Amadeo v. Zant – Oral Argument – March 28, 1988

Media for Amadeo v. Zant

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William H. Rehnquist:

We will hear argument next in Number 87-5277, Tony B. Amadeo versus Ralph Kemp.

Mr. Bright, you may proceed whenever you are ready.

Stephen B. Bright:

Thank you very much.

Mr. Chief Justice, and may it please the Court, the matter which is before the Court now is a habeas corpus case that is on certiorari from the Court of Appeals for the Eleventh Circuit.

My client, Tony Amadeo, is a death sentence petitioner.

He was sentenced to death in Georgia, in Putman County, Georgia, in November of 1977, some two months after the incident for which he was charged with, he and his two co-defendants were charged with the crime.

Harry A. Blackmun:

Where is Putnam County, what part of Georgia?

Stephen B. Bright:

It is not far from Macon, Georgia, in the center of the–

Harry A. Blackmun:

More or less south then?

Stephen B. Bright:

–More in the central part of the state, Your Honor.

Harry A. Blackmun:

Below the Nat Line?

Stephen B. Bright:

Right about on the Nat Line, Your Honor.

And at the start of the penalty phase of Mr. Amadeo’s trial, the prosecutor, the district attorney said that you probably couldn’t find a fair jury anywhere in the State of Georgia than you could find in Putman County.

Of course, he was the only one who knew at the time he made that statement that he had earlier that same year directed the jury commissioners in Putnam County to underrepresent black people and women in the master jury lists from which Tony Amadeo’s grand jury and trial juries were chosen.

It was unknown that at that time he had put forward this plan, these instructions to the jury commission for the purpose of making it appear that racial discrimination had been eliminated while actually perpetuating racial discrimination and discrimination on the basis of gender and insulating it from judicial review.

Ten months after Mr. Amadeo’s trial this scheme came to light when another lawyer in another case inadvertently came across it.

He attempted to raise it to the Supreme Court of Georgia.

That Court rejected his claim, saying it came too late.

He later presented it to the District Court below, and that court granted habeas corpus relief, finding cause that the claim was not reasonably available to Mr. Amadeo and his lawyers at the time because it was concealed and unknown to them because of the district attorney’s deception.

Sandra Day O’Connor:

Mr. Bright, the District Court here concluded that petitioner’s counsel at the time… that wasn’t you, I guess.

Stephen B. Bright:

No, Your Honor.

Sandra Day O’Connor:

Did not deliberately bypass the constitutional challenge to the composition of the master jury list.

Stephen B. Bright:

Yes, Your Honor.

Sandra Day O’Connor:

Now, what evidence is there in the record to support that finding in the face of what appears to be defense counsel’s testimony to the effect that defense counsel considered challenging the jury list, thought they could win such a challenge, but chose not to raise it in order to preserve what they thought was a favourable jury?

Stephen B. Bright:

Your Honor, that was one of two factual determinations that the District Court made which the Eleventh Circuit rejected.

Basically the District Court, if you look at the one lawyer’s testimony that is highlighted throughout the state’s brief, it gives a view of this case of a tactical decision that was made.

The District Court–

Harry A. Blackmun:

And he was only one of more than one counsel, was he not?

Stephen B. Bright:

–He was one of two counsel, right, and they were appointed to represent both Mr. Amadeo and the two co-defendants in all three of these cases, but the District Court looked at the totality of the circumstances and clearly did not credit that testimony, because the District–

Sandra Day O’Connor:

Well, tell me, please, where we look in the record to find something to support the District Court’s contrary view.

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Stephen B. Bright:

–Yes, Your Honor.

The District Court’s finding, of course, was that the lawyers would have brought the claim had they known about the district attorney’s involvement in this scheme to eliminate or to limit black people and women on the jury.

Antonin Scalia:

Right, and you had explicit testimony by the lawyer saying that we like this jury, we didn’t think we could get a better jury.

We liked it because it had, what, nine, eight or nine women, which they thought was highly desirable.

Stephen B. Bright:

The ultimate jury.

Now, of course, the lawyers said that what they did was, they got the venue list, that is, the people chosen from the master list for the petit jury in that trial, and they looked at that before trial, and saw that there were women and black people represented there.

Of course, that’s exactly what the district attorney’s scheme was designed to accomplish.

William H. Rehnquist:

I think you are being whipsaw.

You are getting several questions… I think you were in the process of answering Justice O’Connor’s question, which was about where in the record do we look to find evidence that the District Court could have based a finding on.

Stephen B. Bright:

Yes, and there are a number of sources of that that they would have brought the challenge, and let me go through those, if I may.

William H. Rehnquist:

Would you go with pages to the record?

Stephen B. Bright:

Yes, Your Honor.

I will be happy to.

First of all, the lawyer’s testimony which we were talking about there and relates to this point is that they liked that particular jury.

What the District Court had that directly contradicted that was all the contemporaneous evidence, the first thing being, Your Honor, the fact that the lawyers filed a motion to continue this case October the 27th and filed an affidavit saying that there was so much prejudice against Mr. Amadeo and his co-defendants that the trial should not be held until the next term of court, which would have been before a different jury.

In addition, the lawyers filed a motion for a change of venue which was litigated right through the jury selection process, and they argued in that motion that a large portion of the jurors had an opinion about the guilt of Mr. Amadeo and therefore that they should not try the case before that particular jury.

These lawyers only filed three motions prior to trial.

Those were two of the three motions, which were to get another jury at another time.

In their brief to the Georgia Supreme Court, and this is in the Joint Appendix, and I would point the court to Pages 16 to 18, and I might mention to respond to the Chief Justice on the page cites–

Antonin Scalia:

Excuse me.

Before you go on, all of those motions would have produced not just a different jury here and now, but a different jury elsewhere, right, or a different jury at a different time?

