so would force the juvenile justice
system and the adult criminal justice system into lockstep,
depriving the juvenile system of its unique character and
benefits.
Juvenile courts are—and are meant to be—different than criminal
courts. McKeiver, 403 U.S. 528, 546 n.6 (stating that “the ideal of
separate treatment of children is still worth pursuing.”). The juvenile
court system was intended to be paternalistic and protective, more
focused on reforming the child offender than dispensing justice: the
reformers who created the juvenile court system “believed that society’s
role was not to ascertain whether the child was ‘guilty’ or ‘innocent,’
but . . . [‘]what had best be done in his interest and in the interest of
the state to save him from a downward career.’” In re Gault, 387 U.S. at
15 (1967) (quoting Julian Mack, The Juvenile Court, 23 HARV. L. REV. 104,
119–20 (1909)).
34
This protective, familial attitude toward the defendant—leading to
proceedings in which the state acted as parens patriae—stands in direct
contrast to the adversary nature of criminal proceedings. In re Gault, 387
U.S. at 16. The adult criminal justice system, according to the stated
“Purpose” of the Federal Rules of Evidence, is structured “to the end of
ascertaining the truth and securing a just determination.” FED. R. EVID.
102. But as originally designed, the juvenile justice system—a civil, not
criminal, system—was primarily concerned with rehabilitation. McKeiver,
403 U.S. at 547.
In the 1960s and 1970s, the Supreme Court transformed the
juvenile court system into a modern legal institution. See, e.g., Gallegos v.
Colorado, 370 U.S. 49, 51 (1962) (barring use of an involuntary confession
under the Due Process Clause of the Fourteenth Amendment); In re
Gault, 387 U.S. at 30–59 (guaranteeing right to counsel and advance
notice of charges, among other protections); In re Winship, 397 U.S. 358
(1970) (requiring proof beyond a reasonable doubt for acts that would be
considered crimes but for the offender’s age). These procedural changes
brought the juvenile system and the adult system largely into line, but
in McKeiver, 403 U.S. at 545, the Court acknowledged that the juvenile
35
court system need not receive every procedural protection present in the
adult criminal system.
In particular, the McKeiver Court held that “trial by jury in the
juvenile court’s adjudicative stage is not a constitutional requirement.” Id.
This conclusion was partly based on practical concerns—imposing jury
trial, the Court felt, “would not strengthen greatly, if at all, the factfinding function” of a juvenile court. Id. at 547. But in the same breath,
the Court reiterated its desire for the juvenile system to remain
independent: “[imposing jury trial] would, contrarily, provide an attrition
of the juvenile court’s assumed ability to function in a unique manner.”
Id.
Thus, Justice Blackmun’s plurality opinion in McKeiver insisted that
the juvenile system should remain unique in procedure, and therefore
unique in character: “If the formalities of the criminal adjudicative
process are to be superimposed upon the juvenile court system, there is
little need for its separate existence. Perhaps that ultimate
disillusionment will come one day, but for the moment we are disinclined
to give impetus to it.” Id. at 551.
Allowing a juvenile adjudication to carry the weight of a jurydecided conviction in future criminal cases would incentivize attorneys
and judges in juvenile courts to treat a juvenile proceeding as a more
36
adversarial process. The very ability of juvenile courts to provide an
effective forum for rehabilitation of child offenders depends on the
juvenile forum being separate and independent; moving the juvenile and
adult courts into lockstep would frustrate this ability.
C.
Even if juvenile adjudications do count as “prior
convictions,” Cheryl Robinson’s sentence may not be increased
because she lacks the three violent felonies required for a
sentence to be enhanced by the text of the Armed Career
Criminal Act.
"[O]ne of the important benefits of the special juvenile court
procedures is that they avoid classifying the juvenile as a ‘criminal.’ The
juvenile offender is now classed as a ‘delinquent.’ There is, of course, no
reason why this should not continue." In re Gault, 387 U.S. 1, 23 (1967).
Despite the Court’s words in Gault, the Thirteenth Circuit attempts to
classify Cheryl Robinson as a criminal, detecting “no infirmity in using
Robinson’s judge-imposed juvenile adjudications to enhance her sentence.”
R. at 14. But even the Armed Career Criminal Act itself, taken without
any of the Court’s interpretation, defines “prior conviction” in a way that,
according to traditional canons of statutory interpretation, forecloses the
possibility of Robinson’s sentence being enhanced. 18 U.S.C. § 924.
The sentence enhancement of the A.C.C.A. is triggered when the
defendant has “three previous convictions . . . for a violent felony or
37
serious drug offense, or both.” Id. § 924(e)(1). Section 924(e)(2), consisting
of definitions, consists of three subsections: (a), defining “serious drug
offense”; (b), defining “violent felony”; and (c) finding that “the term
‘conviction’ includes a finding that a person has committed an act of
juvenile delinquency involving a violent felony.” Id. §924(e)(2).
Under the maxim expressio unius est exclusio alterius, if a statute
“assumes to specify the effects of a certain provision, other exceptions or
effects are excluded.” Black's Law Dictionary (10th ed. 2014); see Thomas v.
Freeman, 79 Ohio St.3d 221, 224–25 (1997). Congress, in the A.C.C.A.
itself, specifically outlined its preferred definition of “conviction.” 18
U.S.C. § 924(e)(2)(c). Whether this definition is constitutional—or wise—
was considered above. But according to the expressio unius maxim, it
clearly limits “conviction” to involving violent felonies.
Cheryl Robinson committed one violent crime: aggravated battery
with a dangerous weapon. R. at 9. But her other two juvenile offenses
consist of two counts of heroin possession with intent to deliver—
precisely the “drug offenses” omitted by Congress in its definition of
“conviction.” R. at 9; 18 U.S.C. § 924(e)(2)(c). Thus, even if juvenile
adjudications may constitutionally be prior convictions, Robinson only has
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one such conviction under the A.C.C.A. and her sentence may not be
enhanced.
CONCLUSION
For the foregoing reasons, Cheryl Robinson respectfully requests
that this Court reverse the Thirteen Circuit’s holding that 1) evidence of
jury bias is inadmissible under Federal Rule of Evidence 606; and that 2)
juvenile adjudications fall with the prior-conviction exception to the
Apprendi rule.
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CERTIFICATE OF COMPLIANCE
The undersigned counsel certifies that Petitioner’s Brief complies with
the word limitation specified in Rule C(3)(d) of the ALA Moot Court
Competition Rules.
__________/s/_______________
Gregory G. Peterson
__________/s/_______________
Carter S. Plotkin
__________/s/_______________
Matthew Skiba
OCTOBER 10, 2016
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