Stephen B. Bright:

–The continuance motion would have produced a different jury but in the same county.

The venue motion, of course, would have moved the case out of Putnam County in a completely different venue.

Both of these contradict this testimony that the lawyers… of course, this was… when they testified, this one lawyer that has been alluded to, ten years after the fact the claim of ineffective assistance of counsel, when this allegation was made that we really liked this jury so much, we would have done anything to keep it, even forfeit a constitutional claim.

In addition, and I was going to say, both–

Sandra Day O’Connor:

There was that testimony by one of the defense lawyers?

Stephen B. Bright:

–Well, of course, they didn’t know they had this claim.

All they said was–

Sandra Day O’Connor:

Right, but there was testimony, I thought, by at least one of them to the effect that we considered a constitutional challenge to the master list, thought we might have won it, but we bypassed it because we thought we had a favorable actual jury.

Is that right?

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Sandra Day O’Connor:

We can find that in the record.

Stephen B. Bright:

–Yes, you can find that he said this.

He didn’t actually know that there was a factual basis for the claim.

His testimony was, we thought there was so much discrimination that went on in that part of Georgia that if we had probably looked we probably would have found something, and we didn’t look.

That’s what he testified to.

Of course, that’s much different, knowing that you might undertake in the two months you have to prepare three capital trials–

Sandra Day O’Connor:

Okay.

All right.

Now tell me, please, where we find in the record something contrary to that statement on which the District Court might have made its finding.

Stephen B. Bright:

–All right.

I think the District Court made its finding based upon the contradiction based upon what I’ve already talked about, the brief that those lawyers filed in the Georgia Supreme Court–

William H. Rehnquist:

That was after they had lost the trial.

Stephen B. Bright:

–Yes.

William H. Rehnquist:

I mean, that is quite a different context to say then, sure, you are going to do anything you can to upset the verdict, but their testimony was of this guy’s opinion before the trial, wasn’t it?

Stephen B. Bright:

No, Your Honor.

Well, yes.

William H. Rehnquist:

He was testifying afterwards, but he was giving his point of view before the trial.

Stephen B. Bright:

That’s what he testified to–

William H. Rehnquist:

Well, yes, that is all we are saying, is that that’s what he testified to.

Stephen B. Bright:

–Right.

William H. Rehnquist:

So testifying different, taking a different position after you’ve lost the trial really is not a contradiction.

Stephen B. Bright:

Well, if it’s a different position, the fact that it was taken after the trial may be an explanation for it, but it is a contradiction.

It was one of those contradictions that the District Court had to resolve in making its factfinding.

I’m not saying that there’s not a plausible view of the evidence that can be taken in the state’s brief or in the Eleventh Circuit opinion, but the District Court is entrusted with the factfinding responsibility under Rule 2, and the District Court not only considering the things that I’ve talked about but also considering the testimony of the lawyers at the time they found out, ten months later after this trial when this district attorney’s involvement in limiting the black people and women on the juries first came to light, the testimony of the two lawyers then of the shock, the statements that the claim would have been brought had it been known, and the fact that–

John Paul Stevens:

Was that the testimony of the lawyers or some other lawyers?

Where are those statements?

Stephen B. Bright:

–One of those statements, Mr. Coates, when he told Mr. Lambert about it,

“I wish we had known, we would have raised that issue. “

is in the Joint Appendix at Page 47.

Mr. Jernigan testified that when he spoke to Mr. Lambert about it he recalled Mr. Lambert saying they would have raised it.

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Stephen B. Bright:

That’s at Page 59 and 60.

If you look at the brief that was filed in the Georgia Supreme–

Antonin Scalia:

That is not one of the lawyers, that is somebody who said he was talking to one of the lawyers.

Right?

Stephen B. Bright:

–Right.

Antonin Scalia:

And he said that that lawyer said… what were the exact words?

How did he say it?

Stephen B. Bright:

I’m not sure if I have the exact words, but I believe that–

Antonin Scalia:

Well, I think it’s… here.

Stephen B. Bright:

–Mr. Jernigan was asked if he recalled Mr. Lambert saying, had they known about this claim, would they have raised it, and Mr. Lambert said that they would have, and that’s at the bottom of Page 59, the top of Page 60 of the Joint Appendix.

Antonin Scalia:

Well, it says… is it the quote that says,

“Well, I can’t say specifically. “

“I don’t think he told me what he would have done. “

“I think he just said that it was– “

–No, it’s the one that says,

“If I had known about this jury issue prior to trial I would have raised it. “

I can’t find it.

Where is it?

Stephen B. Bright:

The quote is, and this is at the bottom, Justice Scalia, of Page 59,

“Mr. Jernigan, do you recall Mr. Lambert ever saying, if I had known about this jury issue prior to trial I would have raised it. “

and then on the next page,

“Yes, I recall that. “

“He said it would have been a great issue, I would have raised it if I’d known about it. “

And again, the Eleventh Circuit in Footnote 9 of its opinion acknowledged a direct conflict in the testimony here.

What the District Court under Rule 52(a) was required to do was to look at the totality of the circumstances, not just what one lawyer testified to ten years after the fact, but to look at the totality of the circumstances.

The contemporaneous evidence, I would submit, indicates support for the District Court’s finding.

Harry A. Blackmun:

Mr. Bright, let me ask, wasn’t Mr. Jernigan speaking about statistical disparity when he made that statement?

Stephen B. Bright:

No, he was speaking when he made that statement that I just quoted, Justice Blackmun, he was talking about the prosecutor’s memorandum that indicated that he had designed a plan to limit blacks and women and avoid a prima facie case by–

Harry A. Blackmun:

I’m trying to help you out, but I guess I’m not doing it.

Stephen B. Bright:

–I’m sorry.